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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* Before the Federal Communications Commission Washington, D.C. 20554 FCC 96 -285 ) In the Matter of ) ) Access to Telecommunications ) CC Docket No. 87-124 Equipment and Services by Persons ) With Disabilities ) REPORT AND ORDER Adopted: June 27, 1996 Released: July 3, 1996 By the Commission: TABLE OF CONTENTS Paragraph No. I. Introduction 1 II. Background 2 III. Discussion 7 A. Statutory Issues 7 1. Commission Authority Under the HAC Act 7 2. Other Statutes 14 a. Americans With Disabilities Act 14 b. The Telecommunications Act of 1996 21 B. Telephones in Specific Settings 23 1. Workplace Telephones 23 a. General Requirements and Implementation Schedules 23 b. No Retrofitting Requirements 28 c. Workstation Requirements and Headset Exemption 31 d. Rebuttable Presumption 35 e. Replacement and Newly Acquired Telephones 40 f. Safe Harbor 42 2. Confined Settings 47 3. Hotels and Motels 53 4. Cost of Compliance 60 C. Volume Control 1. Background 60 2. Requiring Volume Control 63 a. Statutory Authority 64 b. Need for Volume Control Requirement 66 c. Costs and Availability 70 3. Inclusion in Definition of Hearing Aid Compatibility 76 4. Transition Period 81 5. Technical Standard 83 a. Background 83 b. Feasibility 84 c. Modifications to Technical Standard 88 d. Miscellaneous Issues 92 D. Equipment Labeling 98 E. Consumer Education 103 IV. Conclusion 106 V. Regulatory Flexibility Act Analysis 107 VI. Ordering Clauses 109 Appendices: A. List of Parties B. Final Regulatory Flexibility Analysis C. Final Rules D. Standards Incorporated by Reference: Paragraph 4.3.2 of ANSI/EIA/TIA-579- 1991; IEEE Standard IEEE 661-1979; and Section 7.4 of IEEE Standard IEEE 269-1991 I. IN TRODUCTION 1. In this Report and Order, we amend our rules to ensure access by persons who use hearing aids to the nation's telephone network. Specifically, we amend our rules to provide that, eventually, virtually all wireline telephones in workplaces, confined settings, and hotels and motels must be hearing aid compatible. We also require that, eventually, to be considered hearing aid compatible, telephones must offer both electro-magnetic coil compatibility and volume control. Finally, we require that new telephones be labeled hearing aid compatible. These actions are taken pursuant to the Hearing Aid Compatibility Act of 1988 (HAC Act). II. BACKGROUND 2. The HAC Act required the Commission to establish regulations that would ensure reasonable access to telephone service by persons with hearing disabilities. As part of its implementation of the HAC Act, in 1992 the Commission adopted rules that expanded the requirements to provide hearing aid compatible telephones to particular establishments. The rules required that, with minor exceptions, all telephones in hospitals and other health care facilities, in hotels and motels, in prisons, and in all workplaces be made electro-magnetic coil hearing aid compatible by May 1, 1993, for establishments with twenty or more employees, and by May 1, 1994, for establishments with fewer than twenty employees. 3. After the Commission's adoption of these rules, many establishments reported to the Commission that they were encountering serious difficulties in their attempts to comply. The difficulties generally related to the costs of retrofitting existing telephones, and to the establishments' ability to retrofit telephones by the prescribed deadline. On February 22, 1993, the Commission placed on public notice a petition received from Goodwill Industries of Seattle for waiver of the new rules. Written comments on this Goodwill petition and additional petitions for waiver were filed by forty-nine individuals and organizations. On April 2, 1993, the Tele-Communications Association filed an Emergency Request for Stay of the HAC requirements. On April 13, 1993, the Commission suspended portions of the new rules affecting workplaces, confined settings and hotels and motels. 4. An Emergency Request to Reinstate the suspended rules was then filed by the Alexander Graham Bell Association for the Deaf on May 12, 1993. In light of the ongoing controversy, the Commission asked for public comment on whether an advisory committee to develop new rules should be formed. Commenters overwhelmingly supported the formation of an advisory committee, and thirty-nine nominations were received by the Commission. In March 1995, the Commission announced the establishment of a nineteen-member Hearing Aid Compatibility Negotiated Rulemaking Committee (Committee) under the Negotiated Rulemaking Act of 1990. The Commission selected members of the Committee to ensure representation from all parties interested in the status of the suspended rules. Committee members represented large and small businesses and other employers, the telecommunications industry, consumers with hearing disabilities, the health care industry, and the hotel and motel industry. The Committee's task was to consider whether the suspended rules should be reinstated, or new rules proposed. 5. Committee members met face-to-face around a bargaining table over an eight- week period and reached full consensus on the entire work program. In August 1995, the Committee presented a Report to the Commission. The Committee recommended that, in place of the suspended rules, the Commission adopt new rules for workplaces, confined settings, and hotels and motels that would cover both telephone electro-magnetic coil compatibility and volume control. On November 28, 1995, the Commission adopted and released a NPRM that proposed the rules recommended by the Committee. 6. In response to the NPRM, thirty-one comments and six reply comments were filed. The majority of commenters support the proposed rules. Numerous commenters representing individuals with hearing and speech disabilities, and industry, labor and government organizations filed comments expressing overall support, directing their comments to a narrow range of issues, including workplace and volume control rules. Six commenters expressed general opposition to the proposed rules, mainly on the grounds that the Commission exceeded its statutory and rulemaking authority. III. DISCUSSION A. STATUTORY ISSUES 1. Commission Authority Under the HAC Act a. Background 7. The HAC Act requires the Commission to "establish such regulations as are necessary to ensure reasonable access to telephone service by persons with impaired hearing." The HAC Act also requires the Commission to ensure that all "essential" telephones are hearing aid compatible. The statute defines "essential telephones" as "coin- operated telephones, telephones provided for emergency use, and other telephones frequently needed by persons using such hearing aids." The Commission determined that the term "telephones provided for emergency use" includes workplace telephones, telephones in confined settings, and hotel and motel telephones, and accordingly required in a 1992 Report and Order, and proposed again in its November 1995 NPRM, that telephones in these settings must be hearing aid compatible. b. Comments 8. ABA, CUNA, EEAC, FMI, NAM and NFIB assert that the Commission's proposed rules, in particular rules applicable to the workplace, exceed Congressional intent and Commission authority under the HAC Act. They argue, among other things, that Congress did not intend the term "essential telephones" to encompass all workplace telephones. In support of this argument, EEAC points to legislative history from the Telecommunications for the Disabled Act of 1982 (1982 Act), which was the predecessor to the 1988 HAC Act. Congress passed the 1988 HAC Act because it found, among other things, that the 1982 Act "did not guarantee the nation's hearing impaired complete access to the telephone network." The 1982 Act legislative history states that "under no circumstances may the Commission designate as an essential telephone any residential telephone or any other telephone if all the persons who would normally use it do not have hearing impairments." In addition, EEAC and NAM assert that the HAC Act was only intended to impose the responsibility of providing hearing aid compatible telephones upon manufacturers, and not upon employers. 9. The National Association of the Deaf (NAD), four other national associations representing individuals with hearing and speech disabilities, and the Communications Workers of America (CWA) (collectively, "NAD Reply") filed joint reply comments addressing EEAC's arguments. NAD asserts that EEAC "misinterprets the purpose, effect and design of the proposed rules and ignores the intent of Congress to ensure full telephone access to individuals with hearing disabilities." c. Discussion 10. We find that the proposed rules are within the Commission's authority under the HAC Act. The HAC Act requires the Commission to "establish such regulations as are necessary to ensure reasonable access to telephone service by persons with impaired hearing." The Act also requires the Commission to ensure that all "essential" telephones are hearing aid compatible and defines "essential" telephones to include "telephones provided for emergency use, and other telephones frequently needed for use by persons using hearing aids." 11. In adopting the HAC Act, Congress placed great weight on the "emergency use" provision of the "essential telephones" definition. The legislative history indicates that the term "telephones provided for emergency use" should be interpreted broadly and include workplace telephones. The Senate Report stated that "No matter how broadly the FCC defines 'essential,' it is impossible to specify in advance all the telephones that a hearing aid user might need. . . . [I]t is impossible to predict beforehand when an emergency situation may arise." The Senate Report also stated that "[e]mergencies may occur, for instance, at a friend's home or in another person's business or office. In short, the situations in which a hearing aid user would need access to a telephone are innumerable." Similarly, in an introduction of the HAC Act on the House floor, Congressman Edward Markey stated: "[i]magine not being able to call home from a friend's house or use the phone in someone else's office or even to call 911 outside your own home in an emergency." 12. We also find that the cited language from the 1982 Act legislative history does not support EEAC's position. First, the purpose of the HAC Act was to "expand upon the 1982 Act and provide a greater degree of assurance that hearing aid users can have access to a hearing aid compatible telephone." EEAC's argument also ignores the emphasis which Congress placed on the emergency use provision when it revisited the "essential telephone" issue in 1988. Furthermore, even if the cited language were relevant, we do not see how this language in any way demonstrates Congressional intent to bar the Commission from declaring workplace telephones to be "emergency use" telephones. This language is primarily directed at telephones in private residences and other settings which are for the exclusive or private use of a few known persons. Places of employment and places of public accommodation, however, are frequented by many persons, including employees and visitors, and there is a greater likelihood that a person who is hearing impaired may need emergency access to a telephone in such settings. We believe, therefore, that EEAC overstates the scope of this Congressional language. 13. The argument that the HAC Act is limited only to manufacturing standards is erroneous. The HAC Act includes both a manufacturing requirement and a separate provision requiring the Commission to adopt rules ensuring that all "essential" telephones (including "emergency use" telephones) are hearing aid compatible. We believe it is consistent with the "essential" telephone requirement to require that the owner or lessee of essential telephones be responsible for ensuring that they are hearing aid compatible. This is inherent in the statutory concept of the Commission's rules requiring telephones to be replaced. 2. Other Statutes a. Americans with Disabilities Act (1) Background 14. The Americans with Disabilities Act of 1990 (ADA) is a comprehensive national mandate for the elimination of discrimination against individuals with disabilities. Title I of the ADA prohibits discrimination against qualified individuals with disabilities in their place of employment, and requires covered employers to provide reasonable accommodations for employees with disabilities, if the provision of such accommodations would not pose an undue hardship. Title I of the ADA only applies to employers with 15 or more employees. Title I of the ADA does not apply to employees of Executive branch agencies of the U.S. Government. 15. Titles II and III of the ADA require all public entities (state and local government instrumentalities) and places of public accommodation (e.g., places of lodging and health care facilities) to furnish auxiliary aids and services to individuals with disabilities when necessary for effective communication. "Auxiliary aids and services" under Title III includes "telephones compatible with hearing aids." Finally, pursuant to Title IV of the ADA, the Commission is required to ensure that all states provide "functionally equivalent" telecommunications relay services (TRS) for individuals with hearing and speech disabilities who use text telephones (TTYs). Title IV, however, does not address the needs of persons with hearing disabilities who have the ability to use voice telephones, with or without hearing aids. (2) Comments 16. EEAC, CUNA, FMI, NAM, NFIB and ABA argue that the Commission's proposed workplace rules are unnecessary because they duplicate the provisions of the Americans with Disabilities Act. The ABA, for example, states that "[i]f the goal is to further reasonable access to telephone service by persons with hearing disabilities, the ABA feels that employers will have already met that goal by fulfilling their requirements under the Americans with Disabilities Act." The Commission also received informal comments regarding the NPRM from parties representing individual hotels and motels, arguing that the Commission's proposed rules for hotels and motels are unnecessary because the ADA already requires them to provide hearing aid compatible phones upon request to guests with hearing disabilities. 17. NAD points out in reply comments that the plain language of the ADA states that "nothing in this Act [ADA] shall be construed to invalidate or limit the remedies, rights, and procedures of any Federal law . . . that provides greater or equal protection for the rights of individuals with disabilities." NAD also argues that "the contention that the ADA adequately addresses the needs of individuals with hearing disabilities fails to consider the practical reality of most employment situations." NAD notes that "in the course of conducting daily business, emergency situations may arise that can require an individual to use a phone other than his or her own." (3) Discussion 18. The plain language of Title V of the ADA clearly states that it is not intended to invalidate any other Federal law which provides equal or greater protection for individuals with disabilities. The HAC Act provides a much greater degree of protection to individuals with disabilities than the ADA, in terms of access to hearing aid compatible telephones. We conclude, therefore, that the presence of the ADA does not obviate the need to implement the HAC Act, and we find any arguments to the contrary to be without merit. 19. We also conclude that the ADA, in and of itself, does not fulfill the Congressional mandate of the HAC Act to "eliminate the disparity between hearing aid-users and non-users in obtaining access to the telephone network." Merely providing hearing aid compatible telephones to individuals on an as-needed basis, as a "reasonable accommodation" under the ADA, does not provide the same degree of protection and access as required by the HAC Act, which provides, among other things, that all "essential" telephones must be hearing aid compatible. 20. Titles I through III of the ADA do not completely address the many venues and locations where employees and patrons with hearing disabilities may need access to a telephone in the event of an emergency, including places of employment with fewer than 15 employees and U.S. Government agencies. The HAC Act, on the other hand, places responsibility on these employers to offer such access, and ensures that nearly all public and private employees can have access to hearing aid compatible telephones in the workplace. Finally, while Title IV of the ADA does provide access to the telephone network for persons who use TTY equipment, a significant majority of individuals with mild to severe hearing disabilities does not use TTYs, but rather relies on residual hearing and/or hearing aids to use voice telephones directly. The Commission's rules under Title IV of the ADA, taken together with HAC Act rules which we adopt herein, form a seamless web of access to the telephone network by all individuals with hearing and speech disabilities. b. The Telecommunications Act of 1996 21. Subsequent to the release of the Commission's NPRM in this proceeding, Congress enacted the Telecommunications Act of 1996 (1996 Act). Of particular relevance are Sections 255(b) and (d) of the 1996 Act, which require manufacturers of telecommuni- cations equipment to ensure that equipment and customer premises equipment (CPE) is accessible to individuals with disabilities, or compatible with existing peripheral devices commonly used by individuals with disabilities, if readily achievable. The HAC Act, however, does not contain a "readily achievable" standard, but requires all telephones manufactured after August 16, 1989, and all essential telephones to be hearing aid compatible. Pursuant to Section 255(e) of the 1996 Act, guidelines for accessible telecommunications equipment and CPE are to be developed by the U.S. Architectural and Transportation Barriers Compliance Board, in conjunction with the Commission. 22. We note that both the HAC Act and Section 255 of the 1996 Act share a similar goal, namely, access to the telecommunications network by individuals with disabilities. The 1996 Act, and its legislative history, do not discuss hearing aid compatibility or the HAC Act. Section 601(c)(1) of the 1996 Act provides: "This Act and the amendments made by this Act shall not be construed to modify, impair, or supersede Federal, State or local law unless expressly so provided in such Act or amendments." As there is no language in the 1996 Act or legislative history to the contrary, we conclude that the HAC Act is unaltered by the 1996 Act, and that the Commission should continue to implement the more specific mandates of the HAC Act. B. TELEPHONES IN SPECIFIC SETTINGS 1. Workplace Telephones a. General Requirements and Implementation Schedules (1) Background 23. The Commission's rules affecting workplace common areas were not suspended in our April 1993 Order. Common areas include libraries, reception areas and similar locations where employees are reasonably expected to congregate. Employers have had a continuing obligation since 1992 to ensure that all common area workplace telephones are hearing aid compatible, and these requirements were not modified by the HAC Negotiated Rulemaking Committee or our NPRM. Much of the controversy surrounding our April 1993 suspension was in regard to workplace non-common areas. In the NPRM, therefore, we proposed that our regulations governing workplace non-common areas be moved to a separate rule section, in order to highlight new compliance time lines for workplace non-common areas. 24. The NPRM proposed that all non-common-area workplace telephones must be hearing aid compatible by January 1, 2000, except that telephones purchased between January 1, 1985, through December 31, 1989 must be hearing aid compatible by January 1, 2005. The NPRM also proposed that employers with fewer than fifteen employees would be generally exempt from coverage of the workplace non-common area rules. Finally, the NPRM proposed that all U.S. Government employers with fifteen or more employees would be subject to the workplace non-common area rules. (2) Comments 25. No commenter disputed the application of the HAC Act to workplace common areas, nor the moving of the rules governing non-common areas into a new section. Comments in opposition to workplace requirements were generally directed at the Commission's authority to require all workplace telephones to be hearing aid compatible, by extending workplace requirements to non-common area telephones. The Association of College and University Telecommunications Administrators (ACUTA) commented that the implementation time lines and the fifteen employee cutoff for non-common areas "strike a reasonable balance between the needs of persons with hearing disabilities and the burden of compliance on small employers." The U.S. General Services Administration (GSA), the agency vested with responsibility for acquiring telecommunications services for use of Federal Executive Agencies, also filed comments and reply comments expressing support for the proposed workplace rules. ABA, however, urges the Commission to "change or eliminate" the effective dates for workplace non-common area compliance, stating that "establishing a date does nothing to change the confidence of the public but will place a burden on employers to make sure that after an arbitrary date they are in compliance." (3) Discussion 26. Based on the comments received, we adopt Section 68.112(b)(3) in its entirety, including the implementation time lines and the exemption for employers with fewer than fifteen employees from the rules governing telephones in workplace non-common areas. In the adopted rule, we define non-common areas as "all workplace areas that are not common areas," and we give as examples "private enclosed offices, open area individual work stations and mail rooms." We further conclude that U.S. Government employers must also comply with these rules. We do not agree with ABA that establishing a certain date for compliance places a burden on employers, if that date gives employers reasonable time to come into compliance. The dates set in these rules are the result of a negotiated rulemaking; the recommendations of the Committee reflected a careful balancing of the interests of all potentially affected by these rules, including large and small businesses and other employers. Consequently, we find that the compliance dates will give employers a reasonable period of time to comply. As noted below, our rules also establish a "rebuttable presumption" after the compliance dates whereby employers will only have to replace non-compliant telephones on a case-by-case basis. We believe that the public should have assurances that the majority of workplace telephones are hearing aid compatible by a certain date. 27. In calculating the number of "employees" for purposes of compliance with Section 68.112(b)(3), the total employment force of an establishment, and not the number of employees an employer may have at a particular work site, should be the determining factor. Furthermore, the terms "employer" and "employee" as used in our regulations have the same meaning as these terms in the Americans with Disabilities Act. We do not adopt, however, the ADA's exceptions to the term "employer." The mandate of the HAC Act, which requires that all "essential telephones" be made hearing aid compatible, is much broader than that of the ADA, and the HAC Act does not specify exceptions for any employers. The Committee felt strongly that no entity employing fifteen or more employees should be excluded from the definition of "employer." As a general matter, therefore, no entity employing fifteen or more employees, including U.S. Government agencies, will be exempt from workplace non- common area rules. b. No Retrofitting Requirements (1) Comments 28. EEAC objects to the Commission's proposed workplace rules, claiming that the rules would require "wholesale retrofitting of all workplace telephones." FMI contends that the Commission's proposed rulemaking would require an employer to purchase hearing aid compatible telephones to replace non-hearing aid compatible telephones even when there are no employees with a hearing impairment requesting this type of accommodation. NAD, however, argues that no such "wholesale retrofitting" would occur, and that the Commission's proposed rules are "lenient" and compliance time lines "generous." NAD also asserts that "the rules will in reality affect a very small number of telephones and businesses, and even these businesses should be able to fully convert to hearing aid compatible equipment during their normal telephone replacement cycle." ITTA also recognizes that the proposed workplace rules would not require retrofitting. (2) Discussion 29. We reiterate that our proposed workplace rules would not require across-the- board field testing or retrofitting of all workplace telephones for hearing aid compatibility. The HAC Act has required that all telephones manufactured or imported for use in the U.S. since August 1989 be hearing aid-compatible. In addition, the Committee determined that the average life-cycle for telephone acquisition and replacement was approximately seven years. 30. Thus, by the years 2000 and 2005, when the proposed rules require that all non-common area workplace telephones be hearing aid compatible, most non-compliant phones will already have been replaced with hearing aid compatible phones during normal replacement cycles. Furthermore, even after the years 2000 and 2005, there will be no retrofitting requirements and employers will not be required to locate non-compliant telephones. Rather, there will be a "rebuttable presumption" that all workplace phones are hearing aid compatible. We agree with NAD that, given the normal replacement cycle and the rebuttable presumption, the number of workplace telephones subject to replacement will be very small. c. Workstation Requirements and Headset Exemption (1) Background 31. The NPRM proposed to generally exclude headsets from the definition of "emergency use phones," and thus from hearing aid compatibility requirements. The NPRM also proposed, however, that current Section 68.112(b)(1), which requires hearing aid compatible telephones to be "made available to a hearing-impaired employee for use by the employee in his or her employment duty," be modified to (1) require employers to provide hearing aid compatible headsets to employees needing such headsets for their employment duties, and (2) require all employers, regardless of the number of employees, to comply with this provision. (2) Comments 32. Aeronautical Radio, Inc. (ARINC), a representative of the air transport industry (a major user of headset equipment) states that its "concerns have now been appropriately addressed by the FCC's rule modifications." ACUTA, and commenters representing individuals with hearing disabilities, agree that hearing aid compatible telephones and headsets should be made available to an employee with a hearing disability regardless of the number of employees in a workplace. CUNA asserts that the requirement that an employee be provided with hearing aid compatible headset equipment for his or her employment duty is an "unnecessary repetition" of the requirements of Title I of the ADA. CUNA also states that it was "confused" to see that the under-fifteen exemption would not apply to individual workstation provisions. NFIB generally objects to the elimination of the under-fifteen exemption even for employee workstation requirements, citing it as an undesirable precedent for small businesses. (3) Discussion 33. We conclude that headset equipment should generally be exempt from hearing aid compatibility requirements. Headsets are generally an individualized, specialty-use item. We do not agree, however, with CUNA's assertion that requiring employers to provide individual headsets on an as-needed basis is unnecessary in light of the ADA. Title I of the ADA contains general language requiring reasonable accommodations that do not impose an undue hardship. Our rule, however, is specifically tailored to the particular needs of an employee with a hearing disability, and to that employee's need for access to a hearing aid compatible telephone, including to a headset that is hearing aid compatible. Our rule, unlike the ADA, also will apply to all employers, including those with fewer than fifteen employees, and to Executive branch agencies of the Federal Government. The ADA specifically states that it does not invalidate any other Federal laws which provide equal or greater protection to individuals with disabilities. The HAC Act, and our rules pursuant to it, are examples of protections that are greater than those afforded by the ADA. 34. We conclude that Section 68.112(b)(3)(A), addressing individual workstation requirements, should be adopted in its entirety. All employers, regardless of the number of their employees, must provide hearing aid compatible telephones and headsets to employees who need such phones to perform their employment duties. We consider such telephones to be "essential telephones" within the meaning given the term in the HAC Act, both as telephones "provided for emergency use" and as telephones "frequently needed for use by persons using . . . hearing aids." We do not believe that adoption of this rule sets a harmful precedent for small businesses. Small businesses with fewer than fifteen employees will still enjoy a general exemption from workplace non-common area requirements, and will thus only have to provide hearing aid compatible telephones in workplace common areas and on an as- needed basis for employees with hearing disabilities. d. Rebuttable Presumption (1) Background 35. In recognition of the difficulties involved in tracing, testing and identifying existing telephone equipment for hearing aid compatibility, we proposed in the NPRM that there be a rebuttable presumption that, as of a certain date, every telephone in the workplace is hearing aid compatible. The rebuttable presumption would apply as of either January 1, 2000 (for telephones purchased by employers prior to January 1, 1985 or after December 31, 1989), or January 1, 2005 (for telephones purchased by employers between January 1, 1985 and December 31, 1989). This presumption can be rebutted, on a telephone-by-telephone basis, by any person legitimately on the premises who makes an identification of a particular telephone as non-hearing aid compatible. Once such an identification is made, the employer will then have fifteen working days to replace the non-compliant telephone with a hearing aid compatible telephone. (2) Comments 36. Many commenters support the adoption of a rebuttable presumption. ACUTA, for instance, comments that the rebuttable presumption is "more than fair" and that the 15-day requirement is also "adequate." ITTA believes that the rebuttable presumption approach is "far preferable to mandatory retrofitting." NFIB, on the other hand, asserts that the 15-day time line is too short, and urges the Commission to adopt the reasonable accommodation approach taken by the ADA, which requires employers to respond to an employee's request for accommodation within a "reasonable" period of time. Finally, a number of commenters, including ITTA, also urge the Commission to clarify that the rebuttable presumption does not permit third parties to enter the premises of an employer for the purpose of auditing or surveying the telephones for hearing aid compatibility. (3) Discussion 37. We conclude that Section 68.112(b)(3)(B) should be adopted in its entirety. As of January 1, 2000, or January 1, 2005, whichever is applicable, there shall be a rebuttable presumption that all workplace non-common area telephones are hearing aid compatible. This rebuttable presumption will relieve employers of the need to field-test and identify whether their telephones are hearing aid compatible. 38. We further conclude that Section 68.112(b)(3)(B) of our rules creates no third- party right of entry onto the premises of employers. The person making the identification of a telephone as non-hearing aid compatible must be an individual present in the normal course of the establishment's business, legitimately on the premises as an employee or invitee of the establishment. 39. We also conclude that a fifteen-day replacement period is reasonable. The requirement does not apply to businesses with fewer than fifteen employees and is the outcome of a negotiated rulemaking process. In addition, the requirement will not go into effect until the years 2000 or 2005, i.e., eleven to sixteen years after all telephones imported or manufactured for use in the United States were required to be hearing aid compatible. Finally, in any enforcement action for violation of the fifteen day requirement, the Commission will give substantial weight to a showing of (1) a good faith effort to comply and (2) any unusual technical difficulties concerning the telephone system involved or the replacement or installation of a hearing aid compatible telephone, so long as the employer demonstrates that it will come into compliance within a reasonable period of time. This approach should address the concerns express by NFIB. e. Replacement and Newly Acquired Telephones (1) Background/Comments 40. Section 68.112(b)(3)(C) would require that all "newly acquired" telephones in the workplace be hearing aid compatible. For purposes of this Section, "newly acquired" was defined as new, refurbished or secondhand telephones, including telephones taken from an establishment's stored inventory. Section 68.112(b)(3)(D), however, makes an exception for telephones taken from stored inventories existing prior to the time of enactment of the rules in this Report and Order. In such instances, the establishment would only be required to replace the telephone with a hearing aid compatible telephone upon a bona fide request from an employee or invitee. The Commission received little specific comment on this area. ACUTA agrees with the proposed rule, as well as the separate treatment of telephones taken from existing stored inventory. (2) Discussion 41. We conclude that proposed Sections 68.112(b)(3)(C) and 68.112(b)(3)(D) should be adopted in their entirety. The replacement or acquisition of a telephone creates a natural opportunity to install a hearing aid compatible telephone. This natural replacement requirement imposes little burden on employers. We conclude, furthermore, that the limited exception for replacements from inventories existing prior to the enactment of these rules is necessary to prevent the undesirable result of whole inventories of telephones becoming obsolete. f. Safe Harbor (1) Background 42. In light of the generous implementation time lines for hearing aid compatibility in the workplace, the NPRM proposed a "safe harbor" rule which would ensure that at least one designated hearing aid compatible telephone for emergency use is present on every floor of a workplace. The designated phone could be coin-operated, a common area telephone or any other designated wireline or wireless telephone, and the manner of designation and the definition of "floor" would be left to the employer's discretion. (2) Comments 43. The Commission received numerous comments regarding this proposed rule. While no commenter specifically objected to the provision of a "safe harbor" telephone, a number of commenters representing individuals with hearing and speech disabilities urge the Commission to specify what is meant by a workplace "floor." The National Association of the Deaf/National Center for Law and Deafness (NAD/NCLD), for example, states that a definition of "floor" should be "limited to a reasonable traveling distance for an individual who might be in search of a telephone." ASHA proposes that the safe harbor phones be "those phones nearest the emergency exits in buildings." SHHH recommends that "where a floor has more than two corridors, at a minimum the employer be required to provide one designated HAC phone per set of two corridors on each floor." Numerous commenters representing people with hearing disabilities also ask that the Commission adopt a signage requirement to ensure visual notification of the location of the safe harbor telephone. 44. Several industry commenters, however, urge the Commission not to define what constitutes a workplace "floor," and to leave the matter to the employer's good-faith discretion. ACUTA, for example, feels that the proposed rule "allows flexibility for various types of workplace settings." ITTA also filed reply comments specifically urging the Commission not to define "floor," arguing that such rule-making "puts the Commission in the business of policing compliance with a vague requirement." (3) Discussion 45. We conclude that the words "on every floor of" in our proposed rule should be replaced with the words "within a reasonable and accessible distance for an individual searching for a telephone from any point in." Comments from all parties have persuaded us that the use of the word "floor" is inadequate. Any rule based on the presence of floors or corridors would not take into account workplaces such as fairgrounds and amusement parks, for example. Also, limiting our rule to a one-per-floor basis will not provide reasonable access for persons who work in large, sprawling office complexes. Finally, we conclude that we do not need to adopt an additional signage requirement, as the proposed rule already requires that the safe harbor phone be "designated" as such. 46. In revising the proposed rule, we believe that we are preserving the intent of the Committee that the location of the "safe harbor" phone be largely left to the employer's discretion. In setting up safe harbor telephones, and in providing information designating the location of such telephones, employers should put themselves in the position of a person "in search of a telephone," and locate such phones to ensure the most effective workplace coverage. If it is appropriate for the type of building, employers should install at least one safe harbor telephone on every floor. Employers should ensure that such telephones are placed in accessible locations. 2. Confined Settings a. Background 47. The NPRM proposed that, for confined settings with fifty or more beds, the room telephones provided by the establishment must be hearing aid compatible within one year of the adoption of the proposed rules. Establishments with fewer than fifty beds will have two years from the date of adoption of the rules to ensure that all room telephones are hearing aid compatible. "Confined settings" include rooms in hospitals, residential health care facilities, and convalescent homes, in which the residents are not able to come and go at their discretion. 48. The NPRM did not propose a rebuttable presumption for confined settings, because the vulnerability of persons in such settings increases the need to ensure that all room telephones are hearing aid compatible. Furthermore, the NPRM proposed that all newly acquired and replacement telephones in confined settings be hearing aid compatible. The NPRM also proposed to exclude prisons from the definition of confined settings, and proposed that confined setting establishments would not be responsible for ensuring that telephones installed and maintained by a patient were hearing aid compatible. 49. Finally, the NPRM also proposed a qualified exception for confined setting establishments which offer an alternative means for the patient or resident to signal a life- threatening emergency, provided that such alternative means is "available, working and monitored." b. Comments 50. The Commission received little comment on the proposed rules for confined settings. The American Health Care Association (AHCA), a member of the Negotiated Rulemaking Committee, in comments also endorsed by Care Providers of Minnesota (CPM), expresses general support for the Commission's proposed rules. ACUTA indicates that it believes that its affected members, i.e., colleges and universities with medical facilities, will "be able to comply with the proposed rule without an unreasonable burden." LHH, however, urges the Commission not to exclude prisons from the definition of confined settings and states that "alternative means of signalling" do not always provide reasonable access in the event of an emergency. c. Discussion 51. We adopt the proposed rules for confined setting telephones, and we specify particular dates in order to provide more certainty for confined setting establishments. We specify November 1, 1997 as the date by which establishments with fifty or more beds must ensure that all room telephones are hearing aid compatible. Establishments with fewer than fifty beds will have until November 1, 1998 to comply with these rules. We recognize that residents and patients in confined settings are generally more vulnerable in the event of an emergency, especially if they are ill or of advanced age, and we find, therefore, that no rebuttable presumption should apply to confined settings. While we adopt the exception for confined settings which provide "alternative means of signalling," we stress that any such alternative means must in fact provide the resident or patient with an effective means of signalling personnel in the event of an emergency. In other words, the equipment must be monitored and kept in good working order. 52. Finally, we conclude that prisons should not be included within our definition of "confined settings," in recognition of the unique telecommunications requirements faced by prisons. As prisons do not usually provide telephones in every room or cell, we do not think our confined settings rules can be feasibly applied to prisons. We note, however, that our workplace hearing aid compatibility rules would still apply to the workplaces of prison employees. 3. Hotels and Motels a. Background 53. The Commission's rules currently require that at least ten percent of the rooms in a hotel or motel be "equipped to accommodate a hearing impaired customer." In the NPRM, we proposed that at least twenty percent of all rooms in a hotel or motel be required to have a hearing aid compatible telephone as soon as the rules adopted in this Report and Order become effective. Under this proposal, hotels and motels with eighty or more guest rooms would further be required to ensure that all guest room telephones are hearing aid compatible within two years of the effective date of these rules, and those with fewer than eighty guest rooms would have three years to ensure that all room telephones are hearing aid- compatible. 54. The NPRM established a different compliance schedule for hotels and motels which use telephones purchased during the period January 1, 1985 through December 31, 1989. Such hotels and motels would be required to ensure that: (1) twenty percent of their guest room telephones are hearing aid compatible as of the effective date of these rules; (2) twenty-five percent of their room telephones are hearing aid compatible within three years of the effective date of these rules; and (3) all guest room telephones are hearing aid compatible before January 1, 2000 (for hotels and motels with eighty or more eighty rooms), or January 1, 2003 (for hotels and motels with fewer than eighty rooms). 55. The NPRM also proposed that, if a hotel or motel room is "renovated or newly constructed, or the telephone in a hotel or motel room is replaced or substantially, internally repaired," the telephone in that room must be hearing aid compatible. b. Comments 56. The majority of commenters representing individuals with hearing disabilities support the proposed hotel and motel rules. The American Hotel and Motel Association (AHMA), which was a member of the Negotiated Rulemaking Committee and which represents over 10,000 hotels, motels and lodging properties, supported the consensus recommendations of the Committee, and did not consider the rules to be unduly burdensome. The Commission received informal comments from forty-two individual hotel owners, and three State hotel associations, stating that existing HAC telephones are adequate to meet demand and that the proposed rules are burdensome and unnecessary. c. Discussion 57. We find the argument that the proposed rules are burdensome and unnecessary to be without merit. Committee members representing organizations of individuals with hearing disabilities stated that there are often too few hotel and motel rooms currently with hearing aid compatible telephones for individuals with hearing disabilities. They stated that the demand for these rooms often exceeds the supply of available rooms, and that it is difficult to locate hotels and motels with adequate facilities to accommodate conferences for organizations representing persons with hearing disabilities. 58. The installation of hearing aid compatible telephones in hotels and motels fulfills an important public safety function. The Committee found that travelers with hearing disabilities may be especially vulnerable in emergency situations in hotel settings, because they are alone and dependent upon room telephones. They may be unfamiliar with the floor plan of the hotel or motel where they are staying. In addition, the Committee pointed out that because travelers are transient, they have less opportunity to request changes in equipment than they would in more permanent settings, such as workplaces. The HAC Act, by ensuring that all telephones located where a person "may be isolated in the event of an emergency" are hearing aid compatible, ensures that such travelers will have access to the telephone network in life-threatening situations. Accordingly, we conclude that the proposed rules for hotel and motel telephones should be adopted as of the dates indicated below. 59. Rather than requiring twenty percent of all hotel and motel room telephones to be hearing aid compatible as of the effective date of these rules, we conclude that the twenty percent threshold should be effective as of April 1, 1997. This will give hotel and motel owners a reasonable amount of time in which to meet the twenty percent threshold. Hotels and motels with eighty or more guest rooms must ensure that all room telephones are hearing aid compatible before November 1, 1998, and those with fewer than eighty guest rooms will have until November 1, 1999 to ensure that all room telephones are hearing aid compatible. We do modify the NPRM proposal for those hotels and motels which use telephones purchased during the period January 1, 1985, through December 31, 1989. The selection of the years 2000 and 2003 by the Committee was based on an assumed effective date for the proposed rules of late 1995. Since the actual effective date will be a year later, we have changed the two negotiated dates to the years 2001 and 2004. Thus, for this category of telephones, hotels and motels will be required to ensure that hearing aid compatible telephones are installed in (1) twenty percent of all guest rooms by April 1, 1997; (2) twenty- five percent of all guest rooms as of November 1, 1999; and (3) one hundred percent of all guest rooms by January 1, 2001 (for establishments with eighty or more guest rooms) or by January 1, 2004 (for establishments with fewer than eighty guest rooms). 4. Costs Of Compliance 60. Under Section 610(e), the Commission must consider the costs, as well as the benefits, of the proposed rules to all telephone users, including persons with and without hearing disabilities. In the NPRM, we solicited comment on the costs to establishments of providing hearing aid compatible telephones. Apart from comments on the costs of complying with new volume control rules, there was little formal comment on the costs of compliance, although several hotel owners expressed some concern about cost in their informal comments. 61. We noted in the NPRM that in making its recommendations, the Committee weighed the costs and benefits to all telephone users, including to persons with and without hearing disabilities. Representatives of large and small purchasers of telephones described to the Committee both the cost and effort that would be incurred as a result of the recommended regulations. Representatives of persons with hearing disabilities described the difficulties persons with hearing disabilities now experience when telephones are not hearing aid-compatible. Consumer representatives also described the increased access to telephone service such persons would receive if the Committee's proposed regulations were implemented. Representatives of equipment manufacturers and industry standards-setters reviewed for the Committee the cost and implementation issues posed by design, manufacture and distribution of equipment recommendations made by the Committee. 62 We conclude, as we did tentatively in the NPRM, that the costs involved will not be substantial and are significantly outweighed by the benefits to be achieved. The deadlines in the rules are intended to complement the telephone replacement cycle in the normal course of business. The Committee determined that the average useful life of a telephone in an establishment is seven years. Since almost all telephones imported or manufactured for use in the United States have been hearing aid compatible since 1989, it is reasonable to conclude that the bulk of telephones in establishments are, by now, hearing aid compatible. The new rules give establishments at least an additional year, and in most cases several additional years, before compliance is required. The rebuttable presumption extends this grace period even further for workplaces. Hotels and motels which use telephones purchased January 1, 1985 through December 31, 1989 have until the year 2004 to make their guest room telephones one hundred percent hearing aid compatible. Since these rules build on the normal, voluntary cycle of telephone replacement by establishments, we conclude that the additional costs to establishments to comply will not be substantial, particularly in light of the many benefits users with hearing disabilities will receive from increased access to the telephone network. C. VOLUME CONTROL 1. Background 63. In the NPRM, we proposed that all newly acquired and replacement telephones in workplaces, confined settings and hotels and motels be required to have volume control. We noted that volume control would help the many hearing aid wearers whose hearing aids are not equipped with an electro-magnetic coil, and other individuals with hearing disabilities who do not use hearing aids. To help ensure an adequate supply of volume control telephones, we proposed that, a year after adoption of our rules, all telephones manufactured or imported for use in the U.S. be required to have volume control. 2. Requiring Volume Control a. Statutory Authority (1) Comments 64. Three commenters contend that the Commission lacks statutory authority to require volume control. They argue that volume control is not mentioned in the HAC Act, and that requiring volume control goes beyond the mandate of that Act. The Committee concluded that the statutory definition of hearing aid compatibility is sufficiently broad to include volume control. (2) Discussion 65. We find that the Commission has authority under the HAC Act to require volume control. Section 610(a) gives the Commission a broad mandate to "establish such regulations as are necessary to ensure reasonable access to telephone service by persons with impaired hearing." As discussed below, the volume control requirement is needed to ensure reasonable access to telephone service by many persons with hearing disabilities. Furthermore, Section 610(b) states that the Commission shall require that all essential telephones, and all telephones manufactured or imported for use in the United States, provide an "internal means for effective use with hearing aids." The HAC Act thus defines hearing aid compatibility generically and does not limit such compatibility to the provision of an electro-magnetic coil. Both the House and Senate Reports on the HAC Act state that technologies other than the electro-magnetic coil are contemplated in the definition of hearing aid compatibility, and the Senate Report specifically mentions amplification, or volume control, as an alternative technology. Finally, Section 610(e) states that the Commission must ensure that its regulations "encourage the use of currently available technology." Volume control is a currently available technology that allows telephones to be effectively used by persons with hearing aids, and by other persons with hearing impairment who do not use hearing aids. b. Need for Volume Control Requirement (1) Comments 66. Groups representing people with hearing loss strongly support the need for volume control requirements. NAD/NCLD states that volume control would "make telephones accessible for a ... large portion of the American population who do not have full access at the present time." SHHH states that volume control would benefit: (1) 4.6 million persons who wear hearing aids but who do not have telecoils, (2) 1.2 million persons who have significant hearing loss and thus need both a telecoil and volume control, and (3) 22 million persons with hearing disabilities who do not use hearing aids. Other commenters state that the U.S. population is getting older, that by age of 65 more than sixty percent of people have significant hearing impairments, and that in the next 10 years, there will be 40 million Americans with hearing loss due to the aging of the population. 67. Thomson Consumer Electronics (TCE), however, argues that a volume control manufacturing requirement is not justified because the market alone can provide an adequate supply of volume controlled telephones. As evidence, TCE states that at least fifteen major manufacturers currently provide volume control telephones. In addition, ABA states that our proposed volume control rules duplicate its obligation under the ADA, and some informal comments by hotel and motel owners and associations state that such entities currently have enough volume control telephones to satisfy demand and that volume control requirements for hotels and motels are unnecessary. The issues of ADA duplication and the supply of hearing aid compatible hotel and motel telephones are addressed at paras. 18 and 57, supra. (2) Discussion 68. The HAC Act requires that telephones manufactured or imported for use in the United States be hearing aid compatible. Since we are now including volume control within the definition of hearing aid compatible, it follows that a requirement for manufacturing telephones with volume control must be set. 69. The record indicates that the proposed volume control requirements will make telephones more accessible for a significant portion of the population, including hearing aid wearers and others with hearing impairments. Furthermore, we are not persuaded that market forces alone would supply volume controlled telephones in sufficient quantity to satisfy the needs of all establishments required to provide such telephones under Sections 68.6 and 68.317. The difficulties establishments experienced in attempting to comply with the regulations we adopted in 1992 were, in part, due to insufficient supply of complying equipment. In addition, a manufacturing requirement is necessary for the same reason that Congress originally imposed a manufacturing requirement for hearing aid compatible telephones. As stated in the Senate Report, "By imposing the responsibility for hearing aid compatibility at the time of manufacture rather than the time of installation, the law draws a clear line and places the burden for compliance on a smaller, and more organized, number of entities." A blanket manufacturing requirement also reduces confusion and increases the likelihood that a new or replaced telephone used in an emergency will have volume control. c. Costs and Availability (1) Background/Comments 70. Under Section 610(e), the Commission must consider the costs, as well as the benefits, of the proposed rules to all telephone users, including persons with and without hearing disabilities. In the NPRM, we solicited comment on the effect of the proposed rules on the costs of volume controlled telephones to manufacturers and on the price and availability of such telephones to consumers. 71. TCE states that under the proposed technical standard a volume control requirement would increase manufacturing costs between $.05 and $.10 per telephone unit. TCE also states that the proposed volume control technical standard should be modified (see, infra, at para. 81), and that if that modification is adopted, the additional costs could range from $.50 to up to $1.00 per telephone. TCE also states that there would be "millions of dollars" in additional start-up costs resulting from the need to redesign circuitry and cabinetry, modify current models in development, re-engineer molds and circuit boards, and to change product literature and advertising. 72. Organizations representing persons with hearing disabilities note that telephones with volume control appear to be widely available and often cost no more at the retail level than telephones without volume control. ACUTA contends that making volume control mandatory will lower the average cost of each volume-controlled telephone, because the costs will be distributed across all telephones manufactured in the U.S. 73. Informal comments by hotel and motel owners and associations argue that meeting the proposed volume control requirement would be costly. Most of these commenters erroneously believe that the proposed rules would require that in two or three years all hotel and motel telephones would have to have volume control. ABA, however, states that the record in the Committee Report and the NPRM on volume control is nonexistent or insufficient for the purposes of adopting regulations. ABA states that there is no history of manufacturing capability or the cost of volume control, and little in the record which discusses the current or future availability of volume control telephones. (2) Discussion 74. In the NPRM we specifically requested comment on the potential added manufacturing and consumer costs that might be added due to a volume control requirement. Based on a review of the record, we conclude that our proposed volume control rules will not impose significant additional costs on telephone users, manufacturers or the establishments required to provide volume control telephones. TCE was the only manufacturer to file comments on the cost issue. According to TCE, even with the minimum performance standard which we add to our proposed volume control standard (see, infra, at para. 83), volume control will only add an additional $.50 to $1.00 per unit to manufacturing costs. This amount appears to be generally affordable by the average consumer. Even when the start-up costs are added, we believe the average cost per unit will remain affordable, because those start-up costs will be averaged across millions of production units. In addition, commenters indicate that volume control telephones are already produced by several manufacturers and that they often cost no more at the retail level than telephones without volume control. Finally, a principal manufacturers' representative, TIA, made no mention of additional costs in either its comments or its reply comments. We conclude that while cost is a factor to be considered, it is not such a major obstacle as to negate the benefits to be derived from requiring volume control. 75. Many of the comments on volume control costs from hotels and motels are based on the erroneous assumption that the commenters will be required to replace all telephones that do not have volume control with volume-controlled telephones. Under the proposed rules, however, an existing telephone that does not have volume control does not have to be replaced with a volume controlled telephone merely because the existing telephone does not have volume control. Volume control is required only for newly purchased telephones, or when an existing telephone is replaced for some reason other than the absence of volume control. Such a reason might be that the telephone does not have electro- magnetic coil compatibility, or because the telephone does not work properly and must be replaced. In such cases, the replacement telephone must have both electro-magnetic coil compatibility and volume control. See discussion of hotel and motel requirements at para. 55, supra. Finally, we conclude that as a result of the comments received in response to the NPRM, the record on volume control costs and availability is sufficient for purposes of adopting volume control regulations. 3. Inclusion in Definition of Hearing Aid Compatibility a. Background/Comments 76. In the NPRM, we proposed that, for newly acquired and replacement telephones, the definition of hearing aid compatibility would be expanded to include both a volume control feature and electro-magnetic coil compatibility. We also proposed that existing sections of our rules that refer to electro-magnetic coil compatibility as "hearing aid compatibility" be modified, for clarification, to state "as defined in Section 68.316." 77. In its comments, TIA states that the Commission's proposal to define "hearing aid compatibility" under some circumstances as both electro-magnetic coil compatibility and as volume control is confusing. Accordingly, TIA suggests that volume control be required pursuant to the general language of Section 610(a), rather than also including volume control in the definition of hearing aid compatibility. That section states that "[t]he Commission shall establish such regulations as are necessary to ensure reasonable access to telephone service by persons with impaired hearing." b. Discussion 78. We conclude that the goals of the HAC Act would be best served if volume control is included within the definition of "hearing aid compatibility." Under the HAC Act, "essential telephones" must be hearing aid compatible. Furthermore, hearing aid compatible is defined generically as an "internal means for effective use with hearing aids." This definition is broadly written, to encompass many types of evolving technology, including volume control. 79. One type of "essential telephones" is "telephones provided for emergency use," and it is within the category of "telephones provided for emergency use" that telephones in workplaces, confined settings and hotels and motels fall. Volume control, as a type of hearing aid compatibility, properly falls within the scope of the HAC Act, and may be required in telephones "provided for emergency use." We agree with TIA that volume control also may be required because it falls within the language at 47 U.S. C.  610(a). 80. For clarification, we also modify sections 64.607, 68.3, 68.4, 68.112(b)(4), 68.112(c), 68.224, and 68.316 by identifying hearing aid compatibility with the words "as defined in Section 68.316." 4. Transition Period a. Background/Comments 81. In the NPRM, we proposed that manufacturers and importers be required to include volume control in all telephones made or imported for use in the United States one year after the adoption of the new rules. TCE, TIA and ACUTA suggest that a one-year transition period until volume control manufacturing is required is too brief. TIA states that a longer period is needed to redesign, test and evaluate products, to change printed materials, and to allow for an orderly depletion of existing non-volume-controlled telephones. TIA surveyed some of its members, who stated that an appropriate preparation period could range from six months to three years. LHH, however, argues that a one year phase in period is "more than generous," considering that the technology is not only readily available, but also currently widely used. b. Discussion 82. We conclude that two years would be a more appropriate transition time before manufacturers and importers are required to provide volume control telephones, because several commenters familiar with manufacturing procedures state that a one year period would be too brief a time to allow for equipment conversion and distribution changes. We note that a typical transition time for requiring the introduction of new technology under Part 68 is eighteen months. We have decided to allow a slightly longer than average transition period in this case because we are requiring a significant change in the features for virtually all telephones that will be imported or manufactured for use in the United States. Manufacturers and importers will be required to make this change by November 1, 1998. 5. Technical Standard a. Background 83. In the NPRM, we proposed a technical standard for volume control based on the standard used by the Architectural and Transportation Barriers Compliance Board (ATBCB) for public telephones. The proposed standard applies a weighted average of loudness across the frequency range of a telephone's voice frequency band. This standard has been shown to correlate well with human perception of the loudness of speech on a telephone connection. The proposed standard uses Receive Objective Loudness Rating (ROLR) to measure dB-gain, which is a numerical rating for loudness. This method of rating voice loudness has been used in the telecommunications industry for many years and the calculation procedures have been standardized. b. Feasibility of Volume Control Standard (1) Comments 84. TCE states that the proposed standard needs a setting for a minimum performance level, because otherwise a manufacturer could technically meet the 12 dB to 18 dB gain requirements by adding a lower volume setting rather than offering capability for higher volume. TIA agrees that a manufacturer could be in literal compliance with the gain requirement by lowering the volume setting, since the standard does not specify the nominal volume of sound that can emanate from a handset receiver. TIA states, however, that there is a voluntary industry standard for a minimum performance level that is working effectively, and that should manufacturers circumvent the spirit of the proposed standard, the Commission could take steps to remedy the situation at that time. 85. TCE also contends that the network-supplied current through the telephone line may be insufficient to power terminal volume control units; that high gain units may impact network performance and require a waiver of return loss and/or acoustical feedback performance specifications; and that safety may be jeopardized because Peak Acoustical Power safety requirements may be more difficult to meet. In response, TIA asserts its engineering committees have had no problems with the implementation of the 12 dB - 18 dB gain requirement in telephones powered from the telephone line. TIA also states that a high volume waiver is not needed, because the proposed standard calls for meeting relevant parameters at nominal volume, not at high volume. TIA also states that manufacturers will continue to comply with Peak Acoustic Power safety requirements, even at higher volumes. TIA also adds, in an ex parte communication, that the standard as proposed in the NPRM applies only to analog telephones, and that separate paragraphs are needed to cover digital Integrated Services Digital Network (ISDN) telephones. (2) Discussion 86. The technical standard we adopt applies a standard of increasing loudness, or volume, that we intend be applied to a baseline normal volume setting, or level of volume set in a receiver. As proposed in the NPRM, the standard technically could be met by lowering the baseline volume setting in the receiver, and then applying the standard to the lowered volume setting, so that the level of loudness would increase, but not to a degree sufficiently useful to a telephone user with hearing disabilities. To avoid this possibility, we modify the standard in the NPRM by adding a requirement that the telephone also shall comply with the upper and lower limits for ROLR given in ANSI/EIA-470-1987. To clarify the standard, we separate a portion of proposed Section 68.317(c) and make it into a new paragraph (f), and we make proposed subparagraph (d) into subparagraph (g). To include digital telephones within our standard, we add new paragraphs Section 68.317(c) and (d), and we incorporate by reference paragraph 4.3.2 of ANSI/EIA/TIA-579-1991. We also amend NPRM proposed Sections 68.317 (a), (b), (c) and (d) to reflect the coverage of digital as well as analog telephones. 87. TIA also states that the industry experience is that the standard works with line-powered units, and that a high volume waiver is not needed. We accept these statements of industry experience as reasonably predictive of what will occur when the volume control standard becomes part of our rules. We also accept TIA's statement that manufacturers will do what is necessary to meet the Peak Acoustic Power safety requirements. c. Modifications to Technical Standard (1) Comments 88. TIA points out that the proposed standard incorrectly describes Receive Objective Loudness Rating (ROLR) as a rating system for expressing all "receive response," while ROLR is really only a measure of perceived loudness for a given input signal, which is a subset of the parameters that define receive response. To clarify the rule, TIA suggests adding the following footnote to subparagraph (a) of final rule Section 68.317: Paragraph 4.1.2 of ANSI/EIA-470-A-1987 identifies several characteristics related to the receive response of a telephone. It is only the change in ROLR as a function of the volume control setting that is relevant to the specification of gain as required by this Section. 89. TIA also states that information requested in the NPRM to simulate the length of cable that will be used in measuring ROLR is still being developed by the industry. In the interim, TIA suggests that the Commission include in its final rules the information attached to its comments, namely a diagram of a loop simulator for 26 AWG cable. 90. In the NPRM, we proposed that the Commission delegate to the Chief, Common Carrier Bureau, the authority to issue a public notice of minor changes in the volume control standard. TIA supports this proposal, but adds that the referenced standards should not be restricted to ANSI standards. (2) Discussion 91. We accept TIA's clarification of ROLR, and we adopt the suggested clarifying statement as a note to Section 68.317, rather than as a footnote. We will issue a final rule Section 68.117 that includes the suggested diagram (Loop Simulator for 26 AWG Cable) as part of the rule, as the Figure A referred to in Section 68.117(b). In addition, we note that industry standards are periodically updated. To help ensure that our rules continue to reflect the current industry standard, we delegate to the Chief, Common Carrier Bureau, the authority to make minor changes, pursuant to the Administrative Procedure Act, to the technical standards specified in Sections 68.316 and 68.317, in order to incorporate minor changes made in the relevant industry standards. e. Miscellaneous Issues (1) Location of Volume Control Mechanism 92. In the NPRM, we requested comment on whether the volume control mechanism could be located in the network as well as in the terminal equipment. Several commenters objected to the possibility of locating the volume control mechanism in the telephone network. The United States Telephone Association (USTA) and USWest contend that network-based volume control is technically infeasible and that existing handset control technology is effective. TIA argues that the best way to administer volume control under Part 68 is through regulating the terminal equipment that must be registered under Part 68, such as a telephone, or a PBX that includes the accompanying telephones as part of its registration. Based on the comments received, we will not require at this time that a volume control mechanism be located in the network. (2) Volume Control in Speaker Phones 93. ASHA urges that the volume control requirement apply not only to the sound emanating from the handset or headset, but also to sound emanating from open speakers in the terminal base, commonly known as "speaker phones." TIA, however, states that there is no industry standard for measuring the loudness of sound emanating from a speaker phone, and that such standards will not be available for some time. We will not extend the volume control standard to "speaker phones" because the industry does not yet have the necessary standards for speaker phones. Furthermore, the focus of the Committee was on sound emanating from handsets and headsets, because it is sound from these portions of the terminal that relate most directly to the capabilities and efficacy of a hearing aid. (3) Feedback 94. In the NPRM, we noted that some individuals with hearing aids encounter problems of "feedback" between their hearing aid and the telephone receiver. Feedback occurs because both telephones and hearing aids contain microphones and amplifiers, and the electronic signals of these instruments can conflict and cause a characteristic feedback noise. LHH and HIA state that as long as the user can control the volume on a telephone, there should be little or no problem of feedback. Accordingly, we conclude that the addition of volume control will not create significant new problems of feedback between telephone receivers and hearing aids. (4) Additional Proposed Modifications 95. HIA also proposes as "technical corrections" changing ROLR to RLR (Receive Loudness Rating) and substituting an international standard for the United States standard, ANSI/EIA 410-A-87. TIA asserts that the international standard places more emphasis on the low frequency portion of the telephone band, whereas the United States standard encourages equal levels of gain to be applied across the entire frequency range. We conclude that we should not rename a working industry-developed concept and acronym by shortening ROLR to RLR, nor should we adopt an international volume control standard that is less suitable than the United States standard for the goals of our volume control rules. 96. HIA requests that the Commission define the increase in the magnetic field that will result from the increased volume due to volume control. HIA notes that this increase will affect the operation of hearing aid telecoils and make the telecoils more effective. TIA argues that the Commission should not attempt to quantify this magnetic field increase at this time because substantial additional work would need to be done by the appropriate industry standards committees to express the magnetic field requirements in a manner consistent with the standards of ROLR. We find that it is not essential to our rules to quantify the magnetic field increase at this time, and that we should not seek to quantify this increase until the industry standards committees have completed their work. We do encourage, however, continued dialogue between the telecommunications and hearing impaired equipment industries toward the development of voluntary standards for the increase in the magnetic field when volume is increased. (5) Obsolescence of Current Volume Control Telephones 97. One commenter expressed concern that establishing a volume control technical standard would render current volume control telephones obsolete. We acknowledge that the volume control mechanism in some existing volume controlled telephones will not be consistent with the technical standard we are adopting in this proceeding. These telephones, therefore, cannot be used as replacement telephones. Telephones that do not meet the new standard cannot be used as replacement telephones where a complying volume controlled telephone is required. We note, however, that many existing volume controlled telephones will be in compliance with this standard. D. EQUIPMENT LABELING 1. Background 98. Pursuant to Section 68.300(b) telephone equipment manufacturers are required to stamp equipment with either a date of manufacture or a serial number. In the NPRM we proposed that manufacturers be required to stamp registered terminal equipment and registered protective circuitry with a date of manufacture. We tentatively concluded that this change would make it easier for an establishment to determine whether its telephones are hearing aid compatible, because virtually all wireline telephones manufactured or imported for use in the United States after August 16, 1989 are required to be compatible with hearing aid telecoils. In addition, users would be able to determine if a telephone has volume control by the date of manufacture, once a volume control date-of-manufacture requirement is adopted. We did solicit comment, however, on whether, as an alternative, we should require manufacturers to stamp or emboss a symbol or set of letters, such as "HAC," on terminal equipment, in addition to, or as an alternative to, the date of manufacture. 2. Comments 99. Several organizations representing persons with hearing disabilities comment that letters, a sign or a symbol would be more useful to the informed user than a date of manufacture because most telephone consumers are not aware of the significance of August 16, 1989. Most commenters suggest using the letters "HAC" or "HAC/VC." Pursuant to the Paperwork Reduction Act, The Office of Management and Budget (OMB) disapproved the Commission's application for permission to change Section 68.300(b), because labeling equipment with dates would be meaningless to installers or users. Instead, OMB suggests the Commission could require labeling that would inform a user that the telephone is hearing aid compatible and equipped with volume control. 100. In its comments, TIA favors the use of date of manufacture over the use of signs or symbols. The use of the date has been an option in the Commission's Part 68 rules for years, TIA states, and manufacturers are familiar with using a date. TIA contends that stamping a telephone with the letters "HAC" might imply to the uninformed user that telephones without the "HAC" stamp are not hearing aid compatible, when, in fact, the vast majority of telephones in use are hearing aid compatible, because they were imported or manufactured after August 16, 1989. 3. Discussion 101. We concur with the statements of OMB and organizations representing persons with hearing disabilities that an easily recognizable symbol or set of letters would be more useful to the average telephone user than a date of manufacture. The average telephone user is not likely to know the significance of August 16, 1989, for electro-magnetic coil compatibility, and might more easily understand a set of letters or a recognizable sign or symbol. 102. In light of the record, we amend our proposal to require telephones with electro-magnetic coil compatibility to be stamped with the letters "HAC." We understand this is a commonly used term in organizations representing persons with hearing disabilities, and can be understood by the general public. We give manufacturers and importers six months, until April 1, 1997, before they are required to comply with this requirement. We also conclude that a separate set of letters is not needed to designate the presence of a volume control feature, because such a feature is generally apparent from the volume controls on a telephone. We will designate in our final rule that the letters "HAC" will indicate hearing aid compatibility as defined by Section 68.316 of our rules, i.e., electro-magnetic coil compatibility. We also leave unchanged Section 68.300(b)(3), which requires manufacturers to attach either a date of manufacture or a serial number. To the extent manufacturers do stamp equipment with the date of manufacture, and to the extent users and installers are familiar with the key dates for hearing aid compatibility and volume control, we conclude that providing the date of manufacture will be meaningful to installers and users. E. CONSUMER EDUCATION a. Background/Comments 103. In the NPRM, we sought comment on certain recommendations of the Negotiated Rulemaking Committee concerning consumer education. The Committee recommended that the Commission (1) issue a press release, hold a press conference about the Committee's Report and distribute the Report electronically; (2) develop a consumer information package about the hearing aid compatibility rules; (3) encourage the development of information that could be included with hearing aid packaging; and (4) encourage voluntary public signage to identify the location of hearing aid compatible telephones in the workplace. We further noted in the NPRM that we had already completed the first recommendation of the Committee, namely to distribute the Committee Report electronically, to hold a press conference, and issue a press release regarding that Report. 104. Numerous commenters strongly encourage the Commission to adopt consumer education initiatives. Some commenters suggest that the Commission should develop information packages for businesses and consumers. SHHH suggests that other initiatives such as a video on telecoils and Commission articles in consumer publications be considered. SHHH and LHH provide a list of items which can be included in hearing aid packaging, such as a description of the telecoil option, an overview of the HAC Act and Commission rules, and instructions on how to use telecoils. HIA, a representative of hearing aid manufacturers, states that individual hearing aid manufacturers should be allowed to develop package inserts relevant to their products. b. Discussion 105. We recognize the importance of public education about hearing aid compatibility. Accordingly, we will issue a press release on this order, and make this order available electronically. Within six months of the adoption of this Report and Order, we will (1) develop "fact sheets" for consumers and businesses about hearing aid compatibility; (2) develop a "model" package insert for hearing aid manufacturers; and (3) coordinate with other government agencies and with private organizations in the development and dissemination of these materials. We agree with HIA, however, that the development of package inserts should be left largely to the individual hearing aid manufacturers, and we note that the use of any "model" developed by the Commission is not mandatory, but rather is provided for purposes of establishing a guideline. These efforts will give industry, government, individuals who have hearing disabilities and the general public ample notice of the effect of these rules on the rights and responsibilities of all parties concerned. IV. CONCLUSION 106. We believe that the rules adopted in this Report and Order will significantly increase access to the telephone network for individuals with hearing disabilities, at minimal cost to workplaces, confined settings, hotels and motels and manufacturers. The rules represent the culmination of an extraordinary effort among organizations representing government, business, industry and individuals with hearing disabilities on the Committee. The efforts of this Committee produced consensus recommendations for Commission rules that strike a balance among the interests of the various interested parties. As a result of the Committee's efforts, the rulemaking process was streamlined: the Committee reached full consensus on all issues in record time, the number of comments in the record was greatly reduced and the public interest has been served. V. REGULATORY FLEXIBILITY ACT ANALYSIS 107. Final Regulatory Analysis: Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C. Section 601, et seq., the Commission's final analysis in this Report and Order is attached as Appendix B. VI. ORDERING CLAUSES 108. Accordingly, IT IS ORDERED that, pursuant to Sections 1, 4, 201-205, 218, 220 and 610 of the Communications Act of 1934, as amended, 47 U.S.C.  151, 154, 201- 205, 218, 220, and 610, and 5 U.S.C.  552 and 553, this Report and Order IS ADOPTED, and Parts 64 and 68 of the Commission's Rules ARE AMENDED as set forth in the attached Appendix C. 109. IT IS FURTHER ORDERED that the rule amendments set forth in Appendix C SHALL BE EFFECTIVE seventy days after publication in the Federal Register. 110. IT IS FURTHER ORDERED that the Emergency Request to Reinstate Enforcement of the Hearing Aid Compatibility Rules, dated May 12, 1993, by Alexander Graham Bell Association for the Deaf, et al, IS DISMISSED. 111. IT IS FURTHER ORDERED that, pursuant to Section 5(c)(1) of the Communications Act of 1934, as amended, 47 U.S.C.  155(c)(1), authority is delegated to the Chief, Common Carrier Bureau, to make minor changes, pursuant to the Administrative Procedure Act procedures, in the technical standards specified in Sections 68.316 and 68.317 of the rules, in order to incorporate minor changes made in the relevant industry standards. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary APPENDIX A: LIST OF PARTIES I. Parties Filing Comments (January 29, 1996)* Aeronautical Radio, Inc. (ARINC) Alexander Graham Bell Association for the Deaf (AGB) American Bankers Association (ABA) American Health Care Association (AHCA) The American Speech-Language-Hearing Association (ASHA) The Association of College and University Telecommunications Administrators, Inc. (ACUTA) Care Providers of Minnesota (CPM) Center for the Deaf and Hard of Hearing (CDHH) Chicago Hearing Society (CHS) Communications Workers of America (CWA) Credit Union National Association, Inc.(CUNA) Equal Employment Advisory Council (EEAC) Food Marketing Institute (FMI) General Services Administration (GSA) HANDS Organization (HANDS) Hearing Industries Association (HIA) IMPACT, Inc., CIL (Center for Independent Living) The Information Technology and Telecommunications Association (ITTA) League for the Hard of Hearing (LHH) The National Association of the Deaf and the National Center for Law and Deafness (NAD/NCLD) National Association of Manufacturers (NAM) National Federation of Independent Business (NFIB) Newspaper Association of America (NAA) Pittsburgh Hearing, Speech & Deaf Services, Inc (PHSDS). Self Help for Hard of Hearing People, Inc. (SHHH) Telecommunications for the Deaf, Inc. (TID) Telecommunications Industry Association User Premises Equipment Division (TIA); (Errata filed on February 27, 1996) Thomson Consumer Electronics (TCE) Ms. Bea Tusiani United States Telephone Association (USTA) U S WEST, Inc. (USWest) * Forty-five informal comment letters also were filed. Forty-two of the letters were from hotel and motel associations or individual hotels and motels. II. Parties Filing Reply Comments (February 29, 1996) American Public Communications Council (APCC) Communications Workers of America (CWA) General Services Administration (GSA) Information Technology and Telecommunications Association (ITTA) National Association of the Deaf, et al. (NAD) Telecommunications Industry Association (TIA) APP ENDIX B: FINAL REGULATORY FLEXIBILITY ANALYSIS 1. Final Regulatory Analysis: As required by Section 603 of the Regulatory Flexibility Act, 5 U.S.C.  603 (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rulemaking (NPRM). The Commission sought written public comments on the proposals in the NPRM, including on the IRFA. The Commission's Final Regulatory Flexibility Analysis (FRFA) in this Report and Order is as follows: a. Need for, and Objectives of, This action: This Report and Order amends the Commission's rules to require that eventually all wireline telephones in workplaces, confined settings and hotels and motels be hearing aid compatible and have volume control. The Report and Order also requires that as of November 1, 1998 all wireline telephones manufactured or imported for use in the United States must have volume control. These actions are needed to provide greater access to the telephone network by persons with hearing disabilities, pursuant to the requirements of the Hearing Aid Compatibility Act of 1988 (HAC Act). The HAC Act directs the Commission to take affirmative and specific steps to increase such access. The objectives of these rules are to provide the needed greater access, while at the same time balancing the needs of establishments that must provide the hearing aid compatible and volume control telephones. b. Summary of Significant Issues Raised by the Public Comments In Response to the Initial Regulatory Flexibility Analysis: There were no comments submitted in direct response to the Regulatory Flexibility Analysis in the NPRM. In general comments on the NPRM, however, a number of commenters raised issues that might affect small entities. Several commenters stated that the Commission's proposed rules would duplicate the provisions of the Americans With Disabilities Act of 1990 (ADA), or exceed the Commission's authority under the HAC Act, thus unnecessarily burdening establishments. A number of hotel and motel owners said the costs to replace telephones would be burdensome. One manufacturer said the volume control manufacturing requirement could cost "millions of dollars" in start-up costs. An association of manufacturers stated that the proposed one-year phase-in of the volume control manufacturing requirement was too short. Several organizations representing persons with hearing disabilities said that stamping the letters "HAC" on a telephone would be more informative than stamping the date of manufacture. c. Description and Estimate of Number of Small Businesses to Which Rules Will Apply: (1) The RFA generally defines the term "small business" as having the same meaning as the term "small business concern" under the Small Business Act, 15 U.S.C.  632. A small business concern is one which (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). Id. The RFA SBREFA provisions also apply to nonprofit organizations and to governmental organizations. (2) The rules in this Report and Order apply to four industry categories: (a) workplaces; (b) confined settings, such as hospitals and nursing homes; (c) hotels and motels; and (d) importers and manufacturers of telephones for use in the United States. There is little overlap among these categories because the Commission's workplace rules affect workplace noncommon areas, while the rules that apply to confined settings and hotels and motels affect other than the workplaces of those establishments. Telephone manufacturers would be affected as workplaces, but separately affected by the requirement to affix the letters "HAC" to telephones and by the volume control manufacturing requirement. The determination of whether or not an entity within these industry groups is small is made by the Small Business Administration (SBA). These standards also apply in determining whether an entity is a small business for purposes of the RFA. (3) Workplaces: Workplaces encompass establishments for profit and nonprofit, plus local, state and federal governmental entities. Establishments with fewer than fifteen employees generally would be excluded, because they are exempt from the Commission's new rules, except for the work station requirement. SBA guidelines to the SBREFA state that about 99.7 percent of all firms are small and have fewer than 500 employees and less than $25 million in sales or assets. There are approximately 6.3 million establishments in the SBA database. We estimate that our rules would affect fewer than 6.3 million establishments, because our rules exclude establishments with fewer than fifteen employees. However, we have not been able to determine what portion of the 6.3 million establishments have fewer than fifteen employees. The SBA data base does include nonprofit establishments, but it does not include governmental entities. SBREFA requires us to estimate the number of such entities with populations of less than 50,000 that would be affected by our new rules. There are 85,006 governmental entities in the nation. This number includes such entities as states, counties, cities, utility districts and school districts. There are no figures available on what portion of this number has populations of fewer than 50,000. However, this number includes 38,978 counties, cities and towns, and of those, 37,566, or 96 percent, have populations of fewer than 50,000. The Census Bureau estimates that this ratio is approximately accurate for all governmental entities. Thus, of the 85,006 governmental entities, we estimate that 96 percent, or 81,600, are small entities that would be affected by our rules. (4) Confined Settings: According to the SBA's regulations, nursing homes and hospitals must have annual gross receipts of $5 million or less in order to qualify as a small business concern. 13 C.F.R. 121.201. There are approximately 11,471 nursing care firms in the nation, of which 7,953 have annual gross receipts of $5 million or less. There are approximately 3,856 hospital firms in the nation, of which 294 have gross receipts of $5 million or less. Thus, the approximate number of small confined setting entities to which the Commission's new rules will apply is 8,247. (5) Hotels and Motels: According to the SBA's regulations, hotels and motels must have annual gross receipts of $5 million or less in order to qualify as a small business concern. 13 C.F.R. 121.201. There are approximately 34,671 hotel and motel firms in the United States. Of those, approximately 31,382 have gross receipts of $5 million or less. (6) Telephone Manufacturers and Importers: According to the SBA's regulations, telephone apparatus firms must have 1,000 or fewer employees in order to qualify as a small business concern. 13 C.F.R. 121.201. There are approximately 456 telephone apparatus firms in the nation. Figures are not available on how many of these firms have 1,000 or fewer employees, but 401 of the firms have 500 or fewer employees. It is probable that the great bulk of the 456 firms have 1,000 or fewer employees, and would be classified as small entities. In addition to telephone apparatus firms, there are approximately 12,654 wholesale electronic parts and equipment firms in the nation. Many of these firms serve as importers of telephones. According to the SBA's regulations, wholesale electronic parts and equipment firms must have 100 or fewer employees in order to qualify as a small business entity. 13 C.F.R. 121.201. Of the 12,654 firms, 12,161 have fewer than 100 employees, and would be classified as small entities. d. Description of Projected Reporting, Recordkeeping and Other Compliance Requirements of the Rules: (1) Reporting and Recordkeeping: This Report and Order involves three reporting requirements. First, as of April 1, 1997, importers and manufacturers of telephones for use in the United States must stamp their telephones with the letters "HAC." The potential respondents to this requirement are importers and manufactures of telephones for use in the United States. Second, until the rules for all workplace telephones go into effect, employers are required to designate certain hearing aid compatible telephones for emergency use. The potential respondents to this requirement are owners of workplaces with fifteen or more employees. Third, a Commission rule regarding packaging is amended to clarify that the type of hearing aid compatibility referred to is electro-magnetic coil compatibility. The potential respondents to this requirement are importers and manufacturers of telephones for use in the United States. (2) Other Compliance Requirements: (a) The rules adopted in this Report and Order require that as of certain dates, owners of workplaces, confined settings and hotels and motels provide telephones that have electro-magnetic coil hearing aid compatibility and volume control. These requirements will affect owners of workplaces, confined settings, and hotels and motels. (b) The rules also require importers and manufacturers of telephones for use in the United States to provide telephones with volume control, beginning November 1, 1998. These rules would affect small as well as large domestic manufacturers of telephones. e. Commission Efforts to Learn Of, and Respond To, the Views of Small Business: In 1992 the Commission adopted rules requiring hearing aid compatible telephones in workplaces, confined settings and hotels and motels. As the time to implement the rules approached, businesses, including small businesses, stated that they were having difficulty implementing the rules. In response, the Commission suspended the rules in 1993. Subsequently, the Commission formed the nineteen-member Hearing Aid Compatibility Negotiated Rulemaking Committee. Among the Committee's membership were representatives of small business. Both the hotel and motel representatives (American Hotel and Motel Association) and the confined setting representatives (American Health Care Association) have many small members. In addition, the Tele-Communications Association (now known as The Information Technology and Telecommunications Association, or ITTA), a broadly based end-users group, was a member. ITTA has approximately 1,000 members, including small entities as members. f. Commission Efforts to Minimize Burdens on Small Business: (1) In applying the new rules, the Commission has sought to minimize any disproportionate burden on small entities. The workplace requirements, for example, generally exempt workplaces of fewer than fifteen employees. The Commission provided this exemption because small employers have smaller budgets, which can make installation of new telephones disproportionately more burdensome for those employers. This is the same coverage cutoff standard used in the ADA. In calculating the number of "employees" for purposes of compliance, the total employment force of an establishment, not the number of employees an employer may have at a particular site, is the determining factor. This distinction emphasizes that it is the overall size of the entity, not the circumstance of the deployment of its employees, that determines the impact of the Commission's requirements. (2) The Commission also took into account the needs of small entities in setting the compliance deadlines for workplaces. The Committee determined that the average useful life of a workplace telephone is seven years. Almost all telephones manufactured or imported for use in the United States since August 16, 1989 have had to be hearing aid compatible. Thus, at the present time, any workplace telephone is most likely to be hearing aid compatible. As a margin of flexibility, however, the Commission set the workplace compliance deadline for November 1, 2005 for telephones purchased between January 1, 1985 through December 31, 1989, and November 1, 2000 for all other telephones. Even after those dates, small entities are allowed to exercise the rebuttable presumption, so that they do not have to test and replace their telephones. Before those dates, workplaces may use existing stored telephone inventories as replacements, subject to a rebuttable presumption. Thus, the stored inventories of small entities are not rendered obsolete. (3) The requirements for confined settings and hotels and motels also make distinctions in the size of establishment. Smaller establishments are given more time to comply. Confined setting establishments with fewer than fifty beds are given an extra year, until November 1, 1998, to comply, and hotels and motels with fewer than eighty rooms also are given an extra year, until November 1, 1999, to comply. (4) The Commission also took into account the needs of small entities in the terms of the volume control manufacturing requirement. The Commission had proposed, in the NPRM, a one-year deadline for this requirement, but after receiving comment from organizations representing large and small manufacturers, the Commission extended the period to two-years, until November 1, 1998, before compliance with the volume control rule is required. Similarly, the requirement that manufacturers affix the letters "HAC" to new telephones does not go into effect upon the effective date of the new rules, but six months later, on April 1, 1997. Current small manufacturer telephone inventories are not affected by this requirement. (5) Under Section 610(e) of the HAC Act, the Commission must consider the costs, as well as the benefits, of the proposed rules to all telephone users, including persons with and without hearing disabilities. In the NPRM, the Commission solicited comment on the costs to establishments of providing volume control and hearing aid compatible telephones. After reviewing the comments, the Commission concluded that the new rules will not impose significant additional costs on telephone users, manufacturers or establishments, and that any costs are significantly outweighed by the benefits to be achieved. g. Commission Efforts to Maximize Benefits: Small entities will be among the beneficiaries of the Commission's new rules. Under the new rules, telephones in workplaces, confined settings and hotels and motels will be more accessible to persons with hearing disabilities. These changes may lead to new business for hotels and motels and confined settings, and workplaces may be able to hire better employees, since the pool of potential employees will be widened to include persons with hearing disabilities. In addition, the level of public safety will increase in all three settings, thereby benefitting both the business setting and the public at large. Telephones also will be easier to identify by installers, many of whom will be small entities, as hearing aid compatible, once they are stamped "HAC." Finally, the volume control requirement probably will increase the consumer demand for volume control telephones, benefitting large and small manufacturers alike. h. Significant Alternatives Minimizing Impact on Small Entities That Were Rejected: (1) The Commission considered not including within the purview of "telephones provided for emergency use" telephones in workplace non-common areas, telephones in confined settings and telephones in hotels and motels. However, the Commission concluded that given the nature of such settings, and the needs of persons in such settings, telephones in workplace noncommon areas, confined settings and hotels and motels should be considered telephones provided for emergency use. The Commission noted that persons with hearing disabilities are particularly vulnerable in confined settings and hotels and motels because the persons may be unfamiliar with the settings and isolated in the event of an emergency. (2) Similarly, the Commission considered not adding a requirement for volume control, but concluded that volume control should be required. The HAC Act defines telephone hearing aid compatibility as "an internal means for effective use with hearing aids," and the legislative history cites amplification, or volume control, as one such type of internal means. The Commission is obliged under the HAC Act to encourage the use of currently available technology in fulfilling the act's mandates. Through the conclusions of its advisory committee, the Hearing Aid Compatibility Negotiated Rulemaking Committee, the Commission determined that volume control is a currently available technology that would help give many persons with hearing disabilities increased access to the telephone network. i. Summary of Paperwork, Recordkeeping, and Other Compliance Requirements for Wireline Telephones: (a) Paperwork requirements: As of April 1, 1997, importers and manufacturers of telephones for use in the United States must stamp their telephones with the letters "HAC." Until the rules for all workplace telephones go into effect, employers are required to designate certain hearing aid compatible telephones for emergency use. A Commission rule regarding packaging is amended to clarify that the type of hearing aid compatibility referred to is electro-magnetic coil compatibility. (b) Recordkeeping requirements: NONE. (c) Other compliance requirements: As of the effective date of this order, telephones, including headsets, made available to an employee with a hearing disability for use by that employee in his or her employment duty shall be hearing aid compatible; As of the effective date of this order, newly purchased or replacement telephones in workplaces, confined settings and hotels and motels must be hearing aid compatible. In workplaces, if the replacement telephone is from inventory existing before the effective date of this order, any person may make a bona fide request that such telephone be hearing aid compatible, and, after November 1, 1998, have volume control. As of the effective date of this order, if a hotel or motel room is renovated or newly constructed, or the telephone in a hotel or motel room is replaced or substantially, internally repaired, the telephone must be hearing aid compatible. As of the effective date of this order, and until the applicable workplace dates of January 1, 2000 or 2005, workplaces of fifteen or more employees must provide and designate telephones for emergency use by employees with hearing disabilities by providing a hearing aid compatible telephone within a reasonable and accessible distance for an individual searching for a telephone from any point in the workplace, or by providing hearing aid compatible wireless telephones. As of April 1, 1997, the telephones in at least twenty percent of hotel and motel guest rooms must be hearing aid compatible. As of November 1, 1997 telephones (except telephones purchased and maintained by a resident for use in that resident's room, and except where a confined establishment has an alternate means of signalling life-threatening or emergency situations that is available, working and monitored) in confined settings with fifty or more beds must be hearing aid compatible; As of November 1, 1998, telephones (except telephones purchased and maintained by a resident for use in that resident's room, and except where a confined establishment has an alternate means of signalling life-threatening or emergency situations that is available, working and monitored) in confined settings with fewer than fifty beds must be hearing aid compatible; As of November 1, 1998, the telephones in hotels and motels with eighty or more guest rooms must be hearing aid compatible; As of November 1, 1998 telephones for use in the United States provided by importers and manufacturers must have volume control, and newly purchased and replacement telephones in workplaces, confined settings and hotels and motels must have volume control. In addition, in hotels and motels, where a hotel or motel room is renovated or newly constructed, or the telephone is replaced or substantially, internally repaired, the telephone in that room must have volume control. As of November 1, 1999, the telephones in hotels and motels with fewer than eighty guest rooms must be hearing aid compatible. As of November 1, 1999, where a hotel or motel uses telephones purchased during the period January 1, 1985 through December 31, 1989, the telephones in at least twenty-five percent of hotel and motel guest rooms must be hearing aid compatible. As of January 1, 2000, non-common area telephones (except headsets, and except for telephones purchased between January 1, 1985 and December 31, 1989, and except for telephones made available to an employee with a hearing disability under Section 68.112(b)(3)(A)) in workplace establishments of fifteen or more employees must be hearing aid compatible. There shall be a rebuttable presumption that, as of January 1, 2000, all such telephones located in the workplace are hearing aid compatible. As of January 1, 2001, where a hotel or motel uses telephones purchased during the period January 1, 1985 through December 31, 1989, the telephones in one hundred percent of hotel and motel guest rooms must be hearing aid compatible, if the hotel or motel has eighty or more guest rooms. As of January 1, 2004, where a hotel or motel uses telephones purchased during the period January 1, 1985 through December 31, 1989, the telephones in one hundred percent of hotel and motel guest rooms must be hearing aid compatible, if the hotel or motel has fewer than eighty guest rooms. As of January 1, 2005, non-common area telephones (except headsets, and except for telephones made available to an employee with a hearing disability under Section 68.112(b)(3)(A)) purchased between January 1, 1985 and January 1, 1989 in workplace establishments of fifteen or more employees must be hearing aid compatible. There shall be a rebuttable presumption that, as of January 1, 2005, all such telephones located in the workplace are hearing aid compatible. j. Report to Congress: The Secretary shall send a copy of this Final Regulatory Flexibility Analysis along with this Report and Order in a report to Congress pursuant to Section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996, codified at 5 U.S.C. Section 801(a)(1)(A). A copy of this RFA will also be published in the Federal Register. APPENDIX C: FINAL RULES Part 64 of Title 47 of the Code of Federal Regulations is amended as follows: PART 64 - MISCELLANEOUS RULES RELATING TO COMMON CARRIERS 1. The authority citation for Part 64 continues to read as follows: AUTHORITY: Sec. 4, 48 Stat. 1066, as amended; 47 U.S.C. 154, unless otherwise noted. Interpret or apply secs. 201, 218, 226, 228, 48 Stat. 1070, as amended, 1077; 47 U.S.C.  201, 218, 226, 228, 610 unless otherwise noted. 2. Section 64.607 is amended to read as follows:  64.607 Provision of hearing aid compatible telephones by exchange carriers In the absence of alternative suppliers in an exchange area, an exchange carrier must provide a hearing aid compatible telephone, as defined in  68.316, and provide related installation and maintenance services for such telephones on a detariffed basis to any customer with a hearing disability who requests such equipment or services. Part 68 of Title 47 of the Code of Federal Regulations is amended as follows: PART 68 - CONNECTION OF TERMINAL EQUIPMENT TO THE TELEPHONE NETWORK 1. The authority citation for Part 68 continues to read as follows: AUTHORITY: Secs. 1, 4, 5, 201-5, 208, 215, 218, 226, 227, 303, 313, 314, 403, 404, 410, 602 of the Communications Act of 1934, as amended, 47 U.S.C.  151, 154, 155, 201-5, 208, 215, 218, 226, 227, 303, 313, 314, 403, 404, 410, 602, 610. 2. Section 68.3 is amended by adding the following definition to the terms used in Part 68: * * * * * Hearing aid compatible: Except as used at  68.4(a)(3) and 68.414 of these rules, the terms hearing aid compatible or hearing aid compatibility are used as defined in  68.316, unless it is specifically stated that hearing aid compatibility volume control, as defined in  68.317, is intended or is included in the definition. 3. Section 68.4 is amended to read as follows:  68.4 Hearing aid compatible telephones. (a)(1) Except for telephones used with public mobile services, telephones used with private radio services, and cordless and secure telephones, every telephone manufactured in the United States (other than for export) or imported for use in the United States after August 16, 1989, must be hearing aid compatible, as defined in  68.316. Every cordless telephone manufactured in the United States (other than for export) or imported into the United States after August 16, 1991, must be hearing aid compatible, as defined in  68.316. (2) Unless otherwise stated and except for telephones used with public mobile services, telephones used with private radio services and secure telephones, every telephone listed in  68.112 must be hearing aid compatible, as defined in  68.316. * * * * * 4. A new Section 68.6 is added as follows:  68.6 Telephones with volume control. As of November 1, 1998, all telephones, including cordless telephones, as defined in Section 15.3(j) of these rules, manufactured in the United States (other than for export) or imported for use in the United States, must have volume control in accordance with Section 68.317 of these rules. Secure telephones, as defined by Section 68.3 of these rules, are exempt from this section, as are telephones used with public mobile services or private radio services. 5. Section 68.112 is amended by revising paragraphs (b)(1), (b)(3), (b)(4) and (b)(5), and by revising paragraph (c), to read as Sections (b)(3), (b)(5) and (b)(6), respectively, as follows:  68.112 Hearing Aid Compatibility * * * * (b) Emergency use telephones. Telephones "provided for emergency use" include the following: (1) Telephones, except headsets, in places where a person with a hearing disability might be isolated in an emergency, including, but not limited to, elevators, highways, and tunnels for automobile, railway or subway, and workplace common areas. Note: Examples of workplace common areas include libraries, reception areas and similar locations where employees are reasonably expected to congregate. (2) * * * (3) Telephones, except headsets, in workplace non-common areas. Note: Examples of workplace non-common areas include private enclosed offices, open area individual work stations and mail rooms. Such non-common area telephones are required to be hearing aid compatible, as defined in Section 68.316, by January 1, 2000, except for (i) those telephones located in establishments with fewer than fifteen employees; and (ii) those telephones purchased between January 1, 1985 through December 31, 1989, which are not required to be hearing aid compatible, as defined in Section 68.316, until January 1, 2005. (A) Telephones, including headsets, made available to an employee with a hearing disability for use by that employee in his or her employment duty, shall, however, be hearing aid compatible, as defined in Section 68.316. (B) As of January 1, 2000 or January 1, 2005, whichever date is applicable, there shall be a rebuttable presumption that all telephones located in the workplace are hearing aid compatible, as defined in Section 68.316. Any person who identifies a telephone as non-hearing aid-compatible, as defined in Section 68.316, may rebut this presumption. Such telephone must be replaced within fifteen working days with a hearing aid compatible telephone, as defined in Section 68.316, including, as of November 1, 1998, with volume control, as defined in Section 68.317. (C) Telephones, not including headsets, except those headsets furnished under Section 68.112(b)(3)(A), that are purchased, or replaced with newly acquired telephones, must be: (i) Hearing aid compatible, as defined in Section 68.316, after the effective date of Section 68.112(b)(3); (ii) Including, as of November 1, 1998, with volume control, as defined in Section 68.317. (D) When a telephone under Subsection (C) is replaced with a telephone from inventory existing before the effective date of amended Section 68.112(b)(3), any person may make a bona fide request that such telephone be hearing aid compatible, as defined in Section 68.316. If the replacement occurs as of November 1, 1998, the telephone must have volume control, as defined in Section 68.317. The telephone shall be provided within fifteen working days. (E) During the period from the effective date of amended Section 68.112(b)(3) until the applicable date of January 1, 2000 or January 1, 2005, workplaces of fifteen or more employees also must provide and designate telephones for emergency use by employees with hearing disabilities through one or more of the following means: (i) By having at least one coin-operated telephone, one common area telephone or one other designated hearing aid compatible telephone within a reasonable and accessible distance for an individual searching for a telephone from any point in the workplace; or (ii) By providing wireless telephones that meet the definition for hearing aid compatible for wireline telephones, as defined in Section 68.316, for use by employees in their employment duty outside common areas and outside the offices of employees with hearing disabilities. * * * * * (4) All credit card operated telephones, whether located on public property or in a semipublic location (e.g. drugstore, gas station, private club), unless a hearing aid compatible (as defined in  68.316) coin-operated telephone providing similar services is nearby and readily available. However, regardless of coin-operated telephone availability, all credit card operated telephones must be made hearing aid-compatible, as defined in  68.316, when replaced, or by May 1, 1991, which ever comes sooner. * * * * * (5) Telephones needed to signal life threatening or emergency situations in confined settings, including but not limited to, rooms in hospitals, residential health care facilities for senior citizens, and convalescent homes. (A) A telephone that is hearing aid compatible, as defined in Section 68.316, is not required until: (i) November 1, 1997, for establishments with fifty or more beds, unless replaced before that time; and (ii) November 1, 1998, for all other establishments with fewer than fifty beds, unless replaced before that time. (B) Telephones that are purchased, or replaced with newly acquired telephones, must be: (i) Hearing aid compatible, as defined in Section 68.116, after the effective date of amended Section 68.112(b)(5); (ii) Including, as of November 1, 1998, with volume control, as defined in Section 68.317. (C) Unless a telephone in a confined setting is replaced pursuant to Section 68.112(b)(5)(B), a hearing aid compatible telephone shall not be required if: (i) A telephone is both purchased and maintained by a resident for use in that resident's room in the establishment; or (ii) The confined setting has an alternative means of signalling life-threatening or emergency situations that is available, working and monitored. ***** (6) Telephones in hotel and motel guest rooms, and in any other establishment open to the general public for the purpose of overnight accommodation for a fee. Such telephones are required to be hearing aid compatible, as defined in Section 68.316, except that, for establishments with eighty or more guest rooms, the telephones are not required to be hearing aid compatible, as defined in Section 68.316, until November 1, 1998; and for establishments with fewer than eighty guest rooms, the telephones are not required to be hearing aid compatible, as defined in Section 68.316, until November 1, 1999. (A) Anytime after the effective date of amended Section 68.112(b)(6), if a hotel or motel room is renovated or newly constructed, or the telephone in a hotel or motel room or is replaced or substantially, internally repaired, the telephone in that room must be: (i) Hearing aid compatible, as defined in Section 68.316, after the effective date of amended Section 68.112(b)(6); (ii) Including, as of November 1, 1998, with volume control, as defined in Section 68.317. . (B) The telephones in at least twenty percent of the guest rooms in a hotel or motel must be hearing aid compatible, as defined in Section 68.316, as of April 1, 1997. (C) Notwithstanding the requirements of Section 68.112(b)(6), hotels and motels which use telephones purchased during the period January 1, 1985 through December 31, 1989 may provide telephones that are hearing aid compatible, as defined in Section 68.316, in guest rooms according to the following schedule: (i) The telephones in at least twenty percent of the guest rooms in a hotel or motel must be hearing aid compatible, as defined in Section 68.316, as of April 1, 1997; (ii) The telephones in at least twenty-five percent of the guest rooms in a hotel or motel must be hearing aid compatible, as defined in Section 68.316, by November 1, 1999; and (iii) The telephones in one-hundred percent of the guest rooms in a hotel or motel must be hearing aid compatible, as defined in Section 68.316, by January 1, 2001 for establishments with eighty or more guest rooms, and by January 1, 2004 for establishments with fewer than eighty guest rooms. * * * * * (c) Telephones frequently needed by the hearing impaired. Closed circuit telephones, i.e., telephones which cannot directly access the public switched network, such as telephones located in lobbies of hotels or apartment buildings; telephones in stores which are used by patrons to order merchandise; telephones in public transportation terminals which are used to call taxis or to reserve rental automobiles, need not be hearing aid compatible, as defined in  68.316, until replaced. * * * * * 6. Section 68.224 is amended at subsection (a) to read as follows:  68.224 Notice of non-hearing aid compatibility. Every non-hearing aid compatible telephone offered for sale to the public on or after August 17, 1989, whether previously-registered, newly registered or refurbished, shall: (a) Contain in a conspicuous location on the surface of its packaging a statement that the telephone is not hearing aid compatible, as is defined in  68.4(a)(3) and 68.316 of these rules, or if offered for sale without a surrounding package, shall be affixed with a written statement that the telephone is not hearing aid-compatible, as defined in  68.4(a)(3) and 68.316 of these rules; and (b) * * * * * * * * 7. Section 68.300 is amended by adding a new subsection (c) as follows:  68.300 Labelling requirements. * * * * * (c) As of April 1, 1997, all registered telephones, including cordless telephones, as defined in Section 15.3(j) of these rules, manufactured in the United States (other than for export) or imported for use in the United States, that are hearing aid compatible, as defined in Section 68.316, shall have the letters "HAC" permanently affixed thereto. "Permanently affixed" shall be defined as in Section 68.300(b)(5). Telephones used with public mobile services or private radio services, and secure telephones, as defined by Section 68.3 of these rules, are exempt from this requirement. * * * * * 8. Section 68.316 is amended in its title and its introductory paragraph to read as follows:  68.316 Hearing aid compatibility magnetic field intensity requirements: technical standards. A telephone handset is hearing aid compatible for the purposes of this section of Part 68 if it complies with the following standard, published by the Telecommunications Industry Association, copyright 1983, and reproduced by permission of the Telecommunications Industry Association: * * * * * 9. A new Section 68.317 is added as follows:  68.317 Hearing aid compatibility volume control: technical standards. (a) An analog telephone complies with the Commission's volume control requirements if the telephone is equipped with a receive volume control that provides, through the receiver in the handset or headset of the telephone, 12 dB of gain minimum and up to 18 dB of gain maximum, when measured in terms of Receive Objective Loudness Rating (ROLR), as defined in paragraph 4.1.2 of ANSI/EIA-470-A-1987 (Telephone Instruments With Loop Signaling) . The 12 dB of gain minimum must be achieved without significant clipping of the test signal. The telephone also shall comply with the upper and lower limits for ROLR given in Table 4.4 of ANSI/EIA-470-A-1987 when the receive volume control is set to its normal unamplified level. Note: Paragraph 4.1.2 of ANSI/EIA-470-A-1987 identifies several characteristics related to the receive response of a telephone. It is only the normal unamplified ROLR level and the change in ROLR as a function of the volume control setting that are relevant to the specification of volume control as required by this section. (b) The ROLR of an analog telephone shall be determined over the frequency range from 300 to 3300 HZ for short, average, and long loop conditions represented by 0, 2.7, and 4.6 km of 26 AWG nonloaded cable, respectively. The specified length of cable will be simulated by a complex impedance. (See Figure A.) The input level to the cable simulator shall be -10 dB with respect to 1 V open circuit from a 900 ohm source. (c) A digital telephone complies with the Commission's volume control requirements if the telephone is equipped with a receive volume control that provides, through the receiver of the handset or headset of the telephone, 12 dB of gain minimum and up to 18 dB of gain maximum, when measured in terms of Receive Objective Loudness Rating (ROLR), as defined in paragraph 4.3.2 of ANSI/EIA/TIA-579-1991 (Acoustic-To-Digital and Digital-To- Acoustic Transmission Requirements for ISDN Terminals). The 12 dB of gain minimum must be achieved without significant clipping of the test signal. The telephone also shall comply with the limits on the range for ROLR given in paragraph 4.3.2.2 of ANSI/EIA/TIA- 579-1991 when the receive volume control is set to its normal unamplified level. (d) The ROLR of a digital telephone shall be determined over the frequency range from 300 to 3300 Hz using the method described in paragraph 4.3.2.1 of ANSI/EIA/TIA-579-1991. No variation in loop conditions is required for this measurement since the receive level of a digital telephone is independent of loop length. (e)The ROLR for either an analog or digital telephone shall first be determined with the receive volume control at its normal unamplified level. The minimum volume control setting shall be used for this measurement unless the manufacturer identifies a different setting for the nominal volume level. The ROLR shall then be determined with the receive volume control at its maximum volume setting. Since ROLR is a loudness rating value expressed in dB of loss, more positive values of ROLR represent lower receive levels. Therefore, the ROLR value determined for the maximum volume control setting should be subtracted from that determined for the nominal volume control setting to determine compliance with the gain requirement. (f) The 18 dB of receive gain may be exceeded provided that the amplified receive capability automatically resets to nominal gain when the telephone is caused to pass through a proper on-hook transition in order to minimize the likelihood of damage to individuals with normal hearing. (g) These incorporations by reference of paragraph 4.1.2 (including Table 4.4) of American National Standards Institute (ANSI) Standard ANSI/EIA-470-A-1987 and paragraph 4.3.2 of ANSI/EIA/TIA-579-1991 were approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 C. F. R. Part 51. Copies of these publications may be purchased from the American National Standards Institute (ANSI), Sales Department, 11 West 42nd Street, 13th Floor, New York, NY 10036, (212) 642-4900. Copies also may be inspected during normal business hours at the following locations: Federal Communications Commission, 2000 M Street, N.W., Public Reference Room, Room 220, Washington, D.C. 20554; and Office of the Federal Register, 800 N. Capitol Street, N.W., suite 700, Washington, D.C. AP PENDIX D: STANDARDS INCORPORATED BY REFERENCE The following standards are incorporated by reference into final rule Section 68.317 in Appendix C. These standards are in addition to the incorporation by reference into Section 68.317 of Paragraph 4.1.2 of ANSI/EIA-470-A-1987, provided in Appendix D to the Notice Of Proposed Rulemaking. 1) Paragraph 4.3.2 of ANSI/EIA/TIA-579-1991 2) IEEE Standard IEEE 661-1979 3) Section 7.4 of IEEE Standard IEEE 269-1991