Today's wireless handsets are immensely powerful. By combining advanced communications functionalities with mobility, consumers are able to expand their connectedness and improve productivity, which eases everyday burdens. These benefits, however, can be limited for those consumers who face hearing loss or impairment and use hearing aids with their wireless handsets. FCC rules attempt to rectify this. Known as the hearing aid compatibility mandate, the Commission's rules require that digital wireless telephones function with consumer hearing aids and are available in the marketplace. Although these rules were adopted with the best of intentions, implementation has raised a number of challenges for wireless service providers.
The Commission's rules require that each retail wireless provider must offer handsets that meet certain standards based on the underlying hearing aid technology. Currently, for hearing aids that incorporate acoustic coupling (a technology that amplifies all sounds), either 50 percent of the total wireless handsets or ten particular handsets offered by a wireless provider must exceed a benchmark measurement of M3 or better. For inductive coupling hearing aids (a technology that turns off the microphone and receives only signals from magnetic fields using telecoils), the requirement is that either one-third of total handsets or ten particular models offered by a provider must exceed a measurement of T3 or better.1 And recently, the Commission proposed to increase the hearing aid compatibility requirements for both acoustic and inductive coupling to 66 percent within two years and 85 percent within five years.2 This means consumers with hearing loss will soon be able to choose from a greater selection of compliant handsets on the market.
One significant problem with the hearing aid compatibility mandate for wireless providers, especially smaller ones, and the hearing loss community is that there is currently no definitive list of which wireless handsets actually meet or exceed the necessary standards set by the Commission. While it is true that Commission rules require individual wireless handset manufacturers and providers to make available information on all hearing aid-compatible models currently offered and the associated rating information for those handsets, this hasn't provided the comprehensiveness needed to aid compliance. In other words, providers are not certain which wireless phones rate at a standard of M3 or T3 or better.
Such confusion has resulted in unnecessary and time-consuming enforcement actions against wireless providers which, oftentimes through no fault of their own, procured wireless handsets that did not meet the Commission's minimum standards. In fact, hundreds of thousands of dollars have been paid in FCC penalties just because available data regarding hearing aid compatibility compliance turned out to be inaccurate. In practice, these providers have had to incur costs for purchasing these handsets, marketing materials, training sales staff, preparing and filing compliance reports, only to find out later that certain phones were non-compliant and they were subject to Enforcement Bureau action. In my conversations with smaller wireless providers, these penalties have slowed network buildout and jeopardized their workforce, because they divert limited resources that could otherwise be used for deployment, service improvements, and personnel.
It would seem more than reasonable to require the Commission, either through the FCC's Wireless Telecommunications Bureau or Office of Engineering and Technology, to maintain an accurate, user-friendly, up-to-date list (or at least updated semi-annually) that not only retail providers, but also consumers, can review to inform them of various phone options and to ensure that the handsets they intend to purchase are hearing aid compatibility compliant.3 But such a list doesn't exist today. And claims have been made that the information on the Accessibility Clearinghouse site may not be completely accurate. Instead, providers are potentially liable for penalties if they rely on incorrect information about the compatibility of phone models.
The good news is that establishing such a list shouldn't require many steps or burdensome reporting requirements: it can be done post haste to reduce the likelihood that wireless providers get unnecessarily or unwittingly ensnared. In fact, the Commission has such information from forms already submitted by industry participants (Form 655). The only thing that needs to be done is format the information and make it available to the public, with the appropriate enforcement safeguards for providers that rely on such a list.
Accordingly, I am pleased that my Commission colleagues agreed to add additional questions as part of the Notice of Proposed Rulemaking portion of last week's item on this precise issue. Specifically, the item added questions about whether the Commission's Accessibility Clearinghouse provides the necessary information to identify compliant phones, the format and type of information that should be included in a list or website, whether the data provided by manufacturers and service providers on the Form 655 can and should be used to automatically supplement the information in the Accessibility Clearinghouse, and whether reliance on such information should be the basis of a safe harbor or presumption that a service provider is not in violation of our rules.4 Without prejudging the comments to be received, the answers to the questions should provide a sufficient platform to address a flaw in our hearing aid compatibility requirements.
1. Manufacturers must meet at least a M3 or T3 rating for one-third of their handsets, with a minimum of two models, for each interface. Manufacturers and service providers that offer no more than two handsets for any air interface are exempt from these benchmarks for those models.
2. It is also proposed that 100% of handsets should be compliant within 8 years, upon a Commission determination that the 100% benchmark is achievable. These benchmarks would apply to wireless providers and manufacturers that offer six or more handset models.
3. See, e.g., Indigo Wireless, Inc., Forfeiture Order, 29 FCC Rcd 7404 (EB 2014) (stating that the provider thought that a certain handset was compliant based on Internet sources and that "determining hearing-aid compatibility using official FCC resources is 'difficult to impossible….'"); General Communication, Inc.,dba Alaska Digital LLC and Alaska Wireless Communications, Order, 29 FCC Rcd 3505 (EB 2014) (stating that the provider alleged that it had difficulty in ascertaining the hearing aid compatibility ratings of the handsets and that it obtained the information from the handset distributors, the OET Equipment Authorization Database, and the handset manufacturer's website); Airadigm Communications, Inc.dba Airfire Mobile, Order, 28 FCC Rcd. 8842 (EB 2013) (stating that the provider asserted that it relied on ratings information provided by a third party vendor).
4. See Improvements to Benchmarks and Related Requirements Governing Hearing Aid-Compatible Mobile Handsets, Amendment of the Commission's Rules Governing Hearing Aid-Compatible Mobile Handsets, WT Docket Nos. 15-285, 07-250, Fourth Report and Notice of Proposed Rulemaking, FCC 15-155, at 39-40 ¶¶ 89-90 (Nov. 20, 2015).