Background

Under current rules, wireless service providers and handset manufacturers are required to report annually to the FCC on Form 655 about the handset models they offer that are HAC as well as details about the handsets such as the specific HAC rating, when it was certified, whether it has Wi-Fi calling capability, the specific air interface on which it operates, and other functionality features. Service providers must also ensure that they have HAC handset models available in their retail stores and provide information about the HAC models in store packaging and at the point of sale. Entities subject to the rules must also provide the web address of the public webpage that contains information about the HAC handset models, ratings, and other details to help inform the consumer’s choice.

In September 2017, the FCC issued a notice of proposed rulemaking (“NPRM”) seeking comment on whether it should revise or eliminate these reporting requirements for service providers and other possible changes. Service providers, which generally have no role in the production of devices, can only report the information provided to them by manufacturers for certain parts of the report and have previously criticized the report as a burdensome, particularly for small providers. In response to the NPRM, a consensus letter was filed by some industry associations and advocates representing consumers with hearing loss (CTIA, Competitive Carriers Association, Hearing Loss Association of America, and the Telecommunications Industry Association) stating that the service provider reporting obligations were no longer necessary and that the FCC should instead require covered entities to self-certify to compliance and improve the type of HAC handset information available on their consumer-facing websites.

Proposed Rule Changes

In the draft Order, the FCC proposes to adopt rules based on the consensus letter, eliminating the service provider Form 655 reporting obligations, and instead requiring them to post the most critical information from the report to their websites. Service providers would be required to disclose information about the following on their websites:

• current non-HAC handset models offered, the level of functionality of such models, and the FCC IDs of both HAC and non-HAC handsets; and
• a link to the Global Accessibility Reporting Initiative (GARI) website with details on HAC and non-HAC devices; or alternatively, a clearly available list on the service provider’s website of no longer sold HAC devices offered in the past two years.

To facilitate service provider transition, the following implementation schedule was proposed for adoption:

• Reporting Requirement – Waiver of the service provider reporting requirement for the next filing deadline, January 15, 2019, as long as the provider submits its first certification 30 days after notice of OMB approval of the new rules in the Federal Register. Subsequently, the annual certifications for 2020 onward would be due annually on January 15.
• Website Requirement – Service providers would be required to post the new website information and maintain the outlined information within 30 days after notice of OMB approval of the new website information collection rules in the Federal Register. The posting and retention of data would need to cover the period beginning January 1, 2018 and after.

Mobile Wi-Fi Calling and VoIP Service Providers Now Must Comply with FCC Hearing Aid Compatibility Rules

While the FCC's HAC rules currently apply only to CMRS services or handsets with two-way switched voice or data services, the R&O expands the scope to cover handsets used for other services like Wi-Fi calling and VoIP that are increasingly available to the public as well as those that may be developed in the future. Specifically, any service provider or manufacturer of handsets (mobile devices that contain built-in speakers and are typically held to the ear in any of their ordinary uses) used with any terrestrial mobile service that enables two-way real-time voice communications among members of the public or a substantial portion of the public must comply with the new rules. The new rules will be effective 30 days after publication in the Federal Register, which had not yet occurred as of this post.

These rules will apply to technologies such as interconnected and non-interconnected VoIP services with pre-installed software applications. This includes handsets that enable voice communications through VoIP software applications installed by either the manufacturer or service provider regardless of whether the calling functionality provides interconnection to the public switched telephone network. These rules will also apply to cordless phones as well as handsets offered by wireless resellers (MVNOs), facilities-based providers, and voice communications services over Wi-Fi that do not use an in-network switching facility enabling the reuse of frequencies and seamless handoff.

The Commission opted not to extend the requirements to public safety networks, enterprise networks, and non-terrestrial networks such as Mobile Satellite Service that are not mass-marketed to the public, yet the Commission retains the right to revisit that decision in the future if necessary.

The R&O is clear that the Commission expects manufacturers to account for hearing aid compatibility during the early stages of product development, yet notes that in rare cases where a new technology cannot practicably meet the requirements, section 710 of the Communications Act expressly provides for a waiver of the rules.

Lastly, the Commission requires both manufacturers and service providers to meet defined benchmarks for deploying wireless handsets to ensure a wide selection of models for consumers with hearing loss. The Commission's existing deployment benchmarks will apply to newly covered handsets and air interfaces as of January 1, 2018 for manufacturers and Tier 1 providers, and on April 1, 2018 for handsets offered by non-Tier 1 service providers.

Other deadlines to note: The annual FCC Form 655 filing deadlines for 2015 are still in effect. Manufacturers must electronically file annual compliance reports with the Commission on July 15 of each year and service providers must file on January 15 of each year. The NPRM does ask whether to remove the annual filing requirement, should it adopt the Joint Proposal, for both providers and manufacturers, or alternatively, remove the requirement for service providers, only requiring manufacturers to file annually.

FCC Seeks Comment on Joint Proposal for Full Wireless Handset HAC Compliance in Eight Years

The Commission's NPRM solicits comment on a proposal (Joint Proposal) submitted by three consumer advocacy groups and three trade associations, which seeks to ensure that 100 percent of all new wireless handset models are accessible to consumers with hearing loss within eight years. The Competitive Carriers Association, CTIA – The Wireless Association, the Telecommunications Industry Association (TIA), the Hearing Loss Association of America, the National Association of the Deaf, and Telecommunications for the Deaf and Hard of Hearing submitted the Joint Proposal on November 12, 2015, which the FCC is considering. The proposal includes the following:

• Within two years, 66 percent of wireless handsets offered to consumers should be compliant with the requirements;
• Within five years, 85 percent of wireless handsets offered to consumers should be compliant with the requirements; and
• Within eight years, 100 percent of wireless handsets should be compliant, subject to a finding by the FCC that the goal of 100 percent is achievable using the following process:

While the Commission appears to favor the Joint Proposal, it also seeks input on alternative proposals it should consider and whether 100 percent compatibility is the appropriate benchmark. The commenters submitted the Joint Proposal in response to a Public Notice requesting updated information and comment on wireless HAC regulations last November.

FCC Seeks to Update Volume Control Requirements

Last month, the FCC released a related Notice of Proposed Rulemaking, seeking comment on the Commission's HAC rules for wireline handsets. Under this NPRM, the Commission proposes to adopt the Telecommunications Industry Association 2012 ANSI Wireline Volume Control Standard and apply the FCC's wireline telephone volume control and other HAC requirements to handsets used with VoIP services. Second, the FCC also seeks comment on a rule that would standardize volume control for wireless handsets to ensure more effective acoustic coupling between handsets and hearing aids for cochlear implants. Third, the Commission proposes to require manufacturers to exclusively use the 2011 standard developed by ANSI to certify future handsets as hearing aid compatible. Lastly, the FCC seeks comment on a process for enabling industry to use new or revised technical standards for assessing HAC compliance.

Comments on this NPRM are due 60 days after publication in the Federal Register and reply comments are due 90 days after publication in the Federal Register.

It is a busy time at the Commission with respect to HAC requirements. These new rules are extensive. Feel free to reach out to your Kelley Drye Communications Attorneys should you need assistance or having any questions about how these rules may impact your business.