FCC Adopts Disability Access Policy Statement, Order, and NPRM

August 5, 2010. The Federal Communications Commission (FCC) adopted and released a document [79 pages in PDF] titled "Policy Statement and Second Report and Order and Further Notice of Proposed Rulemaking" that pertains to disability access.

Policy Statement. The "policy statement" portion of this item states that "our hearing aid compatibility rules must provide people who use hearing aids and cochlear implants with continuing access to the most advanced and innovative technologies as science and markets develop, while maximizing the conditions for innovation and investment".

This item also enumerates three "principles":

"First, given that consideration of accessibility from the outset is more efficient than identifying and applying solutions retroactively, we intend for developers of new technologies to consider and plan for hearing aid compatibility at the earliest stages of the product design process".

"Second, we will continue to account for technological feasibility and marketability as we promulgate rules pertaining to hearing aid compatibility, thereby maximizing conditions for innovation and investment".

"Third, we will provide industry with the ability to harness innovation to promote inclusion by allowing the necessary flexibility for developing a range of solutions to meet consumers' needs while keeping up with the rapid pace of technological advancement."

This item does not explain the legal meaning or consequence of either a "policy statement" or a "principle".

FCC Chairman Julius Genachowski wrote in his statement [PDF] that this item takes steps to "ensure that Americans with disabilities have access to modern communications technology". He added that "We adopt today an unprecedented agency Statement of Policy that emphasizes to developers of new technologies the necessity of considering and planning for hearing aid compatibility at the earliest stages of the product design process."

FCC Commissioner Michael Copps wrote in his statement that "persons with hearing aids and cochlear implants must have access to the most advanced and innovative technologies".

The FCC's hearing aid compatibility statutory authority is codified at 47 U.S.C. § 610. This statute gives the FCC authority over "telephone service" and "telephones". The FCC does not have statutory authority to regulate the hearing aid compatibility of "technologies", as this "policy statement" and Chairman Genachowski and Commissioner Copps now assert.

The FCC does not currently have statutory authority to regulate either technologies or telephones for access by blind persons. The "policy statement" does not assert such authority.

However, it should be noted that S 3304 [LOC | WW] and HR 3101 [LOC | WW], similar but not identical bills titled the "Equal Access to 21st Century Communications Act", would give the FCC broad authority to regulate not only telephones, but also other electronic devices, and internet based services, for all disability groups, including deaf, blind, deaf and blind, and mentally disabled. The House passed its bill on July 26, 2010. The Senate passed its bill on August 5, 2010.

Order. The order portion of this item amends the FCC's hearing aid compatibility rules. It states, among other things, that "we modify the de minimis exception in our existing rule so that all large entities will be required to offer at least one hearing aid-compatible model after a two-year initial period. In recognition of specific challenges that this rule change will impose for handsets operating over the legacy GSM air interface in the 1900 MHz band, we permit companies that will no longer qualify for the de minimis exception to meet hearing aid compatibility requirements by installing software that enables customers to reduce the power output by a limited amount for such operations."

Copps wrote in his statement that "we tighten our existing hearing aid compatibility rules by modifying the de minimis exception that applied to companies offering two or fewer handsets over a given air interface to now require all large companies to offer at least one hearing aid-compatible model after an initial two-year period."

Further NPRM. The Further NPRM portion of this item proposes first "to extend our rules broadly to include customer equipment used to provide wireless voice communications over any type of network among members of the public or a substantial portion of the public. We seek comment on whether considerations of technological feasibility or marketability prevent application of these requirements to any such devices".

It also seeks comment on "whether to extend our requirement to offer consumers in-store testing of hearing aid-compatible handsets beyond retail stores owned or operated by service providers to some or all other retail outlets."

Finally, it seeks comment on "whether generally to permit a user-controlled reduction of power as a means to meet the hearing aid compatibility standard for operations over the legacy GSM air interface in the 1900 MHz band."

Commissioner Copps (at right) wrote that "I hope the Commission will expeditiously consider the record on the tentative conclusion that our hearing aid compatibility rules should extend beyond just CMRS services, to include customer equipment used for wireless voice communications over any type of network by a substantial portion of the public. This would allow the hearing aid compatibility rules to apply to telephone services such as Voice over Internet Protocol Services, when provided through a handset that is designed to make phone calls."

This item also states that the FCC intends to "initiate a comprehensive review of the operation of our wireless hearing aid compatibility rules" later this year.

The two Republican Commissioners wrote brief statements. Commissioner Meredith Baker wrote in her statement [PDF] "our approach balances the needs of the hearing impaired community with the need to promote and encourage investment and innovation in handsets". See also, Commissioner Robert McDowell's statement [PDF].

Comments will be within due 45 days after publication of a notice in the Federal Register. Reply comments will be due with 75 days of such publication. As of the August 5, 2010, issue of the Federal Register, this notice had not been published.

This item is FCC 10-145 in WT Docket No. 07-250.