Wireless Bureau solicits input on the efficacy of Hearing Aid Compatibility rules

The Wireless Telecommunications Bureau has opened a proceeding that is a refreshing – and rarely seen – step in a positive direction: assessing whether certain of its rules are actually accomplishing their intended purpose.  Regular readers of this blog are aware that the FCC imposed very rigorous obligations on wireless carriers and handset manufacturers back in 2008. Those rules broadly require manufacturers to make, and carriers to sell, a certain percentage of hearing aid compatible (HAC) handsets as part of their cell phone product lines. 

The FCC-mandated percentage of HAC products has risen over the years, as has the required percentage of more sophisticated inductive coupling-capable devices. And as is often the case with FCC rules, the HAC requirements include paperwork: along with the substantive requirements, the FCC also requires a detailed annual report on the devices which have been offered during the last year and how many qualify as HAC. The FCC has enforced these new rules with extraordinary zeal, levying heavy fines on carriers right and left who either failed to file the annual report or failed to offer the required percentage of handsets. It’s even cited such companies as Circle-K and 7-Eleven – neither generally known as a telecom provider – for failing to file HAC reports. In the Commission’s view, the mere fact that both happen to market prepaid handsets subjects them to the HAC requirements.

The Bureau is now asking a good question: Are these far-ranging (and rather onerous) efforts actually accomplishing their intended purpose of ensuring the availability of HAC cell phones to consumers?

While no one can argue with the goal of helping hearing-impaired folks get access to cell phones, a question certainly arises as to whether the market itself would address that problem more directly by simply meeting the needs of customers. The handset market is highly competitive, and in a well-functioning marketplace, the addition of HAC features should win consumers who need that capability. The heavy hand of Soviet-type market intervention may not necessarily deliver what the people need or want. 

We have seen situations, for example, where customers actually preferred not to buy an HAC phone, but rather to use an adapting device that works in conjunction with their hearing aid and their existing handset. Since that device promotes precisely the goal the FCC is targeting – i.e., affording the hearing-impaired easier access to mobile telecommunications – you might think that the Commission’s rules would encourage the development and marketing of such devices. Yet according to the FCC, such a device – standing alone or when used in connection with an otherwise non-HAC unit – doesn’t count for HAC compliance. So even though a carrier may be giving the consumer what he actually wants and needs in the way of HAC capability, it gets no credit under the FCC’s rules.

Also questionable is the severity of the penalties imposed by the FCC. We have seen cases where carriers have been fined $15,000 dollars for each handset that they are short in meeting the requisite HAC percentages. By contrast, a carrier who fails to light and mark a tower structure properly – thus creating a direct hazard to human life – may be fined significantly less. Query whether, on our scale of penal values, a risk to human life should be rated as less reprehensible than a small diminution in the variety of cellular handsets available to consumers.  

So there appears to be merit to taking a step back at this juncture and taking a hard look at how the system is working.   Carriers and manufacturers who are subject to these rules may wish to weigh in to let the Commission know what’s good and bad about the current regulatory framework.

Here are some of the specific questions the FCC is posing:

  • Are the FCC’s HAC rules effectively and efficiently resulting in improved HAC handset availability with a wide range of features?
  • Are the special compliance circumstances of smaller carriers being appropriately handled?
  • Is the system effectively and efficiently gathering needed HAC information and disseminating it to those who need it?
  • Are point of sale disclosure and testing requirements effective and useful?
  • Do wireless headsets create any special problems?
  • Are the Commission’s rules stimulating innovation and investment in HAC technology?

Comments in response to the Bureau’s inquiry are due by February 14, 2011; reply comments are due by March 1, 2011.