On November 16, 2018, the FCC released a Report and Order amending the hearing aid compatibility (“HAC”) reporting requirements for wireless service providers. In short, the order changes the emphasis for disseminating HAC information to consumers from FCC reports to service provider websites, requiring service providers to post additional information on their websites about the hearing aid compatibility of their wireless phone models (“handsets” in the FCC’s nomenclature). It also eliminates an annual reporting requirement for service providers and replaces it with an annual certification of compliance with HAC requirements.

The FCC adopted HAC rules for wireless services in 2003; since that time, the deployment of hearing aid-compatible wireless phones has been a priority for the FCC. As Commission Rosenworcel noted, close to thirty million Americans could benefit from the use of hearing aids.   But the use of hearing aids can be problematic when using a wireless phones, as the phones can emit interference to hearing aids, often perceived as a buzzing noise, when a handset is held up to a person’s ear. Accordingly, the FCC required that manufacturers implement design changes to minimize interference, and that service providers deploy a certain number of these HAC-rated handsets.

In creating its wireless HAC rules, the FCC created a two-track approach for phone manufacturers and wireless service providers to report HAC compliance on Form 655. By way of example, Apple submits its annual Form 655 report by July 15 detailing the hearing aid compatibility of all its handset models; by January 15 each year, service providers such as Verizon, etc. also file Form 655 for each handset model they offer as part of their wireless plans. As a result, if Verizon offers any Apple handsets, both Verizon and Apple must submit a Form 655 for that handset model under the current rules.

The FCC has used HAC reports submitted by service providers to ensure that each provider is offering a minimum number of handsets meeting the FCC’s HAC rating requirements. The reports also help tell the FCC and consumers about which wireless phones are compatible with hearing aids, the functionality hearing aids have with a phone, and other detailed information about the technical compatibility between hearing aids and each phone model on the market.

The FCC justified collecting this information initially because hearing aid compatibility was a challenge at the infancy of widespread wireless phone use. However, almost all wireless phones in the U.S now achieve a HAC level rating of 3 (out of 4) or better, so the FCC initiated a proceeding in 2017 to consider whether to change the Form 655 reporting process for wireless providers, which can be especially burdensome for smaller companies.

Given the proliferation of hearing aid-compatible handsets, the FCC has decided to shift the focus of its HAC rules for service providers to ensuring consumers can easily access information about hearing aid compatibility. To that end, the FCC’s order expands upon rules requiring that wireless providers post information about their handsets’ hearing aid compatibility on their websites. Currently, service providers must provide a list of all hearing aid-compatible models they offer, the HAC rating of those models, an explanation of the rating system, the level of functionality for each model as defined by the service provider, and an explanation of how functionality varies at different levels. When the FCC order takes effect, service providers will also be required to post the following information:

  • A list of all non-hearing aid-compatible phone models currently offered, including the level of functionality of those models;
  • The marketing model name/numbers and FCC ID number of each hearing aid-compatible and non-hearing aid-compatible model currently offered;
  • A link to a third-party website with information regarding the hearing aid compatibility of devices that have been offered in the past 24 months but are no longer offered by the provider (the FCC initially designated the Global Accessibility Reporting Initiative (GARI) website for this purpose), so that owners of older handsets can look for a rating if they are about to acquire hearing aids;
  • A link to the FCC’s web page containing information about HAC rules; and
  • A date stamp indicating the date on which the page was last updated.

FCC rules already require service providers to update their websites’ HAC information within 30 days of a relevant change. That requirement will remain in effect.

In addition to the information available on their websites, the new rules will require service providers to retain internal records to be provided to the FCC upon request. Those records include handset model information (including the month/year each hearing aid-compatible and non-hearing aid-compatible phone model was first offered) and information about when each handset model was last offered. Service providers will need to retain internal records about handset models for 24 months after the last date on which a model was offered.

Because the FCC expects its new online disclosure requirements to provide both its staff and consumers easy access to information about hearing aid compatibility, the FCC’s new HAC rules eliminate the Form 655 reporting requirement for wireless providers. In its place, wireless providers will file an annual certification, under penalty of perjury, confirming that the provider either was or was not in full compliance with the FCC’s HAC rules during the previous year. Annual certifications are due by January 15 for the preceding year. If a provider certifies that it was not in full compliance with the FCC’s rules, the certification must also include information about why the provider was out of compliance, including the date on which non-compliance began and (if applicable) the date on which the provider came back into compliance with the rules.

The FCC’s HAC reporting requirements, including annual Form 655 reporting, remain in place for wireless handset manufactures. Therefore, the FCC will continue to receive detailed information about the hearing aid compatibility of wireless handsets available in the U.S. without receiving duplicative information from service providers.

Because new FCC rules are not effective until published in the Federal Register, the FCC waived the Form 655 filing requirement for wireless service providers until the new rules take effect. Therefore, service providers need not file Form 655 by January 15, 2019. Instead, providers will file a certification in 2019 (covering compliance in 2018) once the new rules take effect. Starting in 2020, annual certifications from service providers will be due January 15.

The FCC will provide more information about when 2019 certifications are due after the new rules are in place, so keep an eye on CommLawBlog for more updates.