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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
T-Mobile USA, Inc., a subsidiary of
T-Mobile US, Inc.
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File No.: EB-SED-13-00009310
NAL/Acct. No.: 201232100024
FRN: 0006945950
FORFEITURE ORDER
Adopted: August 26, 2014 Released: August 27, 2014
By the Commission:
INTRODUCTION
We enforce hearing aid compatibility requirements to ensure that consumers with hearing loss have access to advanced telecommunications services. In adopting the hearing aid compatibility rules, we underscored the strong and immediate need for such access, stressing that individuals with hearing loss should not be denied the public safety and convenience benefits of digital wireless telephony. Moreover, the demand for hearing aid-compatible handsets is likely to increase with the growing reliance on wireless technology and with the increasing median age of our population. Although our wireless hearing aid compatibility rules have been in place for nearly a decade, T-Mobile USA, Inc. (T-Mobile or Company), a nationwide wireless carrier, failed to provide the minimum number of hearing aid-compatible handset models required under the rules during calendar years 2009 and 2010. To that end, we impose a penalty of $819,000 against T-Mobile, for failing to offer to consumers the required number of hearing aid-compatible digital wireless handset models for nearly two years.
As discussed below, T-Mobile willfully and repeatedly violated Sections 20.19(c)(2) and 20.19(d)(2) of the Commission's rules (Rules). In response to the Commission's 2012 Notice of Apparent Liability for Forfeiture against T-Mobile, the Company does not dispute this failure, but instead seeks only to reduce the proposed forfeiture. We decline to do so.
BACKGROUND
T-Mobile is a Tier I carrier that provides nationwide wireless service over both the Global System for Mobile Communications (GSM) and Wideband Code Division Multiple Access (WCDMA) air interfaces. T-Mobile is now the principal operating subsidiary of T-Mobile US, Inc., which was formed on April 30, 2013 as a result of the business combination between T-Mobile and MetroPCS Communications, Inc. (MetroPCS). Under the terms of the business combination, MetroPCS acquired all of the outstanding capital stock of T-Mobile beneficially owned by Deutsche Telekom AG in consideration for the issuance of shares of common stock representing approximately 74% of the fully diluted shares of the combined entity. MetroPCS was subsequently renamed T-Mobile US, Inc., and the combined company provides service to approximately 47 million customers and reported more than $24 billion dollars in total revenue for 2013 and $3.44 billion dollars in total revenue for the first quarter of 2014.
Beginning in 2003, the Commission adopted several measures to enhance the ability of individuals with hearing loss to use digital wireless telecommunications. In the T-Mobile NAL, the Commission explained in detail its regulatory framework in this area, and we need not repeat it here. However, as summarized in the attached Technical Appendix, carriers must offer a certain, specified number of handset models that are compatible with each of the two hearing aid modes (acoustic coupling and inductive coupling), and these requirements must be met for each air interface over which a carrier offers service. The hearing aid-compatible handset deployment benchmarks have increased gradually over time. Table 1 of the Technical Appendix provides the specific requirements applicable to Tier 1 carriers like T-Mobile during the period at issue here.
On January 14, 2010, T-Mobile submitted a hearing aid compatibility status report covering the January 1, 2009, to December 31, 2009, reporting period. T-Mobile identified each handset model it offered to consumers and specified the model's FCC Identification (FCC ID), as well as the hearing aid compatibility rating, if any. After a careful review of T-Mobile's submission, the Wireless Telecommunications Bureau referred this matter to the Enforcement Bureau (Bureau) for investigation and possible enforcement action. The Commission's investigation revealed a variety of inaccuracies in T-Mobile's hearing aid compatibility reports as to both its WCDMA and GSM handset offerings.
On September 10, 2010, the Bureau issued a letter of inquiry (LOI) to T-Mobile, directing the company to submit a sworn written response to questions related to its compliance with Sections 20.19(c)(2) and 20.19(d)(2) of the Rules. T-Mobile responded to the LOI on September 30, 2010 (LOI Response). In October 2010 (before its hearing aid compatibility status report for the 2010 reporting period was due), T-Mobile disclosed to the Commission possible hearing aid-compatible handset deployment violations during 2010. The Commission thus expanded its investigation to include potential violations during that year.
On April 13, 2012, the Commission issued a Notice of Apparent Liability for Forfeiture against T-Mobile, finding that T-Mobile apparently willfully and repeatedly violated Sections 20.19(c)(2) and 20.19(d)(2) of the Rules by failing to offer consumers the required number of M3- and T3-rated hearing aid-compatible digital wireless handset models during the 2009 and 2010 reporting periods. Accordingly, the Commission found T-Mobile apparently liable for a forfeiture totaling $819,000. As explained more fully in the T-Mobile NAL, the Commission determined the base forfeiture amounts by multiplying $15,000 times the number of hearing aid-compatible handset models that T-Mobile fell short of the minimum requirements for M3- and T-3 handsets for each month that T-Mobile remained out of compliance. Because T-Mobile was short 38 M3-rated handset models and 14 T3-rated handset models from November 2009 through December 2010, the Commission assessed base forfeitures of $570,000 (38 models x $15,000) and $210,000 (14 models x $15,000), for a total of $780,000 ($570,000 + $210,000). In view of all the factual circumstances presented and after weighing the upward and downward adjustment factors (including T-Mobile's ability to pay as well as the Company's timely disclosure of certain of the violations), the Commission proposed a total forfeiture of $819,000 against T-Mobile.
On May 14, 2012, T-Mobile filed a response to the T-Mobile NAL and urged the Commission to "substantially reduce" the $819,000 proposed forfeiture. In its NAL Response, T-Mobile does not challenge the Commission's conclusion that T-Mobile violated the Rules by falling short of the hearing aid-compatible handset deployment benchmarks during the 2009 and 2010 reporting periods. Instead, T-Mobile contends that the proposed forfeiture is "unduly punitive" and, therefore, should be reduced by approximately fifty percent based on three mitigating circumstances. Specifically, T-Mobile argues that (1) it is "inequitable" for the Commission to apply retroactively to T-Mobile the new approach for assessing base forfeiture amounts for violations of the hearing aid-compatible handset deployment requirements; (2) the Commission should take into consideration T-Mobile's assertion that it is "a leader in the disabilities access arena"; and (3) the Commission should also take into consideration that the company made a good faith effort to comply with the hearing aid-compatible handset deployment requirements prior to the Bureau's initiation of the investigation in this proceeding. Below, we address each of these assertions.
In addition, for the reasons discussed below, we dismiss without prejudice the third-party filing from the Blooston Rural Carriers in response to the T-Mobile NAL. In its filing, the Blooston Rural Carriers request that the Commission clarify that the new approach for assessing base forfeiture amounts for violations of the hearing aid-compatible handset deployment requirements will be applied only to Tier I carriers or, in the alternative, applied to all carriers, but only prospectively.
DISCUSSION
T-Mobile does not challenge the Commission's factual findings or legal conclusion that it willfully and repeatedly violated Sections 20.19(c)(2) and 20.19(d)(2) of the Rules by failing to offer the requisite number of hearing aid-compatible digital wireless handset models during the 2009 and 2010 reporting periods. The issue before us, therefore, is whether we should substantially reduce the $819,000 proposed forfeiture, as T-Mobile requests. The Commission assessed the proposed forfeiture in accordance with Section 503(b) of the Communications Act of 1934, as amended (Act), Section 1.80 of the Rules, and the Commission's Forfeiture Policy Statement. In examining T-Mobile's NAL Response, the Act requires that we take into account the nature, circumstances, extent and gravity of the violation and, with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and such other matters as justice may require. After full consideration of T-Mobile's response in light of these statutory factors, we deny T-Mobile's request to reduce the forfeiture.
The Forfeiture Proposed Against T-Mobile Is Warranted
The Forfeiture Methodology Applied Here is Appropriate
After careful consideration, the Commission concluded in the T-Mobile NAL that the prior approach -- the so-called "highest handset shortfall" approach -- for calculating the base forfeiture amount for violations of the hearing aid-compatible handset deployment requirements did not adequately reflect the nature and scope of violations of the hearing aid compatibility rules. Specifically, the Commission noted that by focusing only on the single month during the calendar year with the greatest handset shortfall, the highest handset shortfall approach did not capture all handset shortages during a calendar year and therefore could result in inappropriately low base forfeiture amounts. In this regard, the Commission also observed that a company that had been out of compliance for an entire year could be assessed the same base forfeiture as a competitor who was fully compliant for all but one month. The revised forfeiture methodology begins by multiplying $15,000 times the number of hearing aid-compatible handset models by which the service provider fell short of the number required for the given category of handsets during each month the shortfall persists in that category, thus taking into account at the outset the continuing nature of the violation (as permitted by statute). This approach more accurately reflects the critical significance of the violation, and more forcefully deters future noncompliance. The decision to modify our forfeiture methodology is consistent with our obligation to consider the nature and circumstances of each particular case and the other statutory factors in Section 503(b)(2)(E) of the Act.
T-Mobile does not challenge the Commission's authority to revise the method for calculating the base forfeiture for violations of the hearing aid-compatible handset deployment requirements, but instead asserts that applying the revised methodology here to T-Mobile is inequitably retroactive. For several reasons, we reject this argument.
First, as the Supreme Court has explained, an "agency must retain power to deal with the problems on a case-by-case basis if the administrative process is to be effective. There is thus a very definite place for the case-by-case evolution of statutory standards." "And of course, it is black-letter administrative law that adjudications are inherently retroactive." As the Commission explained in the T-Mobile NAL, the hearing aid compatibility rules "have been in place for almost a decade" and "carriers have had more than sufficient opportunity to structure compliance programs and ensure that they meet our requirements." In assessing the efficacy and propriety of the enforcement approach that it should apply to address the hearing aid compatibility rule violations before it -- an issue presented to the Commission for the first time -- the Commission took into account all the available facts and circumstances of the case to craft and apply a methodology for calculating forfeiture amounts that would best serve the goals of the substantive hearing aid compatibility statute and regulations. Such facts and circumstances include not only those specific to T-Mobile, but also the more general conditions that are relevant to this enforcement action, such as whether the prior Bureau-level approach toward enforcing the rules was proving sufficiently effective as a deterrent (which we answered in the negative) and whether the approach accurately reflected the gravity of violations like those of T-Mobile, which continued over relatively long periods of time (also answered in the negative). To the extent the approach adopted by the Commission was "retroactive," it was entirely lawful -- both as an evolving policy choice and as an inherent part of the adjudicative process.
Second, even if the Commission's application of the NAL's forfeiture calculation methodology could be regarded as a change of existing agency policy (which, under the principles of Comcast, supra note 44, it was not), T-Mobile would bear the burden of demonstrating that it relied on the alleged prior policy to its detriment. Although T-Mobile asserts that it should be able to rely on the prior forfeiture standard "without fear . . . of a new standard," the agency -- on both the Commission and Bureau levels -- has repeatedly stated that it retains the discretion to depart from existing guidelines and issue forfeitures on a case-by-case basis, pursuant to its general forfeiture authority contained in Section 503 of the Act. The Enforcement Bureau has also specifically warned carriers that it would consider a more expansive view of its forfeiture authority in the context of the hearing aid compatibility rules. T-Mobile was thus on notice that the agency would be taking a dynamic enforcement approach toward cases involving violations of these rules, in order to craft and apply forfeitures that would provide an effective remedy to the extent warranted by the facts of each case, within the applicable statutory limits. Under these circumstances, it cannot be said that T-Mobile could have reasonably relied on the expectation that the Commission would apply to T-Mobile's hearing aid compatibility violations an enforcement approach that the Bureau had fashioned and used -- without Commission review, endorsement or modification -- in cases not involving T-Mobile.
Moreover, T-Mobile also fails to point out in its NAL Response any evidence that it relied to its detriment on the Bureau's enforcement approach in developing and implementing its handset deployment strategy. T-Mobile does not suggest, for example, that because of its estimate of the potential penalties it might have faced under the Bureau's approach, it chose to employ what has proven to be an ineffective level of diligence for ensuring its compliance with the handset compatibility requirements. Indeed, any such intent-based argument would not only exacerbate T-Mobile's general culpability but also bolster our conclusion that the Bureau's penalty methodology had been too lenient.
Indeed, the only instance of detrimental reliance of any sort that T-Mobile has touched on is its suggestion that it conducted its post-violation, settlement negotiation strategy under the assumption that the Commission would adopt the methodology used in earlier Bureau-level cases for calculating forfeitures for violations of the hearing aid compatibility rules. As discussed in detail above, any reliance on this assumption -- detrimental or not -- was unreasonable. Moreover, the courts have drawn a distinction between changes in remedy and changes in substantive rights and obligations, generally finding that the retroactive application of a remedy presents "much less potential for mischief than retroactive changes in the principles of liability," and "often do not involve the same degree of unfairness. As explained in Hastings, the courts are much more inclined to apply retroactively amendments of law that are directed at the remedy rather than at substantive rights because
[re]troactive modifications of remedy do not transform a legal act into an illegal act, or render one responsible to safeguard someone previously thought to act at his peril. Modification of remedy merely adjusts the extent, or method of enforcement, of liability in instances in which the possibility of liability previously was known. For this reason, absent contrary direction from Congress, courts are more inclined to apply retroactively changes in remedies than changes in liability.
Notwithstanding the distinction between retroactive changes in principles of liability and changes in remedies for such liability application, we recognize the possibility that a retroactive change in remedy could nevertheless be regarded as unfair. Such a possibility, however, does not pertain to the type of situation presented in this proceeding, where an agency uses a new enforcement approach or tool -- drawn from its existing bundle of statutorily authorized options -- and applies it without advance notice to remedy a party's substantive rule violations. T-Mobile does not argue that it was unaware of the Commission's authority to impose monetary forfeitures for such violations, or of the Commission's authority and practice of evaluating rule violations and determining the appropriate sanctions on an ad hoc basis. And, as indicated above, T-Mobile does not contend that it tailored its efforts to comply with the hearing aid compatibility rules based on the Enforcement Bureau's use of its so-called "highest handset shortfall" approach in earlier enforcement cases. Rather, T-Mobile asserts that it relied on this approach only in connection with its formulation of a negotiation strategy for settlement. T-Mobile, however, has provided almost no explanation of the actual effects of such reliance on its strategy (e.g., specific actions that were prejudicial to its case), and no factual or other bases upon which to assess the effects of any change of strategy, including some description of the specific acts it would have changed and of the different strategy it would have pursued, and whether such a strategy would have produced for it better results. Accordingly, we cannot credit T-Mobile's assertion that it relied during settlement negotiations on its assumption that the Commission would not adjust the Bureau's forfeiture methodology to account for all the relevant factors as applied to the facts of this case.
Third, T-Mobile argues that imposing a higher forfeiture against it "serves no deterrent purpose" because T-Mobile was in compliance with deployment requirements by January 2011, more than one year before the T-Mobile NAL. This argument misunderstands both the general purpose of our forfeitures and, specifically, their deterrent function. Forfeitures are intended to serve both as a meaningful sanction to wrongdoers (in this case, T-Mobile) and an effective deterrent to others who must abide by the same requirements.
Given the fundamental importance of providing consumers with hearing loss access to advanced telecommunications services, the severity of T-Mobile's violations, and the company's ability to pay, the proposed forfeiture of $819,000 is equitable. The Commission has previously stressed that individuals with hearing loss deserve the safety and convenience benefits of digital wireless telephony. And the demand for hearing aid-compatible handsets is likely to increase with the population's growing reliance on wireless technology and increasing median age. Furthermore, the uncontested duration and scope of T-Mobile's noncompliance with the handset deployment requirements belie T-Mobile's contention that the proposed forfeiture is unwarranted. As the undisputed record reflects, T-Mobile was out of compliance with the deployment benchmarks on the WCDMA air interface for 24 consecutive months, from January 2009 through December 2010. Although T-Mobile acknowledges that the company identified potential handset deployment issues in early 2010, the company did not become fully compliant until January 2011. Thus, the egregiousness of T-Mobile's violations justifies the application of the revised methodology here, and this approach should deter future noncompliance by both T-Mobile and others. In sum, we reject T-Mobile's argument that the proposed forfeiture is inequitable.
T-Mobile's Asserted Leadership Efforts in the Disability Arena Do Not Mitigate Its Uncontested Violations
We also decline to reduce the proposed forfeiture based on T-Mobile's asserted leadership role in the disability access arena and its active participation in efforts to improve the quality of service to the disabled. Although T-Mobile's efforts in the disability access area may be laudable, they do not mitigate T-Mobile's violations, which speak to the most basic assistance a company like T-Mobile can provide to consumers with hearing disabilities -- i.e., to provide telephones that people with hearing loss can actually use. In addition, T-Mobile has failed to cite any precedent that would support a forfeiture reduction on this basis.
T-Mobile's Asserted Prior Efforts to Comply Do Not, Based on the Overall Record, Mitigate the Violations
T-Mobile argues that its good faith efforts to comply with the hearing aid compatible handset deployment requirements warrant a downward adjustment of the proposed forfeiture. In this regard, T-Mobile notes that it complied with the deployment benchmarks for handsets that operate on the GSM network, which, according to T-Mobile, carried the vast majority of its voice traffic. We decline to downwardly adjust the proposed forfeiture based on T-Mobile's compliance with deployment benchmarks for handsets that operate on the GSM air interface. The handset deployment requirements independently apply to each air interface over which a service provider offers service.
T-Mobile also asserts that in early 2010, before the Bureau began the underlying investigation, T-Mobile had discovered potential compliance issues in connection with its handset offerings on the WCDMA air interface, and that it had commenced efforts in April 2010 to increase the number of compatible handset models it offered for that air interface. According to T-Mobile, the company came into compliance with the T3 deployment benchmark in September 2010, and with the M3 benchmark in January 2011. The record indicates that T-Mobile increased -- albeit modestly -- its offerings of M3-rated and T3-rated handset models beginning in September 2010. T-Mobile did not, however, become fully compliant with the handset deployment benchmarks until January 2011, approximately eight months after T-Mobile's asserted remedial efforts began. While T-Mobile asserts that it faced certain challenges in obtaining hearing aid-compatible handsets that operate on the WCDMA air interface, as a sophisticated Tier I carrier with substantial financial resources, those asserted challenges do not justify T-Mobile's substantial delay in coming into full compliance after the discovery of its violations.
After considering the facts, applicable law, and T-Mobile's response to the NAL, we conclude that T-Mobile willfully and repeatedly violated Sections 20.19(c)(2) and 20.19(d)(2) of the Rules, and we affirm the proposed forfeiture of $819,000.
The Blooston Rural Carriers' Filing is Dismissed
Finally, we dismiss the "Comments" filed by the Blooston Rural Carriers, whom the Commission did not name or address in the T-Mobile NAL. The Blooston Rural Carriers state that they are small, Tier III wireless service providers, and their submission presents questions concerning the Commission's methodology for calculating forfeitures in circumstances that are not present here. In particular, the Blooston submission contends that the Commission should not apply the approach discussed in the T-Mobile NAL (which was issued to T-Mobile, a Tier 1 provider) to any Tier III providers. We decline to address the merits of the Blooston submission in this adjudicative proceeding, which is limited to considering T-Mobile's compliance with our hearing aid compatibility rules. We thus dismiss the Blooston submission without prejudice, leaving the Blooston Rural Carriers the option of filing a petition for declaratory ruling on the issues they raise here. Alternatively, if in another adjudicative proceeding the Commission considers whether to apply the approach used here to the Blooston Rural Carriers, those carriers may raise their arguments in any such adjudication.
ORDERING CLAUSES
Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Act and Section and 1.80 of the Rules, T-Mobile USA, Inc., a subsidiary of T-Mobile US, Inc., IS LIABLE FOR A MONETARY FORFEITURE in the amount of eight hundred nineteen thousand dollars ($819,000) for willful and repeated violation of Sections 20.19(c)(2) and 20.19(d)(2) of the Rules.
Payment of the forfeiture shall be made in the manner provided for in Section 1.80 of the Rules within thirty (30) calendar days after the release date of this Forfeiture Order. If the forfeiture is not paid within the period specified, the case may be referred to the U.S. Department of Justice for enforcement of the forfeiture pursuant to Section 504(a) of the Act. T-Mobile USA, Inc. shall send electronic notification of payment to Pamera Hairston at Pamera.Hairston@fcc.gov, Linda Nagel at Linda.Nagel@fcc.gov, and Samantha Peoples at Sam.Peoples@fcc.gov on the date said payment is made.
The payment must be made by check or similar instrument, wire transfer, or credit card, and must include the NAL/Account Number and FRN referenced above. Regardless of the form of payment, a completed FCC Form 159 (Remittance Advice) must be submitted. When completing the FCC Form 159, enter the Account Number in block number 23A (call sign/other ID) and enter the letters "FORF" in block number 24A (payment type code). Below are additional instructions T-Mobile USA, Inc., should follow based on the form of payment it selects:
* Payment by check or money order must be made payable to the order of the Federal Communications Commission. Such payments (along with the completed Form 159) must be mailed to Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004, receiving bank TREAS/NYC, and Account Number 27000001. To complete the wire transfer and ensure appropriate crediting of the wired funds, a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit card information on FCC Form 159 and signing and dating the Form 159 to authorize the credit card payment. The completed Form 159 must then be mailed to Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
Any request for making full payment over time under an installment plan should be sent to: Chief Financial Officer -- Financial Operations, Federal Communications Commission, 445 12th Street, S.W., Room 1-A625, Washington, D.C. 20554. If T-Mobile USA, Inc. has questions regarding payment procedures, it should contact the Financial Operations Group Help Desk by phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be sent by first class mail and certified mail return receipt requested, to Kathleen O'Brien Ham, Vice President, Regulatory Affairs, T-Mobile USA, Inc., 601 Pennsylvania Avenue, N.W., Washington, DC 20004, and to David H. Solomon, Esq., Wilkinson Barker Knauer, LLP, Counsel to T-Mobile USA, Inc., 2300 N Street, N.W., Suite 700, Washington, DC 20037.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
* TECHNICAL APPENDIX
*
* Hearing Aid Compatibility -- Wireless Handset Deployment Requirements
*
A. Applicable statute and regulations for technical standards. Under the authority of the Hearing Aid Compatibility Act of 1988, codified at Section 710 of the Communications Act of 1934, as amended, 47 U.S.C. § 610, the Commission in 2003 established technical standards that digital wireless handsets must meet to be considered compatible with hearing aids operating in acoustic coupling and inductive coupling (telecoil) modes. See Section 68.4(a) of the Commission's Rules Governing Hearing Aid-Compatible Telephones, Report and Order, 18 FCC Rcd 16753(2003), Erratum, 18 FCC Rcd 18047 (2003) (Hearing Aid Compatibility Order); see also Order on Reconsideration and Further Notice of Proposed Rulemaking, 20 FCC Rcd 11221 (2005) ; 47 C.F.R. §§ 20.19(b)(1) - (2).
B. Two modes for hearing aids: acoustic coupling and inductive (telecoil) coupling. "In acoustic coupling mode, the microphone picks up surrounding sounds, desired and undesired, and converts them into electrical signals. The electrical signals are amplified as needed and then converted back into sound by the hearing aid speaker. In telecoil mode, with the microphone turned off, the telecoil picks up the audio signal-based magnetic field generated by the voice coil of a dynamic speaker in hearing aid-compatible telephones, audio loop systems, or powered neck loops. The hearing aid converts the magnetic field into electrical signals, amplifies them as needed, and converts them back into sound via the speaker. Using a telecoil avoids the feedback that often results from putting a hearing aid up against a telephone earpiece, can help prevent exposure to over amplification, and eliminates background noise, providing improved access to the telephone." Hearing Aid Compatibility Order,18 FCC Rcd at 16763, para. 22.
C. Different standards for acoustic and coupling modes: M3 and T3 ratings. The Commission adopted one standard for radio frequency interference (the M3 rating) to enable acoustic coupling between digital wireless phones and hearing aids operating in acoustic coupling mode, and a separate standard (the T3 rating) to enable inductive coupling with hearing aids operating in telecoil mode. Section 20.19(b)(1) of the Commission's rules provides that, for the period beginning January 1, 2010, a wireless handset is deemed hearing aid-compatible for radio frequency interference if, at a minimum, it meets the M3 rating associated with the technical standard set forth in the standard document "American National Standard Methods of Measurement of Compatibility between Wireless Communication Devices and Hearing Aids," ANSI C63.19-2007 (June 8, 2007) (ANSI C63.19-2007), except that grants of certification issued before January 1, 2010, under earlier versions of ANSI C63.19 remain valid for hearing aid compatibility purposes. 47 C.F.R. § 20.19(b)(1). Section 20.19(b)(2) provides that, for the period beginning January 1, 2010, a wireless handset is deemed hearing aid-compatible for inductive coupling if, at minimum, it meets the T3 rating associated with the technical standard set forth in ANSI C63.19-2007, except that grants of certification issued before January 1, 2010, under earlier versions of ANSI C63.19 remain valid for hearing aid compatibility purposes. 47 C.F.R. § 20.19(b)(2). A recently adopted further amendment to Section 20.19(b) permits manufacturers to test handsets for hearing aid compatibility using the 2011 version of the ANSI standard (ANSI C63.19-2011) as an alternative to ANSI C63.19-2007. See Amendment of the Commission's Rules Governing Hearing Aid-Compatible Mobile Handsets, Third Report and Order, 27 FCC Rcd 3732 (WTB/OET 2012).
* D. Air interfaces. The term "air interface" refers to the technical protocol that ensures compatibility between mobile radio service equipment, such as handsets, and the service provider's base stations. Currently, the leading air interfaces include Global System for Mobile Communications (GSM), Wideband Code Division Multiple Access (WCDMA) (a.k.a. Universal Mobile Telecommunications System (UMTS)), Code Division Multiple Access (CDMA), and Integrated Digital Enhanced Network (iDEN).
* E. Compliance deadlines. In the 2008 Hearing Aid Compatibility First Report and Order, the Commission established various deadlines between 2008 and 2011 by which manufacturers and service providers must offer specified numbers of digital wireless handset models rated hearing aid-compatible. Amendment of the Commission's Rules Governing Hearing Aid-Compatible Mobile Handsets, First Report and Order, 23 FCC Rcd 3406, 3419, paras. 35 - 36 (2008) (Hearing Aid Compatibility First Report and Order), Order on Reconsideration and Erratum, 23 FCC Rcd 7249 (2008). These requirements do not apply to service providers and manufacturers that meet the de minimis exception. See Hearing Aid Compatibility First Report and Order, 23 FCC Rcd at 3413, para. 20; 47 C.F.R. § 20.19(e).
* F. Handset requirements. The handset deployment requirements apply to each air interface over which the service provider offers service. Hearing Aid Compatibility First Report and Order, 23 FCC Rcd 3406, 3419, paras. 35 - 36. In addition, the number of digital wireless handset models that each company must offer depends on the applicable compatibility standard (M rating or T rating), and the deployment schedule is tailored to the size of the service provider as measured by its number of subscribers. Specifically, Tier I carriers were required to offer the following minimum numbers of hearing aid-compatible handsets during the 2009 and 2010 reporting periods:
* Table 1: Hearing Aid-Compatible Handset Deployment Requirements for Tier 1 Carriers
* Dates
* M3 - Acoustic Coupling
* T3 - Inductive Coupling
*
* Number of wireless handset models per digital air interface that must be rated M3 or higher
* Number of wireless handset models per digital air interface that must be rated T3 or higher
* Effective date of rules to
* February 14, 2009
* At least 50% of the models offered or, at a minimum, at least 8 handset models (whichever is less)
* At least 1/3 of the models offered or, at a minimum, at least 3 handset models (whichever is less)
* February 15, 2009 to
* February 14, 2010
* At least 50% of
* the models offered or, at a minimum, at least 9 handset models(whichever is less)
* At least 1/3 of the models offered or, at a minimum, at least 5 handset models (whichever is less)
* February 15, 2010 to
* December 31, 2010
* At least 50% of the models offered or, at a minimum, at least 10 handset models (whichever is less)
* At least 1/3 of the models offered or, at a minimum, at least 7 handset models (whichever is less)
* See Hearing Aid Compatibility First Report and Order, 23 FCC Rcd at 3418 - 20, paras. 35 - 36; 47 C.F.R. §§ 20.19(c)(2), (d)(2).