Summary of FCC's Report on Elimination of Analog  Service

MEMORANDUM

TO:                  Judy Harkins
                        Gregg Vanderheiden
                        RERC on Telecommunications Access

 FROM:            Karen Peltz Strauss
                        KPS Consulting
Re:                   Summary of FCC Proceeding on  In the Matter of Year 2000 Biennial 

Regulatory Review – Amendment of Part 22 of the Commission’s Rules 

to Modify or Eliminate Outdated Rules Affecting the Cellular 

Radiotelephone Service and other Commercial Mobile Radio Services, 

WT Docket No.  01-108, Report and Order (adopted August 8, 2002; 

released September 24, 2002)

DATE:             September 30, 2002 

            A little more than one month ago, the FCC adopted a rule mandating the elimination of its compatibility standard for analog systems, known as Advanced Mobile Phone Service (AMPS), within five years.  This week, the Commission released the wording of the final Report and Order in this proceeding.  The proceeding is important because of its impact on hearing aid and cochlear implant users who are unable to effectively use digital wireless technologies.

I.  Biennial Review of Part 22’s “Analog Rule”

             When the FCC first created its rules for cellular service in the early 1980s, it was interested in creating a nationwide wireless network that would promote competition and eliminate the need for consumers to acquire multiple handsets in order to roam when not in their home region, and to switch between competing carriers in a given region.  Accordingly, in its Part 22 rules, the Commission required all mobile service carriers to provide cellular service in accordance with specific standards for analog systems.  The goal of this “analog rule” was to fulfill the objective of achieving a nationwide, compatible wireless service.  

In 1996, in its amendments to the Communications Act of 1934, Congress directed the Commission, every two years, to conduct a review of all FCC rules relating to providers of telecommunications service, in order to determine whether those rules are still necessary “in the public interest as the result of meaningful economic competition between providers of such service.”  Where the Commission determines that a rule is no longer needed in the public interest because of competition, the Commission is directed to repeal or modify that rule.  The analog rule came up for review in the Commission’s Year 2000 Biennial Review because of the tremendous competition and technological developments in the mobile industry.  The rapid growth of the mobile telephony industry caused the Commission to reconsider whether the analog rule was still needed to promote competition or to make sure that mobile service is available to everyone.  

In the notice and comment stage of this Biennial Review, the Commission asked whether market forces are now enough to fulfill its original goals of ensuring nationwide compatibility and competition in wireless services.  In addition, the Commission asked whether eliminating the AMPS standard would have an impact on the provision of service to existing analog consumers.  It noted that although consumers can now choose from among a variety of wireless technologies and services, it was “particularly concerned with the potential effects on those with hearing disabilities, and emphasized that [it] would not take any action that would undermine service to these individuals.” 

II.  Justification for Elimination of Analog Rule  

 The Commission’s Order now concludes that the analog rule achieved its purpose of providing the public with access to inexpensive, compatible equipment and nationwide roaming.  According to the Commission, the enormous growth and competition in the mobile telephony industry and the market demand for ubiquitous and nationwide coverage have eliminated the need for the analog rule as a means of ensuring that consumers have a choice of more than one mobile provider in their areas.  The Commission has concluded that rather than fostering competition, the analog requirement in now hurting competition and the efficient use of spectrum by requiring carriers to provide two mobile networks – analog and digital.  First, carriers are being forced to incur costs associated with maintaining an analog network when they would prefer to use their resources for digital technologies.  Second, digital technologies use less spectral bandwidth and allow carriers to provide more advanced services; yet the analog requirement is preventing mobile carriers from installing this more efficient all-digital network.

             In its Report, the Commission concludes that market forces, not governmental regulation, can now achieve its objectives without the analog rule.  Removal of the requirement, the FCC says, is consistent with its interest in moving toward a less regulatory approach.  However, the Commission acknowledges that the immediate elimination of the rule “would be extremely disruptive to certain consumers, particularly those with hearing disabilities as well as emergency-only consumers, who currently continue to rely on the availability of analog service and lack digital alternatives.”  In order to safeguard the ability of people with hearing disabilities to access wireless telephony, the Order creates a sunset period of five years, during which time the Commission says, it anticipates that these access problems will probably be resolved.  To this end, the Commission’s Report specifically states:  “We note that if hearing-aid compatible devices are not available, or market conditions change, we will not eliminate the rule at the conclusion of the five-year period.” 

            The Commission also notes that although it is setting the date after which it will no longer require carriers to provide analog service, carriers will be permitted to continue providing that service after that time.  The Commission notes its expectation that carriers will continue to provide analog service as long as consumers demand it.  (The Commission notes elsewhere in its Report, however, that currently 3 to 1 wireless consumers use digital over analog services.)

III.  Hearing Aid Compatibility Issues 

            After offering the above general discussion, the Commission spends a good deal of time discussing issues concerning the accessibility of wireless technologies by people with disabilities (See paragraphs 26 through 33).

A.  Continued Need for Analog Service – 5 Year Transition Period

            First, the Commission notes that it recognizes that people with hearing disabilities, unlike the general public, are forced to rely on analog service or a small number of digital phones for access to wireless services.  The Commission cites to the fact that some analog phones and neckloops used with certain digital phones are compatible with hearing aids with telecoils.  But it notes that not all hearing aid wearers have T-coil equipped hearing aids, and that these people cannot use either the neck loops with digital phones or T-coil equipped analog phones.  The Commission then explains the problems with interference to hearing aids and cochlear implants, noting that the fluctuations in electromagnetic energy in digital handsets cause such interference. 

            The Commission next acknowledges that “telecommunications technology has become an essential component of everyday life, and that those without ready access are at a disadvantage in areas such as emergency services as well as routine daily activities.”    Accordingly, the Commission states, it has taken steps in recent years to ensure access by people with disabilities to wireless services.  The Commission cites to its E911 proceeding on TTY access to wireless services, as well as its ongoing proceeding to determine whether the requirements of the Hearing Aid Compatibility Act of 1988 should be extended to mobile phones.  Additionally, the Commission cites to its Section 255 rules requiring manufacturers and telecommunications services providers to make their equipment and services accessible, if readily achievable.

            The Commission then concludes that its “review of the record” leads it to conclude that an immediate removal of the analog rule would be “detrimental” to people with hearing disabilities.  The “scarcity of digital devices” available for use with hearing aids,” the Commission states, could cause individuals with hearing disabilities to be left without access to mobile services if the analog requirement is eliminated immediately.  The Commission notes that for people with disabilities, market forces will not be enough:  

While we anticipate that market mechanisms will, for the most part, ensure access to digital services for most consumers, we agree with commenters who argue that the same economic incentives do not exist that would ensure that persons with hearing disabilities have adequate access to digital wireless service because they account for only a small percentage of mobile telephony users.

The record, the Commission concludes, supports a transition period of five years, during which time, the Commission “anticipate[s] that digital solutions to the hearing aid-compatibility problem will be developed and made widely available.” 

            In response to the concerns of some commenters that the analog rule should not be eliminated until digital technologies are fully compatible, the Commission responds that a five year transition period is “a reasonable time frame” for the industry to develop solutions for accessible digital technologies.  For support, the Commission states that progress made in developing solutions to achieve TTY access leads it to conclude that the industry will also be able to develop HAC solutions within a five-year period.  In addition, the Commission reasons, a shorter sunset period could mean that access will be achieved more quickly than if the agency had allowed a longer period.  The Commission states that because it is “reserving the right to extend the sunset period in the event that solutions to hearing aid-compatibility problems are unsatisfactory,” industry is provided with an incentive to develop solutions to the digital access problem. 

B. Section 255 Mandate for Accessibility

            The Commission’s Report and Order also contains a discussion of the obligations of wireless providers to make their services accessible to persons with disabilities under Section 255.  In this discussion, the Commission states that although some commenters argue that mobile providers and manufacturers may be able to circumvent the provisions of Section 255, that law does require providers to ensure the provision of access by people with hearing disabilities.  The Commission notes that the requirements which Section 255 imposes on carriers are independent of other rules.  Although these mandates exist, the Commission concludes that it is nevertheless appropriate to establish the five-year transition period to address the “current problem of hearing aid-compatibility with digital handsets, and ensure access to mobile telephony service for persons with hearing disabilities.” 

C.  Reporting Requirements

            In order to monitor the progress on accessibility solutions, and to ensure that wireless services are continuing to be made available to people with hearing disabilities, the Commission’s Order requires all cellular carriers providing nationwide coverage to file reports with the Commission in the 3rd and 4th years after the issuance of the Order.  These carriers are directed to report on their intentions to discontinue analog service, including the markets in which they plan to discontinue that service, and the length of time they intend to continue providing analog service in those markets. The Commission states that a carrier who plans to discontinue analog service: 

must certify and provide information in its report that there are hearing aid-compatible digital devices available to persons with hearing disabilities at the time of filing, or, if no such equipment is available at the time of filing, describe the extent to which, by the end of the fifth year, digital equipment will be available to persons with hearing disabilities in market(s) where the carrier intends to discontinue analog service.  Carriers may also be required to show in their reports that they are in compliance with the provisions of section 255 of the Act, as well as with any obligations required of them as a result of [the] HAC Proceeding.  Such carriers, in their reports, may also be required to describe their plan for informing its subscribers, the public and other interested parties regarding plans to discontinue analog service. 

            The Commission notes that other interested parties may also file reports or comments, and that it encourages joint reporting efforts such that which occurred with the TTY forum.  It says that the information in the reports will be used to decide “whether or not the Commission will initiate a proceeding to extend the sunset date or take appropriate enforcement action under section 255.”  

D.  HAC Proceeding on Wireless Phones

            The Commission states that its action in this proceeding does not preclude it from independently mandating that carriers comply with HAC requirements during the 5-year transition period, if it determines that revocation or limitation of the HAC exemption for wireless phones is warranted in its pending HAC proceeding.  Finally, it notes that its Wireless Telecommunications Bureau, its Consumer & Governmental Affairs Bureau, and its Office of Engineering and Technology will work closely with the Food and Drug Administration to develop standards for hearing aid design that can alleviate interference between hearing aids and digital technologies.

This summary was prepared as part of the RERC on Telecommunications Access, a joint project of Gallaudet University and the Trace Center, University of Wisconsin-Madison under funding from the National Institute on Disability and Rehabilitation Research (NIDRR) of the US Dept of Education Grant H133E990006.  The opinions offered herein are those of the author and do not necessarily represent those of the RERC on Telecommunications Access, the Universities or funding agencies.

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