An unexpected phone bill: a federal rule says all your phones must be able to be used by persons with hearing aids - Federal Communications Commission rule

Nation's Business, May, 1993 by David Warner

May 1, all telephones in workplaces with 20 or more employees must be hearing-aid compatible, according to a little-publicized regulation adopted in June 1992 by the Federal Communications Commission (FCC). Each violation is punishable by a fine of up to $10,000 a day to a maximum of $75,000.

By May 1, 1994, the FCC rule will apply to phones in all workplaces. The measure covers private and public entities, including hospitals, churches, and universities.

The rule is the result of an interpretation of legislation passed by Congress in 1988; the measure required that telephones manufactured in or imported into the United States after Aug. 16, 1989, had to be hearing-aid compatible.

The 1988 law, the Hearing Aid Compatibility Act, also reiterated a 1982 Telecommunications for the Disabled Act requirement that all "essential" telephones be hearing-aid compatible. Essential phones were defined as coin-operated, those provided for "emergency use," and others "frequently needed for use" by people with hearing aids.

Neither law required retrofitting of telephones. In fact, Congress rejected retrofitting. A House report accompanying the 1982 law says: "An employee with impaired hearing should have access to at least one compatible telephone." And a Senate report with the 1988 statute states: "Retrofitting telephones currently in use to make them [hearing-aid compatible] or requiring refurbished telephones to be compatible appears to be too costly at this time."

But the FCC ignored Congress's intent. The commission issued its rule because, it reasoned, a hearing-impaired person could be any place in an emergency, and therefore all telephones are "essential," says Robert Kimball, an attorney with the commission's Common Carrier Bureau, in Washington, D.C.

"I don't know what the FCC was thinking," says Jonathan Mook, a labor and employment attorney with Ogletree, Deakins, Nash, Smoak & Stewart, a law firm in Washington. "I didn't think it could be clearer as to what Congress intended, which was no retrofitting." Mook's firm represents several businesses that have expressed concern about the FCC rule.

Only in the past few months have businesses, mostly large companies, become aware of the telephone regulation, according to several attorneys who spoke with Nation's Business.

Letters from telephone vendors offering to replace phones that are not hearing-aid compatible with phones that are-- for a price-alerted many companies to the issue.

"A very small number of employers are familiar with the subject at all," says Peter Susser, an attorney with Keller & Heckman, in Washington.

To get the word out to telephone users, the FCC's Kimball says, the commission relied on organizations that monitor FCC actions and on groups that responded during the comment period on the proposed rule. He also points out that publishing the rule in the June 18, 1992, Federal Register technically constituted legal notice. Says Ogletree's Mook' "This is sort of the stealth regulation. You don't realize it's there until it hits you."

And the rule could hit businesses in a big way. The cost of converting a phone so it can be used by a person with a hearing aid may be only a few dollars for some old phones, but it will be much higher for most phones that lack such capability. Most such phones will have to be replaced or will have to be equipped with new handsets, according to several telephone-system companies contacted by Nation's Business.

The only way to tell if a phone is hearing-aid compatible is to check with its manufacturer. Retrofitting a phone to make it hearing-aid compatible (HAC) costs about $40. For example, ROLM, a telephone company in Santa Clara, Calif. says its HAC handsets are priced at $35 each, or $16 apiece for 10 or more. AT&T sells HAC phones priced from $35.99 to $64.99, and the company's HAC handset systems are $49.99.

Requests to waive the FCC regulation for employers have been made by several groups, including the U.S. Chamber of Commerce and the Equal Employment Advisory Council, a coalition of 270 major U.S. companies concerned about employment discrimination.

The groups maintain in their comments to the FCC that the HAC rule is in conflict with the Americans with Disabilities Act, which requires an employer to make "reasonable accommodations" on an as-needed basis for a particular individual with a disability.

"This [rule] seems to go so far beyond what the [Americans with Disabilities Act] requires," says Ann Reesman. She is an attorney with the Washington, D.C., law firm of McGniness & Williams, and she represents the Equal Employment Advisory Council. "It seems to be a bit much."

Nonetheless, the commission has no plans to delay or waive the rule, according to Kimball.

Businesses seeking more information may want to call the FCC at (202) 634-7150.