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Federal Communications Commission
Washington, D.C. 20554
) File No. EB-08-SE-116
In the Matter of
) NAL/Acct. No. 200832100050
SunCom Wireless, Inc.
) FRN # 0003246642
Notice of apparent Liability for forfeiture
Adopted: June 4, 2008 Released: June 4, 2008
By the Chief, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we
propose a forfeiture of sixty thousand dollars ($60,000) against
SunCom Wireless, Inc. ("SunCom"), a Global System for Mobile
Communications-based ("GSM-based") Tier II carrier, serving most of
North and South Carolina, parts of the bordering states of Virginia,
Tennessee and Georgia ("mainland"), and Puerto Rico and the U.S.
Virgin Islands. As detailed herein, we find that SunCom apparently
willfully and repeatedly violated Section 20.19(d)(2) of the
Commission's Rules ("Rules"), by failing to include in its digital
wireless handset offerings at least two models that meet the inductive
coupling standards for hearing aid compatibility by the September 18,
2. In the 2003 Hearing Aid Compatibility Order, the Commission adopted
several measures to enhance the ability of individuals with hearing
disabilities to access digital wireless telecommunications. The
Commission 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. Specifically, the Commission adopted a standard for radio
frequency interference (the "U3" or "M3" rating) to enable acoustic
coupling between digital wireless phones and hearing aids operating in
acoustic coupling mode, and a separate standard (the "U3T" or "T3"
rating) to enable inductive coupling with hearing aids operating in
telecoil mode. The Commission further established, for each standard,
deadlines by which manufacturers and service providers were required
to offer specified numbers or percentages of digital wireless handsets
per air interface that are compliant with the relevant standard if
they did not come under the de minimis exception.
3. The Commission required that manufacturers and service providers begin
making commercially available at least two handset models per air
interface that meet the U3 or M3 rating for radio frequency
interference by September 16, 2005. The Commission also required that
manufacturers and service providers make commercially available at
least two handset models per air interface that meet the U3T or T3
rating for inductive coupling by September 18, 2006. In connection
with the offer of hearing aid-compatible handset models, the
Commission further required entities to label the handsets with the
appropriate technical rating, and to explain the technical rating
system in the owner's manual or as part of the packaging material for
the handset. In order to monitor the availability of these handsets,
the Commission required manufacturers and digital wireless service
providers to report every six months on efforts toward compliance with
the hearing aid compatibility requirements for the first three years
of implementation, and then annually thereafter through the fifth year
4. On September 15, 2006, SunCom filed a petition for waiver of Section
20.19(d)(2) of the Rules, seeking an extension of the inductive
coupling-compliant handset deadline until January 18, 2007. SunCom
based its waiver request on its inability, as a smaller regional
carrier that lacks the bargaining leverage of Tier I carriers, to
receive from suppliers timely shipments of inductive
coupling-compliant handsets. On January 12, 2007, SunCom filed an
amended waiver petition, seeking a further extension until April 1,
2007. SunCom based its amended request on Nokia's postponed shipping
date for its T3-rated 6126h model, which Nokia projected would not be
available to SunCom until the end of the first quarter 2007. In
addition, SunCom indicated that it introduced a version of the Sony
Ericsson ("S/E") W710 model in December 2006, which it had been told
was not T3-compliant, but had recently learned that this S/E W710
model has qualified for a T-3 rating. Thus, SunCom stated that it did
have one T3-rated handset available to consumers. SunCom asserted that
it was working with S/E to obtain appropriate package labeling for the
W710 units already in inventory. SunCom also stated that it was
planning to acquire a third inductive coupling-compliant handset, the
5. On March 30, 2007, SunCom filed an amended waiver petition, seeking a
further extension until May 15, 2007. SunCom explained that, in
response to its further request to S/E for appropriate labeling of the
W710 model, it was told that the W710 units S/E sent to SunCom in
December of 2006 were not inductive coupling-compliant, and that
compliant W710 models would not be shipped until the end of April
2007. SunCom made its further labeling request to S/E the last week of
March 2007, approximately three months after it had received the S/E
W710 handsets, and more than two months after it first represented to
the Commission that it was working with S/E to obtain appropriate
6. In its March 2007 Waiver Amendment, SunCom also stated that it was
offering the inductive coupling-compliant Nokia 6126h model in its
mainland stores, and that it was offering the inductive
coupling-compliant Motorola V3i model in its Puerto Rico stores.
SunCom further stated that it planned to offer the Nokia 6085 model
(replacement for the Nokia 6126h model then offered only in its
mainland stores) in all of its stores by April 2007. SunCom thus
stated that it expected to achieve full compliance with the inductive
coupling handset requirements by the end of April 2007.
7. On June 1, 2007, SunCom, responding to a Commission staff inquiry,
stated that as of May 10, 2007, it had offered the inductive
coupling-compliant S/E W710 and the Nokia 6085 handsets in its
mainland stores, and the Motorola V3i handsets on its website. SunCom
further stated that it began offering the Motorola V3i handsets in its
Puerto Rico stores on September 20, 2006, but that it had not yet
offered a second compliant handset there. SunCom explained that it had
placed an order for Nokia's 6085 model for distribution in Puerto
Rico, but that on April 26, 2007 (several months after it placed the
order), Nokia told it that shipment of that model had to be delayed
due to the fact that SunCom requires different software for handsets
sold in the Puerto Rico market. SunCom stated that it immediately
provided the software to Nokia, and that it received a shipment date
of June 6, 2007. In the interim, SunCom stated that it had arranged to
ship some of its mainland Nokia 6085 handsets to Puerto Rico for
distribution by June 6, 2007. SunCom therefore requested a limited
waiver until June 6, 2007, with regard to its 25 stores in Puerto
8. On June 11, 2007, SunCom reported that the mainland Nokia 6085
handsets had been shipped to, and were being offered in, its Puerto
Rico stores as of June 5, 2007. SunCom reported, however, that it had
learned that the version of the Motorola V3i that it had been offering
was not inductive coupling-compliant. SunCom stated after this
discovery, it immediately shipped S/E W710 handsets from its mainland
inventory and requested a waiver for the time it mistakenly believed
that the Motorola V3i model was inductive coupling-compliant.
According to SunCom, it began offering the S/E W710 compliant handsets
(its second compliant model) in its Puerto Rico stores on June 8,
9. On February 27, 2008, the Commission released the February 2008
Inductive Coupling Compatibility Waiver Order, addressing individually
each of 46 waiver petitions filed on behalf of a total of 90 Tier III
carriers, five Tier II carriers, including SunCom, one Mobile Virtual
Network Operator, and one handset manufacturer for relief from the
hearing aid compatibility requirements for wireless digital
telephones. The Commission found that SunCom did not demonstrate
"unique or unusual circumstances, or the existence of any factor" that
would warrant a waiver. The Commission noted SunCom's documented
efforts to achieve, and its setbacks in achieving, compliance with
Section 20.19(d)(2). The Commission found, however, that neither
SunCom's efforts nor its setbacks justified its prolonged delays. In
so finding, the Commission noted that SunCom was not proactive
regarding the Motorola V3i (it should have inquired whether it was
inductive coupling-compliant, in the absence of labeling) and the S/E
model W710 (it should have followed up sooner when its initial request
for labeling was not satisfactorily answered). Finally, the Commission
noted that SunCom did not demonstrate the same level of diligence in
the Puerto Rico market as it had in the mainland.
A. Failure to Offer For Sale Two Hearing Aid-Compatible Handset Models
10. Section 20.19(d)(2) of the Rules requires digital wireless service
providers to begin offering for sale at least two handset models for
each air interface that meet at least a T3 rating for inductive
coupling by September 18, 2006. SunCom admits that it did not offer
for sale the required two models of inductive coupling-compliant
handsets in all of its markets until June 8, 2007. Accordingly, we
conclude that SunCom apparently willfully and repeatedly failed to
comply with Section 20.19(d)(2) of the Rules.
B. Proposed Forfeiture
11. Under Section 503(b)(1)(B) of the Act, any person who is determined by
the Commission to have willfully or repeatedly failed to comply with
any provision of the Act or any rule, regulation, or order issued by
the Commission shall be liable to the United States for a forfeiture
penalty. To impose such a forfeiture penalty, the Commission must
issue a notice of apparent liability and the person against whom such
notice has been issued must have an opportunity to show, in writing,
why no such forfeiture penalty should be imposed. The Commission will
then issue a forfeiture if it finds by a preponderance of the evidence
that the person has violated the Act or a Commission rule. We conclude
under this standard that SunCom is apparently liable for forfeiture
for its apparent willful and repeated violation of Section 20.19(d)(2)
of the Rules.
12. Under Section 503(b)(2)(B) of the Act, we may assess a common carrier
a forfeiture of up to $130,000 for each violation, or for each day of
a continuing violation up to a maximum of $1,325,000 for a single act
or failure to act. In exercising such authority, we are required to
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."
13. The Commission's Forfeiture Policy Statement and Section 1.80 of the
Rules do not establish a base forfeiture amount for violations of the
hearing aid-compatible handset requirements set forth in Section 20.19
of the Rules. The fact that the Forfeiture Policy Statement does not
specify a base amount does not indicate that no forfeiture should be
imposed. The Forfeiture Policy Statement states that "... any omission
of a specific rule violation from the ... [forfeiture guidelines] ...
should not signal that the Commission considers any unlisted violation
as nonexistent or unimportant. The Commission retains the discretion,
moreover, to depart from the Forfeiture Policy Statement and issue
forfeitures on a case-by-case basis, under its general forfeiture
authority contained in Section 503 of the Act.
14. In determining the appropriate forfeiture amount for violation of the
hearing aid compatibility handset requirements, we take into account
that these requirements serve to ensure that individuals with hearing
disabilities have access to digital wireless telecommunications
services. In adopting the hearing aid compatibility rules, the
Commission underscored the strong and immediate need for such access,
stressing that individuals with hearing impairments should not be
denied the public safety and convenience benefits of digital wireless
telephony. Moreover, as the Commission has noted, 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
15. Our recent decisions established a base forfeiture amount of $15,000
per handset for violations of the hearing aid compatibility handset
requirements. In establishing this base forfeiture amount, we
determined that violations of the hearing aid compatibility handset
requirements warranted a significantly higher forfeiture than for
violations of the labeling requirements for wireless hearing
aid-compatible handsets. We found that a violation of the labeling
requirements, while serious because it deprives hearing aid users from
making informed choices, is less egregious than a violation of the
handset requirements because failure to make compliant handsets
available actually deprives hearing aid users from accessing digital
wireless communications. We also found that the handset requirements
require providers to offer at least two handset models that meet at
least a T3 rating for inductive coupling, and thus determined that a
proposed forfeiture for violation of these requirements should be
applied on a per handset basis.
16. The record establishes that SunCom did not offer any handsets that met
the T3 rating for inductive coupling by September 18, 2006. The record
further establishes that SunCom did not come into compliance with the
inductive coupling compatibility requirements in all of its markets
until June 8, 2007. Further, while SunCom sought waivers of the
September 18, 2006 deadline, its efforts to come into compliance did
not demonstrate due diligence and it did not demonstrate unique or
unusual circumstances. The Commission thus denied SunCom's waiver
requests. Accordingly, SunCom is apparently liable for a base
forfeiture of $30,000 for failing to comply with the inductive
coupling compatibility requirements in willful and repeated violation
of Section 20.19(d)(2).
17. We find, however, that a substantial upward adjustment to the $30,000
base forfeiture amount is warranted. We believe that violations of the
hearing aid compatibility handset requirements by Tier II carriers are
more egregious, warranting a higher forfeiture amount than that
assessed against smaller Tier III carriers. Specifically, we consider
that Tier II carriers' failure to timely offer compliant handsets
potentially impacts and deprives more hearing aid users from accessing
digital wireless communications, because of their larger subscriber
base. We also consider it appropriate to set the forfeiture amount at
a higher level for larger entities, such as Tier II carriers, to serve
as an effective deterrent against their future non-compliance with the
hearing aid compatibility handset requirements. And, as we have
previously noted, a carrier's failure to offer two handsets that meet
the FCC's inductive coupling compatibility requirements is a
continuing violation for purposes of determining an appropriate
18. At the same time, we must also consider the efforts that SunCom did
make, over a period of several months, to obtain compliant handsets in
both its mainland and Puerto Rico markets. As the Commission noted in
denying SunCom's waiver request, SunCom documented that it made
numerous contacts with manufacturers in an attempt to procure such
handsets, but that a series of setbacks delayed its compliance until
June 2007. While these efforts are not sufficient, under all the
circumstances, to excuse SunCom's extended period of noncompliance, we
find that they warrant some mitigation of the proposed forfeiture.
Based on all of the foregoing, we therefore propose a $60,000
forfeiture against SunCom for failing to comply with the inductive
coupling compatibility requirements in apparent willful and repeated
violation of Section 20.19(d)(2).
IV. ORDERING clauses
19. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Section 1.80 of the Rules, SunCom Wireless, Inc. IS NOTIFIED
of its APPARENT LIABILITY FOR A FORFEITURE in the amount of sixty
thousand dollars ($60,000) for willful and repeated violation of
Section 20.19(d)(2) of the Rules.
20. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Rules,
within thirty days of the release date of this Notice of Apparent
Liability for Forfeiture, SunCom SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
21. Payment of the forfeiture must be made by check or similar instrument,
payable to the order of the Federal Communications Commission. The
payment must include the NAL/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer --
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554. Please contact the Financial Operations Group Help Desk
at 1-877-480-3201 or Email: email@example.com with any questions
regarding payment procedures. SunCom will also send electronic
notification on the date said payment is made to JoAnn Lucanik at
firstname.lastname@example.org and Ava Holly Berland at email@example.com.
22. The response, if any, must be mailed to the Office of the Secretary,
Federal Communications Commission, 445 12th Street, S.W., Washington,
D.C. 20554, ATTN: Enforcement Bureau - Spectrum Enforcement Division,
and must include the NAL/Acct. No. referenced in the caption.
23. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices; or (3) some other reliable and objective
documentation that accurately reflects the petitioner's current
financial status. Any claim of inability to pay must specifically
identify the basis for the claim by reference to the financial
24. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by first class mail and certified mail
return receipt requested to Daniel Menser, T-Mobile USA, Inc., 12920
SE 38th Street, Bellevue, WA 98006, and to Michele C. Farquhar, Hogan
& Hartson, LLP, 555 13th St., NW, Washington, DC 20004-1109.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
The Commission recently approved the transfer of control of the wireless
licenses and international Section 214 authorizations held by SunCom
Wireless Holdings, Inc. and its subsidiaries (including SunCom Wireless,
Inc.) to T-Mobile USA, Inc. See Applications of T-Mobile USA, Inc. and
SunCom Wireless Holdings, Inc. for Consent to Transfer Control of Licenses
and Authorizations and Petition for Declaratory Ruling that the
Transaction is Consistent with Section 310(b)(4) of the Communications
Act, Memorandum Opinion and Order, 23 FCC Rcd 2515 (2008)
("T-Mobile/SunCom Transfer Order").
Tier II carriers are non-Nationwide wireless radio service providers with
more than 500,000 subscribers as of the end of September 2001. See
Revision of the Commission's Rules to Ensure Compatibility with Enhanced
911 Emergency Calling Systems, Phase II Compliance Deadlines for
Non-Nationwide CMRS Carriers, Order to Stay, 17 FCC Rcd 14841, 14847 P:P:
22-23 (2002) ("Non-Nationwide Carrier Order").
47 C.F.R. S: 20.19(d)(2).
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"); Order on
Reconsideration and Further Notice of Proposed Rulemaking, 20 FCC Rcd
11221 (2005) ("Hearing Aid Compatibility Reconsideration Order"). The
Commission adopted these requirements for digital wireless telephones
under the authority of the Hearing Aid Compatibility Act of 1988, codified
at Section 710(b)(2)(C) of the Communications Act of 1934, as amended, 47
U.S.C. S: 610(b)(2)(C).
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16777 P: 56; 47 C.F.R.
S: 20.19(b)(1), (2). The Hearing Aid Compatibility Order described the
acoustic coupling and the inductive (telecoil) coupling modes as follows:
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
electrical signals. 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.
Id. at 16763 P: 22.
Section 20.19(b)(1) provides that a wireless handset is deemed hearing
aid-compatible for radio frequency interference if, at minimum, it
receives a U3 rating as set forth in "American National Standard for
Methods of Measurement of Compatibility between Wireless Communications
Devices and Hearing Aids, ANSI C63.19-2001." 47 C.F.R. S: 20.19(b)(1).
Section 20.19(b)(2) provides that a wireless handset is deemed hearing
aid-compatible for inductive coupling if, at minimum, it receives a U3T
rating as set forth in ANSI C63.19-2001. 47 C.F.R. S: 20.19(b)(2). On
April 25, 2005, the Commission's Office of Engineering and Technology
announced that it would also certify handsets as hearing aid-compatible
based on the revised version of the standard, ANSI C63.19-2005. See OET
Clarifies Use of Revised Wireless Phone Hearing Aid Compatibility Standard
Measurement Procedures and Rating Nomenclature, Public Notice, 20 FCC Rcd
8188 (OET 2005). On June 6, 2006, the Commission's Wireless
Telecommunications Bureau and Office of Engineering and Technology
announced that the Commission would also certify handsets as hearing
aid-compatible based on the revised version of the standard, ANSI
C63.19-2006. Thus, during the time period relevant here, applicants for
certification could rely on either the 2001 version, the 2005 version, or
the 2006 version of the ANSI C63.19 standard. See Wireless
Telecommunications Bureau and Office of Engineering and Technology Clarify
Use of Revised Wireless Phone Hearing Aid Compatibility Standard, Public
Notice, 21 FCC Rcd 6384 (WTB/OET 2006). In addition, since the 2005
version, the ANSI C63.19 technical standard has used an "M" nomenclature
for the radio frequency interference rating rather than a "U," and a "T"
nomenclature for the handset's inductive coupling rating, rather than a
"UT." The Commission has approved the use of the "M" and "T" nomenclature
and considers the M/T and U/UT nomenclatures as synonymous. See Hearing
Aid Compatibility Reconsideration Order, 20 FCC Rcd at 11238 P: 33.
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 Code Division Multiple Access (CDMA), Global System for
Mobile Communications (GSM), Integrated Digital Enhanced Network (iDEN),
Time Division Multiple Access (TDMA) and Wideband Code Division Multiple
Access (WCDMA) a/k/a Universal Mobile Telecommunications System (UMTS).
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16780; 47 C.F.R. S:S:
20.19(c), (d). The de minimis exception provides that manufacturers or
mobile service providers that offer two or fewer digital wireless handset
models per air interface are exempt from the hearing aid compatibility
requirements and manufacturers or service providers that offer three
digital wireless handset models per air interface must offer at least one
compliant model. 47 C.F.R. S: 20.19(e).
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16780 P: 65; see also
47 C.F.R. S: 20.19(c).
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16780; see also 47
C.F.R. S: 20.19(d). In addition, on February 28, 2008, the Commission
released an order that, as modified on reconsideration, among other
things: (a) modifies the requirement that manufacturers and service
providers ensure that 50 percent of their digital wireless handset models
per air interface meet the U3/M3 (radio frequency) standard and stays
enforcement of that requirement until the new rules become effective, (b)
increases the obligation on manufacturers and service providers to offer
handset models that meet the U3T/T3 (inductive coupling) standard, (c)
allows service providers other than Tier I carriers an additional three
months to meet the new handset deployment benchmarks, (d) adopts a
technology "refresh" requirement for manufacturers, (e) requires service
providers to offer hearing aid-compatible handsets with different levels
of functionality, (f) adopts an updated version of the technical standard
for measuring hearing aid compatibility, and (g) requires manufacturers
and service providers to submit annual reports on an open ended basis,
beginning January 15, 2009. See Amendment of the Commission's Rules
Governing Hearing Aid-Compatible Mobile Handsets, First Report and Order,
23 FCC Rcd 3406, 3408-3411, 3418 (2008) ("Hearing Aid Compatibility First
Report and Order"), Order on Reconsideration and Erratum, 23 FCC Rcd 7249
(2008). The effective date of the new rules is June 6, 2008. See 73 Fed.
Reg. 25,566 (May 7, 2008).
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16785; see also 47
C.F.R. S: 20.19(f).
Hearing Aid Compatibility Order, 18 FCC Rcd at 16787; see also Wireless
Telecommunications Bureau Announces Hearing Aid Compatibility Reporting
Dates for Wireless Carriers and Handset Manufacturers, Public Notice, 19
FCC Rcd 4097 (Wireless Tel. Bur. 2004). The Commission will now require
service providers to submit annual status reports beginning January 15,
2009. See Hearing Aid Compatibility First Report and Order, 23 FCC Rcd at
3410 P: 13. Manufacturers will report on January 15, 2009, and then
annually beginning July 15, 2009. Id. at P:P: 13, 101.
See Waiver Petition (September 15, 2006).
See Amendment to Waiver Petition (January 12, 2007).
Id. at 2.
Id. at 2 (referencing the model as the Motorola V3, but subsequently
clarifying in its March 30, 2007 Waiver Amendment that the model was the
See Amendment to Waiver Petition (March 30, 2007) ("March 2007 Waiver
Id. at 2 (stating that S/E informed SunCom that only the W710 units
shipped after March 22, 2007 were inductive coupling-compliant). See also
Letter from Lee Hill, General Counsel, Sony Ericsson Mobile Communications
(USA) Inc. to Marlene Dortch, Secretary, Federal Communications Commission
(July 11, 2007).
See March 2007 Waiver Amendment at 2.
Id. at 2-3 (only referencing the Puerto Rico, not the U.S. Virgin Islands,
Id. at 2, note 4.
Notification of Substantial Compliance with Section 20.19(d)(2) and
Request for Limited Waiver (June 1, 2007). Because Section 20.19(d)(2)
requires that compatible handsets be available "in each retail store owned
or operated by the provider ... for consumers to test," internet offerings
do not count toward the hearing aid-compatible handset requirement.
Id. at 2 (explaining that due to different branding, the graphics of
SunCom's banner in the handsets distributed in the mainland differ from
those distributed in Puerto Rico).
Id. at 3.
Notification of Compliance with Section 20.19(d)(2) and Request for
Limited Waiver Nunc Pro Tunc (June 11, 2007).
Id. at 1-2. SunCom explained that, in response to a Commission staff
inquiry, it contacted Motorola and learned that Motorola has issued the
V3i model under two different FCC ID numbers, only one of which is
T3-rated. SunCom stated that the version of the V3i model that it offered
was not T3-rated. Id.
Id. at 2.
Section 68.4(a) of the Commission's Rules Governing Hearing Aid-Compatible
Telephones, Petitions for Waiver of Section 20.19 of the Commission's
Rules, Memorandum Opinion and Order, 23 FCC Rcd 3352 (2008) ("February
2008 Inductive Coupling Compatibility Waiver Order").
Id. at 3380 P: 67.
Section 312(f)(1) of the Act defines "willful" as "the conscious and
deliberate commission or omission of [any] act, irrespective of any intent
to violate" the law. 47 U.S.C. S: 312(f)(1). The legislative history of
Section 312(f)(1) of the Act clarifies that this definition of willful
applies to both Sections 312 and 503(b) of the Act, H.R. Rep. No. 97-765,
97th Cong. 2d Sess. 51 (1982), and the Commission has so interpreted the
term in the Section 503(b) context. See Southern California Broadcasting
Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991), recon.
denied, 7 FCC Rcd 3454 (1992) ("Southern California").
Section 312(f)(2) of the Act, which also applies to forfeitures assessed
pursuant to Section 503(b) of the Act, provides that "[t]he term
`repeated,' ... means the commission or omission of such act more than
once or, if such commission or omission is continuous, for more than one
day." 47 U.S.C. S: 312(f)(2). See Callais Cablevision, Inc., Notice of
Apparent Liability for Forfeiture, 16 FCC Rcd 1359, 1362 (2001); Southern
California, 6 FCC Rcd at 4388.
47 U.S.C. S: 503(b)(1)(B); 47 C.F.R. S: 1.80(a)(1).
47 U.S.C. S: 503(b); 47 C.F.R. S: 1.80(f).
See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589,
47 U.S.C. S: 503(b)(2)(B). The Commission twice amended Section 1.80(b)(3)
of the Rules, 47 C.F.R. S: 1.80(b)(3), to increase the maxima forfeiture
amounts, in accordance with the inflation adjustment requirements
contained in the Debt Collection Improvement Act of 1996, 28 U.S.C. S:
2461. See Amendment of Section 1.80 of the Commission's Rules and
Adjustment of Forfeiture Maxima to Reflect Inflation, Order, 15 FCC Rcd
18221 (2000) (adjusting the maximum statutory amounts from
$100,000/$1,000,000 to $120,000/$1,200,000); Amendment of Section 1.80 of
the Commission's Rules and Adjustment of Forfeiture Maxima to Reflect
Inflation, Order, 19 FCC Rcd 10945 (2004) (adjusting the maximum statutory
amounts from $120,000/$1,200,000 to $130,000/$1,325,000); see also 47
C.F.R. S: 1.80(c).
47 U.S.C. S: 503(b)(2)(E). See also 47 C.F.R. S: 1.80(b)(4), Note to
paragraph (b)(4): Section II. Adjustment Criteria for Section 503
See The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd
17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture Policy
Forfeiture Policy Statement, 12 FCC Rcd at 17099.
Hearing Aid Compatibility Order, 18 FCC Rcd at 16755.
Id. at 16756 (noting that approximately one in ten Americans, 28 million,
have some level of hearing loss, that the proportion increases with age,
and that the number of those affected will likely grow as the median age
increases). See also Report on the Status of Implementation of the
Commission's Hearing Aid Compatibility Requirements, Report, 22 FCC Rcd
17709, 17719 (2007) (noting, just four years later, that the number of
individuals with hearing loss in the United States was "at an all time
high of 31 million - with that number expected to reach approximately 40
million at the end of this decade").
See, e.g., Iowa Wireless Services, LLC d/b/a i Wireless, 23 FCC Rcd 4735
P: 12 (Enf. Bur., Spectrum Enf. Div. 2008) ("i Wireless"); South Slope
Cooperative Telephone Company d/b/a South Slope Wireless, Notice of
Apparent Liability for Forfeiture, 23 FCC Rcd 4706 P: 12 (Enf. Bur.,
Spectrum Enf. Div. 2008); SLO Cellular, Inc. d/b/a Cellular One of San
Luis Obispo, Notice of Apparent Liability for Forfeiture, 23 FCC Rcd 3990
P: 15 (Enf. Bur., 2008); Epic Touch Company, Notice of Apparent Liability
for Forfeiture, 23 FCC Rcd 2831, 2835 P:P: 10-11 (Enf. Bur., 2008)
The Enforcement Bureau has established a base forfeiture amount of $8,000
for violation of the labeling requirements for wireless hearing
aid-compatible handsets. See, e.g., South Central Utah Telephone
Association, Inc., Notice of Apparent Liability for Forfeiture, 22 FCC Rcd
19251 P: 10 (Enf. Bur., Spectrum Enf. Div. 2007), response pending; Pine
Telephone Company, Inc., Notice of Apparent Liability for Forfeiture, 22
FCC Rcd 9205, 9210 (Enf. Bur., Spectrum Enf. Div. 2007), consent decree
ordered, Order, 24 FCC Rcd 4495 (Enf. Bur. 2008).
See supra note 50.
See supra notes 13-28 and accompanying text.
See supra notes 32-37 and accompanying text.
As the Commission noted, SunCom provides wireless services to more than
1.1 million subscribers, and its licenses cover nearly 15 million people
in the continental United States and more than 4 million in Puerto Rico
and the U.S. Virgin Islands. See T-Mobile/SunCom Transfer Order, 23 FCC
Rcd at 2517 P: 5.
See Forfeiture Policy Statement, 12 FCC Rcd at 17099 P:24 (recognizing
that forfeitures against larger and more highly profitable communications
entities must be set at higher levels "for the forfeiture to be an
effective deterrent" and "not merely an affordable cost of doing
See, e.g., i Wireless, 23 FCC Rcd at 4735 P: 13; EpicTouch, 23 FCC Rcd at
2835-36 P: 12 (cautioning carriers that future enforcement actions may
consider all failures to comply with the hearing aid compatibility rules,
including the inductive coupling requirements, as continuing violations
for purposes of calculating appropriate forfeiture amounts).
February 2008 Inductive Coupling Compatibility Waiver Order, 23 FCC Rcd at
3380 P: 67.
Under Section 503(b)(6) of the Act, 47 U.S.C. S: 503(b)(6), we are
prohibited from assessing a forfeiture for a violation that occurred more
than a year before the issuance of a notice of apparent liability for
forfeiture. Section 503(b)(6) does not, however, bar us from considering
SunCom's prior conduct in determining the appropriate forfeiture amount
for violations that occurred within the one-year statutory period. See
Behringer USA, Inc., Notice of Apparent Liability for Forfeiture and
Order, 21 FCC Rcd 1820, 1827 (2006), forfeiture ordered, 22 FCC Rcd 10451
(2007) (forfeiture paid); Globcom, Inc. d/b/a Globcom Global
Communications, Notice of Apparent Liability for Forfeiture, 18 FCC Rcd
19893, 19903 (2003), forfeiture ordered, Forfeiture Order, 21 FCC Rcd 4710
(2006); Roadrunner Transportation, Inc., Forfeiture Order, 15 FCC Rcd
9669, 9671-71 (2000); Cate Communications Corp., Memorandum Opinion and
Order, 60 RR 2d 1386, 1388 (1986); Eastern Broadcasting Corp., Memorandum
Opinion and Order, 10 FCC 2d 37, 37-38 (1967) recon. denied, 11 FCC 2d
193, 195 (1967). Accordingly, while we take into account the continuous
nature of the violations in determining the appropriate forfeiture amount,
our proposed forfeiture relates only to SunCom's apparent violations that
have occurred within the past year.
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Federal Communications Commission DA 08-1314
Federal Communications Commission DA 08-1314