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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
File No. EB-09-SE-151
TCT Mobile Ltd., )
NAL/Acct. No. 201032100013
a subsidiary of TCL Communication )
Technology Holdings Ltd. FRN 0009221672
Notice OF apparent liability for forfeiture
Adopted: January 14, 2010 Released: January 14, 2010
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that TCT Mobile Limited ("TCT Mobile") apparently willfully and
repeatedly violated Section 20.19(i)(1) of the Commission's Rules
("Rules"), which requires the filing of status reports regarding the
hearing aid compatibility of wireless handsets. We also find that TCT
Mobile apparently willfully violated a Commission order by failing to
respond to a Letter of Inquiry ("LOI") from the Enforcement Bureau.
Based on our review of facts and circumstances in this matter, we
conclude that TCT Mobile is apparently liable for a forfeiture in the
amount of $16,000.
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. 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. In February 2008, as
part of a comprehensive reconsideration of the effectiveness of the
hearing aid compatibility rules, the Commission released an order
that, among other things, adopted new compatible handset deployment
benchmarks beginning in 2008.
3. Of primary relevance, the Commission also adopted reporting
requirements to ensure that it could monitor the availability of these
handsets and to provide valuable information to the public concerning
the technical testing and commercial availability of hearing
aid-compatible handsets, including on the Internet. The Commission
initially 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 (May 17, 2004, November 17, 2004, May 17, 2005,
November 17, 2005, May 17, 2006 and November 17, 2006), and then
annually thereafter through the fifth year of implementation (November
19, 2007 and November 17, 2008). In its 2008 Hearing Aid Compatibility
First Report and Order, the Commission extended these reporting
requirements with certain modifications on an open ended basis,
beginning January 15, 2009. The Commission also made clear that these
reporting requirements apply to manufacturers and service providers
that fit within the de minimis exception.
4. Commission records, however, indicate that no hearing aid
compatibility status reports have been filed for TCT Mobile, a
wireless handset manufacturer. Accordingly, the Wireless
Telecommunications Bureau ("WTB") referred TCT Mobile's apparent
violation of the hearing aid compatibility reporting requirements to
the Spectrum Enforcement Division ("Division") of the Enforcement
5. On September 30, 2009, the Division issued TCT Mobile an LOI directing
the company to provide, within thirty calendar days from the date of
the letter, certain information and documents regarding the company's
compliance with the reporting requirements of Section 20.19(i)(1) of
the Rules. Copies of the LOI were sent to both TCT Mobile and its
corporate parent, TCL Communication Technology Holdings, Ltd., via
Federal Express. The copy sent to the address on file at the
Commission for TCT Mobile was returned undelivered; similarly, an
attempt to deliver a copy to the fax number on file for TCT Mobile was
unsuccessful. The copy of the LOI delivered to the corporate parent
was confirmed by Federal Express tracking as having been received on
October 16, 2009. To date, the Division has received no response to
the LOI, and no hearing aid compatibility status reports have been
filed by TCT Mobile.
A. Failure to File Timely Hearing Aid Compatibility Status Reports
6. Section 20.19(i)(1) of the Rules requires handset manufacturers to
file hearing aid compatibility status reports initially under the
current rules on January 15, 2009 (covering the six-month period
ending December 31, 2008) and then annually beginning July 15, 2009.
These reports are necessary to enable the Commission to perform its
enforcement function and evaluate whether TCT Mobile is in compliance
with Commission mandates that were adopted to facilitate the
accessibility of hearing aid-compatible wireless handsets. These
reports also provide valuable information to the public concerning the
technical testing and commercial availability of hearing
aid-compatible handsets. To date, Commission records show no status
reports on file for TCT Mobile. Accordingly, we find that TCT Mobile
failed to file two hearing aid compatibility status reports in
apparent willful and repeated violation of the requirements set forth
in Section 20.19(i)(1) of the Rules.
A. Failure to Respond to the LOI
7. We also find that TCT Mobile's failure to respond to the Division's
LOI constitutes an apparent willful violation of a Commission order.
Sections 4(i), 4(j), and 403 of the Act afford the Commission broad
authority to investigate the entities it regulates. Section 4(i)
authorizes the Commission to "issue such orders, not inconsistent with
this Act, as may be necessary in the execution of its functions," and
Section 4(j) states that "the Commission may conduct its proceedings
in such manner as will best conduce to the proper dispatch of business
and to the ends of justice." Likewise, Section 403 grants the
Commission "full authority and power to institute an inquiry, on its
own motion ... relating to the enforcement of any of the provisions of
this Act." Numerous FCC decisions have reaffirmed the Commission's
authority to investigate potential misconduct and to punish those that
disregard Commission inquiries.
8. Congress has directed the Commission to "ensure reasonable access to
telephone service by persons with impaired hearing." In furtherance of
that mission, the Division's LOI directed TCT Mobile to provide, by
October 30, 2009, certain information and documents regarding the
company's compliance with reporting requirements applicable to
providers of hearing aid-compatible handsets. Federal Express tracking
services confirmed that TCT Mobile received the Division's LOI,
through its corporate parent TCL Communication Holdings, Ltd., on
October 16, 2009. To date, the Division has received no response to
its communication. Accordingly, we find that TCT Mobile apparently
willfully violated a Commission order by failing to provide the
information requested by the Division.
A. Proposed Forfeiture
9. 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 TCT Mobile is apparently liable for
forfeiture for its apparent willful and repeated failure to file the
required status reports in violation of Section 20.19(i)(1) of the
Rules and for its apparent willful violation of a Commission order to
10. The Commission's Forfeiture Policy Statement and Section 1.80(b) of
the Rules set a base forfeiture amount of $3,000 for the failure to
file required forms or information. While the base forfeiture
requirements are guidelines lending some predictability to the
forfeiture process, the Commission retains the discretion to depart
from these guidelines and issue forfeitures on a case-by-case basis
under its general forfeiture authority contained in Section 503 of the
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."
11. We have exercised our discretion to set a higher base forfeiture
amount for violations of the wireless hearing aid compatibility
reporting requirements. In the American Samoa Telecommunications
Authority NAL, we found that status reports are essential to the
implementation and enforcement of the hearing aid compatibility rules.
The Commission relies on these reports to provide consumers with
information regarding the technical specifications and commercial
availability of hearing aid-compatible digital wireless handsets and
to hold the digital wireless industry accountable to the increasing
number of hearing-impaired individuals. We noted that when setting an
$8,000 base forfeiture for violations of the hearing aid-compatible
handset labeling requirements, the Commission emphasized that
individuals with hearing impairments could only take advantage of
critically important public safety benefits of digital wireless
services if they had access to accurate information regarding hearing
aid compatibility features of handsets. We also noted that the
Commission has upwardly adjusted the base forfeiture when
noncompliance with filing requirements interferes with the accurate
administration and enforcement of Commission rules. Because the
failure to file hearing aid compatibility status reports implicates
similar public safety and enforcement concerns, we exercised our
discretionary authority and established a base forfeiture amount of
$6,000 for failure to file a hearing aid compatibility report.
Consistent with ASTCA, we believe the established $6,000 base
forfeiture for each hearing aid compatibility reporting violation
should apply here, for an aggregate forfeiture of $12,000 ($6,000 *2
12. Failure to file these reports, as is the case here, can have an
adverse impact on the Commission's ability to ensure the commercial
availability of hearing aid-compatible digital wireless handsets, to
the detriment of consumers. Accordingly, we propose a forfeiture of
$12,000 against TCT Mobile for apparently willfully and repeatedly
failing to file the January 15, 2009 and the July 15, 2009 hearing aid
compatibility status reports in violation of Section 20.19(i)(1) of
13. Turning to TCT Mobile's failure to respond to the LOI, the
Commission's Forfeiture Policy Statement and Section 1.80 of the Rules
also establish a base forfeiture amount of $4,000 for failure to
respond to Commission communications. TCT Mobile's failure to respond
to the Division's LOI has hindered our investigation of the company's
compliance with regulations that ensure the availability of hearing
aid-compatible handsets. Prompt and complete responses to letters of
inquiry and other Bureau communications are essential to the
Commission's enforcement function.
14. Consistent with precedent in similar cases where a company failed to
respond to a Bureau directive to provide certain information or
documents, we find that TCT Mobile's failure to respond to the
Division's LOI in this instance warrants assessment of the base
forfeiture amount. We therefore propose a forfeiture in the amount of
$4,000 against TCT Mobile for failing to respond to a communication
from the Commission.
15. Thus, we propose a total forfeiture in the amount of $16,000, $12,000
for TCT Mobile's apparent willful and repeated failure to file
required forms in violation of Section 20.19(i)(1) and $4,000 for its
apparent willful failure to respond to a communication from the
IV. ordering clauses
16. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Section 1.80 of the Rules, and the authority delegated by
Sections 0.111 and 0.311 of the Rules, TCT Mobile, Ltd. is NOTIFIED of
its APPARENT LIABILITY FOR A FORFEITURE in the amount of sixteen
thousand dollars ($16,000) for its failure to file required hearing
aid compatibility status reports in willful and repeated violation of
Section 20.19(i)(1) of the Rules and for its willful violation of a
17. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Rules,
within thirty (30) days of the release date of this Notice of Apparent
Liability for Forfeiture, TCT Mobile SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
18. 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: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures. TCT Mobile will also send electronic
notification on the date said payment is made to JoAnn Lucanik at
JoAnn.Lucanik@fcc.gov and to Kevin M. Pittman at
19. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
Sections 1.80 (f)(3) and 1.16 of the Rules. The written statement 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. The statement should also
be e-mailed to JoAnn Lucanik at JoAnn.Lucanik@fcc.gov and to Kevin M.
Pittman at Kevin.Pittman@fcc.gov.
20. 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
21. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Federal Express to TCT Mobile Limited,
4/F, South Building, No. 2966, Jinke Road, Zhangjiang High-Tech Park,
Pudong, Shanghai 201203, People's Republic of China, and shall also be
sent to TCL Communication Technology Holdings, Ltd., 15/F, TCL Tower,
Gaoxin Nanxi Road, Nanshan District, Shenzhen, Guangdong 518057,
People's Republic of China.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
47 C.F.R. S: 20.19(i)(1).
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 Section 68.4(a) of the Commission's Rules
Governing Hearing Aid-Compatible Telephones, Report and Order, 18 FCC Rcd
16753, 16787 P: 89 (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
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16777 P: 56; 47 C.F.R.
S:S: 20.19(b)(1) and (2).
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 Dispatch Enhanced Network (iDEN)
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 P: 65; 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 deployment requirements, and manufacturers or mobile 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 Amendment of the Commission's Rules Governing Hearing Aid-Compatible
Mobile Handsets, First Report and Order, 23 FCC Rcd 3406 (2008) ("Hearing
Aid Compatibility First Report and Order"), Order on Reconsideration and
Erratum, 23 FCC Rcd 7249 (2008).
See Hearing Aid Compatibility First Report and Order, 23 FCC Rcd at 3443
Hearing Aid Compatibility Order, 18 FCC Rcd at 16787 P: 89; 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).
See Hearing Compatibility First Report and Order, 23 FCC Rcd at 3445-46
Id. at 3446 P: 99.
TCT Mobile holds equipment certifications for numerous digital wireless
handsets. See, e.g., FCC ID RAD111 (granted 4/24/2009); FCC ID RAD104
(granted 04/13/2009); FCC ID RAD084 (granted 12/24/2008); FCC ID RAD060
(granted 08/01/2007); FCC ID RAD054 (granted 04/30/2007); FCC ID RAD036
(granted 11/07/2006); FCC ID RAD034 (granted 07/27/2006); FCC ID RAD014
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission to Mr. Gong Zhizhou,
TCT Mobile Ltd. (Sep. 30, 2009), with carbon copy to Mr. Li Dongshen,
Chairman, TCL Communication Technology Holdings, Ltd. ("LOI").
We note that TCT Mobile is an ongoing concern and in the past year has
received numerous grants of equipment certification from the Commission.
The Bureau's LOI was sent to the address set forth by the company in its
applications for those authorizations.
47 C.F.R. S: 20.19(i)(1).
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 P: 5 (1991),
recon. denied, 7 FCC Rcd 3454 (1992) ("Southern California"); see also
Telrite Corporation, Notice of Apparent Liability for Forfeiture, 23 FCC
Rcd 7231, 7237 P: 12 (2008); Regent USA, Notice of Apparent Liability for
Forfeiture, 22 FCC Rcd 10520, 10523 P: 9 (2007); San Jose Navigation,
Inc., Forfeiture Order 22 FCC Rcd 1040, 1042 P: 9 (2007).
Section 312(f)(2) 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, e.g., Callais Cablevision, Inc., Grand Isle, Louisiana,
Notice of Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359,
1362 P: 10 (2001).
47 U.S.C. S: 154(i).
47 U.S.C. S: 154(j).
47 U.S.C. S: 403.
See, e.g., Connect Paging, Inc., Notice of Apparent Liability for
Forfeiture and Order, 22 FCC Rcd 6303, 6306 (Enf. Bur. 2007) (proposing
forfeiture of $4,000 for failure to respond to an LOI); Digital Antenna,
Inc., Notice of Apparent Liability for Forfeiture and Order, 23 FCC Rcd
7600, 7602 (Enf. Bur., Spectrum Enf. Div. 2008) (proposing forfeiture of
$11,000 for failure to provide a complete response to two letters of
inquiry); Hauppauge Computer Works, Inc., Notice of Apparent Liability for
Forfeiture and Order, 23 FCC Rcd 3684, 3688 (Enf. Bur., Spectrum Enf. Div.
2008) (proposing forfeiture of $11,000 for failure to provide a complete
response to two letters of inquiry).
47 U.S.C. S: 610(a).
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,
7591 P: 4 (2002).
See The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and
Order, 12 FCC Rcd 17087, 17114 (1997) , recon. denied, 15 FCC Rcd 303
(1999) ("Forfeiture Policy Statement"); 47 C.F.R. S: 1.80(b).
See Forfeiture Policy Statement, 12 FCC Rcd at 17099 P: 22, 17101 P: 29
(1997); 47 C.F.R. S:1.80(b)(4) Note to paragraph (b)(4): Section II.
Adjustment Criteria for Section 503 Forfeitures ("The Commission and its
staff may use these guidelines in particular cases . . . .[and] retain the
discretion to issue a higher or lower forfeiture than provided in the
guidelines, to issue no forfeiture at all, or to apply alternative or
additional sanctions as permitted by the statute.").
47 U.S.C. S: 503(b)(2)(E); 47 C.F.R. S: 1.80(b)(4).
See American Samoa Telecommunications Authority, Notice of Apparent
Liability for Forfeiture, 23 FCC Rcd 16432 (Enf. Bur., Spectrum Enf. Div.
2008), response received ("ASTCA NAL").
Id. at P: 10.
Forfeiture Policy Statement, 12 FCC Rcd at 17114; 47 C.F.R. S:
See, e.g., Connect Paging, Inc., Notice of Apparent Liability for
Forfeiture and Order, 22 FCC Rcd 6303 (Enf. Bur. 2007) (proposing
forfeiture of $4,000 for failure to respond to an LOI).
Federal Communications Commission DA 10-81
Federal Communications Commission DA 10-81