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January 14, 2010
VIA CERTIFIED MAIL - RETURN RECEIPT REQUESTED
AND FACSIMILE AT 305 538 2009
Mr. Hayri Barutcu, Director of Operations
Firefly Mobile Communications, Inc.
119 Washington Avenue, Suite 401
Miami Beach, FL 33139
Re: File No. EB-09-SE-154
Dear Mr. Barutcu:
This is an official CITATION, issued to Firefly Mobile Communications,
Inc. ("Firefly"), a reseller of wireless services, pursuant to section
503(b)(5) of the Communications Act of 1934, as amended ("Act"), for
violating the digital wireless handset hearing aid compatibility status
report filing requirements set forth in section 20.19(i)(1) of the
Commission's Rules ("Rules"). As explained below, future violations of the
Commission's rules in this regard may subject Firefly to monetary
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.
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 service providers that fit within
the de minimis exception.
Firefly did not file a hearing aid compatibility status report prior to
the January 15, 2009 deadline. The Wireless Telecommunications Bureau
referred Firefly's apparent violation of the hearing aid compatibility
reporting requirement to the Enforcement Bureau for possible enforcement
action. On October 14, 2009, the Enforcement Bureau's Spectrum Enforcement
Division issued Firefly, a Mobile Virtual Network Operator, a Letter of
Inquiry ("LOI"). Firefly responded to the LOI on November 13, 2009.
Firefly requested that its LOI Response be accorded confidential
treatment. Although we are not ruling on Firefly's request at this time,
we are treating its LOI Response as confidential for the purposes of this
Under section 20.19(e)(1) of the Rules, "... service providers that offer
two or fewer digital wireless handsets in an air interface in the United
States are exempt from the [hearing aid compatibility wireless handset]
requirements of this section in connection with that air interface, except
with regard to the reporting requirements in paragraph (i) of this
section." As a service provider offering only two digital wireless
handsets, Firefly is exempt from the hearing aid compatibility handset
deployment and consumer information requirements, but is not exempt from
the reporting requirements of section 20.19(i)(1).
Under section 20.19(i)(1) of the Rules, all service providers, including
resellers, must file hearing aid compatibility status reports initially on
January 15, 2009, and annually thereafter. These reports are necessary to
enable the Commission to perform its enforcement function and evaluate
whether Firefly 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. Based on the record before us, we find that
Firefly did not file the January 15, 2009 report. Accordingly, Firefly
violated the hearing aid compatibility status report filing requirements
set forth in section 20.19(i)(1) of the Rules.
Firefly should take prompt action to ensure that it does not continue to
violate the Commission's wireless hearing aid compatibility rules. If,
after receipt of this Citation, Firefly violates the Communications Act or
the Commission's rules or orders in any manner described herein, the
Commission may impose monetary forfeitures not to exceed $150,000 for each
such violation or each day of a continuing violation.
Firefly may respond to this citation within 30 days from the date of this
letter either through (1) a personal interview at the Commission's Field
Office nearest to your place of business, or (2) a written statement.
Firefly's response should specify the actions that it is taking to ensure
that it does not violate the Commission's rules governing the filing of
hearing aid compatibility status reports in the future.
The nearest Commission field office appears to be the Miami District
Office, in Miami, Florida. Please call Ava Holly Berland at 202-418-2075,
if Firefly wishes to schedule a personal interview. Firefly should
schedule any interview to take place within 30 days of the date of this
letter. Firefly should send any written statement within 30 days of the
date of this letter to:
Ava Holly Berland
Spectrum Enforcement Division
Federal Communications Commission
445 12th Street, S.W., Rm. 4-C448
Washington, D.C. 20554
Under the Privacy Act of 1974, we are informing Firefly that the
Commission's staff will use all relevant material information before it,
including information that Firefly discloses in its interview or written
statement, to determine what, if any, enforcement action is required to
ensure Firefly's compliance with the Communications Act and the
Commission's rules and orders.
The knowing and willful making of any false statement, or the concealment
of any material fact, in response to this citation is punishable by fine
We thank Firefly in advance for its anticipated cooperation.
Chief, Spectrum Enforcement Division
cc: Steven A. Augustino, Esq. and Denise N. Smith, Esq.
Kelley Drye & Warren
3050 K Street, N.W.
Washington, DC 20007
47 U.S.C. S: 503(b)(5).
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: 20.19(b)(1), (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 Aid Compatibility First Report and Order, 23 FCC Rcd at
3445-46 P:P: 97-99.
Id. P: 99.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau to Hayri Barutcu, Director of Operations, Firefly
Communications, Inc. (October 14, 2009).
See Letter from Steven A. Augustino, Esq. and Denise N. Smith, Esq.,
Kelley Drye & Warren, LLP to Kathryn S. Berthot, Chief, Spectrum
Enforcement Division, Enforcement Bureau (November 13, 2009).
47 C.F.R. S: 20.19(e)(1).
47 C.F.R. S: 20.19(i)(1).
To date, Firefly still has not filed the January 15, 2009 report.
See 47 C.F.R. S: 1.80(b)(3).
See 5 U.S.C. S: 552a(e)(3).
See 18 U.S.C. S: 1001.
Federal Communications Commission DA 10-82
Federal Communications Commission DA 10-82
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554