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Federal Communications Commission
Washington, D.C. 20554
File No. EB-09-SE-150
In the Matter of )
NAL/Acct. No. 201032100015
Airo Wireless, Inc. )
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 Airo Wireless, Inc. ("Airo") apparently willfully and repeatedly
violated the wireless handset hearing aid compatibility status report
filing requirements set forth in Section 20.19(i)(1) of the
Commission's Rules ("Rules"). For this apparent violation, we propose
a forfeiture in the amount of twelve thousand dollars ($12,000).
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 clarified that
these reporting requirements also apply to manufacturers and services
providers that "offer two or fewer digital wireless handsets in an
air interface," and thus fall within the de minimis exception.
4. Airo, a wireless handset manufacturer, failed to file the required
reports for two periods (from July 1, 2008 through December 31, 2008,
and from January 1, 2009 through June 30, 2009). The Wireless
Telecommunications Bureau ("WTB") referred Airo's apparent violations
of the hearing aid compatibility reporting requirements to the
Enforcement Bureau for action.
5. On October 1, 2009, the Enforcement Bureau's Spectrum Enforcement
Division issued Airo a Letter of Inquiry ("LOI"), which Airo
responded to on October 13, 2009. In its LOI Response, Airo
acknowledged that it did not file the required reports. Airo stated
that because it only offers two wireless handsets and comes within
the de minimis exception, it did not realize that the hearing aid
compatibility reporting requirements of Section 20.19(i)(1) applied.
A. Failure to File Timely Hearing Aid Compatibility Status Report
6. Section 20.19(i)(1) of the Rules requires handset manufacturers to
file hearing aid compatibility status reports under the current rules
initially 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 Airo 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. Airo did not file the report covering the six month period
ending December 31, 2008, nor did Airo file the report covering the
six month period ending June 30, 2009. Accordingly, we find that Airo
failed to file two separate 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.
B. Proposed Forfeiture
7. 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. Under this standard, we conclude that Airo is
apparently liable for forfeiture for its apparent willful and
repeated failure to timely file the required hearing aid
compatibility status reports in violation of the requirements set
forth in Section 20.19(i)(1) of the Rules.
8. 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 discretion, 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."
9. 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 ("ASTCA") NAL, we found that the 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 reporting violations).
10. 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. Airo acknowledges that it did not file
required reports on time and provides no basis cognizable under our
rules and precedents for a reduction under our guidelines.
Accordingly, we propose a forfeiture of $12,000 against Airo for
apparently willfully and repeatedly failing to timely file its
January 15, 2009 and July 15, 2009 hearing aid compatibility status
reports in violation of Section 20.19(i)(1) of the Rules.
IV. ORDERING clauses
11. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Section 1.80 of the Rules, Airo Wireless, Inc. IS NOTIFIED
of its APPARENT LIABILITY FOR A FORFEITURE in the amount of twelve
thousand dollars ($12,000) for failing to file its hearing aid
compatibility status reports in apparent willful and repeated
violation of the requirements set forth in Section 20.19(i)(1) of the
12. 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, Airo Wireless, Inc. SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
13. 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.
Airo will also send electronic notification on the date said payment
is made to Holly.Berland@fcc.gov and JoAnn.Lucanik@fcc.gov.
14. 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 emailed to JoAnn Lucanik at
JoAnn.Lucanik@fcc.gov and Ava Holly Berland at Holly.Berland@fcc.gov.
15. 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 documentation submitted.
16. 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 Thomas Ventulett,
CEO-President, Airo Wireless, Inc., 12 Piedmont Center, Suite 205,
Atlanta, Georgia 30305.
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 Compatibility First Report and Order, 23 FCC Rcd at 3443 P:
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 P: 99. See supra n. 5.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission to Thomas Ventulett,
CEO-President, Airo Wireless, Inc. (October 1, 2009).
See Letter from Thomas Ventulett, CEO-President, Airo Wireless, Inc. to
Kathryn S. Berthot, Chief, Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission (October 13, 2009).
See id. at 1.
See id. Airo also notes that its staff person tasked with FCC compliance
left the company in 2008 and has not been replaced. Id.
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 C.F.R. S: 20.19(i)(1).
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).
47 C.F.R. S: 20.19(i)(1).
47 C.F.R. S: 1.80(b).
See Forfeiture Policy Statement, 12 FCC Rcd at 17099 P: 22, 17101 P: 29.
See also 47 C.F.R. S:1.80(b)(4) ("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.") (emphasis added).
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 American Samoa Telecommunications Authority, Notice of Apparent
Liability for Forfeiture, 23 FCC Rcd 16432 (Enf. Bur., Spectrum Enf. Div.
2008), response received ("ASTCA").
See ASTCA, 23 FCC Rcd at 16436-47 P: 10.
See, e.g., Profit Enterprises, Inc., 8 FCC Rcd 2846, 2846 P: 5 (1993)
(denying the mitigation claim of a manufacturer/distributor who thought
that the equipment certification and marketing requirements were
inapplicable, stating that its "prior knowledge or understanding of the
law is unnecessary to a determination of whether a violation existed ...
ignorance of the law is [not] a mitigating factor"); Lakewood Broadcasting
Service, Inc., 37 FCC 2d 437, 438 P: 6 (1972) (denying a mitigation claim
of a broadcast licensee who asserted an unfamiliarity with the station
identification requirements, stating that licensees are expected "to know
and conform their conduct to the requirements of our rules"); Kenneth Paul
Harris, Sr., 15 FCC Rcd 12933, 12935 P: 7 (Enf. Bur. 2000) (denying a
mitigation claim of a broadcast licensee, stating that its ignorance of
the law did not excuse the unauthorized transfer of the station); Maxwell
Broadcasting Group, Inc., 8 FCC Rcd 784, 784 P: 2 (MMB 1993) (denying a
mitigation claim of a noncommercial broadcast licensee, stating that the
excuse of "inadverten[ce], due to inexperience and ignorance of the rules
. . . are not reasons to mitigate a forfeiture" for violation of the
47 C.F.R. S: 20.19(i)(1).
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Federal Communications Commission DA 10-84
Federal Communications Commission DA 10-84