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January 14, 2010
VIA CERTIFIED MAIL - RETURN RECEIPT REQUESTED
AND FACSIMILE AT 305 538 2009
Mr. Thomas R. Hennen, Esq.
Senior Counsel for
Store Support Center, One Arts Plaza
1722 Routh Street, Suite 1000
Dallas, Texas 75201-2506
Re: File No. EB-09-SE-167
Dear Mr. Hennen:
This is an official CITATION, issued to 7-Eleven, Inc. ("7-Eleven")
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"), and the public web site
posting requirements set forth in section 20.19(h) of the Rules. As
explained below, future violations of the Commission's rules in this
regard may subject 7-Eleven to monetary forfeitures.
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 manufacturers and service providers
that fit within the de minimis exception. In addition, the Commission
instituted a requirement that manufacturers and service providers with
publicly-accessible web sites maintain a list of hearing aid-compatible
handset models and certain information regarding those models on their web
sites. The web site postings, which must be updated within 30 days of a
change in a manufacturer's or service provider's offerings, will enable
consumers to obtain up-to-date hearing aid compatibility information from
their service providers.
7-Eleven, which offers prepaid wireless service under its SPEAK OUT
WIRELESS(R) ("SPEAK OUT") program, did not file a hearing aid
compatibility status report prior to the January 15, 2009 deadline. The
Wireless Telecommunications Bureau referred 7-Eleven's apparent violation
of the hearing aid compatibility reporting requirement to the Enforcement
Bureau for possible enforcement action. On November 3, 2009, the
Enforcement Bureau's Spectrum Enforcement Division issued 7-Eleven a
Letter of Inquiry ("LOI"). 7-Eleven responded to the LOI on November 12,
2009. In its response, 7-Eleven states that it does not believe it is a
telecommunications service provider or a Mobile Virtual Network Operator
("MVNO"), but states that it resells private label prepaid wireless
telephones and cards to customers under its SPEAK OUT brand. It further
states that it "purchases phones directly from various phone manufacturers
and the prepaid wireless cards and services from Ztar Mobile, Inc.
("Ztar")." 7-Eleven states that it understands from Ztar that Ztar is
considered to be an MVNO.
We find that, as a reseller, 7-Eleven is a service provider subject to the
wireless hearing aid compatibility handset requirements. 7-Eleven
purchases prepaid wireless cards and services from Ztar and resells the
cards and services to customers under its SPEAK OUT brand. The Commission
has made clear that the hearing aid compatibility handset requirements
apply to service providers such as resellers. Thus, 7-Eleven is a service
provider subject to the wireless hearing aid compatibility handset
requirements. Under section 20.19(i)(1) of the Rules, service providers
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
7-Eleven 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. 7-Eleven did not file the January 15, 2009
report. Accordingly, 7-Eleven violated the hearing aid compatibility
status report filing requirements set forth in section 20.19(i)(1) of the
Section 20.19(h) of the Rules requires that, beginning January 15, 2009,
each manufacturer and service provider that operates a publicly-accessible
web site make available on its web site a list of all hearing
aid-compatible handset models currently offered, the ratings of those
models, and an explanation of the rating system. In addition, the
Commission has stated that any changes to a manufacturer's or service
provider's offerings must be reflected on its public web site listing
within 30 days. These web site postings provide consumers up-to-date
hearing aid compatibility information. Based on our review of 7-Eleven's
web site, it failed to post the required information on its web site in
violation of section 20.19(h) of the Rules.
7-Eleven 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, 7-Eleven 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.
7-Eleven 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.
7-Eleven'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 Dallas District
Office, in Dallas, Texas. Please call Jacqueline Johnson at 202-418-2871,
if 7-Eleven wishes to schedule a personal interview. 7-Eleven should
schedule any interview to take place within 30 days of the date of this
letter. 7-Eleven should send any written statement within 30 days of the
date of this letter to:
Spectrum Enforcement Division
Federal Communications Commission
445 12th Street, S.W., Rm. 4-A431
Washington, D.C. 20554
Under the Privacy Act of 1974, we are informing 7-Eleven that the
Commission's staff will use all relevant material information before it,
including information that 7-Eleven discloses in its interview or written
statement, to determine what, if any, enforcement action is required to
ensure 7-Eleven'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 7-Eleven in advance for its anticipated cooperation.
Chief, Spectrum Enforcement Division
47 U.S.C. S: 503(b)(5).
47 C.F.R. S:S: 20.19(i)(1), 20.19(h).
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), (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.
Id. at 3450 P: 112.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau to Joseph M. DePinto, President/CEO, 7-Eleven, Inc.
(November 3, 2009).
See Letter from Thomas R. Hennen, Senior Counsel, 7-Eleven, Inc., to
Kathryn S. Berthot, Chief, Spectrum Enforcement Division, Enforcement
Bureau (November 11, 2009).
See e.g., Hearing Aid Compatibility First Report and Order, 23 FCC Rcd at
3424 P: 46 (concluding that a three-month extension of deadlines for
meeting the handset deployment benchmarks is appropriate with regard to
"service providers that are not Tier I nationwide providers, including
regional and smaller providers, such as Tier II and Tier III carriers, and
other service providers such as resellers and MVNOs.").
47 C.F.R. S: 20.19(i)(1).
47 C.F.R. S: 20.19(h).
See Hearing Aid Compatibility First Report and Order, 23 FCC Rcd at 3450
We note that 7-Eleven's web site promotes four handset models for use with
its SPEAK OUT program: the Sanyo 2400, LG5225, Nokia 1600 and Motorola
Competitive. Thus, it does not appear that 7-Eleven falls within the de
minimis exception. See 47 C.F.R. S: 20.19(e).
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 10-85
Federal Communications Commission DA 10-85
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554