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May 26, 2010
VIA CERTIFIED MAIL - RETURN RECEIPT REQUESTED
AND FACSIMILE AT 248 239 0181
Mr. Jim Bahri, Member Manager
Air Voice Wireless, LLC
2425 Franklin Road
Bloomfield Hills, Michigan 48302-0336
Re: File No. EB-09-SE-168
Dear Mr. Bahri:
This is an official CITATION issued to Air Voice Wireless, LLC ("Air
Voice"), 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"), and the public web site posting requirements set forth in
section 20.19(h) of the Rules. We also find that Air Voice violated a
Commission order by failing to respond to a Letter of Inquiry ("LOI") from
the Enforcement Bureau. As explained below, continued violations of the
Commission's rules and the Act in this regard will subject Air Voice to
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, enable
consumers to obtain up-to-date hearing aid compatibility information from
their service providers.
Air Voice, which offers prepaid wireless service, did not file a hearing
aid compatibility status report prior to the January 15, 2009 deadline.
The Wireless Telecommunications Bureau referred Air Voice's apparent
violation of the hearing aid compatibility reporting requirement to the
Enforcement Bureau for possible enforcement action. On November 4, 2009,
the Enforcement Bureau's Spectrum Enforcement Division ("Division") issued
Air Voice an LOI. On December 4, 2009, the Division re-mailed the LOI via
certified mail, return receipt requested, to the Bloomfield Hills,
Michigan address listed on the Air Voice web site. The U.S. Postal Service
certified mail return receipt shows that the LOI was received on December
10, 2009. To date, however, Air Voice has not responded to the LOI.
We find that, as a reseller, Air Voice is a service provider subject to
the wireless hearing aid compatibility requirements. It appears from Air
Voice's web site that it purchases wireless services and wireless handsets
and resells the services and handsets to its customers. The Commission has
made clear that the hearing aid compatibility requirements apply to
service providers such as resellers. Thus, Air Voice is a service provider
subject to the wireless hearing aid compatibility 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 Air Voice 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.
Air Voice did not file the January 15, 2009 report, and to date, has not
filed its January 15, 2010 status report. Accordingly, Air Voice violated
the hearing aid compatibility status report filing requirements set forth
in section 20.19(i)(1) of the Rules.
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 Air Voice's
web site, it has not posted the hearing aid compatibility ratings of the
various handsets on its web site with an explanation of the rating system
in accordance with section 20.19(h) of the Rules.
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
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 Air Voice to provide, by
December 19, 2009, certain information regarding the company's compliance
with hearing aid compatibility reporting requirements. The U.S. Postal
Service certified mail return receipt shows that the LOI was received. To
date, the Division has received no response to its LOI. Accordingly, we
find that Air Voice violated a Commission order by failing to provide the
Air Voice is again ordered to provide the information sought by the LOI. A
copy of the LOI is enclosed. You must provide the requested information
in the manner indicated therein within 15 days of the date of this
Air Voice should take prompt action to ensure that it does not continue to
violate the Commission's wireless hearing aid compatibility rules. Air
Voice should also take prompt action to respond to the LOI. If, after
receipt of this citation, Air Voice continues to violate 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
Additionally, Air Voice 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. Air Voice'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
The nearest Commission field office appears to be the Detroit District
Office, in Farmington Hills, Michigan. Please call Jacqueline Johnson at
202-418-2871 if Air Voice wishes to schedule a personal interview. Air
Voice should schedule any interview to take place within 30 days of the
date of this letter. Air Voice 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 Air Voice that the
Commission's staff will use all relevant material information before it,
including information that Air Voice discloses in its interview or written
statement, to determine what, if any, enforcement action is required to
ensure Air Voice'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 Air Voice in advance for its anticipated cooperation.
Chief, Spectrum Enforcement Division
47 U.S.C. S: 503(b)(5).
47 C.F.R. S: 20.19(i)(1), (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).
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 Digital 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: 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 Air Voice web sites: http://www.airvoicewireless.com/gsmRates.asp and
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau to Atheer Toma, Air Voice, Wireless, LLC (November 4,
See http://airvoicewireless.com/gsmPurchaseAirtime.asp and
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 Air Voice's web site promotes 24 handset models for use with
its wireless services. See
http://www.airvoicewireless.com/CDMAPhoneModels.asp. Thus, it does not
appear that Air Voice falls within the de minimis exception. See 47 C.F.R.
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).
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 10-931
Federal Communications Commission DA 10-931
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554