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May 26, 2010
VIA CERTIFIED MAIL - RETURN RECEIPT REQUESTED
AND FACSIMILE AT 602-307-4591
Mr. David O'Toole, Business Manager - Telecom
Circle K Stores, Inc.
P.O. Box 52085
Phoenix, Arizona 85072-2085
Re: File No. EB-09-SE-174
Dear Mr. O'Toole:
This is an official CITATION issued to Circle K Stores, Inc. ("Circle K"),
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 Circle K 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 service providers that fit within
the de minimis exception.
Circle K did not file a hearing aid compatibility status report prior to
the January 15, 2009 deadline. The Wireless Telecommunications Bureau
referred Circle K's apparent violation of the hearing aid compatibility
reporting requirement to the Enforcement Bureau for possible enforcement
action. On October 20, 2009, the Enforcement Bureau's Spectrum Enforcement
Division issued Circle K a Letter of Inquiry ("LOI"). Circle K responded
to the LOI on November 11, 2009, stating that it does not believe that it
is subject to the provisions of Section 20.19. Circle K stated that it
purchases the Talk and Go program, both handsets and airtime pins, from an
external source. Circle K further asserted that it has no present
involvement in the operation of a wireless telephone service nor has it
ever been involved in the operation of a wireless telephone service.
We find that, as a reseller of wireless services, Circle K is a service
provider subject to the wireless handset hearing aid compatibility
requirements. Circle K purchases handsets and airtime pins from an
external source and resells the handsets and airtime pins to customers.
The Commission has made clear that the hearing aid compatibility
requirements apply to service providers such as resellers. Thus, Circle K
is a service provider subject to the wireless handset hearing aid
compatibility requirements. Under section 20.19(i)(1) of the Rules, all
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 Circle K 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 Circle K did not file the January 15, 2009 report. Accordingly,
Circle K violated the hearing aid compatibility status report filing
requirements set forth in section 20.19(i)(1) of the Rules.
Circle K 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, Circle K 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.
Circle K 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.
Circle K'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 San Diego District
Office, in San Diego, California. Please call Samantha Peoples at
202-418-1101, if Circle K wishes to schedule a personal interview. Circle
K should schedule any interview to take place within 30 days of the date
of this letter. Circle K 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. 3-A267
Washington, D.C. 20554
Under the Privacy Act of 1974, we are informing Circle K that the
Commission's staff will use all relevant material information before it,
including information that Circle K discloses in its interview or written
statement, to determine what, if any, enforcement action is required to
ensure Circle K'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 Circle K 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).
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: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, Federal Communications Commission, to Geoffrey Haxel,
Vice President, Circle K Talk & Go (October 20, 2009).
See Letter from David O'Toole, Business Manager - Telecom, Circle K
Stores, to Samantha N. Peoples, Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission (November 11, 2009).
Id. at 2.
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.").
See 7-Eleven, Inc., Citation, 25 FCC Rcd 344, 346 (Enf. Bur., Spectrum
Enf. Div. 2010).
47 C.F.R. S: 20.19(i)(1).
To date, Circle K still has not filed the January 15, 2009 report.
We note that on January 11, 2010, Circle K did file its report that was
due January 15, 2010.
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 10-933
Federal Communications Commission DA 10-933
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554