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May 26, 2010
VIA CERTIFIED MAIL - RETURN RECEIPT REQUESTED
11910 Parklawn Drive, Suite U
Rockville MD 20852
Re: File No. EB-09-SE-182
Dear Sir or Madam:
This is an official CITATION issued to Movida Cellular ("Movida"), 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 Movida violated a
Commission order by failing to respond to an Enforcement Bureau Letter of
Inquiry ("LOI") directing Movida to provide certain information and
documents concerning its compliance with the digital wireless handset
hearing aid compatibility requirements. As explained below, future
violations of the Commission's rules in this regard may subject Movida 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, will enable
consumers to obtain up-to-date hearing aid compatibility information from
their service providers.
Movida, a reseller of wireless service, did not file a hearing aid
compatibility status report prior to the January 15, 2009 deadline. The
Wireless Telecommunications Bureau referred Movida's apparent violation of
the hearing aid compatibility reporting requirement to the Enforcement
Bureau for possible enforcement action. On December 1, 2009, the Spectrum
Enforcement Division of the Commission's Enforcement Bureau ("Division")
issued Movida a Letter of Inquiry ("LOI") to investigate whether Movida
violated the digital wireless handset hearing aid compatibility status
report filing requirements set forth in section 20.19(i)(1), and the
public web site posting requirements set forth in section 20.19(h) of the
rules. Movida's response to the LOI, which was due on December 16, 2009,
has not yet been received. Additionally, according to the Commission's
records, Movida also has not filed its hearing aid compatibility status
report that was due January 15, 2010.
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." Section
4(j) states that "[t]he Commission may conduct its proceedings in such
manner as will best conduce to the proper dispatch of business and to the
ends of justice." Section 403 grants the Commission "full authority and
power at any time to institute an inquiry, on its own motion, in any case
and as to any matter or thing concerning which complaint is authorized to
be made, to or before the Commission by any provision of this Act, or
concerning which any question may arise under any of the provisions of
Pursuant to this authority, we sent Movida's attorney, Mr. Sellman, an LOI
on December 1, 2009, directing Movida to provide certain information and
documents. The Postal Service certified mail receipt indicates that the
LOI was received in Mr. Sellman's office on December 2, 2009. However, the
Commission has not received the information sought by the LOI.
Accordingly, it appears that Movida has violated a Commission order by
failing to respond to Enforcement Bureau directives to provide certain
information and documents.
A party may not ignore the directives in a Bureau inquiry letter. You are
again ordered, pursuant to sections 4(i), 4(j) and 403 of the Act, to
provide the information originally sought by our LOI of December 1, 2009
(copy enclosed). Movida must provide this information in the manner
indicated therein within 20 days of the date of this citation.
Furthermore, we find that, as a reseller of wireless services, Movida is a
service provider subject to the wireless handset hearing aid compatibility
requirements. Movida resells prepaid wireless cards and services. The
Commission has made clear that the hearing aid compatibility requirements
apply to service providers such as resellers. Thus, Movida is a service
provider subject to the wireless handset 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
Movida 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
Movida did not file the January 15, 2009 and January 15, 2010 reports.
Accordingly, Movida 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 Movida's web
site, it failed to post the required information on its web site in
violation of section 20.19(h) of the rules.
Movida 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, Movida 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.
Movida 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.
Movida'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 Columbia District
Office, in Columbia, Maryland. Please call Katherine Power at 202-418-1909
if Movida wishes to schedule a personal interview. Movida should schedule
any interview to take place within 30 days of the date of this letter.
Movida 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-A365
Washington, D.C. 20554
Under the Privacy Act of 1974, we are informing Movida that the
Commission's staff will use all relevant material information before it,
including information that Movida discloses in its interview or written
statement, to determine what, if any, enforcement action is required to
ensure Movida'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 Movida in advance for its anticipated cooperation.
Chief, Spectrum Enforcement Division
cc: David S. Sellman, Esq.
Movida is owned by Cozac Wireless, a subsidiary of APC Wireless. Each of
the three entities lists the above address as its address.
47 U.S.C. S: 503(b)(5).
47 C.F.R. S: 20.19(i)(1).
47 C.F.R. S: 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).
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 Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau , to David S. Sellman, Esq., counsel to Movida Cellular
(December 1, 2009). On November 30, 2009, Mr. Sellman e-mailed Katherine
Power, Attorney Advisor, Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission, to inform her that he was
Ms. Power telephoned Mr. Sellman in January, February and March, 2010, and
left messages which were not returned.
47 U.S.C. S:S: 154 (i), 154 (j), 403.
47 U.S.C. S: 154 (i).
47 U.S.C. S: 154 (j).
47 U.S.C. S: 403.
See USPS receipt No. 7008114000280562217, showing that the December 1,
2009 LOI was signed by "K. Raymond," on December 2, 2009.
See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589,
7591 (2002). In SBC Communications, the Commission assessed a $100,000
forfeiture against a carrier for its willful refusal to supply a sworn
declaration in response to an Enforcement Bureau letter of inquiry. The
Commission stated: "[T]he order here was squarely within the Commission's
authority and, in any event, parties are required to comply with
Commission orders even if they believe them to be outside the Commission's
authority." Id. at 7591.
See 47 C.F.R. S: 1.80(b)(3).
According to its web site, Movida sells prepaid telephones and airtime for
those telephones. See http://www.movidacelular.com (last visited May 12,
See e.g., Hearing 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).
47 C.F.R. S: 20.19(h).
See Hearing Aid Compatibility First Report and Order, 23 FCC Rcd at 3450
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 10-934
Federal Communications Commission DA 10-934
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554