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Federal Communications Commission
Washington, D.C. 20554
) File No.: EB-09-SE-149
In the Matter of
) Acct. No.: 201232100038
HTC America, Inc.; HTC Corporation
) FRN: 0018941682
The Enforcement Bureau of the Federal Communications Commission, HTC
America, Inc., a subsidiary of HTC Corporation, and HTC Corporation by
their authorized representatives, hereby enter into this Consent Decree
for the purpose of terminating the Enforcement Bureau's investigation into
possible violations of Sections 20.19(c)(1) and 20.19(d)(1) of the
Commission's rules pertaining to the deployment of digital wireless
hearing aid-compatible handset models.
1. For the purposes of this Consent Decree, the following definitions
a. "Act" means the Communications Act of 1934, as amended, 47 U.S.C. S:
151 et seq.
b. "Adopting Order" means an order of the Bureau adopting the terms of
this Consent Decree without change, addition, deletion, or
c. "Bureau" means the Enforcement Bureau of the Federal Communications
d. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
e. "Communications Laws" means collectively, the Act, the Rules, and the
published and promulgated orders and decisions of the Commission to
which HTC is subject by virtue of its business activities, including
but not limited to, the Hearing Aid Compatibility Rules.
f. "Compliance Plan" means the compliance obligations and compliance
program described in this Consent Decree at paragraph 8.
a. "Covered Employees" means all employees and agents of HTC who
perform, or supervise, oversee, or manage the performance of, duties
that relate to HTC's responsibilities under the Hearing Aid
Compatibility Rules, but excludes those employees or agents of HTC
who perform factory labor associated with the manufacture and
assembly of digital wireless handsets, those solely involved in the
sales and marketing of digital wireless handsets for distribution
outside the United States and its territories, and those agents, if
any, who perform independent testing of HTC's digital wireless
h. "Effective Date" means the date on which the Bureau releases the
i. "Hearing Aid Compatibility Rules" means section 20.19 of the Rules and
other Communications Laws governing digital wireless hearing
aid-compatibility, such as the Rules governing the design, selection,
or acquisition of wireless handsets and the marketing or distribution
of such handsets within the United States and its territories.
j. "HTC" means HTC America, Inc. and HTC Corporation, as well as their
predecessors-in-interest and successors-in-interest.
k. "Investigation" means the investigation initiated by the Bureau in
response to a referral from the Wireless Telecommunications Bureau
regarding possible violations of Sections 20.19(c)(1) and 20.19(d)(1)
of the Rules.
l. "Operating Procedures" means the standard, internal operating
procedures and compliance policies established by HTC to implement the
m. "Parties" means HTC and the Bureau, each of which is a "Party."
n. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
2. In the 2003 Hearing Aid Compatibility Order, the Commission adopted
several measures to enhance the ability of consumers with hearing loss
to access digital wireless telecommunications. The Commission
established technical standards for radio frequency interference (the
M rating) and inductive coupling (the T rating) that digital wireless
handsets must meet to be considered compatible with hearing aids
operating in acoustic coupling and inductive coupling (telecoil)
modes, respectively. For each of these standards, the Commission
further established deadlines by which manufacturers and service
providers must offer specified numbers or percentages of digital
wireless handsets per air interface that are compliant with the
relevant standard. 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 hearing aid-compatible handset deployment benchmarks
beginning in 2008.
3. HTC Corporation designs and manufacturers handheld wireless
telecommunications devices, including digital wireless handsets. HTC
America, Inc., a wholly-owned subsidiary of HTC Corporation,
represents that it controls the sales and marketing of such digital
wireless handsets in the United States. HTC Corporation's hearing aid
compatibility status report covering the period July 1, 2008 through
December 31, 2008 was filed on January 15, 2009. HTC Corporation's
hearing aid compatibility status report covering the period January 1,
2009 through June 30, 2009 was filed on July 15, 2009. On November 25,
2009, the Wireless Telecommunications Bureau referred HTC's apparent
hearing aid-compatible handset deployment violations to the Bureau's
Spectrum Enforcement Division (Division) for investigation and
possible enforcement action. HTC Corporation's hearing aid
compatibility status report for the period covering July 1, 2009
through June 30, 2010 was filed on July 15, 2010. HTC Corporation's
hearing aid compatibility status report for the period covering July
1, 2010 through June 30, 2011 was filed on July 14, 2011. HTC asserts
that the company is now fully compliant with the hearing
aid-compatible handset deployment requirements and that, as of June
2012, all handset models offered by HTC met or exceeded both the M3
and T3 rating for hearing aid compatibility. The Bureau and HTC
entered into tolling agreements to toll the statute of limitations,
and negotiated the terms of this Consent Decree.
III. TERMS OF AGREEMENT
4. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to final approval by the Bureau by
incorporation of such provisions by reference in the Adopting Order.
5. Jurisdiction. HTC agrees that the Bureau has jurisdiction over it and
the matters contained in this Consent Decree and that the Bureau has
the authority to enter into and adopt this Consent Decree.
6. Effective Date; Violations. The Parties agree that this Consent
Decree shall become effective on the Effective Date as defined herein.
As of the Effective Date, the Adopting Order and this Consent Decree
shall have the same force and effect as any other order of the
Commission. Any violation of the Adopting Order or of the terms of
this Consent Decree shall constitute a separate violation of a
Commission order, entitling the Commission to exercise any rights and
remedies attendant to the enforcement of a Commission order.
7. Termination of Investigation. In express reliance on the covenants
and representations in this Consent Decree and to avoid further
expenditure of public resources, the Bureau agrees to terminate the
Investigation. In consideration for the termination of the
Investigation, HTC agrees to the terms, conditions, and procedures
contained herein. The Bureau further agrees that in the absence of new
material evidence, the Bureau will not use the facts developed in the
Investigation through the Effective Date, or the existence of this
Consent Decree, to institute on its own motion any new proceeding,
formal or informal, or take any action on its own motion against HTC
concerning the matters that were the subject of the Investigation. The
Bureau also agrees that in the absence of new material evidence it
will not use the facts developed in the Investigation through the
Effective Date, or the existence of this Consent Decree, to institute
on its own motion any proceeding, formal or informal, or take any
action on its own motion against HTC with respect to HTC's basic
qualifications, including its character qualifications, to be a
Commission licensee or to hold Commission licenses or authorizations.
8. Compliance Plan. For purposes of settling the matters set forth
herein, HTC agrees that it shall within sixty (60) calendar days after
the Effective Date, develop and implement a Compliance Plan to help
ensure future compliance with the Communications Laws, including the
Hearing Aid Compatibility Rules, and with the terms and conditions of
this Consent Decree. The Compliance Plan shall include, without
limitation, the following components:
a. Compliance Officer. Within thirty (30) calendar days after the
Effective Date, HTC shall designate a senior corporate manager with
the requisite corporate and organizational authority to serve as
Compliance Officer and to discharge the duties set forth below. The
person designated as the Compliance Officer shall be responsible for
developing, implementing, and administering the Compliance Plan and
ensuring that HTC complies with the terms and conditions of the
Compliance Plan and this Consent Decree. In addition to the general
knowledge of the Communications Laws necessary to discharge his/her
duties under this Consent Decree, the Compliance Officer shall have
specific knowledge of the Hearing Aid Compatibility Rules prior to
assuming his/her duties.
b. Operating Procedures on Hearing Aid Compatibility. Within sixty (60)
calendar days after the Effective Date, HTC shall establish Operating
Procedures that all Covered Employees must follow to help ensure
HTC's compliance with the Hearing Aid Compatibility Rules. HTC's
Operating Procedures shall include internal procedures and policies
specifically designed to ensure that HTC offers the requisite number
or percentage of hearing aid-compatible digital wireless handset
models as required by the Hearing Aid Compatibility Rules. HTC also
shall develop a Compliance Checklist that describes the steps that a
Covered Employee must follow to ensure that the inclusion of a new
handset model, or discontinuance of an existing handset model
offering, will not result in a violation of the Commission's digital
wireless hearing aid-compatible handset deployment requirements. At a
minimum, the Compliance Checklist shall require the Compliance
Officer and those Covered Employees responsible for the selection of
digital wireless handset models to be marketed for use in the United
States or its territories to verify the hearing aid compatibility
rating of each existing and proposed handset offering using the
Commission's equipment authorization database.
c. Compliance Manual. Within sixty (60) calendar days after the
Effective Date, the Compliance Officer shall develop and distribute a
Compliance Manual to all Covered Employees. The Compliance Manual
shall explain the Hearing Aid Compatibility Rules and set forth the
Operating Procedures that Covered Employees shall follow to help
ensure HTC's compliance with the Hearing Aid Compatibility Rules. HTC
shall periodically review and revise the Compliance Manual as
necessary to ensure that the information set forth therein remains
current and complete. HTC shall distribute any revisions to the
Compliance Manual promptly to all Covered Employees.
d. Compliance Training Program. HTC shall establish and implement a
Compliance Training Program on compliance with the Hearing Aid
Compatibility Rules and the Operating Procedures. As part of the
Compliance Training Program, Covered Employees shall be advised of
HTC's obligation to report any noncompliance with the Hearing Aid
Compatibility Rules under paragraph 10 of this Consent Decree and
shall be instructed on how to disclose noncompliance to the
Compliance Officer. All Covered Employees shall be trained pursuant
to the Compliance Training Program within sixty (60) calendar days
after the Effective Date, except that any person who becomes a
Covered Employee at any time after the Effective Date shall be
trained within thirty (30) calendar days after the date such person
becomes a Covered Employee. HTC shall repeat the compliance training
on an annual basis, and shall periodically review and revise the
Compliance Training Program as necessary to ensure that it remains
current and complete and to enhance its effectiveness.
9. Outreach Program on Hearing Aid Compatibility. As part of its efforts
to comply with the Hearing Aid Compatibility Rules and to consider the
needs of the hearing disabled community early in the product design
process, HTC shall, within sixty (60) calendar days after the
Effective Date, establish and implement a comprehensive hearing aid
compatibility outreach program to individuals with hearing
disabilities and to a wide range of organizations that represent the
hearing disabled. The purpose of the outreach program will be to gain
insight into the mobile handset communications needs of individuals
with hearing disabilities and how HTC can address those needs in the
design of its digital wireless handset models. HTC shall conduct these
hearing aid compatibility outreach efforts on at least a quarterly
basis during the term of this Consent Decree. HTC's hearing aid
compatibility outreach program shall include outreach efforts such as
focus groups, surveys, consultations, and other appropriate contacts
with disability group leaders, individuals with hearing disabilities
and/or their representatives.
10. Reporting Noncompliance. HTC shall report any noncompliance with the
Hearing Aid Compatibility Rules and with the terms and conditions of
this Consent Decree within fifteen (15) calendar days after discovery
of such noncompliance. Such reports shall include a detailed
explanation of (i) each instance of noncompliance; (ii) the steps that
HTC has taken or will take to remedy such noncompliance; (iii) the
schedule on which such remedial actions will be taken; and (iv) the
steps that HTC has taken or will take to prevent the recurrence of any
such noncompliance. All reports of noncompliance shall be submitted to
the Chief, Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission, Room 3-C366, 445 12th Street, S.W.,
Washington, D.C. 20554, with a copy submitted electronically to Linda
Nagel at Linda.Nagel@fcc.gov and to Pamera Hairston at
11. Compliance Reports. HTC shall file Compliance Reports with the
Commission ninety (90) calendar days after the Effective Date, twelve
(12) months after the Effective Date, and twenty-four (24) months
after the Effective Date.
a. Each compliance report shall include a detailed description of HTC's
efforts during the relevant period to comply with the terms and
conditions of this Consent Decree and the Hearing Aid Compatibility
Rules. In addition, each Compliance Report shall include a
certification by the Compliance Officer, as an agent of and on behalf
of HTC, stating that the Compliance Officer has personal knowledge
that HTC (i) has established and implemented the Compliance Plan; (ii)
has utilized the Operating Procedures since the implementation of the
Compliance Plan; (iii) has established and implemented the outreach
program described in paragraph 9 of this Consent Decree; and (iv) is
not aware of any instances of noncompliance with the terms and
conditions of this Consent Decree, including the reporting obligations
set forth in paragraph 10 hereof.
b. The Compliance Officer's certification shall be accompanied by a
statement explaining the basis for such certification and must comply
with Section 1.16 of the Rules and be subscribed to as true under
penalty of perjury in substantially the form set forth therein.
c. If the Compliance Officer cannot provide the requisite certification,
the Compliance Officer, as an agent of and on behalf of HTC, shall
provide the Commission with a detailed explanation of the reason(s)
why and describe fully (i) each instance of noncompliance; (ii) the
steps that HTC has taken or will take to remedy such noncompliance,
including the schedule on which proposed remedial actions will be
taken; and (iii) the steps that HTC has taken or will take to prevent
the recurrence of any such noncompliance, including the schedule on
which such preventive action will be taken.
d. All Compliance Reports shall be submitted to the Chief, Spectrum
Enforcement Division, Enforcement Bureau, Federal Communications
Commission, 445 12th Street, S.W., Washington, D.C. 20554, with a copy
submitted electronically to Linda Nagel at Linda.Nagel@fcc.gov and to
Pamera Hairston at Pamera.Hairston@fcc.gov.
12. Termination Date. Unless stated otherwise, the requirements of
paragraphs 8 through 11 of the Consent Decree shall expire twenty-four
(24) months after the Effective Date.
13. Voluntary Contribution. HTC agrees that it will make a voluntary
contribution to the United States Treasury in the amount of five
hundred and fifteen thousand dollars ($515,000) within thirty (30)
calendar days after the Effective Date. HTC shall also send electronic
notification of payment to Linda Nagel at Linda.Nagel@fcc.gov, Pamera
Hairston at Pamera.Hariston@fcc.gov, and Samantha Peoples at
Sam.Peoples@fcc.gov on the date said payment is made. The payment must
be made by check or similar instrument, wire transfer, or credit card,
and must include the NAL/Account number and FRN referenced above.
Regardless of the form of payment, a completed FCC Form 159
(Remittance Advice) must be submitted. When completing the FCC Form
159, enter the Account Number in block number 23A (call sign/other ID)
and enter the letters "FORF" in block number 24A (payment type
code). Below are additional instructions you should follow based on
the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
If you have questions regarding payment procedures, please contact the
Financial Operations Group Help Desk by phone, 1-877-480-3201, or by
14. Waivers. HTC waives any and all rights it may have to seek
administrative or judicial reconsideration, review, appeal, or stay,
or to otherwise challenge or contest the validity of this Consent
Decree and the Adopting Order, provided the Bureau issues an Adopting
Order as defined herein. HTC shall retain the right to challenge
Commission interpretation of the Consent Decree or any terms contained
herein. If either Party (or the United States on behalf of the
Commission) brings a judicial action to enforce the terms of the
Adopting Order, neither HTC nor the Commission shall contest the
validity of the Consent Decree or of the Adopting Order, and HTC shall
waive any statutory right to a trial de novo. HTC hereby agrees to
waive any claims it may have under the Equal Access to Justice Act
relating to the matters addressed in this Consent Decree.
15. Invalidity. In the event that this Consent Decree in its entirety is
rendered invalid by any court of competent jurisdiction, it shall
become null and void and may not be used in any manner in any legal
16. Subsequent Rule or Order. The Parties agree that if any provision of
the Consent Decree conflicts with any subsequent Rule or order adopted
by the Commission (except an order specifically intended to revise the
terms of this Consent Decree to which HTC does not expressly consent)
that provision will be superseded by such Rule or Commission order.
17. Successors and Assigns. HTC agrees that the provisions of this Consent
Decree shall be binding on its successors, assigns, and transferees.
18. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties with
respect to the Investigation. The Parties further agree that this
Consent Decree does not constitute either an adjudication on the
merits or a factual or legal finding or determination regarding any
compliance or noncompliance with the Communications Laws.
19. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
20. Paragraph Headings. The headings of the paragraphs in this Consent
Decree are inserted for convenience only and are not intended to
affect the meaning or interpretation of this Consent Decree.
21. Authorized Representative. The individual signing this Consent Decree
on behalf of HTC represents and warrants that he is authorized by HTC
to execute this Consent Decree and to bind HTC to the obligations set
forth herein. The FCC signatory represents that she is signing this
Consent Decree in her official capacity and that she is authorized to
execute this Consent Decree.
22. Counterparts. This Consent Decree may be signed in any number of
counterparts (including by facsimile), each of which, when executed
and delivered, shall be an original, and all of which counterparts
together shall constitute one and the same fully executed instrument.
P. Michele Ellison
Vice President & Associate General Counsel
HTC America, Inc.,
on behalf of and as authorized by HTC America, Inc. and HTC
47 C.F.R. S: 20.19(c)(1), (d)(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 Act, 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, para. 89 (2003);
Erratum, 18 FCC Rcd 18047 (2003) (Hearing Aid Compatibility Order); Order
on Reconsideration and Further Notice of Proposed Rulemaking, 20 FCC Rcd
As subsequently amended, Section 20.19(b)(1) provides that, for the period
beginning June 6, 2008 and ending December 31, 2009, a newly certified
wireless handset is deemed hearing aid-compatible for radio frequency
interference if, at minimum, it meets the M3 rating associated with the
technical standard set forth in either the standard document "American
National Standard Methods of Measurement of Compatibility between Wireless
Communication Devices and Hearing Aids," ANSI C63.19-2006 (June 12, 2006)
or ANSI C63.19-2007 (June 8, 2007). Beginning January 1, 2010, a newly
certified handset must meet at least an M3 rating under ANSI C63.19-2007
to be considered hearing aid-compatible for radio frequency interference.
47 C.F.R. S: 20.19(b)(1). Section 20.19(b)(2) provides that, for the
period beginning June 6, 2008 and ending December 31, 2009, a newly
certified wireless handset is deemed hearing aid-compatible for inductive
coupling if, at minimum, it meets the T3 rating associated with the
technical standard as set forth in ANSI C63.19-2006 or ANSI C63.19-2007,
and beginning January 1, 2010, it is deemed hearing aid-compatible for
inductive coupling if it meets at least a T3 rating under ANSI
C63.19-2007. See id. S: 20.19(b)(2). Grants of certification issued before
June 6, 2008, under previous versions of ANSI C63.19 remain valid for
hearing aid compatibility purposes. A recently adopted further amendment
to Section 20.19(b) will permit manufacturers to test handsets for hearing
aid compatibility using the 2011 version of the ANSI standard (ANSI
C63.19-2011) as an alternative to ANSI C63.19-2007. See Amendment of the
Commission's Rules Governing Hearing Aid-Compatible Mobile Handsets, Third
Report and Order, 27 FCC Rcd 3732 (2012).
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, para. 65; 47
C.F.R. S: 20.19(c), (d).
See Amendment of the Commission's Rules Governing Hearing Aid-Compatible
Mobile Handsets, First Report and Order, 23 FCC Rcd 3406 (2008), Order on
Reconsideration and Erratum, 23 FCC Rcd 7249 (2008). These handset
deployment requirements do not apply to service providers and
manufacturers that meet the de minimis exception. 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 requirements, and manufacturers or 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).
Effective September 10, 2012, the de minimis exception will not be
available to manufacturers or mobile service providers that do not meet
the definition of a "small entity" beginning two years after their initial
offerings. 47 C.F.R. S: 20.19(e)(1)(ii); see also Amendment of the
Commission's Rules Governing Hearing Aid-Compatible Mobile Handsets,
Policy Statement and Second Report and Order and Further Notice of
Proposed Rulemaking, 25 FCC Rcd 11167, 11180-11189 paras. 35-59 (2010).
HTC Corporation, Hearing Aid Compatibility Status Report (filed Jan. 15,
2009) available at
HTC Corporation, Hearing Aid Compatibility Status Report (filed July 15,
2009) available at
HTC Corporation, Hearing Aid Compatibility Status Report (filed July 15,
2010) available at
HTC Corporation, Hearing Aid Compatibility Status Report (filed July 14,
2011) available at
See Letter from Amy Wolverton, Executive Director of Public Policy and
Government Affairs, HTC America, Inc., to John D. Poutasse, Chief,
Spectrum Enforcement Division, FCC Enforcement Bureau (July 29, 2012) (on
file in EB-09-SE-149).
See, e.g., Tolling Agreement Extension, executed by and between John D.
Poutasse, Chief, Spectrum Enforcement Division, FCC Enforcement Bureau,
and Amy Wolverton, Executive Director of Public Policy and Government
Affairs, HTC America, Inc. (July 20, 2012) (on file in EB-09-SE-149).
The Bureau analyzed HTC's possible violations of Sections 20.19(c)(1) and
20.19(d)(1) of the Rules consistent with the new base forfeiture
calculation methodology set forth in the Commission's recent T-Mobile
decision (see T-Mobile USA, Inc., Notice of Apparent Liability for
Forfeiture, 27 FCC Rcd 4405 (2012)) and applied the statutory factors set
forth in Section 503(b)(2)(E) of the Act. We also took into consideration
the fact that the Parties had engaged in lengthy and productive settlement
negotiations over the terms of this Consent Decree and were nearing
agreement prior to the release of the T-Mobile decision.
47 C.F.R. S: 1.16.
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
Equal Access to Justice Act, Pub L. No 96-481, 94 Stat. 2325 (1980)
(codified at 5 U.S.C. S: 504); see also 47 C.F.R. S:S: 1.1501-1.1530.
Federal Communications Commission DA 12-1381
Federal Communications Commission DA 12-1381