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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Westlink Communications, LLC,
a wholly-owned subsidiary of
United Wireless Communications, Inc.
File No.: EB-SED-14-00013342
NAL/Acct. No.: 201432100008
Notice of Apparent Liability for Forfeiture
Adopted: February 12, 2014 Released: February 12, 2014
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
In this Notice of Apparent Liability for Forfeiture, we propose a forfeiture in the amount of five thousand dollars ($5,000) against Westlink Communications, LLC, a wholly-owned subsidiary of United Wireless Communications, Inc. (Westlink). We find that Westlink apparently willfully and repeatedly violated 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).
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 that digital wireless handsets must meet to be considered compatible with hearing aids operating in acoustic coupling and inductive coupling (telecoil) modes. Specifically, the Commission adopted a standard for radio frequency interference (the M3 rating) to enable acoustic coupling between digital wireless phones and hearing aids operating in acoustic coupling mode, and a separate standard (the T3 rating) to enable inductive coupling with hearing aids operating in telecoil mode. In the 2008 Hearing Aid Compatibility First Report and Order, the Commission established various deadlines by which manufacturers and service providers were required to offer specified numbers of digital wireless handset models rated hearing aid-compatible.
The Commission also adopted reporting requirements to ensure that it could monitor the availability of hearing aid-compatible handsets and to provide valuable information to the public concerning the technical testing and commercial availability of these handsets. 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, and then annually thereafter through the fifth year of implementation. In its 2008 Hearing Aid Compatibility First Report and Order, the Commission indefinitely extended these reporting requirements with certain modifications.
Westlink failed to timely file its hearing aid compatibility status report for the period January 1, 2012, through December 31, 2012. The required report was due on January 15, 2013. Westlink contacted the Commission's Wireless Telecommunications Bureau (Wireless Bureau) on February 12, 2013, regarding its failure to file the hearing aid compatibility status report. The Wireless Bureau then opened filing windows to submit the overdue report. Westlink ultimately filed its status report on March 19, 2013. The Wireless Bureau subsequently referred Westlink's apparent violation of the hearing aid compatibility status report filing requirement to the Enforcement Bureau (Bureau).
On December 9, 2013, the Bureau's Spectrum Enforcement Division issued a letter of inquiry (LOI) to Westlink, directing the company to submit a sworn written response to a series of questions relating to Westlink's failure to timely file its hearing aid compatibility status report by the January 15, 2013 deadline. Westlink responded to the LOI on December 30, 2013. In its LOI Response, Westlink admits that it did not timely file its hearing aid compatibility status report, stating that the failure resulted from a change in personnel and the subsequent transfer of responsibilities for Westlink's hearing aid compatibly compliance to another employee. Westlink asserts that after it discovered its failure to file the required report in early February 2013, it promptly notified the Wireless Bureau that it had not met the filing deadline and requested a new filing window to permit the late filing of the report.
Failure to Timely File Hearing Aid Compatibility Status Report
Section 20.19(i)(1) of the Rules requires service providers to file hearing aid compatibility status reports. These reports are necessary to enable the Commission to perform its enforcement function and to evaluate whether Westlink 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. As the record in this case reflects, Westlink failed to timely file the hearing aid compatibility status report due on January 15, 2013, in apparent willful and repeated violation of Section 20.19(i)(1) of the Rules.
+ Proposed Forfeiture
* Under Section 503(b)(1)(B) of the Communications Act of 1934, as amended (Act), any person who is determined by the Commission to have willfully or repeatedly failed to comply with any provision of the Act or any rule, regulation, or order issued by the Commission shall be liable to the United States for a forfeiture penalty. To impose such a forfeiture penalty, the Commission must first issue a notice of apparent liability for forfeiture and the person against whom such notice has been issued must have an opportunity to show, in writing, why no such forfeiture penalty should be imposed. The Commission will then issue a forfeiture if it finds by a preponderance of the evidence that the person has violated the Act or the Rules. We conclude that Westlink is apparently liable for a forfeiture for its failure to timely file the required hearing aid compatibility status report in apparent willful and repeated violation of Section 20.19(i)(1) of the Rules.
* The Commission's Forfeiture Policy Statement and Section 1.80(b) of the Rules set a base forfeiture amount of $3,000 for the failure to file required forms or information. While the base forfeiture requirements are guidelines lending some predictability to the forfeiture process, the Commission retains the discretion to depart from these guidelines and issue forfeitures on a case-by-case basis under its general forfeiture authority in Section 503 of the Act.
* We have exercised our discretion to set a higher base forfeiture amount for violations of the wireless hearing aid compatibility reporting requirements. In ASTCA, we found that the status reports are essential to implement and enforce the hearing aid compatibility rules. The Commission relies on these reports to provide consumers with information regarding the technical specifications and commercial availability of hearing aid-compatible digital wireless handsets and to ensure that the digital wireless industry meets the needs of the increasing number of consumers with hearing loss. In an analogous context, we noted that when setting an $8,000 base forfeiture for violations of the hearing aid-compatible handset labeling requirements, the Commission emphasized that consumers with hearing loss could only take advantage of critically important public safety benefits of digital wireless services if they had access to accurate information regarding hearing aid compatibility features of handsets. We also noted that the Commission has adjusted the base forfeiture upward when noncompliance with filing requirements interferes with the accurate administration and enforcement of Commission rules. Because the failure to file hearing aid compatibility status reports implicates similar public safety and enforcement concerns, we exercised our discretionary authority and established a base forfeiture amount of $6,000 for failure to file a hearing aid compatibility report. Consistent with ASTCA, we believe the $6,000 base forfeiture for violation of the hearing aid compatibility reporting requirement should apply here.
* The $6,000 base forfeiture, however, is subject to adjustment. In assessing forfeitures, Section 503(b)(2)(E) of the Act requires that we take into account the "nature, circumstances, extent, and gravity of the violation and, with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and such other matters as justice may require." In its LOI Response, Westlink states that the failure to timely file its status report was due to a change in personnel and the resulting transfer of responsibilities for Westlink's hearing aid compatibility compliance. It is well established, however, that administrative oversight or inadvertence is not a mitigating factor warranting a downward adjustment of a forfeiture. Similarly, a violator's lack of knowledge or erroneous belief does not warrant a forfeiture's downward adjustment. In addition, we have declined to downwardly adjust a forfeiture based on claims that changes in personnel contributed to the violation. The severity of Westlink's apparent violation, however, is mitigated by its prompt voluntary disclosure to Commission staff of the failure to timely file and its remedial efforts, both of which preceded the Bureau's investigation and the initiation of enforcement action. As such, we find that, based on the particular circumstances of this case, some reduction of the forfeiture is appropriate. In view of all the factual circumstances presented, and having considered the statutory factors enumerated above, we propose a forfeiture in the amount of $5,000 against Westlink for failing to timely file its hearing aid compatibility status report for the period ending December 31, 2012, by the January 15, 2013 deadline, in apparent willful and repeated violation of Section 20.19(i)(1) of the Rules.
* ORDERING CLAUSES
* Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Communications Act of 1934, as amended, and Sections 0.111, 0.311, and 1.80 of the Commission's rules, Westlink Communications, LLC is NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the amount of five thousand dollars ($5,000) for willful and repeated violation of Section 20.19(i)(1) of the Commission's rules.
* IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Commission's rules, within thirty (30) calendar days after the release date of this Notice of Apparent Liability for Forfeiture, Westlink Communications, LLC SHALL PAY the full amount of the proposed forfeiture, or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture consistent with paragraph 15 below.
* The payment of the forfeiture must be made by check or similar instrument, wire transfer, or credit card, and must include the NAL/Account Number and FRN referenced above. Westlink Communications, LLC shall send electronic notification of payment to Pamera Hairston at Pamera.Hairston@fcc.gov, Paul Noone at Paul.Noone@fcc.gov, and Samatha Peoples at Sam.Peoples@fcc.gov on the date payment is made. 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 Westlink Communications, LLC should follow based on the form of payment it selects:
* 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.
* Any request for making full payment over time under an installment plan should be sent to: Chief Financial Officer -- Financial Operations, Federal Communications Commission, 445 12th Street, S.W., Room 1-A625, Washington, DC 20554. If Westlink has questions regarding payment procedures, it should contact the Financial Operations Group Help Desk by phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
* The written statement seeking reduction or cancellation of the proposed forfeiture, if any, must include a detailed factual statement supported by appropriate documentation and affidavits pursuant to Sections 1.80(f)(3) and 1.16 of the Commission's rules. The written statement must be mailed to the Office of the Secretary, Federal Communications Commission, 445 12th Street, S.W., Washington, DC 20554, ATTN: Enforcement Bureau -- Spectrum Enforcement Division, and must include the NAL/Account Number referenced in the caption. The statement must also be e-mailed to Pamera Hairston at Pamera.Hairston@fcc.gov, Paul Noone at Paul.Noone@fcc.gov, and to Samantha Peoples at Sam.Peoples@fcc.gov. The Commission will not consider reducing or canceling a forfeiture in response to a claim of inability to pay unless the petitioner submits: (1) federal tax returns for the most recent three-year period; (2) financial statements prepared according to generally accepted accounting practices; or (3) some other reliable and objective documentation that accurately reflects the petitioner's current financial status. Any claim of inability to pay must specifically identify the basis for the claim by reference to the financial documentation.
* IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability for Forfeiture shall be sent by first class mail and certified mail, return receipt requested, to Catherine Moyer, Chief Executive Officer and General Manager, Westlink Communications, LLC, 120 West Kansas Avenue, Ulysses, KS 67880, and to Kenneth C. Johnson, Esq., and Anthony K. Veach, Esq., Bennet & Bennet, PLLC, Counsel to Westlink Communications, LLC, 6124 MacArthur Boulevard, Bethesda, MD 20816.
FEDERAL COMMUNICATIONS COMMISSION
John D. Poutasse
Chief, Spectrum Enforcement Division