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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
File No. EB-07-SE-140
In the Matter of )
NAL/Acct. No. 200732100028
IT&E Overseas, Inc. )
FRN # 0001523125
)
)
Notice of apparent Liability for forfeiture
Adopted: April 25, 2007 Released: April 25, 2007
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
IT&E Overseas, Inc. ("IT&E") apparently liable for a forfeiture in the
amount of sixteen thousand dollars ($16,000) for its willful and
repeated violations of Section 20.19(f) of the Commission's Rules
("Rules"). The apparent violations involve IT&E's failure to comply
with the labeling requirements for digital wireless hearing
aid-compatible handsets.
II. Background
2. In the 2003 Hearing Aid Compatibility Order, the Commission took a
number of actions to further the ability of persons with hearing
disabilities to access digital wireless telecommunications. Among
other actions, the Commission required manufacturers and digital
wireless service providers to collectively take steps to increase the
number of hearing aid-compatible handset models available, and
established phased-in deployment benchmark dates for the offering of
hearing aid-compatible digital wireless handset models. In this
regard, the Commission required entities within each of these classes
that do not fall within the de minimis exception to begin to offer
digital wireless handset models that meet at least a U3 rating for
radio frequency interference by September 16, 2005. In connection with
the offer of hearing aid-compatible handset models, the Commission
also required entities to label the handsets with the appropriate
technical rating, and to explain the technical rating system in the
owner's manual or as part of the packaging material for the handset.
In order to monitor efforts to make compliant handsets available, the
Commission 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 (on 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 (on
November 19, 2007 and November 17, 2008).
3. In June 2005, the Commission reconsidered certain aspects of the
Hearing Aid Compatibility Order and modified the preliminary handset
deployment benchmark specific to Tier I (i.e., nationwide) wireless
carriers to provide greater regulatory certainty, while simultaneously
ensuring a broad array of choices for persons with hearing
disabilities who seek to purchase hearing aid-compatible wireless
phones. Specifically, the Hearing Aid Compatibility Reconsideration
Order established that by September 16, 2005, Tier I wireless carriers
must offer four digital wireless handset models per air interface, or
twenty-five percent of the total number of digital wireless handset
models offered by the carrier nationwide, that meet a U3 rating. The
Hearing Aid Compatibility Reconsideration Order, however, did not
modify the preliminary deployment benchmark or associated labeling
requirements for Tier II or Tier III wireless carriers. Tier II and
Tier III wireless carriers that do not fall within the de minimis
exception, therefore, were required to include in their handset
offerings at least two U3-rated handset models per air interface, and
to comply with the associated labeling requirements, by September 16,
2005.
4. On April 11, 2007, the Commission released a Memorandum Opinion and
Order addressing waiver requests filed by nineteen Tier II and Tier
III wireless carriers, including IT&E, for relief from the hearing aid
compatibility requirements for wireless digital telephones. In its
waiver request, IT&E sought a one-year waiver of the September 16,
2005 compliance deadline, citing the unavailability of U3-rated
handsets as the basis for its request. IT&E's November 17, 2005 Report
stated, "IT&E is currently marketing two (2) CDMA handsets that meet a
M3 rating." With respect to handset labeling, the IT&E November 17,
2005 Report stated, "IT&E is not involved in product labeling or the
development of labeling standards." On April 26, 2006, IT&E
supplemented its petition and informed the Commission that it
"currently markets four digital wireless handset models which meet a
U3 ... rating for radio frequency interference." IT&E also reported
that, with respect to each of the four handsets, "either the
manufacturer-supplied packaging or labels attached by IT&E indicates
that the units are hearing aid compatible."
5. Given that IT&E reported the offer of two compliant handsets as of
November 14, 2005, the Commission concluded that IT&E came into
compliance with the preliminary handset deployment benchmark as of
November 14, 2005. Accordingly, with respect to IT&E's compliance with
the preliminary handset deployment requirement, the Commission granted
IT&E a waiver nunc pro tunc to extend the deadline for compliance with
Section 20.19(c)(2)(i) of the Rules until November 14, 2005. The
Commission found that this brief delay was de minimis and that it did
not unduly deprive IT&E's subscribers of access to hearing
aid-compatible handsets.
6. With respect to the associated labeling requirements, the Commission
found that IT&E came into compliance as of April 26, 2006. The
Commission concluded, however, that IT&E failed to demonstrate unusual
or unique circumstances, or the existence of any other factor,
warranting relief from the labeling requirements for a period of more
than five months beyond November 14, 2005, the date by which it was
offering certified compliant handsets. In addition, the Commission was
unpersuaded by IT&E's attempt to disclaim responsibility for
compliance with the labeling requirement because it is "not involved"
in labeling. Furthermore, the Commission noted that the IT&E
Supplement did not definitively demonstrate compliance with the
labeling requirements, which require both labeling and additional
information in the handset packaging. Thus, the Commission concluded
that IT&E did not make the requisite showing to justify a waiver of
Section 20.19(f) of the Rules, denied this aspect of the IT&E
Petition, and referred IT&E's apparent violation to the Enforcement
Bureau.
III. Discussion
A. Failure to Comply with Labeling Requirements for Wireless
Hearing-Aid Compatible Handsets
7. Section 20.19(f) of the Rules provides that wireless hearing
aid-compatible handsets shall clearly display the U-rating, as defined
in Section 20.19(b), on the packaging material of the handset and that
an explanation of the technical rating system shall be included in the
owner's manual or as part of the packaging material for the handset by
September 16, 2005. The Commission has determined based on the record
established in the waiver proceeding that IT&E apparently failed to
come into compliance with the labeling requirements for each of the
two hearing aid-compatible handsets it was offering until at least
April 26, 2006, more than five months beyond November 14, 2005, the
date by which it was offering certified compliant handsets.
Accordingly, we conclude that IT&E apparently willfully and repeatedly
failed to comply with the labeling requirements for wireless
hearing-aid compatible handsets in violation of Section 20.19(f) of
the Rules.
A. Proposed Forfeiture
8. Under Section 503(b)(1)(b) of the 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
issue a notice of apparent liability 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 a Commission rule. We conclude
under this standard that IT&E is apparently liable for forfeiture for
its apparent willful and repeated violations of Section 20.19(f) of
the Rules.
9. Under Section 503(b)(2)(B) of the Act, we may assess a common carrier
a forfeiture of up to $130,000 for each violation, or for each day of
a continuing violation up to a maximum of $1,325,000 for a single act
or failure to act. In exercising such authority, we are required to
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."
10. The Commission's Forfeiture Policy Statement and Section 1.80 of the
Rules do not currently establish a base forfeiture amount for
violations of labeling requirements for hearing-aid compatible
handsets set forth in Section 20.19(f) of the Rules. Enforcement of
these requirements is important to ensure that individuals with
hearing disabilities have access to information that they need to make
informed decisions as to which wireless telephone best meets their
individual needs. Moreover, as the Commission has observed, the number
of Americans with hearing disabilities is growing, and so is wireless
phone use. We note that a base forfeiture amount of $8,000 has been
established for violations of the emergency accessibility rules. The
emergency accessibility requirements and the labeling requirements for
wireless hearing aid-compatible handsets both serve the important goal
of promoting public safety by ensuring that consumers with
disabilities have access to information that they need. Moreover, we
note that violations of the labeling requirements for wireless hearing
aid-compatible handsets are continuing violations. We therefore think
that these violations are analogous and that the $8,000 base
forfeiture amount is appropriate for apparent violations of Section
20.19(f). IT&E failed to comply with the labeling requirements for
each of the two handsets that it was offering. Each such failure is a
separate violation. Accordingly, we propose a forfeiture of $8,000 for
each of IT&E's failures to comply with the labeling requirements for
wireless hearing aid-compatible handsets, for a total proposed
forfeiture of $16,000.
IV. ordering clauses
11. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Section 1.80 of the Rules, IT&E Overseas, Inc. is NOTIFIED of
its APPARENT LIABILITY FOR A FORFEITURE in the amount of sixteen
thousand dollars ($16,000) for willful and repeated violation of
Section 20.19(f) of the Rules.
12. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Rules,
within thirty days of the release date of this Notice of Apparent
Liability for Forfeiture, IT&E Overseas, Inc. SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
13. Payment of the forfeiture must be made by check or similar instrument,
payable to the order of the Federal Communications Commission. The
payment must include the NAL/Acct. No. and FRN No. referenced above.
Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340.
Payment by overnight mail may be sent to Mellon Bank/LB 358340, 500
Ross Street, Room 1540670, Pittsburgh, PA 15251. Payment by wire
transfer may be made to ABA Number 043000261, receiving bank Mellon
Bank, and account number 911-6106.
14. The response, if any, must be mailed to the Office of the Secretary,
Federal Communications Commission, 445 12th Street, S.W., Washington,
D.C. 20554, ATTN: Enforcement Bureau - Spectrum Enforcement Division,
and must include the NAL/Acct. No. referenced in the caption.
15. 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 submitted.
16. Requests for payment of the full amount of the NAL under an
installment plan should be sent to: Associate Managing Director -
Financial Operations, 445 12^th Street, S.W., Room 1-A625, Washington,
D.C. 20554.
17. 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 John M. Borlas, President,
IT&E Overseas, Inc., P.O. Box 24881, GMF, Guam 96921, and to Benjamin
H. Dickens, Jr., Esq., Blooston, Mordkofsky, Dickens, Duffy &
Prendergast, LLP, 2120 L Street, N.W., Suite 300, Washington, DC
20037.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
47 C.F.R. S 20.19(f).
As used herein, "labeling requirements" refers both to the requirement
that wireless hearing aid-compatible handsets display the technical rating
on the packaging material of the handset and the separate requirement that
an explanation of the technical rating system be included in the owner's
manual or as part of the packaging material for the handset.
Section 68.4(a) of the Commission's Rules Governing Hearing Aid-Compatible
Telephones, Report and Order, 18 FCC Rcd 16753 (2003); Erratum, 18 FCC Rcd
18047 (2003) ("Hearing Aid Compatibility Order"). The Commission adopted
these requirements for digital wireless telephones under authority of a
provision 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 Hearing Aid Compatibility Order, 18 FCC Rcd at 16780; 47 C.F.R. S
20.19(c). In adopting these requirements, the Commission observed, inter
alia, that "as wireless service has evolved to become increasingly more
important to Americans' safety and quality of life, the need for persons
with hearing disabilities to have access to wireless services has become
critical." Hearing Aid Compatibility Order, 18 FCC Rcd at 16757.
See 47 C.F.R. S 20.19(e)(1)-(2). The de minimis exception applies on a per
air interface basis, and provides that manufacturers or mobile service
providers that offer two or fewer digital wireless handsets in the U.S.
are exempt from the requirements of the hearing aid compatibility rules.
For mobile service providers that obtain handsets only from manufacturers
that offer two or fewer digital wireless handset models in the U.S., the
service provider would likewise be exempt from the hearing aid
compatibility requirements. Manufacturers or mobile service providers that
offer three digital wireless handset models must offer at least one
compliant handset model. Mobile service providers that obtain handsets
only from manufacturers that offer three digital wireless handset models
in the U.S. are required to offer at least one compliant handset model.
Section 20.19(b)(1) of the Rules provides that a wireless handset is
deemed hearing aid-compatible if, at minimum, it receives a U3 rating "as
set forth in the standard document ANSI C63.19-2001[,] `American National
Standard for Methods of Measurement of Compatibility between Wireless
Communications Devices and Hearing Aids.'" 47 C.F.R. S 20.19(b)(1). On
April 25, 2005, the Commission's Office of Engineering and Technology
announced that it would also certify handsets as hearing aid-compatible
based on the revised version of the standard, ANSI C63.10-2005. Thus,
applicants for certification may rely on either the 2001 version or 2005
version of the ANSI C63.19 standard. See OET Clarifies Use of Revised
Wireless Phone Hearing Aid Compatibility Standard Measurement Procedures
and Rating Nomenclature, Public Notice, 20 FCC Rcd 8188 (OET 2005). In
addition, we note that, since its 2005 draft version, the ANSI C63.19
technical standard has used an "M" nomenclature for the radio frequency
interference rating rather than a "U," and a "T" nomenclature for the
handset's inductive coupling rating, rather than a "UT." The Commission
has approved the use of the "M" and "T" nomenclature and considers the M/T
and U/UT nomenclatures as synonymous. See Section 68.4(a) of the
Commission's Rules Governing Hearing Aid-Compatible Telephones, Order on
Reconsideration and Further Notice of Proposed Rulemaking, 20 FCC Rcd
11221, 11238 (2005) ("Hearing Aid Compatibility Reconsideration Order").
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16780. See also 47
C.F.R. S 20.19(c)(1)-(3).
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16785. See also 47
C.F.R. S 20.19(f). In addition, to ensure that the rating information was
actually conveyed to consumers prior to purchase, the Commission required
digital wireless service providers to ensure that the U-rating of the
handsets is available to such consumers at the point-of-sale, whether
through display of the label, separate literature, or other means. See
Hearing Aid Compatibility Order, 18 FCC Rcd at 16785.
See id. at 16787; see also Wireless Telecommunications Bureau Announces
Hearing Aid Compatibility Reporting Dates for Wireless Carriers and
Handset Manufacturers, Public Notice, 19 FCC Rcd 4097 (WTB 2004).
See Hearing Aid Compatibility Reconsideration Order, 20 FCC Rcd at 11238.
See id. at 11232. See also OET Clarifies Use of Revised Wireless Phone
Hearing Aid Compatibility Standard Measurement Procedures and Rating
Nomenclature, Public Notice, 20 FCC Rcd 8188 (OET 2005).
Tier II carriers are non-nationwide wireless radio service providers with
more than 500,000 subscribers. Tier III carriers are non-nationwide
wireless radio service providers with 500,000 or fewer subscribers. See
Revision of the Commission's Rules to Ensure Compatibility with Enhanced
911 Emergency Calling Systems, Phase II Compliance Deadlines for
Non-Nationwide CMRS Carriers, Order to Stay, 17 FCC Rcd 14841, 14847
(2002).
See 47 C.F.R. S 20.19(c)(2)(i).
Section 68.4(a) of the Commission's Rules Governing Hearing Aid-Compatible
Telephones, Petitions for Waiver of Section 20.19 of the Commission's
Rules, Memorandum Opinion and Order, WT Docket No. 01-309, FCC 07-51 P 51
(April 11, 2007) ("Wireless HAC Waiver Order").
IT&E is the licensee of Broadband PCS Stations KNLF923 (Frequency Block D
- Guam BTA), KNLG849 (Frequency Block D - Northern Mariana Islands BTA),
WPOK677 (Frequency Block C - Guam BTA) and WPOK678 (Frequency Block C -
Northern Mariana Islands BTA).
See IT&E Overseas, Inc., Petition for Temporary Waiver or Temporary Stay
(filed September 16, 2005) at 1 ("IT&E Petition").
IT&E Overseas, Inc., Semi-Annual Report (filed November 14, 2005) at 2
(listing the Kyocera SOHO KX1 and Motorola V265 handset models) ("IT&E
November 17, 2005 Report").
Id.
IT&E Overseas, Inc., Supplement to Petition for Temporary Waiver or
Temporary Stay (filed April 26, 2006) at 1 (listing the Kyocera SOHO KX1,
Motorola V265, Motorola V276 and the Motorola V3c handset models) ("IT&E
Supplement").
Id.
Wireless HAC Waiver Order at P 51.
Id.
Id. at P 52.
Id.
Id. The Commission noted that IT&E appeared to believe that it is not
responsible for ensuring that handsets are properly labeled. The
Commission concluded, however, that Section 20.19(f) imposes the
responsibility to ensure that hearing aid compatible handsets are properly
labeled on both service providers and manufacturers, and carriers must
therefore make reasonable attempts to obtain labeling and inserts from
manufacturers. The Commission found that the record did not establish that
IT&E made such efforts. The Commission further observed that other Tier
III carriers were able to come into compliance with those requirements
prior to the end of April 2006. Id. at n. 167.
Id. at P 52.
Id.
As noted above, the Commission found that the IT&E Supplement did not
definitively demonstrate compliance with the labeling requirements, which
require both labeling and additional information in the handset packaging.
See supra n. 25 and accompanying text.
Wireless HAC Waiver Order at P 52. Moreover, as noted above, the
Commission concluded that Section 20.19(f) imposes the responsibility to
ensure that hearing aid compatible handsets are properly labeled on both
service providers and manufacturers, and carriers must therefore make
reasonable attempts to obtain labeling and inserts from manufacturers. The
Commission found that the record did not establish that IT&E made such
efforts. See supra n. 25.
Section 312(f)(1) of the Act defines "willful" as "the conscious and
deliberate commission or omission of [any] act, irrespective of any intent
to violate" the law. 47 U.S.C. S 312(f)(1). The legislative history of
Section 312(f)(1) of the Act clarifies that this definition of willful
applies to both Sections 312 and 503(b) of the Act, H.R. Rep. No. 97-765,
97^th Cong. 2d Sess. 51 (1982), and the Commission has so interpreted the
term in the Section 503(b) context. See Southern California Broadcasting
Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991), recon.
denied, 7 FCC Rcd 3454 (1992) ("Southern California").
Section 312(f)(2) of the Act, which also applies to forfeitures assessed
pursuant to Section 503(b) of the Act, provides that "[t]he term
`repeated,' ... means the commission or omission of such act more than
once or, if such commission or omission is continuous, for more than one
day." 47 U.S.C. S 312(f)(2). See Callais Cablevision, Inc., Notice of
Apparent Liability for Forfeiture,16 FCC Rcd 1359, 1362 (2001); Southern
California, 6 FCC Rcd at 4388.
47 U.S.C. S 503(b)(1)(B); 47 C.F.R. S 1.80(a)(1).
47 U.S.C. S 503(b); 47 C.F.R. S 1.80(f).
See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589,
7591 (2002).
47 U.S.C. S 503(b)(2)(B). The Commission twice amended Section 1.80(b)(3)
of the Rules, 47 C.F.R. S 1.80(b)(3), to increase the maxima forfeiture
amounts, in accordance with the inflation adjustment requirements
contained in the Debt Collection Improvement Act of 1996, 28 U.S.C. S
2461. See Amendment of Section 1.80 of the Commission's Rules and
Adjustment of Forfeiture Maxima to Reflect Inflation, Order, 15 FCC Rcd
18221 (2000) (adjusting the maximum statutory amounts from
$100,000/$1,000,000 to $120,000/$1,200,000); Amendment of Section 1.80 of
the Commission's Rules and Adjustment of Forfeiture Maxima to Reflect
Inflation, Order, 19 FCC Rcd 10945 (2004) (adjusting the maximum statutory
amounts from $120,000/$1,200,000 to $130,000/$1,325,000); see also 47
C.F.R. S 1.80(c).
47 U.S.C. S 503(b)(2)(E). See also 47 C.F.R. S 1.80(b)(4), Note to
paragraph (b)(4): Section II. Adjustment Criteria for Section 503
Forfeitures.
See The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd
17087, 17115 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
Policy Statement").
The fact that the Forfeiture Policy Statement does not specify a base
amount does not indicate that no forfeiture should be imposed. The
Forfeiture Policy Statement states that "... any omission of a specific
rule violation from the ... [forfeiture guidelines] ... should not signal
that the Commission considers any unlisted violation as nonexistent or
unimportant. Forfeiture Policy Statement, 12 FCC Rcd at 17099. The
Commission retains the discretion, moreover, to depart from the Forfeiture
Policy Statement and issue forfeitures on a case-by-case basis, under its
general forfeiture authority contained in Section 503 of the Act. Id.
Hearing Aid Compatibility Order, 18 FCC Rcd at 16785.
Id. at 16786.
See Fox Television Stations, Inc., Notice of Apparent Liability for
Forfeiture, 20 FCC Rcd 9847, 9852 (Enf. Bur., 2005); NBC Telemundo License
Co., Notice of Apparent Liability for Forfeiture, 20 FCC Rcd 9839, 9845
(Enf. Bur., 2005); Midwest Television, Inc., Notice of Apparent Liability
for Forfeiture, 20 FCC Rcd 3959, 3966 (Enf. Bur., 2005), consent decree
issued, 22 FCC Rcd 4405 (Enf. Bur., 2007).
See supra n. 4.
Under Section 503(b)(6) of the Act, 47 U.S.C. S 503(b)(6), we are
prohibited from assessing a forfeiture for a violation that occurred more
than a year before the issuance of a NAL. See also 47 C.F.R. S 1.80(b)(4).
Section 503(b)(6) does not, however, bar us from considering IT&E's prior
conduct in determining the appropriate forfeiture amount for violations
that occurred within the one-year statutory period. See Behringer USA,
Inc., Notice of Apparent Liability for Forfeiture and Order, 21 FCC Rcd
1820, 1828 (2006), response pending; Globcom, Inc. d/b/a Globcom Global
Communications, Notice of Apparent Liability for Forfeiture, 18 FCC Rcd
19893, 19903 (2003), forfeiture ordered, 21 FCC Rcd 4710 (2006);
Roadrunner Transportation, Inc., Forfeiture Order, 15 FCC Rcd 9669,
9671-71 (2000); Cate Communications Corp., Memorandum Opinion and Order,
60 RR 2d 1386, 1388 (1986); Eastern Broadcasting Corp., Memorandum Opinion
and Order, 10 FCC 2d 37, 37-38 (1967) recon. denied, 11 FCC 2d 193, 195
(1967). Accordingly, while we take into account the continuous nature of
the violations in determining the appropriate forfeiture amount, our
proposed forfeiture relates only to IT&E's apparent violations that have
occurred within the past year.
See 47 C.F.R. S 1.1914.
(Continued from previous page)
(continued....)
Federal Communications Commission DA 07-1867
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Federal Communications Commission DA 07-1867