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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of File No. EB-07-SE-142
)
AST Telecom, LLC d/b/a NAL/Acct. No. 200832100001
)
Blue Sky Communications FRN # 0007435902
)
Notice of apparent Liability for forfeiture
Adopted: October 18, 2007 Released: October 22, 2007
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that AST Telecom, LLC d/b/a Blue Sky Communications ("Blue Sky")
apparently willfully and repeatedly violated Section 20.19(f) of the
Commission's Rules ("Rules") by failing to comply with the labeling
requirements for digital wireless hearing aid-compatible handsets. For
Blue Sky's apparent violations, and for the reasons discussed below,
we propose a forfeiture in the amount of eight thousand dollars
($8,000).
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 with reduced emission levels 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 wireless carriers (i.e.,
carriers with national footprints). 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. In the Cingular Waiver Order released on September 8, 2005, the
Commission provided a measure of additional relief for entities that
offer dual-band GSM digital wireless handsets that operate in both the
850 MHz and 1900 MHz bands. Pursuant to its waiver authority, the
Commission ruled that it would accept, until August 1, 2006, the
hearing aid compatibility compliance rating of the handsets for 1900
MHz operation as the overall compliance rating for the handset. The
Commission, however, imposed a number of reporting and consumer
outreach conditions on carriers seeking to avail themselves of this
temporary waiver relief. Carriers taking advantage of the waiver are
required, inter alia, to "ensure a thirty-day trial period or
otherwise adopt an acceptable, flexible return policy for consumers
seeking to obtain hearing aid-compatible GSM digital wireless
handsets," and must include detailed information in their November 17,
2005, and May 17, 2006, compliance reports "that describes and
discusses with specificity efforts to ensure a thirty-day trial period
or otherwise flexible return policy for consumers seeking to obtain
hearing aid-compatible GSM digital wireless handsets." The Commission
thus provided additional time for carriers and manufacturers to ensure
that GSM digital wireless handsets operating in the 850 MHz band would
be compliant with its rules when operating in that band. This action
facilitated compliance with the deployment benchmark obligations by
both manufacturers and carriers, including smaller, non-nationwide
wireless carriers, that offer dual-band GSM digital wireless handsets.
5. On April 11, 2007, the Commission released the Wireless Hearing
Aid-Compatible Waiver Order, addressing waiver requests filed by
nineteen Tier II and Tier III wireless carriers, including Blue Sky,
for relief from the hearing-aid compatibility requirements for
wireless digital telephones. In that Order, the Commission addressed
each of the waiver petitions individually, and with respect to Blue
Sky, denied its petition for limited waiver of Section
20.19(c)(2)(i)(A) of the Commission's rules, filed September 16, 2005,
as amended on April 11, 2006. In its September 16, 2005, waiver
petition, Blue Sky sought a six-month waiver of the September 16, 2005
compliance deadline, asserting that U3-rated GSM headsets were
commercially unavailable. Blue Sky also asserted its experience that,
as a small Tier III wireless carrier lacking market power to deal
directly with manufacturers, it could expect a several month delay in
delivery of compliant handsets once they become available. Blue Sky's
November 17, 2005 Report offered no information as to whether Blue Sky
elected to opt into relief offered pursuant to the Cingular Waiver
Order, and stated "only one of the phones Blue Sky has been able to
obtain from its third party vendor meets the Commission's hearing aid
compatibility requirements at this time."
6. On April 11, 2006, Blue Sky filed an amendment notifying the
Commission that it had availed itself of the relief afforded to
wireless carriers pursuant to the Cingular Waiver Order. Further, Blue
Sky stated, "[o]n March 13, 2006, Blue Sky obtained and has made
available for sale two GSM handsets [the Nokia 6061 and the Motorola
V3] meeting at least a U3 interference rating" and requested relief
"only until March 13, 2006." On April 25, 2006, however, Blue Sky
reported that "effective March 13, 2006, ... the Motorola V3 ...
handsets ... which Blue Sky offers for sale, are not labeled with the
performance rating of the handset and the associated packaging does
not contain the technical specifications of the handset and
description of the U-rating system." In its November 17, 2006 Report,
Blue Sky stated that, of the two hearing aid-compatible handset models
it offered [the Motorola V220 and the Motorola V3], the Motorola V3
handsets still did not include appropriate labels or inserts.
7. The Commission found that Blue Sky failed to demonstrate unique or
unusual circumstances, or the existence of any other factor,
warranting grant of the requested waiver. The Commission found that
Blue Sky's April 25, 2006 Letter and November 17, 2006 Report revealed
that Blue Sky did not offer two compliant handsets until March 13,
2006 and that it still was not compliant with the associated labeling
requirements as of November 17, 2006. The Commission noted that Blue
Sky never explained why, as of November 17, 2006, it had still failed
to come into full compliance with the hearing aid compatibility
requirements notwithstanding the ability of most other GSM carriers,
including other Tier III GSM carriers, to come into compliance by this
date. In this regard, the Commission found that Blue Sky offered no
reason for its inability to provide the requisite labeling for the
Motorola V3 handset. Further, despite its failure to come into full
compliance with the labeling requirements as of November 17, 2006,
Blue Sky never requested an extension of its initial six-month waiver
request, which would have expired on March 16, 2006. Thus, the
Commission concluded that Blue Sky did not make the requisite showing
to justify a waiver of the Commission's hearing aid compatibility
rules, denied the petition, and referred Blue Sky's apparent
violations of the hearing aid compatibility requirements to the
Commission's Enforcement Bureau.
III. Discussion
A. Failure to Comply with Labeling Requirements for Wireless Hearing-Aid
Compatible Handsets
8. Section 20.19(f) of the Rules provides that wireless digital 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 an insert with the packaging material for the
handset by September 16, 2005. As stated above, in the Wireless
Hearing Aid-Compatible Waiver Order, the Commission determined that
Blue Sky apparently failed to come into compliance with the labeling
requirements for the Motorola V3 hearing aid-compatible handset it was
offering until at least November 17, 2006 - over eight months beyond
March 13, 2006, the date it was offering certified compliant handsets.
Accordingly, we conclude that Blue Sky apparently willfully and
repeatedly failed to comply with the labeling requirements in
violation of Section 20.19(f) of the Rules.
A. Proposed Forfeiture
9. 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 Blue Sky is apparently liable for forfeiture
for its apparent willful and repeated violations of Section 20.19(f)
of the Rules.
10. 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."
11. The Commission's Forfeiture Policy Statement and Section 1.80 of the
Rules do not 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. Consistent with our recent decision in
a similar case, we view these violations as analogous and find that
the $8,000 base forfeiture amount is appropriate for apparent
violations of Section 20.19(f). We find that Blue Sky failed to come
into compliance with the labeling requirements for one of two handsets
it was offering, until at least several months after the labeling
requirements went into effect. Accordingly, we propose a forfeiture of
$8,000 for Blue Sky's failure to comply with the labeling requirements
for the Motorola V3 wireless hearing aid-compatible handset.
C. Failure to Offer for Sale Two Hearing-Aid Compatible Handsets
12. Section 20.19(c)(2)(i)(A) of the Rules requires digital wireless
service providers to begin offering for sale at least two handsets
models with reduced emission levels that meet at least a U3 rating for
radio frequency interference by September 16, 2005. As noted above,
the Commission found that Blue Sky did not offer two handset models
that are compliant with this requirement until March 13, 2006,
approximately six months after the deadline. The Commission further
found that Blue Sky had failed to demonstrate unique or unusual
circumstances, or the existence of any other factor, warranting grant
of the requested waiver of this requirement. Although we believe that
a monetary forfeiture would be warranted for this violation, we note
that the statute of limitations for proposing a forfeiture for this
violation is one year from the date of violation. Accordingly, based
upon our review of the facts and circumstances in this case, and
because we are barred by the one-year statute of limitations from
proposing a forfeiture for this violation, we admonish Blue Sky for
failing to begin offering two handset models with reduced emission
levels that met at least a U3 rating for radio frequency interference
by September 16, 2005, as required by Section 20.19(c)(2)(i)(A) of the
Rules.
iV. ordering clauses
13. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Section 1.80 of the Rules, AST Telecom, LLC d/b/a Blue Sky
Communications ("Blue Sky") IS NOTIFIED of its APPARENT LIABILITY FOR
A FORFEITURE in the amount of eight thousand dollars ($8,000) for
willful and repeated violation of Section 20.19(f) of the Rules.
14. IT IS FURTHER ORDERED that Blue Sky IS ADMONISHED for failing to
begin offering two hearing-aid compatible handset models by September
16, 2005 in violation of Section 20.19(c)(2)(i)(A) of the Rules.
15. 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, Blue Sky Communications SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
16. 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.
17. 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.
18. 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.
19. Requests for payment of the full amount of the NAL under an
installment plan should be sent to: Associate Managing Director -
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554.
20. 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 Harley L. Rollins, AST Telecom, LLC d/b/a
Blue Sky Communications ("Blue Sky"), 1500 Cordova Road, Suite 312,
Ft. Lauderdale, FL 33322 and to Michael R. Bennet, Bennet & Bennet,
PLLC, 10 G Street, N.E., Seventh Floor, Washington, DC 20002.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
47 C.F.R. S: 20.19(f).
The "labeling requirements" are two-part, mandating that the packaging for
wireless hearing aid-compatible handsets display the technical rating of
the handset and that an explanation of the technical rating system be
included as an insert in the packaging material or incorporated in the
owner's manual 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).
See Section 68.4(a) of the Commission's Rules Governing Hearing
Aid-Compatible Telephones, Cingular Wireless LLC Petition for Waiver of
Section 20.19(c)(3)(i)(A) of the Commission's Rules, Memorandum Opinion
and Order, 20 FCC Rcd 15108 (2005) ("Cingular Waiver Order").
Id.
Id. at 15117-18.
Id. at 15118.
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, 22 FCC Rcd 7171 (2007) ("Wireless
Hearing Aid-Compatible Waiver Order").
Blue Sky is the licensee of Cellular Station WQGD479 (Frequency Block A
CMA733 - American Samoa).
See Blue Sky Petition for Limited Waiver of Section 20.19(c)(2)(i)(B)(1)
of the Commission's Rules (filed September 16, 2005) at 1-2.
Id. at 5-7.
See Blue Sky November 17, 2005 Report at 1.
Blue Sky Amendment to Petition for Limited Waiver of Section
20.19(c)(2)(i)(B)(1) of the Commission's Rules (filed April 11, 2006) at
1.
Id. at 1 & n.2.
See Letter from Michael R. Bennet, Esq., Bennet & Bennet, PLLC, to Angela
E. Giancarlo, Public Safety & Critical Infrastructure Division, Wireless
Telecommunications Bureau, Federal Communications Commission (April 25,
2006) at 1 (stating that, effective March 13, 2006, the Motorola V220
handsets met the labeling requirements for hearing aid-compatible
handsets, but the Motorola V3 handsets did not).
See Blue Sky November 17, 2006 Report at 2.
22 FCC Rcd at 7185.
Id. As noted above, Blue Sky represented in its April 11, 2006 Amendment
that it was offering the Nokia 6061 handset as one of the two handsets it
was offering to comply with the handset deployment requirement. In its May
17, 2006 Report, however, Blue Sky did not include the Nokia 6061 handset
in the list of handsets it currently offers. The May 17, 2006 Report
listed the Motorola V220 and the Motorola V3 as the two hearing
aid-compatible compliant handsets. See Blue Sky May 17, 2006 Report at 1.
Although its May 17, 2006 Report was filed only a little more than one
month after the filing of its April 11, 2006 Amendment, Blue Sky offered
no explanation for the discrepancy. Id. at n. 104.
Id. at 7185.
Id. at 7186.
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,
97th 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, aff'd, 20 FCC Rcd
at 11238-39.
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.
See IT&E Overseas, Inc., Notice of Apparent Liability for Forfeiture, 22
FCC Rcd 7660 (Enf. Bur., Spectrum Enf. Div. 2007). (response pending).
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
Blue Sky'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), forfeiture ordered, 22 FCC Rcd 10451
(2007); 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 Blue Sky's apparent violations that have
occurred within the past year.
22 FCC Rcd at 7185.
Id.
See 47 U.S.C. S: 503(b)(6); 47 C.F.R. S: 1.80(c)(3).
See 47 C.F.R. S: 1.1914.
(Continued from previous page)
(continued....)
Federal Communications Commission DA 07-4339
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Federal Communications Commission DA 07-4339