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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
XIT Telecommunications & Technology, Ltd. File No. EB-07-SE-157
)
d/b/a XIT Cellular
)
MEMORANDUM OPINION AND ORDER
Adopted: November 28, 2007 Released: November 30, 2007
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order, we admonish XIT
Telecommunications & Technology, Ltd. d/b/a XIT Cellular ("XIT") for
failing to include in its digital wireless handset offerings two
handset models that meet the hearing aid compatibility requirements
for radio frequency interference by September 16, 2005 in violation of
Section 20.19(c)(2)(i)(B)(1) of the Commission's Rules ("Rules").
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 additional relief for entities that offer
dual-band GSM digital wireless handsets operating 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 for relief from the
hearing-aid compatibility requirements for wireless digital
telephones. In that Order, the Commission denied XIT's petition for
waiver filed on September 16, 2005, as amended on April 25, 2006.
XIT's initial petition requested a six-month extension of the November
16, 2005 compliance deadline until March 16, 2006 in order to ensure
the receipt and proper labeling of the hearing aid-compatible wireless
digital handsets. The April 25, 2006 amendment requested an extension
of the waiver "through April 25, 2006," because XIT sold the Nokia
6101 handset under the erroneous belief that this handset had the
appropriate U3-rating. XIT did not discover this error until April 13,
2006, at which time XIT began selling the hearing aid-compatible Nokia
6061.
6. In a separate letter to the Commission filed on the same day that XIT
amended its waiver petition, April 25, 2006, XIT invoked the relief
available through the Cingular Waiver Order. In this letter, XIT
indicated that the two digital wireless handsets it sells meet the
hearing aid compatibility requirements for 1900 MHz operation and are
properly labeled.
7. In rejecting XIT's amended petition for waiver, the Commission held
that that XIT had failed to demonstrate unique or unusual
circumstances warranting the grant of a waiver under Section
1.925(b)(3) of the Rules. The Commission determined that but for XIT's
mistake regarding the U rating of the Nokia 6101, XIT could have met
the hearing aid compatibility requirements by March 16, 2006, within
the six month waiver period it requested initially. In light of XIT's
failure to exercise "due diligence" in determining the correct rating
of the handsets it offered, the Commission determined that the public
interest would not be served by granting XIT's amended waiver request.
Thus, the Commission denied XIT's waiver petition and referred XIT's
apparent violation of the hearing aid compatibility requirements to
the Commission's Enforcement Bureau.
III. DISCUSSION
8. Section 20.19(c)(2)(i)(B)(1) of the Rules required 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 to customers that receive service from
the overbuilt (i.e., non-TDMA) portion of their networks by September
16, 2005. XIT did not offer two compliant digital wireless handset
models until April 13, 2006, approximately five months after the
compliance deadline. As noted above, the Commission determined that
XIT had failed to demonstrate unique or unusual circumstances, or the
existence of any other factor, warranting a grant of the requested
waiver of this compliance deadline. Accordingly, we conclude that XIT
failed to offer two digital wireless handset models with reduced
emission levels that meet at least a U3-rating for radio frequency
interference by September 16, 2005, as required by Section
20.19(c)(2)(i)(B)(1) of the Rules.
9. Although we believe that a monetary forfeiture would be warranted for
this violation, we note that the statute of limitations for proposing
a forfeiture 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 XIT for failing
to offer two digital wireless handset models with reduced emission
levels that meet at least a U3-rating for radio frequency interference
by September 16, 2005, as required by Section 20.19(c)(2)(i)(B)(1) of
the Rules.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that XIT IS ADMONISHED for failing to
offer two digital wireless handset models with reduced emission levels
that meet at least a U3-rating for radio frequency interference by
September 16, 2005, as required by Section 20.19(c)(2)(i)(B)(1) of the
Rules.
11. IT IS FURTHER ORDERED that copies of this Memorandum Opinion and Order
shall be sent by first class mail and certified mail, return receipt
requested, to counsel for XIT Telecommunications & Technology, Ltd.
d/b/a XIT Cellular, Michael R. Bennet, Esq., and Kenneth C. Johnson,
Esq. Bennet & Bennet, PLLC, 10 G Street, NE, 7th Floor, Washington,
D.C. 20002, and to James Spurlock, President, XIT Telecommunications
& Technology, Ltd. d/b/a XIT Cellular, 12324 US Highway 87, Dalhart,
Texas 79022-8201.
FEDERAL COMMUNICATIONS COMMISION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
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").
Id. at 7184. This amendment was submitted by "Texas RSA-1 Limited
Partnership d/b/a XIT Cellular" without further explanation. Id. at 7183
n.88.
Id. at 7183.
Id. at 7183-84.
Id. at 7184.
See Letter from Michael R. Bennett, Esquire, counsel for XIT, to Angela
E.Giancarlo, Associate Chief, Public Safety & Critical Infrastructure
Division, Wireless Telecommunications Bureau, Federal Communications
Commission (April 25, 2006).
Id. Specifically, XIT stated that since September 30, 2005, it has sold
the Motorola V3 handset with a label containing the performance rating of
the handset and a description of the U-rating system. XIT also stated that
it sells the Nokia 6061 handset with a label detailing the performance
rating of the handset and with associated packaging that describes the
technical specifications of the handset and the U-rating system. Id. See
also Wireless Hearing Aid-Compatible Waiver Order, 22 FCC Rcd at 7184.
See Hearing Aid-Compatible Waiver Order, 22 FCC Rcd at 7184.
Id.
Id.
Id.
See 47 U.S.C. S: 503(b)(6)(B); 47 C.F.R. S: 1.80(c)(3).
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Federal Communications Commission DA 07-4745
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Federal Communications Commission DA 07-4745