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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).

   Continued from previous page

   Continued...

   Federal Communications Commission DA 07-4745

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   Federal Communications Commission DA 07-4745