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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-08-SE-112
In the Matter of
) NAL/Acct. No. 200832100049
Farmers Cellular Telephone, Inc.
) FRN # 0001753771
)
Notice of apparent Liability for forfeiture
Adopted: June 2, 2008 Released: June 4, 2008
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Farmers Cellular Telephone, Inc. ("Farmers Cellular"), a Global
System for Mobile Communications ("GSM") carrier serving rural
Alabama, apparently willfully and repeatedly violated Section
20.19(d)(2) of the Commission's Rules ("Rules") by failing to include
in its digital wireless handset offerings at least two models that
meet the inductive coupling standards for hearing aid compatibility by
September 18, 2006. For Farmers Cellular's apparent violations, and
for the reasons discussed below, we propose a forfeiture in the amount
of thirty thousand dollars ($30,000).
II. BACKGROUND
2. In the 2003 Hearing Aid Compatibility Order, the Commission adopted
several measures to enhance the ability of individuals with hearing
disabilities 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 "U3" or "M3" rating) to enable acoustic
coupling between digital wireless phones and hearing aids operating in
acoustic coupling mode, and a separate standard (the "U3T" or "T3"
rating) to enable inductive coupling with hearing aids operating in
telecoil mode. The Commission further established, for each standard,
deadlines by which manufacturers and service providers were required
to offer specified numbers or percentages of digital wireless handsets
per air interface that are compliant with the relevant standard if
they did not come under the de minimis exception.
3. The Commission required that manufacturers and service providers begin
making commercially available at least two handset models per air
interface that meet the U3 or M3 rating for radio frequency
interference by September 16, 2005. The Commission also required that
manufacturers and service providers make commercially available at
least two handset models per air interface that meet the U3T or T3
rating for inductive coupling by September 18, 2006. In connection
with the offer of hearing aid-compatible handset models, the
Commission further 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 the availability of these handsets,
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, and then annually thereafter through the fifth year
of implementation.
4. In its September 18, 2006 Report, Farmers Cellular noted that as of
the September 18, 2006 deadline, it had been unable to obtain U3T/T3
(inductive coupling) compliant phones from its handset distributors
(Motorola, Nokia, and Samsung) and requested a waiver of this
requirement. In its June 12, 2007 Report, Farmers Cellular stated that
on May 31, 2007, it learned that two Sony Ericsson models, compliant
with the U3T/T3 rating, the Sony Ericsson W712a (FCC ID # PY7AF042011)
and Sony Ericsson Z712a (FCC ID # PY7AF042012), had been made
available to small carriers. Farmers Cellular stated that it
immediately placed orders for these handsets, and as of June 6, 2007,
it began offering the Sony Ericsson W712a and Z712a handset models.
5. On February 27, 2008, the Commission released the February 2008
Inductive Coupling Compatibility Waiver Order, addressing individually
each of 46 waiver petitions filed on behalf of a total of 90 Tier III
carriers, including Farmers Cellular, five Tier II carriers, one
Mobile Virtual Network Operator, and one handset manufacturer for
relief from the hearing aid compatibility requirements for digital
wireless telephones. In its waiver request, Farmers Cellular sought an
open-ended waiver until inductive coupling-compliant handsets became
available, citing its inability, as a Tier III carrier, to obtain
compliant handsets from its distributors. Farmers Cellular stated that
it checked with its distributors on at least a monthly basis and
ordered the Sony Ericsson W712a and Sony Ericsson Z712a handsets as
soon as it learned of their availability in 2007. Further, Farmers
Cellular noted that it had not received any requests for hearing
aid-compatible handsets as of March 27, 2007.
6. The Commission found that Farmers Cellular did not meet the
requirements to justify a waiver under the rules. Specifically, the
Commission stated that Farmers Cellular failed to provide evidence
that it exercised sufficient diligence in seeking inductive
coupling-compliant handsets not only before, but within a reasonable
period of time after the September 18, 2006 compliance deadline.
Further, the Commission stated that Farmers Cellular did not present
any unique facts or circumstances that clearly distinguished it from
other Tier III carriers that were able to comply by January 1, 2007,
or before. The Commission also noted that 13 inductive
coupling-compliant handsets for use on GSM-based systems had been
certified as of the September 18, 2006 deadline. Given that the great
majority of Tier III carriers were able to achieve compliance within a
few months of the deadline, the Commission did not consider it
sufficient for Farmers Cellular, after January 1, 2007, to simply
contact its existing vendors on a monthly basis. The Commission
further found it immaterial whether a carrier has actually received
requests for hearing aid-compatible handsets, since the purpose of the
hearing aid compatibility rules is to ensure that such handsets will
be available in a timely manner when a customer needs them.
Accordingly, the Commission denied the waiver petition of Farmers
Cellular and referred its apparent violation to the Enforcement
Bureau.
III. DISCUSSION
A. Failure to Offer For Sale Two Hearing Aid-Compatible Handsets
7. Section 20.19(d)(2) of the Rules requires digital wireless service
providers to begin offering for sale at least two handset models for
each air interface that meet at least a T3 rating for inductive
coupling by September 18, 2006. Farmers Cellular admits that it did
not offer for sale the required two models of inductive
coupling-compliant handsets until June 6, 2007. Accordingly, we
conclude that Farmers Cellular apparently willfully and repeatedly
failed to comply with Section 20.19(d)(2) of the Rules.
B. 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 Farmers Cellular is apparently liable for
forfeiture for its apparent willful and repeated violation of Sections
20.19(d)(2) 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 establish a base forfeiture amount for violations of the
hearing aid-compatible handset requirements set forth in Section 20.19
of the Rules. 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. 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.
11. In determining the appropriate forfeiture amount for violation of the
hearing aid compatibility handset requirements, we take into account
that these requirements serve to ensure that individuals with hearing
disabilities have access to digital wireless telecommunications
services. In adopting the hearing aid compatibility rules, the
Commission underscored the strong and immediate need for such access,
stressing that individuals with hearing impairments should not be
denied the public safety and convenience benefits of digital wireless
telephony. Moreover, as the Commission has noted, the demand for
hearing aid-compatible handsets is likely to increase with the growing
reliance on wireless technology and with the increasing median age of
our population.
12. We note that in a previous decision, a base forfeiture amount of
$15,000 per handset was established for violations of the hearing aid
compatibility handset requirements. This base forfeiture amount was
based on a determination that a significantly higher base forfeiture
amount is warranted for violations of the hearing aid compatibility
handset requirements than for violations of the labeling requirements
for wireless hearing aid-compatible handsets. In reaching this
determination, we found that a violation of the labeling requirements,
while serious because it deprives hearing aid users from making
informed choices, is less egregious than a violation of the handset
requirements because failure to make compliant handsets available
actually deprives hearing aid users from accessing digital wireless
communications. Further, because providers were required to offer at
least two handset models that meet at least a T3 rating for inductive
coupling, we determined that a proposed forfeiture for violation of
these requirements should be applied on a per handset basis.
Accordingly, we impose a base forfeiture amount of $15,000 per handset
for violation of the hearing aid compatibility handset requirements.
13. Farmers Cellular did not offer any handsets that met the T3 rating for
inductive coupling by September 18, 2006. Farmers Cellular did not
come into compliance with the inductive coupling compatibility
requirements until June 6, 2007, when it began offering two compliant
handsets. Further, while Farmers Cellular sought a waiver of the
September 18, 2006 deadline, it did not make a showing of good faith,
diligent efforts to come into compliance even by January 1, 2007, as
other Tier III carriers did, and the Commission, therefore, denied the
waiver request. Although Farmers Cellular's failure to offer two
handsets that meet the FCC's inductive coupling compatibility
requirements is a continuing violation for purposes of determining an
appropriate forfeiture, we exercise our prosecutorial discretion and
decline to assess a forfeiture on a continuing violation basis in this
case. We also note that Farmers Cellular is a Tier III carrier, i.e.,
a wireless radio service provider with 500,000 or fewer subscribers.
Accordingly, Farmers Cellular is apparently liable for a $30,000
forfeiture for failing to comply with the inductive coupling
compatibility requirements in willful and repeated violation of
Section 20.19(d)(2).
IV. ORDERING clauses
14. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Section 1.80 of the Rules, Farmers Cellular Telephone, Inc.
IS NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the amount
of thirty thousand dollars ($30,000) for willful and repeated
violation of Section 20.19(d)(2) 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, Farmers Cellular Telephone, Inc. 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/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer --
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554. Please contact the Financial Operations Group Help Desk
at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures. Farmers Cellular will also send
electronic notification on the date said payment is made to
Peter.Waltonen@fcc.gov and JoAnn.Lucanik@fcc.gov.
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. 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 Timothy E. Welch, Esq., counsel for
Farmers Cellular Telephone, Inc., Hill & Welch, 1330 New Hampshire
Ave., N.W. #113, Washington, D.C. 20036 and Chris Townson, Farmers
Cellular Telephone, Inc., P.O. Box 217, 144 McCurdy Avenue North,
Rainsville, AL 35986.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
47 C.F.R. S: 20.19(d)(2).
See 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");
Order on Reconsideration and Further Notice of Proposed Rulemaking, 20 FCC
Rcd 11221 (2005) ("Hearing Aid Compatibility Reconsideration Order"). The
Commission adopted these requirements for digital wireless telephones
under the authority 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 16777; 47 C.F.R. S:
20.19(b)(1), (2). The Hearing Aid Compatibility Order described the
acoustic coupling and the inductive (telecoil) coupling modes as follows:
In acoustic coupling mode, the microphone picks up surrounding sounds,
desired and undesired, and converts them into electrical signals. The
electrical signals are amplified as needed and then converted back into
electrical signals. In telecoil mode, with the microphone turned off, the
telecoil picks up the audio signal-based magnetic field generated by the
voice coil of a dynamic speaker in hearing aid-compatible telephones,
audio loop systems, or powered neck loops. The hearing aid converts the
magnetic field into electrical signals, amplifies them as needed, and
converts them back into sound via the speaker. Using a telecoil avoids the
feedback that often results from putting a hearing aid up against a
telephone earpiece, can help prevent exposure to over amplification, and
eliminates background noise, providing improved access to the telephone.
Id. at 16763.
Section 20.19(b)(1) provides that a wireless handset is deemed hearing
aid-compatible for radio frequency interference if, at minimum, it
receives a U3 rating as set forth in "American National Standard for
Methods of Measurement of Compatibility between Wireless Communications
Devices and Hearing Aids, ANSI C63.19-2001." 47 C.F.R. S: 20.19(b)(1).
Section 20.19(b)(2) provides that a wireless handset is deemed hearing
aid-compatible for inductive coupling if, at minimum, it receives a U3T
rating as set forth in ANSI C63.19-2001. 47 C.F.R. S: 20.19(b)(2). 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 C63.19-2005. 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). On June 6, 2006, the Commission's Wireless
Telecommunications Bureau and Office of Engineering and Technology
announced that the Commission would also certify handsets as hearing
aid-compatible based on the revised version of the standard, ANSI
C63.19-2006. Thus, during the time period relevant here, applicants for
certification could rely on either the 2001 version, the 2005 version, or
the 2006 version of the ANSI C63.19 standard. See Wireless
Telecommunications Bureau and Office of Engineering and Technology Clarify
Use of Revised Wireless Phone Hearing Aid Compatibility Standard, Public
Notice, 21 FCC Rcd 6384 (WTB/OET 2006). In addition, since the 2005
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 Hearing
Aid Compatibility Reconsideration Order, 20 FCC Rcd at 11238.
The term "air interface" refers to the technical protocol that ensures
compatibility between mobile radio service equipment, such as handsets,
and the service provider's base stations. Currently, the leading air
interfaces include Code Division Multiple Access (CDMA), Global System for
Mobile Communications (GSM), Integrated Dispatch Enhanced Network (iDEN),
Time Division Multiple Access (TDMA), and Wideband Code Division Multiple
Access (WCDMA) a/k/a Universal Mobile Telecommunications System (UMTS).
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16780; 47 C.F.R. S:S:
20.19(c), (d). The de minimis exception provides that manufacturers or
mobile service providers that offer two or fewer digital wireless handset
models per air interface are exempt from the hearing aid compatibility
requirements and manufacturers or service providers that offer three
digital wireless handset models per air interface must offer at least one
compliant model. 47 C.F.R. S: 20.19(e).
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16780; see also 47
C.F.R. S: 20.19(c).
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16780; see also 47
C.F.R. S: 20.19(d). In addition, on February 28, 2008, the Commission
released an order that, as modified on reconsideration, among other
things,: (a) modifies the requirement that manufacturers and service
providers ensure that 50 percent of their digital wireless handset models
per air interface meet the U3/M3 (radio frequency) standard and stays
enforcement of that requirement until the new rules become effective, (b)
increases the obligation on manufacturers and service providers to offer
handset models that meet the U3T/T3 (inductive coupling) standard, (c)
allows service providers other than Tier I carriers an additional three
months to meet the new handset deployment benchmarks, (d) adopts a
technology "refresh" requirement for manufacturers, (e) requires service
providers to offer hearing aid-compatible handsets with different levels
of functionality, (f) adopts an updated version of the technical standard
for measuring hearing aid compatibility, and (g) requires manufacturers
and service providers to submit annual reports on an open ended basis,
beginning January 15, 2009. See Amendment of the Commission's Rules
Governing Hearing Aid-Compatible Mobile Handsets, First Report and Order,
23 FCC Rcd 3406, 3408-3411, 3418 (2008) ("Hearing Aid Compatibility First
Report and Order"), Order on Reconsideration and Erratum, FCC 08-117 (rel.
April 17, 2008). The effective date of the new rules is June 6, 2008. See
73 Fed. Reg. 25566 (2008).
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16785; see also 47
C.F.R. S: 20.19(f).
Hearing Aid Compatibility Order, 18 FCC Rcd 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 (Wireless Tel. Bur. 2004). The Commission will now require
service providers to submit annual status reports beginning January 15,
2009. See Hearing Aid Compatibility First Report and Order, 23 FCC Rcd at
3410. Manufacturers will report on January 15, 2009, and then annually
beginning July 15, 2009. Id. at 3410-11, 3446.
Farmers Cellular September 18, 2006 Report at 2-3.
Farmers Cellular June 12, 2007 Report at 1-2. Farmers Cellular also
reiterated its September 18, 2006 request for a waiver of the Section
20.19(d)(2) requirement. Id. at n. 2.
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, 23 FCC Rcd 3352 (2008) ("February
2008 Inductive Coupling Compatibility Waiver Order").
Id. at 3363-64. See also Farmers Cellular September 18, 2006 Report at 3.
See Farmers Cellular June 12, 2007 Report at 2, 5.
See Farmers Cellular March 27, 2007 Report at 1.
February 2008 Inductive Coupling Compatibility Waiver Order, 23 FCC Rcd at
3364. See also 47 C.F.R. S: 1.925(b)(3).
February 2008 Inductive Coupling Compatibility Waiver Order, 23 FCC Rcd at
3365.
Id.
Id. at 3357.
Id. at 3365.
Id., citing 47 U.S.C. S: 610(a) (directing Commission to "ensure
reasonable access to telephone service by persons with impaired hearing").
On March 27, 2008, Farmers Cellular filed a petition for reconsideration
of the February 2008 Inductive Coupling Compatibility Waiver Order. On May
7, 2008, the Wireless Telecommunications Bureau placed Farmers Cellular's
petition, along with six other petitions for reconsideration, on public
notice and established a pleading cycle for comments and reply comments.
See Wireless Telecommunications Bureau Seeks Comment on Petitions for
Reconsideration Filed in Hearing Aid Compatibility Docket, Public Notice,
DA 08-1087, (rel. May 7, 2008).
Farmers Cellular June 12, 2007 Report at 1-2.
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 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture Policy
Statement").
Forfeiture Policy Statement, 12 FCC Rcd at 17099.
See id.
Hearing Aid Compatibility Order, 18 FCC Rcd at 16755.
Id. at 16756 (noting that approximately one in ten Americans, 28 million,
have some level of hearing loss, that the proportion increases with age,
and that the number of those affected will likely grow as the median age
increases). See also Report on the Status of Implementation of the
Commission's Hearing Aid Compatibility Requirements, Report, 22 FCC Rcd
17709, 17719 (2007) (noting, just four years later, that the number of
individuals with hearing loss in the United States was "at an all time
high of 31 million - with that number expected to reach approximately 40
million at the end of this decade").
See South Canaan Cellular Communications Company, L.P., Notice of
Apparent Liability for Forfeiture, 23 FCC Rcd 20, 24-25 (Enf. Bur.,
Spectrum Enf. Div. 2008) ("South Canaan").
The Enforcement Bureau has established a base forfeiture amount of $8,000
for violation of the labeling requirements for wireless hearing
aid-compatible handsets. See e.g., South Central Utah Telephone
Association, Inc., Notice of Apparent Liability for Forfeiture, 22 FCC Rcd
19251 P: 10 (Enf. Bur., Spectrum Enf. Div. 2007), response pending; IT&E
Overseas, Inc., Notice of Apparent Liability for Forfeiture, 22 FCC Rcd
7660, 7665 (Enf. Bur., Spectrum Enf. Div. 2007), response pending.
South Canaan, 23 FCC Rcd at 24.
Farmers Cellular September 18, 2006 Report at 2, 3.
February 2008 Inductive Coupling Compatibility Waiver Order, 22 FCC Rcd at
3365.
We caution Farmers Cellular and other carriers that future enforcement
actions may consider all failures to comply with our hearing aid
compatibility rules, including the inductive coupling requirements, as
continuing violations for purposes of calculating appropriate forfeiture
amounts.
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).
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 notice of apparent liability for
forfeiture. Section 503(b)(6) does not, however, bar us from considering
Farmers Cellular'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, 1827 (2006), forfeiture ordered, 22 FCC Rcd 10451
(2007) (forfeiture paid); Globcom, Inc. d/b/a Globcom Global
Communications, Notice of Apparent Liability for Forfeiture, 18 FCC Rcd
19893, 19903 (2003), forfeiture ordered, Forfeiture Order, 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 Farmers Cellular's apparent
violations that have occurred within the past year.
(Continued from previous page ...)
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Federal Communications Commission DA 08-1291
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Federal Communications Commission DA 08-1291