Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-08-SE-118
In the Matter of
) NAL/Acct. No. 200832100054
Blanca Telephone Company
) FRN # 0003766201
)
Notice of apparent Liability for forfeiture
Adopted: June 16, 2008 Released: June 18, 2008
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Blanca Telephone Company ("Blanca"), a Code Division Multiple
Access-based ("CDMA-based") Tier III carrier, serving rural Colorado,
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 the September 18,
2006 deadline. For Blanca's apparent violations, and for the reasons
discussed below, we propose a forfeiture in the amount of fifteen
thousand dollars ($15,000).
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, Blanca 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 and Nokia) and requested a waiver of this requirement.
Blanca further noted that it had available for sale at least two
handset models that comply with the U3/M3 (radio frequency
interference) rating set forth in Section 20.19(b)(1) of the Rules.
Blanca also stated that it had not received a request for a hearing
aid-compatible handset. In its March 29, 2007 Report, Blanca stated
that it was fully compliant with the inductive coupling requirements
in that it offered the Kyocera K132, Kyocera Kx5, Kyocera K323 and
Motorola V3c models of U3T/T3 compliant phones.
5. In its June 21, 2007 Report, Blanca explained that its March 29, 2007
Report erroneously stated that it fully complied with the inductive
coupling compatibility requirements. Blanca explained that due to
confusion at Blanca, it did not realize that it was required to
distinguish between acoustic coupling-compliant and inductive
coupling-compliant handsets and believed it was fully compliant with
the hearing aid-compatible handset rules at that time. At the time of
the March 29, 2007 Report, however, Blanca only offered one handset
that was compliant with the inductive coupling requirements - the
Motorola V3c handset. Blanca further stated that it subsequently came
into compliance with the inductive coupling requirements on June 20,
2007 by offering a second inductive coupling-compliant handset - the
Samsung SCH-A870 T handset. Blanca again asserted that it had not
received any requests for hearing aid-compatible handsets.
6. 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 Blanca, five Tier II carriers, one Mobile Virtual
Network Operator, and one handset manufacturer for relief from the
hearing aid compatibility requirements for wireless digital
telephones. The Commission found that Blanca did not meet the
requirements to justify a waiver under the rules. The Commission
stated that Blanca 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 Blanca 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 20 inductive coupling-compliant handsets for use on CDMA-based
systems had been certified as of the September 18, 2006 deadline. 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 Blanca
and referred its apparent violation to the Enforcement Bureau.
III. DISCUSSION
A. Failure to Offer For Sale Two Hearing Aid-Compatible Handset Models
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 compatibility by September 18, 2006. Blanca admits that it
did not offer for sale the required two models of inductive
coupling-compliant handsets until June 20, 2007. Accordingly, we
conclude that Blanca 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 Blanca is apparently liable for forfeiture
for its apparent willful and repeated violation of Section 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. Our recent decisions established a base forfeiture amount of $15,000
per handset for violations of the hearing aid compatibility handset
requirements. In establishing this base forfeiture amount, we
determined that violations of the hearing aid compatibility handset
requirements warranted a significantly higher forfeiture than for
violations of the labeling requirements for wireless hearing
aid-compatible handsets. 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. We also found that the handset requirements
require providers to offer at least two handset models that meet at
least a T3 rating for inductive coupling, and thus determined that a
proposed forfeiture for violation of these requirements should be
applied on a per handset basis.
13. The record establishes Blanca did not offer any handsets that meet the
T3 rating for inductive coupling by September 18, 2006. Because Blanca
began offering for sale the first inductive coupling-compliant handset
model on September 22, 2006, the statute of limitations for proposing
a forfeiture for the first handset model has expired. The record
further establishes Blanca did not come into compliance with the
inductive coupling compatibility requirements until June 20, 2007 when
it began offering the second compliant handset. Also, while Blanca
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 Blanca'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 in light of the limited period of time of the violation and
decline to assess a forfeiture on a continuing violation basis in this
case. We also note that Blanca is a Tier III carrier, i.e., a wireless
radio service provider with 500,000 or fewer subscribers. Accordingly,
Blanca is apparently liable for a $15,000 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, Blanca Telephone Company IS
NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the amount of
fifteen thousand dollars ($15,000) 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, Blanca Telephone Company 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. Blanca will also send
electronic notification on the date said payment is made to JoAnn
Lucanik at JoAnn.Lucanik@fcc.gov and Jennifer.Burton@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 Alan Wehe, Blanca Telephone Company, 129
Santa Fe, Alamosa, CO 81101, and to its counsel, Timothy E. Welch,
Esq., Hill & Welch, 1330 New Hampshire Ave. NW, Suite 113, Washington,
DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
47 C.F.R. S: 20.19(d)(2).
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 CDMA, Global System for Mobile Communications (GSM),
Integrated Digital 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 obligation on manufacturers and service providers
to offer handset models that meet the U3/M3 (radio frequency) standard,
(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, 23 FCC Rcd 7249
(2008). The effective date of the new rules was June 6, 2008. See 73 Fed.
Reg. 25,566 (May 7, 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.
Blanca Telephone Company Report and Request for Waiver -- 47 C.F.R. S:
20.19(d)(2) Hearing Aid Compatibility -- Inductive Coupling Report at 2,
WT Docket No. 01-309, Sept. 18, 2006 ("Blanca September 18, 2006 Report").
Id.
Id.
Blanca Telephone Company Report and Request for Waiver -- 47 C.F.R. S:
20.19(d)(2) Hearing Aid Compatibility -- Inductive Coupling Report at 2,
WT Docket No. 01-309, March 29, 2007 ("Blanca March 29, 2007 Report").
Blanca also withdrew its September 18, 2006 request for a waiver of the
Section 20.19(d)(2) requirement. Id.
Blanca Telephone Company Supplemental Report Hearing Aid Compatibility --
Inductive Coupling Report at 2, WT Docket No. 01-309, June 21, 2007
("Blanca June 21, 2007 Report"). Blanca also requested reinstatement of
its September 18, 2006 waiver request, at staff's recommendation. Id. at
1, n. 2.
Blanca stated that it began offering the Motorola V3c handset on September
22, 2006. Id. at 2.
Id. at 2.
Id. at 3.
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"), petitions for
reconsideration pending. On March 27, 2008, Blanca filed a petition for
reconsideration of that Order. On May 7, 2008, the Wireless
Telecommunications Bureau placed Blanca'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).
February 2008 Inductive Coupling Compatibility Waiver Order, 23 FCC Rcd at
3364. See also 47 C.F.R. S: 1.925(b)(3).
See February 2008 Inductive Coupling Compatibility Waiver Order, 23 FCC
Rcd at 3365.
See id. at 3365.
Id. at 3357.
Id., citing 47 U.S.C. S: 610(a) (directing Commission to "ensure
reasonable access to telephone service by persons with impaired hearing").
Blanca June 21, 2007 Report at 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.
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, e.g., Iowa Wireless Services, LLC d/b/a i Wireless, Notice of
Apparent Liability for Forfeiture, 23 FCC Rcd 4735 (Enf. Bur., Spectrum
Enf. Div. 2008) ("i Wireless"); South Slope Cooperative Telephone Company
d/b/a South Slope Wireless, Notice of Apparent Liability for Forfeiture,
23 FCC Rcd 4706 (Enf. Bur., Spectrum Enf. Div. 2008); SLO Cellular, Inc.
d/b/a Cellular One of San Luis Obispo, Notice of Apparent Liability for
Forfeiture, 23 FCC Rcd 3990 (Enf. Bur., 2008); Epic Touch Company, Notice
of Apparent Liability for Forfeiture, 23 FCC Rcd 2831, 2835 (Enf. Bur.,
2008) ("EpicTouch").
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 (Enf. Bur., Spectrum Enf. Div. 2007), response pending; Pine
Telephone Company, Inc., Notice of Apparent Liability for Forfeiture, 22
FCC Rcd 9205, 9210 (Enf. Bur., Spectrum Enf. Div. 2007), consent decree
ordered, Order, 24 FCC Rcd 4495 (Enf. Bur., 2008).
See supra note 38.
Blanca June 21, 2007 Report at 2.
See 47 U.S.C. S: 503(b)(6); 47 C.F.R. S: 1.80(c)(3). We also decline to
admonish Blanca for not offering this T3-rated handset by the September
18, 2006, deadline in view of the fact that the handset was made available
within four days of the compliance date.
Blanca June 21, 2007 Report at 2.
Blanca September 18, 2006 Report at 2.
February 2008 Inductive Coupling Compatibility Waiver Order, 23 FCC Rcd at
3364-65. See also supra P: 6.
See, e.g., i Wireless, 23 FCC Rcd at 4735; EpicTouch, 23 FCC Rcd at
2835-36 (cautioning carriers that future enforcement actions may consider
all failures to comply with the 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
Blanca'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 Blanca's apparent violations that
have occurred within the past year.
(Continued from previous page ...)
(continued ...)
Federal Communications Commission DA 08-1423
3
Federal Communications Commission DA 08-1423