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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-08-SE-117
In the Matter of
) NAL/Acct. No. 200832100055
Centennial Communications Corp.
) FRN No. 0003296480
)
Notice of apparent Liability for forfeiture
Adopted: June 17, 2008 Released: June 17, 2008
By the Chief, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Centennial Communications Corp. ("Centennial") 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 for the GSM air
interface in its mainland wireless network that meet the inductive
coupling standards for hearing aid compatibility by September 18,
2006. For Centennial's apparent violation, and for the reasons
discussed below, we propose a forfeiture in the amount of forty
thousand dollars ($40,000). We also admonish Centennial for failing to
include in its digital wireless handset offerings at least two models
for the CDMA air interface in its Caribbean wireless network that meet
the inductive coupling standards for hearing aid compatibility by
September 18, 2006, in violation of Section 20.19(d)(2).
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 a September 18, 2006 waiver request, Centennial stated that, as of
the September 18, 2006 deadline, it had been unable, as a Tier II
service provider, to obtain the required two U3T/T3 (inductive
coupling) compliant phones from its handset distributors for either
its CDMA-based Caribbean market or its GSM-based mainland market and
requested a nine month extension of time, until June 18, 2007, to meet
this requirement. Specifically, it stated that compliant handsets were
not widely available in sufficient quantity to permit Tier II service
providers to meet the deadline. It also noted that, as of the
deadline, it offered one handset with the U3T rating in its mainland
market (the LG C2000) via its website and expected to have the handset
available for purchase in stores, as required by the rules, by
September 22, 2006. In June, 2007, Centennial submitted a supplement
to its waiver petition, reporting that it offered two U3T compliant
phones in its CDMA-based Caribbean market as of January 3, 2007. The
Supplement also stated that Centennial offered the LG C2000 in the
mainland market as of September 18, 2006, without addressing
specifically whether or when it became available in retail stores, and
it reiterated that Centennial expected to offer a second inductive
coupling-compliant handset in the mainland market by June 18, 2007."
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, five Tier II carriers, including Centennial, 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 Centennial did not meet the
requirements to justify a waiver under the rules. Specifically, the
Commission stated that Centennial, unlike other Tier II carriers,
failed to demonstrate unique or unusual circumstances, or the
existence of any other factor, warranting grant of the requested
waiver pursuant to the Section 1.925(b)(3) standard. Further, the
Commission noted that Centennial cited factors, such as lack of
availability and amount of time required to test handsets, that
affected all carriers and do not form an adequate basis on which to
afford Centennial special relief. Finally, the Commission found that
Centennial did not demonstrate diligence in its efforts to comply with
the hearing aid compatibility requirements and, consequently, that
granting it a waiver would not serve the public interest. Based on its
findings, the Commission referred the apparent violation of the
hearing aid compatibility requirements to the Enforcement Bureau for
appropriate action.
III. DISCUSSION
A. Failure to Offer For Sale Two Hearing Aid-Compatible Handset Models
6. 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. Centennial stated that it offered for
sale one model of T3 compliant handset, the LG C2000, for the GSM air
interface in the mainland market prior to the September 18, 2006
deadline, but it apparently did so only via Internet sale. Further
Centennial stated that it would not be able to offer a second T3
compliant GSM handset in its mainland market until June 18, 2007. In
addition, Centennial admitted that it did not offer two models of
inductive coupling-compliant handsets for the CDMA air interface in
the Caribbean market until January 3, 2007. Accordingly, we conclude
that Centennial apparently willfully and repeatedly failed to comply
with Section 20.19(d)(2) of the Rules.
B. Proposed Forfeiture
7. 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 Centennial is apparently liable for
forfeiture for its apparent willful and repeated violation of Section
20.19(d)(2) of the Rules.
8. 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."
9. 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.
10. 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.
11. We note that recent decisions have established a base forfeiture
amount of $15,000 per handset 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 per air interface 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.
12. Centennial apparently did not offer any handset that met the T3 rating
for inductive coupling by September 18, 2006, as required under
Section 20.19(d)(2), for either its CDMA-based or its GSM-based
network. While Centennial did not come into compliance with the
inductive coupling handset compatibility requirements for its
CDMA-based Caribbean market until January 3, 2007, we are barred from
assessing a forfeiture for this violation because it is outside the
one-year statute of limitations. Accordingly, we admonish Centennial
for this violation. With respect to its GSM-based network, however, we
find that Centennial is apparently liable for a $15,000 base
forfeiture for failing to comply with the inductive coupling
compatibility requirements in willful and repeated violation of
Section 20.19(d)(2), because it did not offer a second T3 compatible
handset for its GSM-based network until June 18, 2007.
13. We find, however, that a substantial upward adjustment to this base
forfeiture amount is warranted. We believe that violations of the
hearing aid compatibility handset requirements by Tier II carriers are
more egregious, warranting a higher forfeiture amount than that
assessed against smaller Tier III carriers. Specifically, we consider
that Tier II carriers' failure to timely offer compliant handsets
potentially impacts and deprives more hearing aid users from accessing
digital wireless communications, because of their larger subscriber
base. We also consider it appropriate to set the forfeiture amount at
a higher level for larger entities, such as Tier II carriers, to serve
as an effective deterrent against their future non-compliance with the
hearing aid compatibility handset requirements. Finally, as we have
previously noted, a carrier's failure to offer two handsets per air
interface that meet the FCC's inductive coupling compatibility
requirements is a continuing violation for purposes of determining an
appropriate forfeiture. Based on the foregoing, we propose a $40,000
forfeiture against Centennial, a Tier II carrier, for failing to
comply with the inductive coupling compatibility requirements in
apparent 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, Centennial Communications, Corp.
IS NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the amount
of forty thousand dollars ($40,000) for willful and repeated violation
of Section 20.19(d)(2) of the Rules for its failure to include in its
digital wireless handset offerings at least two inductive
coupling-compliant models for the GSM air interface in its mainland
wireless network.
15. IT IS FURTHER ORDERED that, Centennial Communications, Corp. IS
ADMONISHED for its failure to comply with Section 20.19(d)(2) of the
Rules by failing to include in its digital wireless handset offerings
at least two inductive coupling-compliant models for the CDMA air
interface in its Caribbean wireless network by September 18, 2006.
16. 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, Centennial Communications Corp. SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
17. 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. Centennial Communications Corp. will
also send electronic notification on the date said payment is made to
Linda.Nagel@fcc.gov and Ricardo.Durham@fcc.gov.
18. 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.
19. 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.
20. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by first class mail and certified mail
return receipt requested to William L. Roughton, Jr., Vice President,
Legal and Regulatory Affairs, Centennial Communications Corp. 3349
Route 148, Building A, Wall, New Jersey 07719, and to its counsel,
Theresa Z. Cavanaugh, Esq., Davis Wright Tremaine LLP, 1919
Pennsylvania Ave NW Suite 200, Washington, DC 20006.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Centennial is a Tier II carrier that operates a Code Division Multiple
Access - based ("CDMA-based") wireless network in the Caribbean and a
Global System for Mobile Communications - based ("GSM-based") wireless
network in the continental United States ("mainland") serving six states.
See Centennial Communications Corp., Petition for Waiver of Section
20.19(d)(2) of The Commission's Rules at 1, WT Docket No. 01-309, Sept.
18, 2006 ("Centennial Waiver Petition"). Tier II carriers are
non-Nationwide wireless radio service providers with more than 500,000
subscribers as of the end of September 2001. 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 P:P: 22-23 (2002)
("Non-Nationwide Carrier Order").
47 C.F.R. S: 20.19(d)(2).
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, 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").
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 P: 56; 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 P: 22.
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 P: 33.
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16780 P: 65; 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 P: 65; 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 new rules became effective on June 6, 2008. See 73 Fed. Reg.
25,566 (May 7, 2008).
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16785 P:P: 83, 85-86;
see also 47 C.F.R. S: 20.19(f).
Hearing Aid Compatibility Order, 18 FCC Rcd at 16787 P: 89; 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 P: 13. Manufacturers will report on January 15, 2009, and
then annually beginning July 15, 2009. Id. at P:P: 13, 101.
Centennial Waiver Petition at 1-2.
Centennial Waiver Petition at 3-4.
We note that a model offered only over the internet does not count toward
satisfaction of hearing aid compatibility requirements. See 47 C.F.R. S:
20.19(d)(2) (Compatible models must be available "in each retail store
owned or operated by the provider ... for consumers to test.").
Centennial Waiver Petition at 2.
Centennial Communications Corp., Supplement to Petition for Waiver, June
1, 2007 ("Centennial Waiver Supplement").
Id. at 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").
See 47 C.F.R. S: 1.925(b)(3).
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 P:P:
22-24 (2002).
See February 2008 Inductive Coupling Compatibility Waiver Order, 23 FCC
Rcd at 3378 P: 61.
Id.
Id.
Id.
Centennial Waiver Petition at 2. Centennial further stated that it would
offer this model in its stores "by September 22, 2006." Id. In its
Supplement, Centennial reiterated that it offered the LG C2000 for sale as
of September 18, 2006, but it did not clarify whether that handset was
available only on its website, or whether (and when) it became available
in stores. Centennial Waiver Supplement at 2. See also supra note 14.
Id. at 1. Although Centennial stated that it "hopes to meet [the] two
handset U3T requirement before" June 18, 2007, according to its June 1,
2007 Supplement, it apparently did not.
Centennial Waiver Supplement 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 P: 5 (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 P: 9 (2001);
Southern California, 6 FCC Rcd at 4388 P: 5.
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 P: 4 (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, Report and
Order, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999)
("Forfeiture Policy Statement").
Forfeiture Policy Statement, 12 FCC Rcd at 17099 P: 22.
See id.
Hearing Aid Compatibility Order, 18 FCC Rcd at 16755 P: 4.
Id. at 16756 P: 5 (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 P: 20 (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 Iowa Wireless Services, LLC d/b/a i Wireless, Notice of Apparent
Liability for Forfeiture, 23 FCC Rcd 4735 P: 12 (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 P: 12 (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 P: 15 (Enf. Bur., 2008); Epic Touch Company,
Notice of Apparent Liability for Forfeiture, 23 FCC Rcd 2831, 2835 P:P:
10-11 (Enf. Bur., 2008) ("EpicTouch"); South Canaan Cellular
Communications Company, L.P., Notice of Apparent Liability for
Forfeiture, 23 FCC Rcd 20, 24-25 P: 11 (Enf. Bur., Spectrum Enf. Div.
2008) ("South Canaan"); See also AST Telecom, LLC d/b/a Blue Sky
Communications, Notice of Apparent Liability for Forfeiture, 23 FCC Rcd
2838, 2842 P: 10 (Enf. Bur., Spectrum Enf. Div. 2008).
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 P: 10 (Enf. Bur., Spectrum Enf. Div. 2007), response pending.
South Canaan, 23 FCC Rcd at 24.
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
Centennial'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 Centennial's apparent violations
that have occurred within the past year.
Although Centennial offered one T3-rated handset for its GSM-based network
by September 18, 2006, it appears to have done so only via the Internet,
and therefore its offering of this handset did not fulfill the
requirements of Section 20.19(d)(2). However, we decline to admonish
Centennial for this violation (which is beyond the applicable one-year
statute of limitations) in view of the fact that the handset was offered
in stores within days after being made available online.
As the Commission noted, Centennial operates wireless networks in six
states, as well as Puerto Rico and the U.S. Virgin Islands. See February
2008 Inductive Coupling Compatibility Waiver Order, 23 FCC Rcd at 3377.
See Forfeiture Policy Statement, 12 FCC Rcd at 17099 P:24 (recognizing
that forfeitures against larger and more highly profitable communications
entities must be set at higher levels "for the forfeiture to be an
effective deterrent" and "not merely an affordable cost of doing
business").
See e.g., i Wireless, 23 FCC Rcd at 4735 P: 13; EpicTouch, 23 FCC Rcd at
2835-36 P: 12 (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 SunCom Wireless, Inc., Notice of Apparent Liability for Forfeiture, DA
08-1314 (Enf. Bur., released June 4, 2008) (finding a substantial upward
adjustment to the base forfeiture warranted for larger entities, such as
Tier II carriers).
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Federal Communications Commission DA 08-1424
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Federal Communications Commission DA 08-1424