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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of File No. EB-07-SE-272
)
Cable & Communications Corporation NAL/Acct. No. 200832100015
)
dba Mid-Rivers Cellular FRN # 0001634443
)
Notice of apparent Liability for forfeiture
Adopted: February 8, 2008 Released: February 11, 2008
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Cable & Communications Corporation dba Mid-Rivers Cellular
("Mid-Rivers Cellular") 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 Mid-Rivers Cellular'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. 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.
3. 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 November 17, 2006 report, Mid-Rivers Cellular indicated that it
had available for sale in each of its retail outlets two handset
models that comply with the standard for radio frequency interference
set forth in Section 20.19(b)(1) of the Rules. Mid-Rivers Cellular did
not address its compliance with the inductive coupling compatibility
requirements in the report. Subsequently, the Wireless
Telecommunications Bureau referred the matter to the Enforcement
Bureau for investigation into whether Mid-Rivers Cellular was in
compliance with the inductive coupling compatibility requirements.
5. On August 13, 2007, the Spectrum Enforcement Division ("Division") of
the Enforcement Bureau issued a Letter of Inquiry ("LOI") to
Mid-Rivers Cellular. In its response, Mid-Rivers Cellular asserted
that it began offering for sale one inductive coupling-compliant
handset, the Motorola V3c RAZR, on or about August 9, 2006. Mid-Rivers
Cellular further asserted that it began offering for sale an
additional inductive coupling-compliant handset, the V3m RAZR, on or
about February 21, 2007. According to Mid-Rivers Cellular, an internal
review prompted by the Division's LOI revealed Mid-Rivers Cellular's
misunderstanding that its handset compliance obligations were
satisfied solely by a stock of a sufficient number of models with the
appropriate "M" ratings. Mid-Rivers Cellular maintained that while its
stock did contain one inductive coupling-compliant phone model as of
the September 18, 2006 deadline and was fully compliant on or about
February 21, 2007, Mid-Rivers Cellular only recently understood that a
separate requirement regarding the inductive coupling standard
applied. Mid-Rivers Cellular noted that its error was inadvertent and
existed for a very short period of time. Finally, Mid-Rivers Cellular
stated that it believed that the public suffered no adverse effects as
a result of this mistake.
III. Discussion
A. Failure to Comply with the Hearing Aid Compatibility Handset
Requirements
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. Mid-Rivers Cellular began offering for
sale one inductive coupling-compliant handset prior to the September
18, 2006 deadline. Mid-Rivers Cellular admits that it did not offer
for sale a second inductive coupling-compliant handset until
approximately February 21, 2007. Accordingly, we conclude that
Mid-Rivers Cellular 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 Mid-Rivers Cellular 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 the Enforcement Bureau has established a base forfeiture
amount of $8,000 for violation of the labeling requirements for
wireless hearing aid-compatible handsets. We find 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. Therefore, we believe that
a significantly higher base forfeiture amount is warranted for
violations of the hearing aid compatibility handset requirements.
Further, because providers were required to offer at least two handset
models that meet at least a T3 rating for inductive coupling, we think
that a proposed forfeiture for violation of these requirements should
be applied on a per handset basis. We recently found that a base
forfeiture amount of $15,000 per handset is appropriate for violation
of the hearing aid compatibility handset requirements.
12. Mid-Rivers Cellular offered only one handset that met a T3 rating for
inductive coupling by September 18, 2006. Mid-Rivers Cellular did not
come into compliance with the inductive coupling compatibility
requirements by offering a second compliant handset until
approximately February 21, 2007. Moreover, Mid-Rivers Cellular did not
seek a waiver of the September 18, 2006 deadline, nor did it make a
showing of good faith, diligent efforts to come into compliance.
Although Mid-Rivers 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 in light of the
relatively short duration of the violation and decline to assess a
forfeiture on a continuing violation basis in this case. We also note
that Mid-Rivers Cellular is a Tier III carrier, i.e., a non-nationwide
wireless radio service provider with 500,000 or fewer subscribers.
Accordingly, Mid-Rivers Cellular 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).
13. Mid-Rivers Cellular asserted that its error was based on its
misunderstanding that its handset compliance obligations were
satisfied solely by a stock of a sufficient number of models with the
appropriate "M" ratings and therefore was inadvertent. As a Commission
licensee, however, Mid-Rivers Cellular is charged with the
responsibility of knowing and complying with the Act and the Rules.
The Commission has long held that mitigation of a forfeiture is not
justified where violators claim their actions or omissions were due to
inadvertent errors or unfamiliarity with the statutory or regulatory
requirements. Mid-Rivers Cellular also asserted that it believed
that the public suffered no adverse effects as a result of its
mistake. It is well-established, however, that the absence of harm is
not a mitigating factor and does not warrant a downward adjustment of
a forfeiture. Accordingly, we find no basis for mitigation of the
proposed $15,000 forfeiture.
IV. ORDERING clauses
14. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Section 1.80 of the Rules, Cable & Communications Corporation
dba Mid-Rivers Cellular 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, Cable & Communications Corporation dba
Mid-Rivers Cellular 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 credit card through the
Commission's Debt and Credit Management Center at (202) 418-1995, or
by check or similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the NAL/Acct. No.
and FRN No. referenced above. Payment by check or money order may be
mailed to Federal Communications Commission, P.O. Box 358340,
Pittsburgh, PA 15251-8340. Payment by overnight mail may be sent to
Mellon Bank/LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
15251. Payment by wire transfer may be made to ABA Number 043000261,
receiving bank Mellon Bank, and account number 911-6106.
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. Requests for payment of the full amount of the NAL under an
installment plan should be sent to: Associate Managing Director -
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554.
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 Gerry Anderson, Cable & Communications
Corporation dba Mid-Rivers Cellular, 904 C Avenue, P.O. Box 280,
Circle, MT 59215, and to its counsel, Sylvia Lesse, Esq.,
Communications Advisory Counsel, LLC, 2154 Wisconsin Avenue N.W.,
Washington, DC 20007.
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 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, applicants for certification may 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.
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 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 P: 65; see also
47 C.F.R. S: 20.19(d).
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).
Cable & Communications Corporation dba Mid-Rivers Cellular Hearing Aid
Compatibility Report, WT Docket No. 01-309, November 17, 2006 ("November
17, 2006 Report"), at 2. Specifically, Mid-Rivers Cellular indicated that
it was offering the following two handset models: the Motorola V266 and
the Motorola V3c RAZR. Id.
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, to Gerry Anderson, Cable & Communications Corporation
dba Mid-Rivers Cellular (August 13, 2007).
Letter from Sylvia Lesse, Esq., Communications Advisory Counsel LLC, to
Kathryn Berthot, Chief, Spectrum Enforcement Division, Enforcement Bureau
(August 28, 2007) ("LOI Response"), at 3. Mid-Rivers Cellular states that
it purchased this model on August 2, 2006, and that it typically makes
models available for sale to the public one week after the date of
purchase. Id.at 3 n. 2 and accompanying text.
Id.at 3. Mid-Rivers Cellular purchased this handset on February 14, 2007.
Mid-Rivers Cellular thereafter purchased and made available for sale three
additional inductive coupling-compliant handsets, the Motorola E815
(purchased March 14, 2007); the Motorola K1m KRZR (purchased June 6,
2007); and the Motorola L7c Slvr (purchased June 12, 2007). Id.
Id.at 2.
Id.
Id.
Id.
Mid-Rivers Cellular stated that it purchased the Motorola V3c RAZR on
August 2, 2006, and that it typically makes models available for sale to
the public one week after the date of purchase. Motorola obtained an
equipment certification for the Motorola V3c RAZR under FCC ID IHDT56FT1
on September 1, 2005. At that time, the V3c was certified as meeting an M3
rating for radio frequency interference. On August 31, 2006, Motorola was
granted a Class II permissive change for the V3c which updated the hearing
aid compatibility rating for the V3c to M4 for radio frequency
interference and T4 for inductive coupling. We note that under the
Commission's rules, a handset model must have completed testing and
certification for hearing aid compatibility before it can be considered
compatible. See 47 C.F.R. S: 20.19(b)(3).
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, 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.
Id. at 16755 P: 4.
Id. at 16786 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 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; Pine Telephone Company, Inc.,
Notice of Apparent Liability for Forfeiture, 22 FCC Rcd 9205, 9210 P: 11
(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.
See South Canaan, Inc., Notice of Apparent Liability for Forfeiture, DA
08-14 P: 11 (Enf. Bur., Spectrum Enf. Div., rel. January 3, 2008).
We caution Mid-Rivers 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 P:P:
22-24 (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
Mid-Rivers 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 P: 20 (2006), forfeiture
ordered, 22 FCC Rcd 10451 (2007) (forfeiture paid); Globcom, Inc. dba
Globcom Global Communications, Notice of Apparent Liability for
Forfeiture, 18 FCC Rcd 19893, 19903 P: 23(2003), forfeiture ordered,
Forfeiture Order, 21 FCC Rcd 4710 (2006); Roadrunner Transportation, Inc.,
Forfeiture Order, 15 FCC Rcd 9669, 9671-71 P: 8 (2000); Cate
Communications Corp., Memorandum Opinion and Order, 60 RR 2d 1386, 1388 P:
7 (1986); Eastern Broadcasting Corp., Memorandum Opinion and Order, 10 FCC
2d 37, 37-38 P: 3 (1967) recon. denied, 11 FCC 2d 193, 195 P: 6 (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 Mid-Rivers Cellular's apparent violations that
have occurred within the past year.
See Discussion Radio, Inc., Memorandum Opinion and Order and Notice of
Apparent Liability, 19 FCC Rcd 7433, 7437 P: 12 (2004).
See e.g., Emery Telephone, Notice of Apparent Liability for Forfeiture, 13
FCC Rcd 23854, 23859 P: 12 (1998), recon. dismissed in part and denied in
part, Memorandum Opinion and Order, 15 FCC Rcd 7181 (1999); Profit
Enterprises, Inc., Forfeiture Order, 8 FCC Rcd 2846, 2846 P: 5 (1993);
Southern California, 6 FCC Rcd at 4387 P: 3; Lakewood Broadcasting
Service, Inc., Memorandum Opinion and Order, 37 FCC 2d 437, 438 P: 6
(1972).
See, e.g., Liberty Cable Co., Memorandum Opinion and Order, 16 FCC Rcd
16105, 16113 P: 25 (2001); Pacific Western Broadcasters, Inc., Memorandum
Opinion and Order, 50 FCC 2d 819 P: 4 (1975); Abocom Systems, Inc.,
Memorandum Opinion and Order, 22 FCC Rcd 7448, 7451 P: 9 (Enf. Bur.,
2007).
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission DA 08-182
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Federal Communications Commission DA 08-182