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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of File No. EB-07-SE-407
)
SLO Cellular, Inc. d/b/a Cellular One NAL/Acct. No. 200832100021
of San Luis Obispo )
FRN # 0001650324
)
Notice of apparent Liability for forfeiture
Adopted: March 12, 2008 Released: March 13, 2008
By the Deputy Chief, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that SLO Cellular, Inc. d/b/a Cellular One of San Luis Obispo ("SLO
Cellular") apparently willfully and repeatedly violated Sections
20.19(c)(2)(i)(B)(1) and 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 radio frequency
interference and inductive coupling standards for hearing aid
compatibility by the applicable deadline. For SLO Cellular's apparent
violations, and for the reasons discussed below, we propose a
forfeiture in the amount of forty-five thousand dollars ($45,000).
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 the 2005 Hearing Aid Compatibility Reconsideration Order, the
Commission modified the hearing aid compatibility requirements
applicable to wireless carriers that operate TDMA networks and plan to
overbuild them to employ alternative air interfaces. Specifically, the
Commission determined that these carriers would be considered
compliant with the September 16, 2005 handset deployment benchmark for
acoustic coupling compatibility if they: (1) offer two hearing
aid-compatible handset models to customers that receive service from
the overbuilt (i.e., non-TDMA) portion of the network, (2) overbuild
their entire network, and (3) complete the overbuild by September 18,
2006. In granting this limited relief to overbuilding TDMA carriers,
the Commission recognized that the wireless industry was generally
migrating away from the TDMA air interface and that small carriers
using TDMA networks were unlikely to have the influence necessary to
ensure the availability of TDMA-compatible, acoustic coupling
handsets. The Commission also acknowledged that "a technology
overbuild represents a considerable undertaking and requires a
significant investment," and that the limited relief afforded TDMA
carriers would allow them to focus their limited resources primarily
on upgrading their networks, and avoid unintended network shut-downs.
5. On September 16, 2005, SLO Cellular and Entertainment Unlimited
("EU"), both of which operated TDMA networks, filed a joint petition
for temporary waiver or stay requesting an extension of the September
16, 2005 compliance deadline for acoustic coupling compatibility,
citing the unavailability of U3-rated handsets for the TDMA air
interface. The Commission dismissed this joint petition as
unnecessary, finding that both carriers planned to replace their
existing TDMA facilities with GSM facilities and therefore were
eligible for the relief provided to overbuilding TDMA carriers in the
Hearing Aid Compatibility Reconsideration Order.
6. On September 14, 2006, SLO Cellular and EU filed a joint petition for
temporary waiver or temporary stay seeking a one-year extension of the
September 18, 2006 compliance deadline for inductive coupling
compatibility, citing the unavailability of T3-rated handsets for the
TDMA air interface. On November 17, 2006, SLO Cellular filed another
petition for temporary waiver or temporary stay. In this petition, SLO
Cellular indicated that it placed its GSM overbuild into commercial
service on or around October 16, 2006, but admitted that only one of
the digital wireless handsets that it currently offered to the public,
the Motorola RAZR V3, was U3-rated for radio frequency interference
and none of its handsets were T3-rated for inductive coupling. SLO
Cellular indicated that it had ordered two handsets, the Motorola RAZR
V3i and the LG C2000, both of which were approved for both acoustic
coupling and inductive coupling compatibility, and that it expected
these handsets to arrive by the end of November 2006. SLO explained
that its failure to provide compliant handsets as of October 16, 2006,
was the result of an "oversight" on its part, and requested an
extension of the compliance deadlines for both acoustic coupling
compatibility and inductive coupling compatibility until January 31,
2007. In a supplemental compliance status report filed June 6, 2007,
SLO Cellular stated that it had come into compliance on its GSM
network by offering for sale at least two handsets that were approved
for both acoustic coupling and inductive coupling compatibility as of
December 1, 2006.
7. 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 SLO Cellular, 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 concluded that SLO Cellular failed to
demonstrate unique or unusual circumstances, or the existence of any
other factor, warranting grant of the requested waivers. The
Commission found that with respect to its TDMA network, SLO Cellular
based its waiver request primarily on the lack of hearing
aid-compatible handsets that operate on TDMA networks. In the Hearing
Aid Compatibility Reconsideration Order, however, the Commission
determined that TDMA carriers seeking relief from the acoustic
coupling compatibility requirements must complete their overbuilds by
September 18, 2006, and would not be granted relief from hearing aid
compatibility obligations beyond that date. The Commission noted that
SLO Cellular provided no details in its waiver petition as to why it
could not complete its overbuild by that deadline. Consistent with the
reasoning behind the Hearing Aid Compatibility Reconsideration Order,
the Commission therefore denied SLO Cellular relief from the inductive
coupling compatibility obligations with respect to its TDMA network.
Moreover, with respect to its GSM overbuild network, the Commission
observed that SLO Cellular offered no explanation for its delay in
offering compatible handset models other than "oversight." According
to the Commission, "[u]nlike those carriers who made diligent efforts
to obtain inductive coupling-compatible handsets but were unable
timely to procure supplies, SLO [Cellular]'s inattention does not
constitute extraordinary circumstances to support a waiver." The
Commission therefore denied SLO Cellular's waiver petitions and
referred its apparent violations of Sections 20.19(c)(2)(i)(B)(1) and
20.19(d)(2) of the rules to the Enforcement Bureau.
III. Discussion
A. Failure to Comply with the Hearing Aid Compatibility Requirements on
its GSM Network
8. Section 20.19(c)(2)(i)(B)(1) of the Rules requires digital wireless
service providers that are overbuilding a TDMA network to begin
offering for sale to customers that receive service from the overbuilt
(i.e., non-TDMA) portion of their network at least two handset models
with reduced emission levels that meet at least a U3 rating for radio
frequency interference by September 16, 2005. SLO Cellular made its
overbuilt GSM network commercially available on October 16, 2006. As
noted above, SLO Cellular admitted that it offered only one handset
that was U3-rated for radio frequency interference at the time that it
made its GSM network commercially available. SLO Cellular did not
offer a second handset model that met a U3 rating until December 1,
2006, approximately one and a half months later. Accordingly, we
conclude that SLO Cellular apparently willfully and repeatedly failed
to comply with Section 20.19(c)(2)(i)(B)(1) of the Rules.
9. 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. SLO Cellular made its overbuilt GSM
network commercially available on October 16, 2006. By its own
admission, however, SLO Cellular did not offer any handset models that
met a T3 rating until December 1, 2006, approximately one and a half
months later. Accordingly, we conclude that SLO Cellular apparently
willfully and repeatedly failed to comply with Section 20.19(d)(2) of
the Rules.
B. Proposed Forfeiture
10. 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 SLO Cellular is apparently liable for
forfeiture for its apparent willful and repeated violations of
Sections 20.19(c)(2)(i)(B)(1) and 20.19(d)(2) of the Rules.
11. 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."
12. 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.
13. 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.
14. We note that in a recent decision, a base forfeiture amount of $15,000
per handset was established for violations of the hearing aid
compatibility handset requirements. This base forfeiture amount was
based on a determination that a significantly higher base forfeiture
amount is warranted for violations of the hearing aid compatibility
handset requirements than for violations of the labeling requirements
for wireless hearing aid-compatible handsets. In reaching this
determination, we found that a violation of the labeling requirements,
while serious because it deprives hearing aid users from making
informed choices, is less egregious than a violation of the handset
requirements because failure to make compliant handsets available
actually deprives hearing aid users from accessing digital wireless
communications. Further, because providers were required to offer at
least two handset models per air interface that meet a U3 rating for
radio frequency interference and at least two handset models that meet
at least a T3 rating for inductive coupling, we determined that a
proposed forfeiture for violation of these requirements should be
applied on a per handset basis. Accordingly, we impose a base
forfeiture amount of $15,000 per handset for violation of the hearing
aid compatibility handset requirements.
15. SLO Cellular offered only one handset that met a U3 rating for radio
frequency interference and did not offer any handset models that met a
T3 rating at the time that it made its overbuilt GSM network
commercially available on October 16, 2006. SLO Cellular did not come
into compliance with the acoustic coupling and inductive coupling
compatibility requirements until December 1, 2006, almost one and a
half months later. Moreover, while SLO Cellular sought a waiver of the
deadlines, it not make a showing of good faith, diligent efforts to
come into compliance, as other Tier III carriers did, and the
commission, therefore, denied the waiver request. Although SLO
Cellular's failure to offer at least two models that meet the FCC's
radio frequency interference standards for hearing aid compatibility
and two models that meet the inductive coupling standards for hearing
aid compatibility are continuing violations for purposes of
determining an appropriate forfeiture, we exercise our prosecutorial
discretion in light of the relatively short duration of the violations
and decline to assess a forfeiture on a continuing violation basis in
this case. We also note that SLO Cellular is a Tier III carrier, i.e.,
a non-nationwide wireless radio service provider with 500,000 or fewer
subscribers. Accordingly, SLO Cellular is apparently liable for a
$15,000 forfeiture (one handset model * $15,000) for failing to comply
with the acoustic coupling compatibility requirements in willful and
repeated violation of Section 20.19(c)(2)(i)(B)(1) of the Rules, and a
$30,000 forfeiture (two handset models * $15,000) for failing to
comply with the inductive coupling compatibility requirements in
willful and repeated violation of Section 20.19(d)(2), for an
aggregate proposed forfeiture of $45,000.
C. Failure to Comply with the Hearing Aid Compatibility Requirements on
its TDMA Network
16. Under Section 20.19(c)(2)(i)(B) of the Rules, digital wireless
providers carriers are considered compliant with the September 16,
2005 handset deployment benchmark for acoustic coupling compatibility
if they: (1) offer two hearing aid-compatible handset models to
customers that receive service from the overbuilt (i.e., non-TDMA)
portion of the network, (2) overbuild their entire network, and (3)
complete the overbuild by September 18, 2006. SLO Cellular did not
complete its overbuild of its TDMA network until October 16, 2006. The
Commission accordingly found in the February 2008 Inductive Coupling
Compatibility Waiver Order that the acoustic coupling compatibility
requirement applied to SLO Cellular's TDMA network as of September 18,
2006. In addition, under Section 20.19(d)(2) of the Rules, digital
wireless service providers must 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. In the February 2008
Inductive Coupling Compatibility Waiver Order, the Commission denied
SLO Cellular relief from the inductive coupling compatibility
obligations with respect to its TDMA network, noting that it failed to
provide any details as to why it as could not complete its overbuild
by September 18, 2006. We therefore conclude that SLO Cellular
apparently violated Sections 20.19(c)(2)(i)(B) and 20.19(d)(2) of the
Rules by failing to comply with the acoustic coupling and inductive
coupling compatibility requirements on its TDMA network by September
18, 2006. We note, however, that the statute of limitations for
proposing a forfeiture for these violations is one year from the date
of violation. Accordingly, based upon our review of the facts and
circumstances in this case, and because we are barred by the one-year
statute of limitations from proposing a forfeiture for these
violations, we admonish SLO Cellular for these violations.
IV. ORDERING clauses
17. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Section 1.80 of the Rules, SLO Cellular, Inc. d/b/a Cellular
One of San Luis Obispo IS NOTIFIED of its APPARENT LIABILITY FOR A
FORFEITURE in the amount of forty-five thousand dollars ($45,000) for
willful and repeated violations of Sections 20.19(c)(2)(i)(B)(1) and
20.19(d)(2) of the Rules.
18. 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, SLO Cellular, Inc. d/b/a Cellular One of San
Luis Obispo SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
19. IT IS FURTHER ORDERED that SLO Cellular, Inc. d/b/a Cellular One of
San Luis Obispo IS ADMONISHED for failing to comply with the acoustic
coupling and inductive coupling compatibility requirements on its TDMA
network by September 18, 2006 in violation of Sections
20.19(c)(2)(i)(B) and 20.19(d)(2) of the Rules.
20. 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.
21. 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.
22. 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.
23. 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 SLO Cellular, Inc. d/b/a Cellular One of
San Luis Obispo, 733 Marsh Street, Suite B, San Luis Obispo,
California 93401, and to Robert M. Jackson, Esquire, Counsel for SLO
Cellular, Inc. d/b/a Cellular One of San Luis Obispo, Blooston,
Mordkofsky, Dickens, Duffy & Prendergast, LLP, 2120 L Street, N.W.,
Suite 300 Washington, D.C. 20037.
FEDERAL COMMUNICATIONS COMMISSION
Susan McNeil
Deputy Chief, Enforcement Bureau
47 C.F.R. S: 20.19(c)(2)(i)(B)(1).
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). In addition, on February 28, 2008, the Commission
released an order that, among other things: (a) modifies the requirement,
presently stayed until April 18, 2008, that manufacturers and service
providers ensure that 50 percent of their digital wireless handset models
per air interface meet the U3/M3 (radio frequency) standard, (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,
FCC 08-68 at P:P: 6-13, 34 (released February 28, 2008) ("Hearing Aid
Compatibility First Report and Order").
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 (WTB 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, FCC 08-68 at
P: 13. Manufacturers will report on January 15, 2009, and then annually
beginning July 15, 2009. Id. at P:P:13, 101.
See Hearing Aid Compatibility Reconsideration Order, 20 FCC Rcd at
11242-43 P:P: 48-50.
See id. at 11243 P: 48; see also 47 C.F.R. 20.19(c)(1)(i)(B)(1).
See Hearing Aid Compatibility Reconsideration Order, 20 FCC Rcd at 11243
P: 49.
See id.
See SLO Cellular and Entertainment Unlimited Petition for Temporary Waiver
or Stay, September 16, 2005. On September 14, 2006, SLO Cellular and EU
filed another petition for temporary waiver or stay, seeking an additional
one-year extension of the September 16, 2005 compliance deadline for
acoustic coupling compatibility. See SLO Cellular and Entertainment
Unlimited Petition for Temporary Waiver or Stay of Acoustic-Coupling
Handset Requirements, September 14, 2006.
Section 68.4(a) of the Commission's Rules Governing Hearing Aid-Compatible
Telephones, Petitions for Waiver of Section 20.19 of the Commission's
Rules, Memorandum Opinion and Order, 22 FCC Rcd 7171, 7196 P: 60 (2007)
("Acoustic Coupling Compatibility Waiver Order").
See SLO Cellular and EU Petition for Temporary Waiver or Stay of
Inductive-Coupling Handset Requirements, September 14, 2006.
See SLO Cellular Petition for Temporary Waiver or Temporary Stay, November
17, 2006. SLO Cellular requested that its petition be accepted for filing
nunc pro tunc as of October 16, 2006.
See id. at 2. See also SLO Cellular, Sixth Semi-Annual Report, November
17, 2006, at 2.
See SLO Cellular Petition for Temporary Waiver or Temporary Stay, November
17, 2006, at 2.
See id. at 1, 5.
See SLO Cellular Supplement to Petition for Temporary Waiver or Temporary
Stay, June 6, 2007, at 2.
See 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, FCC 08-67 (released
February 27, 2008) ("February 2008 Inductive Coupling Compatibility Waiver
Order").
See id. at P: 34.
See id.
See id. at P: 34; see also Hearing Aid Compatibility Reconsideration
Order, 20 FCC Rcd at 11243 P: 50.
See February 2008 Inductive Coupling Compatibility Waiver Order at P: 34.
Although SLO Cellular did not address the matter in its pleadings, the
Commission also noted that under Section 20.19(c)(2)(i)(B) of the rules,
SLO Cellular was entitled to relief from the acoustic
coupling-compatibility requirement on its TDMA network only on the
condition that it complete its overbuild by September 18, 2006.
Previously, the Commission had dismissed SLO Cellular's request for waiver
of the acoustic coupling-compatibility requirement on the ground that it
qualified for the relief afforded in the Hearing Aid Compatibility
Reconsideration Order. This dismissal, however, was predicated on the
assumption that SLO Cellular would comply with the conditions that the
Commission established for relief. Therefore, because it missed the
overbuild deadline, the acoustic coupling-compatibility requirement
applied to SLO Cellular's TDMA network as of September 18, 2006. Noting
that it was not aware that any compatible TDMA handsets are available on
the market, the Commission questioned SLO Cellular's compliance with this
requirement and directed the Enforcement Bureau to investigate this
possible violation as well. See id. at n. 133.
See id. at P: 34.
Id.
Id.
On November 30, 2007, SLO Cellular and the Enforcement Bureau executed a
Tolling Agreement tolling the one-year statute of limitations set forth in
Section 503(b)(6) of the Act until Mach 15, 2008 in order to permit
settlement discussions. Tolling Agreement, File No. EB-07-SE-407, executed
by and between Kathryn Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, and Bruce G.
Patterson, Executive Vice President, SLO Cellular, Inc. d/b/a Cellular One
of San Luis Obispo (November 30, 2007). SLO Cellular subsequently declined
to extend the Tolling Agreement.
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, 17115 (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 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 South Canaan Cellular Communications Company, L.P., Notice of
Apparent Liability for Forfeiture, 23 FCC Rcd 20, 24-25 (Enf. Bur.,
Spectrum Enf. Div. 2008) ("South Canaan").
The Enforcement Bureau has established a base forfeiture amount of $8,000
for violation of the labeling requirements for wireless hearing
aid-compatible handsets. See e.g., South Central Utah Telephone
Association, Inc., Notice of Apparent Liability for Forfeiture, 22 FCC Rcd
19251 P: 10 (Enf. Bur., Spectrum Enf. Div. 2007), response pending; 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.
South Canaan, 23 FCC Rcd at 24.
See SLO Cellular Petition for Temporary Waiver or Temporary Stay, November
17, 2006.
February 2008 Inductive Coupling Compatibility Waiver Order at P: 34. See
also supra P: 7.
We caution SLO 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
SLO 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, 1828 (2006) (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
SLO Cellular's apparent violations that have occurred within the past
year.
See February 2008 Inductive Coupling Compatibility Waiver Order at n. 133.
See id. at P: 34.
See 47 U.S.C. S: 503(b)(6); 47 C.F.R. S: 1.80(c)(3).
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Federal Communications Commission DA 08-555