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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-08-SE-111
Iowa Wireless Services, LLC dba i ) NAL/Acct. No. 200832100024
wireless
) FRN # 0002576874
)
Notice of apparent Liability for forfeiture
Adopted: March 21, 2008 Released: March 21, 2008
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Iowa Wireless Services, LLC dba i wireless ("i wireless"), a
Global System for Mobile Communications ("GSM") carrier encompassing
37 associated Personal Communications Services ("PCS") licensees
providing service in Iowa and western Illinois, 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 i
wireless's apparent violations, and for the reasons discussed below,
we propose a forfeiture in the amount of twenty-two thousand five
hundred dollars ($22,500).
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. On September 20, 2006, i wireless filed a petition for waiver of
Section 20.19(d)(2) of the Commission's Rules. In its waiver petition,
i wireless noted that, as of the September 18, 2006 deadline, it had
been unable to obtain U3T/T3 (inductive coupling) compliant phones
from its handset vendors and requested a waiver of this requirement.
In its November 15, 2006 status report, i wireless identified two
handset models -- the Nokia 6061 and the Motorola V3i -- as
hearing-aid compatible models that its licensees were offering.
However, because the Nokia 6061 had not in fact been certified as
hearing aid compatible for inductive coupling, i wireless had only one
compliant handset model as of the filing of its November 15, 2006
status report. In response to a Commission staff inquiry, i wireless
submitted a supplement on June 28, 2007, stating that as of March 22,
2007, it was offering two inductive coupling-compliant handset models,
the Motorola RAZR V3 and Nokia 6126h, and that it was therefore in
full compliance with Section 20.19(d)(2) of the Rules.
5. On February 27, 2008, the Commission released the February 2008
Inductive Coupling Compatibility Waiver Order, addressing individually
each of 46 waiver petitions filed on behalf of a total of 90 Tier III
carriers, including i wireless, 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. In its waiver petition, i wireless sought an open-ended
waiver until compliant handsets became commercially available, citing
its inability, as a Tier III carrier, to obtain compliant handsets
from its vendors.
6. The Commission found that i wireless did not meet the requirements to
justify a waiver under the rules. Specifically, the Commission stated
that i wireless failed to demonstrate the diligence, unique or unusual
circumstances, or any other factor that would warrant a grant of the
requested waiver pursuant to the Section 1.925(b)(3) standard. The
Commission recognized that i wireless, as a group of Tier III carriers
with potentially limited inductive coupling-compatible GSM handsets
available to it in September 2006, may well have been unable
reasonably to come into compliance by the September 18, 2006 deadline,
or shortly thereafter. Nonetheless, the Commission stated that i
wireless had failed to demonstrate its need for an extension for over
six months to come into full compliance with the Commission's Rules,
when it took most similarly situated carriers much less time. The
Commission further noted that i wireless did not state why it listed
the Nokia 6061 as hearing aid-compatible in its November 2006 status
report and provided no explanation as to whether or why it believed
this handset was hearing aid-compatible. Accordingly, the Commission
denied the waiver petition of i wireless and referred its apparent
violation to the Enforcement Bureau.
III. DISCUSSION
A. Failure to Offer For Sale Two Hearing-Aid Compatible Handsets
7. Section 20.19(d)(2) of the Rules requires digital wireless service
providers to begin offering for sale at least two handset models for
each air interface that meet at least a T3 rating for inductive
coupling by September 18, 2006. i wireless admits that it did not
offer for sale the required two models of inductive coupling-compliant
handsets until March 22, 2007. Accordingly, we conclude that i
wireless apparently willfully and repeatedly failed to comply with
Section 20.19(d)(2) of the Rules.
B. Proposed Forfeiture
8. Under Section 503(b)(1)(B) of the Act, any person who is determined by
the Commission to have willfully or repeatedly failed to comply with
any provision of the Act or any rule, regulation, or order issued by
the Commission shall be liable to the United States for a forfeiture
penalty. To impose such a forfeiture penalty, the Commission must
issue a notice of apparent liability and the person against whom such
notice has been issued must have an opportunity to show, in writing,
why no such forfeiture penalty should be imposed. The Commission will
then issue a forfeiture if it finds by a preponderance of the evidence
that the person has violated the Act or a Commission rule. We conclude
under this standard that i wireless is apparently liable for
forfeiture for its apparent willful and repeated violation of Section
20.19(d)(2) of the Rules.
9. Under Section 503(b)(2)(B) of the Act, we may assess a common carrier
a forfeiture of up to $130,000 for each violation, or for each day of
a continuing violation up to a maximum of $1,325,000 for a single act
or failure to act. In exercising such authority, we are required to
take into account "the nature, circumstances, extent, and gravity of
the violation and, with respect to the violator, the degree of
culpability, any history of prior offenses, ability to pay, and such
other matters as justice may require."
10. The Commission's Forfeiture Policy Statement and Section 1.80 of the
Rules do not establish a base forfeiture amount for violations of the
hearing aid-compatible handset requirements set forth in Section 20.19
of the Rules. The fact that the Forfeiture Policy Statement does not
specify a base amount does not indicate that no forfeiture should be
imposed. The Forfeiture Policy Statement states that "... any omission
of a specific rule violation from the ... [forfeiture guidelines] ...
should not signal that the Commission considers any unlisted violation
as nonexistent or unimportant. The Commission retains the discretion,
moreover, to depart from the Forfeiture Policy Statement and issue
forfeitures on a case-by-case basis, under its general forfeiture
authority contained in Section 503 of the Act.
11. In determining the appropriate forfeiture amount for violation of the
hearing aid compatibility handset requirements, we take into account
that these requirements serve to ensure that individuals with hearing
disabilities have access to digital wireless telecommunications
services. In adopting the hearing aid compatibility rules, the
Commission underscored the strong and immediate need for such access,
stressing that individuals with hearing impairments should not be
denied the public safety and convenience benefits of digital wireless
telephony. Moreover, as the Commission has noted, the demand for
hearing aid-compatible handsets is likely to increase with the growing
reliance on wireless technology and with the increasing median age of
our population.
12. 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 that meet at least a T3 rating for inductive
coupling, we determined that a proposed forfeiture for violation of
these requirements should be applied on a per handset basis.
Accordingly, we impose a base forfeiture amount of $15,000 per handset
for violation of the hearing aid compatibility handset requirements.
13. i wireless did not offer any handsets that met the T3 rating for
inductive coupling by September 18, 2006. i wireless began offering
one inductive coupling-compliant handset sometime between October 2006
and November 15, 2006, and did not come into full compliance by
offering a second inductive coupling-compliant handset until March 22,
2007. Further, while i wireless sought a waiver of the September 18,
2006 deadline, it did not make a showing of good faith, diligent
efforts to come into compliance even by January 1, 2007, as other Tier
III carriers did, and the Commission, therefore, denied the waiver
request. Although i wireless's failure to offer two handsets that meet
the FCC's inductive coupling compatibility requirements is a
continuing violation for purposes of determining an appropriate
forfeiture, we exercise our prosecutorial discretion in light of the
limited period of time of the violation and decline to assess a
forfeiture on a continuing violation basis in this case.
14. As explained above, we have determined that a proposed forfeiture for
violation of the hearing aid compatibility handset requirements should
be applied on a per handset basis. Because i wireless began offering
for sale the first inductive coupling-compliant handset model sometime
between October 2006 and November 15, 2006, we note that the statute
of limitations for proposing a forfeiture for the first handset model
has expired. We also note that although i wireless is a Tier III
carrier, i.e., a wireless radio service provider with 500,000 or fewer
subscribers, it is not a typical Tier III carrier. i wireless is
comprised of and has the financial support of 37 associated PCS
licensees and is owned by subsidiaries of T-Mobile USA and Iowa
Network Services. As such, we take into account i wireless's size and
ability to pay a forfeiture in determining the appropriate forfeiture
amount. As the Commission made clear in the Forfeiture Policy
Statement, large or highly profitable communications entities could
expect forfeitures significantly higher than those reflected in the
base amounts. In view of i wireless's comparative size and ability to
pay, we believe that an upward adjustment of the base forfeiture in
the amount of $7,500 appropriate. Accordingly, we find i wireless
apparently liable for a $22,500 forfeiture for failing to fully comply
with the inductive coupling compatibility requirements in willful and
repeated violation of Section 20.19(d)(2).
IV. ORdeRING clauses
15. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Section 1.80 of the Rules, Iowa Wireless Services, LLC dba i
wireless IS NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the
amount of twenty-two thousand five hundred dollars ($22,500) for
willful and repeated violation of Section 20.19(d)(2) of the Rules.
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, Iowa Wireless Services, LLC dba i wireless
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.
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 Michael S. Haskins, Chief Operating
Officer, Iowa Wireless Services, LLC dba i wireless, 4135 N.W.
Urbandale Drive, Urbandale, Iowa 50322.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
47 C.F.R. S: 20.19(d)(2).
Section 68.4(a) of the Commission's Rules Governing Hearing Aid-Compatible
Telephones, Report and Order, 18 FCC Rcd 16753 (2003); Erratum, 18 FCC Rcd
18047 (2003) ("Hearing Aid Compatibility Order"); Order on
Reconsideration and Further Notice of Proposed Rulemaking, 20 FCC Rcd
11221 (2005) ("Hearing Aid Compatibility Reconsideration Order"). The
Commission adopted these requirements for digital wireless telephones
under the authority of the Hearing Aid Compatibility Act of 1988, codified
at Section 710(b)(2)(C) of the Communications Act of 1934, as amended, 47
U.S.C. S: 610(b)(2)(C).
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16777; 47 C.F.R. S:
20.19(b)(1), (2). The Hearing Aid Compatibility Order described the
acoustic coupling and the inductive (telecoil) coupling modes as follows:
In acoustic coupling mode, the microphone picks up surrounding sounds,
desired and undesired, and converts them into electrical signals. The
electrical signals are amplified as needed and then converted back into
electrical signals. In telecoil mode, with the microphone turned off, the
telecoil picks up the audio signal-based magnetic field generated by the
voice coil of a dynamic speaker in hearing aid-compatible telephones,
audio loop systems, or powered neck loops. The hearing aid converts the
magnetic field into electrical signals, amplifies them as needed, and
converts them back into sound via the speaker. Using a telecoil avoids the
feedback that often results from putting a hearing aid up against a
telephone earpiece, can help prevent exposure to over amplification, and
eliminates background noise, providing improved access to the telephone.
Id. at 16763.
Section 20.19(b)(1) provides that a wireless handset is deemed hearing
aid-compatible for radio frequency interference if, at minimum, it
receives a U3 rating as set forth in "American National Standard for
Methods of Measurement of Compatibility between Wireless Communications
Devices and Hearing Aids, ANSI C63.19-2001." 47 C.F.R. S: 20.19(b)(1).
Section 20.19(b)(2) provides that a wireless handset is deemed hearing
aid-compatible for inductive coupling if, at minimum, it receives a U3T
rating as set forth in ANSI C63.19-2001. 47 C.F.R. S: 20.19(b)(2). On
April 25, 2005, the Commission's Office of Engineering and Technology
announced that it would also certify handsets as hearing aid-compatible
based on the revised version of the standard, ANSI C63.19-2005. See OET
Clarifies Use of Revised Wireless Phone Hearing Aid Compatibility Standard
Measurement Procedures and Rating Nomenclature, Public Notice, 20 FCC Rcd
8188 (OET 2005). On June 6, 2006, the Commission's Wireless
Telecommunications Bureau and Office of Engineering and Technology
announced that the Commission would also certify handsets as hearing
aid-compatible based on the revised version of the standard, ANSI
C63.19-2006. Thus, 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.
The term "air interface" refers to the technical protocol that ensures
compatibility between mobile radio service equipment, such as handsets,
and the service provider's base stations. Currently, the leading air
interfaces include Code Division Multiple Access (CDMA), Global System for
Mobile Communications (GSM), Integrated Dispatch Enhanced Network (iDEN),
Time Division Multiple Access (TDMA) and Wideband Code Division Multiple
Access (WCDMA) a/k/a Universal Mobile Telecommunications System (UMTS).
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16780; 47 C.F.R. S:S:
20.19(c), (d). The de minimis exception provides that manufacturers or
mobile service providers that offer two or fewer digital wireless handset
models per air interface are exempt from the hearing aid compatibility
requirements and manufacturers or service providers that offer three
digital wireless handset models per air interface must offer at least one
compliant model. 47 C.F.R. S: 20.19(e).
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16780; see also 47
C.F.R. S: 20.19(c).
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16780; see also 47
C.F.R. S: 20.19(d). In addition, on February 28, 2008, the Commission
released an order that, 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; see also 47
C.F.R. S: 20.19(f).
Hearing Aid Compatibility Order, 18 FCC Rcd at 16787; see also Wireless
Telecommunications Bureau Announces Hearing Aid Compatibility Reporting
Dates for Wireless Carriers and Handset Manufacturers, Public Notice, 19
FCC Rcd 4097 (Wireless Tel. Bur. 2004). The Commission will now require
service providers to submit annual status reports beginning January 15,
2009. See Hearing Aid Compatibility First Report and Order, 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.
Petition of Iowa Wireless Services, LLC dba i wireless and related
licensees for Waiver of Section 20.19(d)(2) of the Commission's Rules, WT
Docket No. 01-309, September 20, 2006 ("Waiver Petition").
Id. at 2. i wireless stated that, based on information from its vendors,
sometime in October is the earliest that it would be able to obtain one
inductive coupling-compliant handset model. Id.
Id. at 4.
i wireless Status Report on Hearing Aid Compatible Wireless Devices, WT
Docket No. 01-309, November 15, 2006.
Supplement to Petition of Iowa Wireless Services, LLC dba i wireless and
related licensees for Waiver of Section 20.19(d)(2) of the Commission's
Rules, WT Docket 01-309, June 28, 2007 ("Waiver Petition Supplement").
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").
i wireless Waiver Petition at 4.
See 47 C.F.R. S: 1.925(b)(3).
February 2008 Inductive Coupling Compatibility Waiver Order at 44.
Id.
Id.
Id.
See i wireless Waiver Petition Supplement at 1.
Section 312(f)(1) of the Act defines "willful" as "the conscious and
deliberate commission or omission of [any] act, irrespective of any intent
to violate" the law. 47 U.S.C. S: 312(f)(1). The legislative history of
Section 312(f)(1) of the Act clarifies that this definition of willful
applies to both Sections 312 and 503(b) of the Act, H.R. Rep. No. 97-765,
97th Cong. 2d Sess. 51 (1982), and the Commission has so interpreted the
term in the Section 503(b) context. See Southern California Broadcasting
Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991), recon.
denied, 7 FCC Rcd 3454 (1992) ("Southern California").
Section 312(f)(2) of the Act, which also applies to forfeitures assessed
pursuant to Section 503(b) of the Act, provides that "[t]he term
`repeated,' ... means the commission or omission of such act more than
once or, if such commission or omission is continuous, for more than one
day." 47 U.S.C. S: 312(f)(2). See Callais Cablevision, Inc., Notice of
Apparent Liability for Forfeiture, 16 FCC Rcd 1359, 1362 (2001); Southern
California, 6 FCC Rcd at 4388.
47 U.S.C. S: 503(b)(1)(B); 47 C.F.R. S: 1.80(a)(1).
47 U.S.C. S: 503(b); 47 C.F.R. S: 1.80(f).
See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589,
7591 (2002).
47 U.S.C. S: 503(b)(2)(B). The Commission twice amended Section 1.80(b)(3)
of the Rules, 47 C.F.R. S: 1.80(b)(3), to increase the maxima forfeiture
amounts, in accordance with the inflation adjustment requirements
contained in the Debt Collection Improvement Act of 1996, 28 U.S.C. S:
2461. See Amendment of Section 1.80 of the Commission's Rules and
Adjustment of Forfeiture Maxima to Reflect Inflation, Order, 15 FCC Rcd
18221 (2000) (adjusting the maximum statutory amounts from
$100,000/$1,000,000 to $120,000/$1,200,000); Amendment of Section 1.80 of
the Commission's Rules and Adjustment of Forfeiture Maxima to Reflect
Inflation, Order, 19 FCC Rcd 10945 (2004) (adjusting the maximum statutory
amounts from $120,000/$1,200,000 to $130,000/$1,325,000); see also 47
C.F.R. S: 1.80(c).
47 U.S.C. S: 503(b)(2)(E). See also 47 C.F.R. S: 1.80(b)(4), Note to
paragraph (b)(4): Section II. Adjustment Criteria for Section 503
Forfeitures.
See The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd
17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture Policy
Statement").
Forfeiture Policy Statement, 12 FCC Rcd at 17099.
See id.
Hearing Aid Compatibility Order, 18 FCC Rcd at 16755.
Id. at 16756 (noting that approximately one in ten Americans, 28 million,
have some level of hearing loss, that the proportion increases with age,
and that the number of those affected will likely grow as the median age
increases). See also Report on the Status of Implementation of the
Commission's Hearing Aid Compatibility Requirements, Report, 22 FCC Rcd
17709, 17719 (2007) (noting, just four years later, that the number of
individuals with hearing loss in the United States was "at an all time
high of 31 million - with that number expected to reach approximately 40
million at the end of this decade").
See South Canaan Cellular Communications Company, L.P., Notice of
Apparent Liability for Forfeiture, 23 FCC Rcd 20, 24-25 (Enf. Bur.,
Spectrum Enf. Div. 2008) ("South Canaan").
The Enforcement Bureau has established a base forfeiture amount of $8,000
for violation of the labeling requirements for wireless hearing
aid-compatible handsets. See e.g., South Central Utah Telephone
Association, Inc., Notice of Apparent Liability for Forfeiture, 22 FCC Rcd
19251 P: 10 (Enf. Bur., Spectrum Enf. Div. 2007), response pending; Pine
Telephone Company, Inc., Notice of Apparent Liability for Forfeiture, 22
FCC Rcd 9205, 9210 (Enf. Bur., Spectrum Enf. Div. 2007), response pending;
IT&E Overseas, Inc., Notice of Apparent Liability for Forfeiture, 22 FCC
Rcd 7660, 7665 (Enf. Bur., Spectrum Enf. Div. 2007), response pending.
South Canaan, 23 FCC Rcd at 24.
February 2008 Inductive Coupling Compatibility Waiver Order at P: 44.
We caution i wireless 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 47 U.S.C. S: 503(b)(6); 47 C.F.R. S: 1.80(c)(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
(2002).
Specifically, the Commission stated:
[O]n the other end of the spectrum of potential violations, we recognize
that for large or highly profitable communication entities, the base
forfeiture amounts ... are generally low. In this regard, we are mindful
that, as Congress has stated, for a forfeiture to be an effective
deterrent against these entities, the forfeiture must be issued at a high
level .... For this reason, we caution all entities and individuals that,
independent from the uniform base forfeiture amounts ..., we intend to
take into account the subsequent violator's ability to pay in determining
the amount of a forfeiture to guarantee that forfeitures issued against
large or highly profitable entities are not considered merely an
affordable cost of doing business. Such large or highly profitable
entities should expect in this regard that the forfeiture amount set out
in a Notice of Apparent Liability against them may in many cases be above,
or even well above, the relevant base amount.
Forfeiture Policy Statement, 12 FCC Rcd at 17099-100.
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 i
wireless'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 i wireless's apparent violations
that have occurred within the past year.
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Federal Communications Commission DA 08-610
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Federal Communications Commission DA 08-610