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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
) File No.: EB-10-SE-113
In the matter of
) NAL/Acct. No.: 201132100018
Indigo Wireless, Inc.
) FRN#: 0009120999
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: December 29, 2010 Released: December 30, 2010
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we
propose a forfeiture of thirty-nine thousand dollars ($39,000) against
Indigo Wireless, Inc. ("Indigo Wireless"), a Global System for Mobile
Communications-based ("GSM-based") Tier III carrier serving parts of
New York and Pennsylvania. As detailed herein, we find that Indigo
Wireless apparently willfully and repeatedly violated section
20.19(c)(3)(ii) of the Commission's rules ("Rules"), by failing to
offer to consumers for nine months the required number or percentage
of digital wireless handsets that met or exceeded the radio frequency
interference standards for hearing aid compatibility set forth in
section 20.19(b)(1) of the Rules.
II. BACKGROUND
2. In the 2003 Hearing Aid Compatibility Order, the Commission adopted
several measures to enhance the ability of consumers with hearing loss
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 "M3" rating) to enable acoustic coupling between
digital wireless phones and hearing aids operating in acoustic
coupling mode, and a separate standard (the "T3" rating) to enable
inductive coupling with hearing aids operating in telecoil mode.
3. In the 2008 Hearing Aid Compatibility First Report and Order, the
Commission established several deadlines between 2008 and 2011 by
which manufacturers and service providers are required to offer
specified numbers or percentages of digital wireless handset models.
The number or percentage of digital wireless handset models required
by each deadline is based on several factors, including the applicable
interference standard and air interface. For example, between May 15,
2009 and May 14, 2010, non-Tier I service providers were required to
ensure that at least nine handset models per digital air interface, or
at least 50% of the models offered per digital air interface, met or
exceeded the M3 rating, and that at least five handset models per
digital air interface, or at least one-third of the models offered per
digital air interface, met or exceeded the T3 rating. To ensure that
the Commission can accurately monitor the availability of these
handsets, and to provide valuable information to the public concerning
the technical testing and commercial availability of hearing
aid-compatible handsets (including on the Internet), the FCC also
requires annual reports from service providers and manufacturers on
their efforts towards compliance.
4. On January 15, 2010, Indigo Wireless submitted its hearing aid
compatibility status report for the 2009 reporting period ("2009
Report"). A review of Indigo Wireless's 2009 Report reveals apparent
inconsistencies between the hearing aid compatibility ratings for
certain handsets listed in the Report and the ratings for those
handsets specified in the Commission's equipment authorizations for
those handsets. Taking these inconsistencies into account, Indigo
Wireless's 2009 Report indicates that it failed to offer to consumers
the requisite number or percentage of digital hearing aid-compatible
handsets that met or exceeded the M3 rating between March 1, 2009 and
July 30, 2009 and between September 1, 2009 and December 31, 2009.
Specifically, of the total number of handset models offered each
month, only seven of the fifteen handset models (March 2009); seven of
the sixteen handset models (April 2009); six of the fifteen handset
models (May 2009); five of the thirteen handset models (June and July
2009); six of the thirteen handset models (August 2009); five of the
twelve handset models (September 2009); four of the ten handset models
(October and November 2009) and four of the eleven handset models
(December 2009) met or exceeded the M3 rating.
5. The Wireless Telecommunications Bureau subsequently referred Indigo
Wireless's apparent violation of the hearing aid-compatible handset
deployment requirements to the Enforcement Bureau ("Bureau") for
possible enforcement action. On September 8, 2010, the Bureau issued a
letter of inquiry ("LOI") to Indigo Wireless. Indigo Wireless
responded to the LOI ("LOI Response") on October 11, 2010. In its LOI
response, Indigo Wireless explained that it relied on information from
Internet sources such as PhoneNews.com and PhoneScoop.com to confirm
the rating for the Pantech c810 handset, the Sony Ericsson w920
handset and the Samsung s5230 handset because the third-party Internet
sources were the "best information available to us at the time of
filing." With respect to the Samsung s5230, Indigo Wireless explained
that it sold the handset model for only one week in December 2009 and
no longer promotes the handset as hearing aid-compatible. Indigo
Wireless further explains that "this handset may have been reported
incorrectly however it was not willfully done so."
III. DISCUSSION
A. Failure to Comply with Hearing Aid-Compatible Handset Deployment
Requirements.
6. We find that Indigo Wireless failed to offer the required number
of hearing aid-compatible handsets that met or exceeded the M3
rating for nine months during the 2009 reporting period. As noted
above, the Commission has imposed varying benchmarks for the
deployment of hearing aid-compatible handsets. As set forth in
greater detail in the Appendix, between January 1, 2009 and May 14,
2009, Indigo Wireless was obligated to ensure that at least eight
handset models or 50% of the handset models it offered met or exceeded
the M3 rating. Indigo Wireless failed to meet this standard, offering
only seven M3-rated hearing aid-compatible handsets during March
through the first half of May of 2009. In addition, during the latter
part of the reporting period (between May 15, 2009 and December 2009),
the handset deployment benchmarks for non-Tier I digital wireless
service providers increased. While Indigo Wireless was thus required
to ensure that at least nine handset models or at least 50% of the
handset models it offered met or exceeded the M3 rating during this
period (that is, at least 50 percent of the 10 to 16 handsets offered
during May through December 2009), the company again failed to offer
the requisite number of hearing-aid compatible handsets, repeatedly
falling short by one to two models. Accordingly, we conclude that
Indigo Wireless apparently willfully and repeatedly violated section
20.19(c)(3)(ii) of the Rules for nine months of the 12-month reporting
period.
A. 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 Indigo Wireless is apparently liable for a
forfeiture for its apparent willful and repeated violation of section
20.19(c)(3)(ii) of the Rules.
8. Section 503(b)(2)(B) of the Act authorizes a forfeiture assessment
against a common carrier of up to $150,000 for each violation, or for
each day of a continuing violation, up to a maximum of $1,500,000 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- compatible handset deployment requirements, we take into
account that these requirements serve to ensure that consumers with
hearing loss 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 loss 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 have previously determined that violations of the hearing
aid-compatible handset deployment requirements are serious in nature
because failure to make compliant handsets available actually prevents
hearing aid users from accessing digital wireless communications. As
such, we generally apply a base forfeiture amount of $15,000 to
reflect the gravity of these violations. We have also applied the
$15,000 base forfeiture on a per handset basis (i.e., for each handset
model below the minimum number of hearing aid-compatible models
required by the rules).
12. The record establishes that Indigo Wireless failed to offer the
required number of M3-rated handsets during March through July of 2009
and during September through December of 2009. During that period,
Indigo Wireless failed to offer the minimum number of M3-rated
handsets by up to two handsets. In imposing a forfeiture, we are
unpersuaded by Indigo Wireless's claim that the inconsistency in the
ratings for three of its handsets (the Pantech c810 handset, the Sony
Ericsson w910 handset and the Samsung s5230 handset) was due to
reliance on information from third-party websites, it is well
established that a violator's erroneous beliefs are not a mitigating
factor warranting a forfeiture reduction. We also note that hearing
aid compatibility ratings information for wireless handsets is
publicly available on the FCC's web site, simply by entering the FCC
Identification number for the handset into the Office of Engineering
and Technology's Equipment Authorization Database. Accordingly, we
find Indigo Wireless apparently liable for a forfeiture of $30,000 for
failing to offer to consumers the required number or percentage of
hearing aid-compatible handset models in willful and repeated
violation of section 20.19(c)(3)(ii) of the Rules.
13. This base forfeiture amount is, however, subject to upward adjustment.
We note, in this regard, that Indigo Wireless was out of compliance
with the hearing aid-compatible handset deployment requirements for
nine of the 12 months during the 2009 reporting period. In view of the
extended duration of the violation, we find that a significant upward
adjustment of the base forfeiture amount from $30,000 is warranted. We
therefore propose a $39,000 forfeiture against Indigo Wireless for
apparently willfully and repeatedly failing to comply with the hearing
aid-compatible handset deployment requirements set forth in section
20.19(c)(3)(ii) of the Rules.
14. We therefore find Indigo Wireless is apparently liable for a total
forfeiture of $39,000 for apparently willfully and repeatedly failing
to comply with the hearing aid-compatible handset deployment
requirements set forth in section 20.19(c)(3)(ii) of the Rules.
IV. ORDERING CLAUSES
15. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the
Act, and sections 0.111, 0.311, and 1.80 of the Rules, Indigo
Wireless, Inc. IS NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE
in the amount of thirty-nine thousand dollars ($39,000) for willful
and repeated violation of section 20.19(c)(3)(ii) 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, Indigo Wireless, Inc. 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. Indigo Wireless, Inc. will also send
electronic notification on the date said payment is made to JoAnn
Lucanik at JoAnn.Lucanik@fcc.gov and to Pamera Hairston at
Pamera.Hairston@fcc.gov.
18. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
sections 1.80(f)(3) and 1.16 of the Rules. The written statement 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/Account Number referenced in the caption. The statement must
also be emailed to JoAnn Lucanik at JoAnn.Lucanik@fcc.gov and to
Pamera Hairston at Pamera.Hairston@fcc.gov.
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 Indigo Wireless, Inc., 18 Beechnut
Terrace, Ithaca, NY 14850.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
APPENDIX
Indigo Wireless Hearing Aid-Compatible Handset Offerings (M3 rating)
Hearing Hearing
Total Aid-Compatible Aid-Compatible
Period Handsets Handsets Handsets Compliance?
Offered Offered Required
(M3 rating) (M3 rating)
January 7 6 Yes
2009
February 11 7 Yes
2009
March 15 7 No
2009
April 16 7 No
2009
May 1-14, 16 7 or
2009
May total number
15-31, 16 7 of
2009
June 2009 14 6 offered 50% or No
July 2009 14 6 (March 1, 2009 At least No
August 14 7 total Yes
2009 May 14, 2009) number
September 13 6 handsets No
2009 offered
October 11 5 (May 15, No
2009 2009 -
November 10 4 31, No
2009 2009)
December 11 4 No
2009
Tier III carriers are non-Nationwide wireless radio service providers with
500,000 or fewer subscribers. 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, 14847-48 P:P: 22-24 (2002).
47 C.F.R. S: 20.19(c)(3)(ii).
47 C.F.R. S: 20.19(b)(1).
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). 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 (Act), 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.
As subsequently amended, section 20.19(b)(1) of the Rules provides that,
for the period beginning June 6, 2008 and ending January 1, 2010, a
wireless handset is deemed hearing aid-compatible for radio frequency
interference if, at minimum, it meets the M3 rating associated with the
technical standard set forth in either the standard document "American
National Standard Methods of Measurement of Compatibility between Wireless
Communication Devices and Hearing Aids," ANSI C63.19-2006 (June 12, 2006)
or ANSI 63.19-2007 (June 8, 2007). 47 C.F.R. S: 20.19(b)(1). Section
20.19(b)(2) of the Rules provides that, for the period beginning June 6,
2008 and ending January 1, 2010, a wireless handset is deemed hearing
aid-compatible for inductive coupling if, at minimum, it meets the T3
rating associated with the technical standard as set forth in either the
standard document "American National Standard Methods of Measurement of
Compatibility between Wireless Communication Devices and Hearing Aids,"
ANSI C63.19-2006 (June 12, 2006) or ANSI 63.19-2007 (June 8, 2007). 47
C.F.R. S: 20.19(b)(2).
These requirements do not apply to service providers and manufacturers
that meet the de minimis exception. See Amendment of the Commission's
Rules Governing Hearing Aid-Compatible Mobile Handsets, First Report and
Order, 23 FCC Rcd 3406, 3418-24 P:P: 34-46 (2008) ("Hearing Aid
Compatibility First Report and Order"), Order on Reconsideration and
Erratum, 23 FCC Rcd 7249 (2008); 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). We note that the Commission recently limited the de
minimis exception to exclude service providers that are not small entities
after an initial two-year period. See Amendment of the Commission's Rules
Governing Hearing Aid-Compatible Mobile Handsets, Policy Statement and
Second Report and Order and Further Notice of Proposed Rulemaking, 25 FCC
Rcd 11167, 11180-89 P:P: 35-59 (2010).
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 Digital Enhanced Network (iDEN),
and Wideband Code Division Multiple Access (WCDMA) a/k/a Universal Mobile
Telecommunications System (UMTS).
See Hearing Aid Compatibility First Report and Order, 23 FCC Rcd at 3419
P: 35; 47 C.F.R. S: 20.19(c)(3)(ii).
See Hearing Aid Compatibility First Report and Order, 23 FCC Rcd at 3419
P: 36; 47 C.F.R. S: 20.19(d)(3)(ii).
See Hearing Aid Compatibility First Report and Order, 23 FCC Rcd at 3443
P: 91; 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).
In its 2008 Hearing Aid Compatibility First Report and Order, the
Commission extended these reporting requirements with certain
modifications on an open-ended basis, beginning January 15, 2009. See
Hearing Aid Compatibility First Report and Order, 23 FCC Rcd at 3410 P:
13. In addition, the Commission made clear that these reporting
requirements apply to manufacturers and service providers that fit within
the de minimis exception. Id. at 3446 P: 99.
Indigo Wireless's Hearing Aid Compatibility Status Report (filed January
15, 2010) ("2009 Report"), at
http://wireless.fcc.gov/hac_documents/100317/Indigo%20Wireless_189.PDF.
Indigo Wireless's 2009 Report indicated that the Pantech c810 handset (FCC
ID JYCC810) is M4/T3 rated, the Sony Ericsson w910 handset (FCC ID
PY7A3052021) is M3/T3 rated, and the Samsung s5230 (FCC ID A3LGTS5230) is
M3 rated. Id. Commission records, however, show that these three handsets
have not been rated for hearing aid compatibility.
Id. Indigo Wireless's 2009 Report indicated that it offered the required
number of M3-rated handsets during August 2009 and the required number of
T3-rated handsets during the 2009 reporting period.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to John C. Rigas,
President, Indigo Wireless, Inc. (September 8, 2010) ("LOI").
See e-mail from Laura Boyden, Operations Manager, Indigo Wireless, Inc. to
Kathryn S. Berthot, Chief, Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission (October 11, 2010) ("LOI
Response").
Id. at 1.
Id. at 1-2.
Id.
See Appendix, Indigo Wireless Hearing-Aid Compatible Handset Offerings
(M3-rated); see also (requiring non-Tier 1 digital wireless service
providers to ensure that between September 7, 2009 and May 14, 2009, at
least 50% of the handset models they offered, or at least eight handset
models, met or exceeded the M3 rating for radio frequency interference).
These requirements applied to each air interface for which service
providers offered handsets to consumers. All of Indigo Wireless's handsets
for the 2009 reporting period operated only over the GSM air interface.
47 C.F.R. S: 20.19(c)(3)(ii) (requiring non-Tier I digital wireless
service providers to ensure that between May 15, 2009 and May 14, 2010, at
least 50% of the handset models they offered, or at least nine handset
models, met or exceeded the M3 rating for radio frequency interference).
See Appendix (indicating that between May 15, 2009 and December 31, 2009,
Indigo Wireless offered between 10 and 16 total handsets, of which only
four-seven were hearing-aid compatible).
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"); see also
Telrite Corporation, Notice of Apparent Liability for Forfeiture, 23 FCC
Rcd 7231, 7237 P: 12 (2008); Regent USA, Notice of Apparent Liability for
Forfeiture, 22 FCC Rcd 10520, 10523 P: 9 (2007); San Jose Navigation,
Inc., Forfeiture Order 22 FCC Rcd 1040, 1042 P: 9 (2007), consent decree
ordered, Order and Consent Decree, 25 FCC Rcd 1494 (2010).
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). In 2008, the Commission amended section
1.80(b)(3) of the Rules, 47 C.F.R. S: 1.80(b)(3), to increase the maximum
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, 23 FCC Rcd 9845,
9847 (2008) (adjusting the maximum statutory amounts for common carriers
from $130,000/$1,300,000 to $150,000/$1,500,000). The inflation
adjustment, effective September 2, 2008, applies to violations that occur
after that date; See 73 Fed. Reg. 44663-5.
47 U.S.C. S: 503(b)(2)(E). See also 47 C.F.R. S: 1.80(b)(4), Note to
paragraph (b)(4): Section II. Adjustment Criteria for Section 503
Forfeitures.
See The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd
17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture Policy
Statement").
Forfeiture Policy Statement, 12 FCC Rcd at 17099.
Id.
Hearing Aid Compatibility Order, 18 FCC Rcd at 16755 P: 4.
Id. at 16756 P: 5 (noting that approximately one in ten Americans, 28
million, have some level of hearing loss, that the proportion increases
with age, and that the number of those affected will likely grow as the
median age increases). See also Report on the Status of Implementation of
the Commission's Hearing Aid Compatibility Requirements, Report, 22 FCC
Rcd 17709, 17719 P: 20 (2007) (noting, just four years later, that the
number of individuals with hearing loss in the United States was "at an
all time high of 31 million - with that number expected to reach
approximately 40 million at the end of this decade").
Compare, e.g., South Central Utah Telephone Association, Inc., Notice of
Apparent Liability for Forfeiture, 22 FCC Rcd 19251, 19255-56 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), consent decree ordered, Order
and Consent Decree, 23 FCC Rcd 4485 (Enf. Bur. 2008).
See, e.g., SLO Cellular, Inc., Notice of Apparent Liability for
Forfeiture, 23 FCC Rcd 3990, 3996-97 P: 14 (Enf. Bur. 2008), response
pending; NEP Cellcorp, Inc., Notice of Apparent Liability for Forfeiture,
24 FCC Rcd 8, 13 P: 11 (Enf. Bur., Spectrum Enf. Div. 2009); Corr Wireless
Communications, LLC, Notice of Apparent Liability for Forfeiture, 23 FCC
Rcd 11567, 11571 P: 11 (Enf. Bur., Spectrum Enf. Div. 2008), response
pending; Blanca Telephone Company, Notice of Apparent Liability for
Forfeiture, 23 FCC Rcd 9398, 9403 P: 12 (Enf. Bur., Spectrum Enf. Div.
2008), response pending; Pinpoint Wireless, Inc., Notice of Apparent
Liability for Forfeiture, 23 FCC Rcd 9290, 9295 P: 11 (Enf. Bur., Spectrum
Enf. Div. 2008); Iowa Wireless Services, LLC d/b/a i Wireless, Notice of
Apparent Liability for Forfeiture, 23 FCC Rcd 4735, 4739 P: 12 (Enf.
Bur., Spectrum Enf. Div. 2008); South Slope Cooperative Telephone Company
d/b/a South Slope Wireless, Notice of Apparent Liability for Forfeiture,
23 FCC Rcd 4706, 4711-12 P: 12 (Enf. Bur., Spectrum Enf. Div. 2008),
response pending.
Id.
Id. at 2.
See, e.g., Profit Enterprises, Inc., Notice of Apparent Liability for
Forfeiture, 8 FCC Rcd 2846, 2846 P: 5 (1993), cancelled on other grounds,
12 FCC Rcd 14999 (1997) (denying the mitigation claim of a
manufacturer/distributor who thought that the equipment certification and
marketing requirements were inapplicable, stating that its "prior
knowledge or understanding of the law is unnecessary to a determination of
whether a violation existed ... ignorance of the law is [not] a mitigating
factor"); Lakewood Broadcasting Service, Inc., Memorandum Opinion and
Order, 37 FCC 2d 437, 438 P: 6 (1972) (denying a mitigation claim of a
broadcast licensee who asserted an unfamiliarity with the station
identification requirements, stating that licensees are expected "to know
and conform their conduct to the requirements of our rules"); Kenneth Paul
Harris, Sr., Notice of Apparent Liability for Forfeiture, 15 FCC Rcd
12933, 12935 P: 7 (Enf. Bur. 2000), forfeiture ordered, 15 FCC Rcd 23991
(Enf. Bur. 2000), (denying a mitigation claim of a broadcast licensee,
stating that its ignorance of the law did not excuse the unauthorized
transfer of the station); Maxwell Broadcasting Group, Inc., Memorandum
Opinion and Order, 8 FCC Rcd 784, 784 P: 2 (MMB 1993), recon. denied,
Memorandum Opinion and Order, 8 FCC Rcd 4322 (MMB 1993) (denying a
mitigation claim of a noncommercial broadcast licensee, stating that the
excuse of "inadverten[ce], due to inexperience and ignorance of the rules
... are not reasons to mitigate a forfeiture" for violation of the
advertisement restrictions).
See https://fjallfoss.fcc.gov/oetcf/eas/reports/GenericSearch.cfm. The
hearing aid compatibility ratings information is included on the equipment
certification for the handset.
To the extent that Indigo Wireless argues that its failure to offer the
required number of handsets was not willful, we reject this claim. See LOI
Response at 1-2. As noted, section 312(f)(1) of the Act provides that "the
term `willful,' when used with reference to the commission or omission of
any act, means the conscious or deliberate commission or omission of such
act, irrespective of any intent to violate any provision of this Act or
any rule or regulation of the Commission." Indeed, it is well established
that, in the context of forfeiture actions, "willful" does not require a
finding that the rule violation was intentional or that the violator was
aware that it was committing a rule violation. Rather, the term "willful"
simply requires that the violator knew it was taking or failing to take
the action in question, irrespective of any intent to violate the
Commission's rules. See Southern California, 6 FCC Rcd at 4387-88
(stating that "inadvertence ... is at best, ignorance of the law, which
the Commission does not consider a mitigating circumstance" and applying
the definitions of willful in section 312(f)(1) to forfeiture cases). See
also Abocom Systems, Inc., Memorandum Opinion and Order, 22 FCC Rcd 7448,
7451 (Enf. Bur. 2007) (rejecting Abocom's argument that it was only
"inadvertently noncompliant" and that "its actions were not deliberate or
intended to violate the rules"); Five Star Parking d/b/a Five Star Taxi
Dispatch, Forfeiture Order, 23 FCC Rcd 2649, 2651-52 (Enf. Bur., Spectrum
Enf. Div. 2008) (declining to reduce or cancel forfeiture for late-filed
renewal based on licensee's administrative error); Domtar Industries,
Inc., Notice of Apparent Liability for Forfeiture, 21 FCC Rcd 13811, 13815
(Enf. Bur., Spectrum Enf. Div. 2006) ("Domtar Industries") (same);
National Weather Networks, Inc., Notice of Apparent Liability for
Forfeiture, 21 FCC Rcd 3922, 3925 (Enf. Bur., Spectrum Enf. Div. 2006)
(same).
See 47 C.F.R. S: 1.80(b)(4), Note to Paragraph (b)(4): Section II.
Adjustment Criteria for Section 503 Forfeitures (establishing "repeated or
continuous violation" as an upward adjustment factor).
While section 503(b)(6) of the Act bars the Commission from proposing a
forfeiture for violations that occurred more than a year prior to the
issuance of an NAL, we may consider the fact that Indigo Wireless's
misconduct occurred over an extended period to place "the violations in
context, thus establishing the licensee's degree of culpability and the
continuing nature of the violations." Roadrunner Transportation Inc.,
Forfeiture Order, 15 FCC Rcd 9669, 9671-72 (2000). The forfeiture amount
we propose herein relates only to Indigo Wireless's apparent violations
that have occurred within the past year.
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.311, and 1.80.
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