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Before the
Federal Communications Commission
Washington, D.C. 20554
)
File No. EB-09-SE-186
In the matter of )
NAL/Acct. No. 201132100019
STi Prepaid, LLC )
FRN 0016004731
)
Notice of apparent Liability for forfeiture
Adopted: December 30, 2010 Released: December 30, 2010
By the Chief, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that STi Prepaid, LLC, a reseller of wireless services through its
operating division, STi Mobile (collectively, "STi Prepaid"),
apparently willfully and repeatedly violated section 20.19(e)(2) of
the Commission's rules ("Rules") by failing for 18 months to include
in its digital wireless handset offerings at least one handset model
that meets the inductive coupling standard for hearing aid
compatibility set forth in section 20.19(b)(2) of the Rules. Further,
we find that STi Prepaid apparently willfully violated the hearing aid
compatibility status report filing requirements set forth in section
20.19(i)(1) of the Rules, and apparently willfully and repeatedly
violated the public web site posting requirements set forth in section
20.19(h) of the Rules. For these apparent violations, we propose a
total forfeiture of thirty-four thousand five hundred dollars
($34,500).
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 "M" rating) to enable acoustic coupling between
digital wireless phones and hearing aids operating in acoustic
coupling mode and a separate standard (the "T" 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 as well as the number of
handsets offered. In this regard, the Commission created the de
minimis exception set forth in section 20.19(e) of the Rules, which
establishes different handset deployment benchmarks for manufacturers
and service providers that offer three or fewer handset models. Under
the de minimis exception, service providers that offer two or fewer
digital wireless handset models per air interface are exempt from the
hearing aid compatibility requirements. Service providers that offer
three digital wireless handset models per air interface, however, must
offer at least one model that is compliant with the acoustic coupling
standard and at least one model that is compliant with the inductive
coupling standard.
4. The Commission also adopted reporting requirements to ensure that it
could monitor the availability of hearing aid-compatible handsets and
to provide valuable information to the public concerning the technical
testing and commercial availability of these handsets (including on
the Internet). The Commission initially 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 (May 17,
2004, November 17, 2004, May 17, 2005, November 17, 2005, May 17, 2006
and November 17, 2006), and then annually thereafter through the fifth
year of implementation (November 19, 2007 and November 17, 2008). 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. The
Commission also made clear that these reporting requirements apply to
manufacturers and service providers that fit within the de minimis
exception. In addition, the Commission required manufacturers and
service providers with publicly-accessible web sites to maintain a
list of hearing aid-compatible handset models and provide certain
information regarding those models on their web sites. The web site
postings, which must be updated within 30 days of a change in a
manufacturer's or service provider's offerings, enable consumers to
obtain up-to-date hearing aid compatibility information.
5. STi Prepaid, a reseller of wireless services, failed to file the
required hearing aid compatibility status report for the period July
1, 2008 through December 31, 2008 (originally due on January 15,
2009), and failed to post on its web site all of the required
information concerning the ratings and levels of functionality of its
hearing aid-compatible handset models. The Wireless Telecommunications
Bureau referred STi Prepaid's apparent violation of the reporting and
web site requirements to the Enforcement Bureau for possible
enforcement action.
6. On November 23, 2009, the Spectrum Enforcement Division of the
Enforcement Bureau ("Bureau") issued STi Prepaid a letter of inquiry
("LOI"). STi Prepaid responded to the LOI on December 8, 2009, noting
that "STi Mobile is an operating division of STi Prepaid, which
provides interstate and international prepaid telecommunications
services." STi Prepaid states that it is a mobile virtual network
operator ("MVNO"), and that it relies on Sprint Nextel for all of its
underlying network services and handsets. STi Prepaid admits that it
failed to file the service provider report due January 15, 2009, but
claims that such failure was "[d]ue to an administrative oversight."
Given that it obtains all of its underlying network services and
handsets via its contractual relationship with Sprint Nextel, STi
Prepaid also asserts that it "was not aware that it had an independent
obligation to file the report." STi Prepaid further claims that
because it currently offers only three handsets all within the same
air interface (CDMA), it falls within the de minimis exception and is
only required to offer one handset model that meets the "hearing aid
and [sic] acoustic coupling standards." In addition, STi Prepaid
argues that it is in "substantial" compliance with the web posting
requirements in section 20.19(h) of the Rules, noting that it posted
the user guide for the M3-rated LG LX-225 handset model on its website
and that the user guide explains the difference between the M3 and M4
ratings. STi Prepaid acknowledged, however, that the user guide "does
not contain information on the inductive coupling rating for that
handset." As to the reporting requirements, STi Prepaid also stated
that it would file the report originally due January 15, 2009 as soon
as electronically possible, and that it will timely file all future
reports. The record reflects that STi Prepaid filed its 2008 report
eleven months late, and that it timely filed its 2009 report.
III. DISCUSSION
A. A. Failure to Comply with Hearing Aid-Compatible Handset Deployment
Requirements
7. We find that STi Prepaid failed to offer the required number of
hearing aid-compatible handsets that met or exceeded the T3 rating for
18 months, i.e., during the entire 2008 and 2009 reporting periods. As
noted above, section 20.19(e)(2) of the Rules establishes a de minimis
exception, requiring service providers that offer three digital
wireless handset models per air interface to ensure that at least one
handset model meets or exceeds the M3 rating for acoustic coupling and
at least one handset model meets or exceeds the T3 rating for
inductive coupling. STi Prepaid asserts that it falls within the de
minimis exception and is only required to offer one handset model that
meets the "hearing aid and [sic] acoustic coupling standards." Based
on STi Prepaid's response to the LOI and its hearing aid compatibility
reports for the 2008 and 2009 reporting periods, STi Prepaid only
offered three handsets, which qualifies the company for the de minimis
exception. Contrary to its assertions about the number of required
hearing aid-compatible handsets under this exception, however, STi
Prepaid was required to offer at least one M3-rated handset model and
at least one T3-rated handset model. Although two of the three
handsets offered by STi Prepaid are M3-rated for acoustic coupling,
none of the three handsets meet the T3 rating for inductive coupling.
Accordingly, we conclude that STi Prepaid apparently willfully and
repeatedly failed to comply with section 20.19(e)(2) of the Rules by
failing during the 2008 and 2009 reporting periods to offer at least
one handset model that met or exceeded the T3 rating for inductive
coupling.
B. Failure to File Timely Hearing Aid Compatibility Status Report
8. Section 20.19(i)(1) of the Rules required service providers to submit
hearing aid compatibility status reports on January 15, 2009 (covering
the six month period ending December 31, 2008) and then annually
thereafter. These reports are necessary to enable the Commission to
perform its enforcement function and evaluate whether STi Prepaid is
in compliance with Commission mandates that were adopted to facilitate
the accessibility of hearing aid-compatible wireless handsets. As the
Commission has noted, the reports also provide valuable information to
the public concerning the technical testing and commercial
availability of hearing aid-compatible handsets. STi Prepaid admitted
that it did not timely file the 2008 Report; indeed, the record
indicates that this Report was filed eleven months late. Accordingly,
we find that STi Prepaid failed to timely file the hearing aid
compatibility status report due on January 15, 2009 in apparent
willful violation of the requirements set forth in section 20.19(i)(1)
of the Rules.
A. C. Failure to Post Required Information Concerning Hearing
Aid-Compatible Handset Models on its Public Web Site
9. Section 20.19(h) of the Rules requires that, beginning January 15,
2009, each service provider that maintains a publicly-accessible web
site make available on its web site a list of all hearing
aid-compatible handset models it currently offers, the ratings of
those models, and an explanation of the rating system. Section
20.19(h) also requires service providers to post on their web sites
the level of functionality of each model and an explanation of the
service provider's methodology for designating levels of
functionality. In addition, the Commission has stated that any changes
to a service provider's offerings must be reflected on its public web
site listing within 30 days of the change. These web site postings
provide consumers up-to-date hearing aid compatibility information.
10. While STi Prepaid did not directly comply with these web posting
requirements, it claims "substantial" compliance based on the
information contained in the user guide for the LG LX-225 handset
model posted on its web site. As an initial matter, we are concerned
that the difficulty of finding the hearing aid compatibility rating
information in the approximately 200-page user manual for the LG
LX-225 model undercuts the clear intent of section 20.19(h) of the
Rules, which is to make such information readily accessible to
consumers. In any event, we find that the user manual for the LG
LX-225 model fails to provide all of the information required under
section 20.19(h) of the Rules. We note that the user guide provides
general information about hearing aid compatibility and ratings,
including general information with respect to the qualitative
difference between the M3 and M4 ratings, and also specifies the
rating for the LG LX-225. However, the user manual fails to specify
the handset's level of functionality or to provide an explanation of
the service provider's methodology for designating levels of
functionality. In addition, STi Prepaid apparently failed to provide
any rating information regarding the Sanyo SCP-200 handset model on
its web site. Accordingly, we find that STi Prepaid failed to meet the
public web site posting requirements in apparent willful and repeated
violation of section 20.19(h) of the Rules.
A. D. Proposed Forfeiture
11. 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. Under this
standard, we conclude that STi Prepaid is apparently liable for a
forfeiture for its apparent willful and repeated violations of
sections 20.19(e)(2) and 20.19(h) of the Rules, and its apparent
willful violation of section 20.19(i)(1) of the Rules.
12. Section 503(b)(2)(B) of the Act authorizes a forfeiture assessment
against a common carrier up to $150,000 for each violation, or for
each day of a continuing violation, and 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."
13. 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 deployment 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.
14. 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 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 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.
15. Our recent decisions established a base forfeiture amount of $15,000
per handset for violations of the hearing aid-compatible handset
deployment requirements. In establishing this base forfeiture amount,
we determined that violations of the hearing aid-compatible handset
deployment requirements warranted a significantly higher forfeiture
than violations of the labeling requirements for wireless hearing
aid-compatible handsets. We found that a violation of the labeling
requirements, while serious because it deprives hearing aid users of
the ability to make informed choices, is less egregious than a
violation of the deployment requirements, where a failure to make
compliant handsets available actually prevents hearing aid users from
accessing digital wireless communications.
16. The record establishes that STi Prepaid failed to include in its
handset offerings at least one handset that met or exceeded the T3
rating for inductive coupling, as required by section 20.19(e)(2) of
the Rules. Accordingly, STi Prepaid is apparently liable for a
forfeiture of $15,000 for failing to offer the required number of
hearing aid-compatible handset models in willful and repeated
violation of section 20.19(e)(2) of the Rules.
17. Having considered the statutory factors enumerated above, we conclude
that an upward adjustment is warranted. We note, in this regard, that
STi Prepaid was out of compliance with the hearing aid-compatible
handset deployment requirements for 18 months, during the entire 2008
and 2009 reporting periods. In view of the particularly lengthy
duration of the violation and the potentially significant impact on
consumers with hearing loss, we find that a significant upward
adjustment of the base forfeiture amount is warranted. We therefore
propose a $22,500 forfeiture against STi Prepaid for apparently
willfully and repeatedly failing to comply with the hearing
aid-compatible handset deployment requirements set forth in section
20.19(e)(2) of the Rules.
18. The Forfeiture Policy Statement and section 1.80(b) of the Rules set a
base forfeiture amount of $3,000 for the failure to file required
forms or information. While the base forfeiture requirements are
guidelines lending some predictability to the forfeiture process, the
Commission retains the discretion to depart from these guidelines and
issue forfeitures on a case-by-case basis, under its general
forfeiture authority contained in section 503 of the Act.
19. We have exercised our discretion to set a higher base forfeiture
amount for violations of the wireless hearing aid compatibility
reporting requirements. In the American Samoa Telecommunications
Authority NAL, we found that the status reports are essential to the
implementation and enforcement of the hearing aid compatibility rules.
The Commission relies on these reports to provide consumers with
information regarding the technical specifications and commercial
availability of hearing aid-compatible digital wireless handsets and
to ensure that the digital wireless industry meets the needs of the
increasing number of consumers with hearing loss. In an analogous
context, we noted that when setting an $8,000 base forfeiture for
violations of the hearing aid-compatible handset labeling
requirements, the Commission emphasized that consumers with hearing
loss could only take advantage of critically important public safety
benefits of digital wireless services if they had access to accurate
information regarding hearing aid compatibility features of handsets.
We also noted that the Commission has adjusted the base forfeiture
upward when noncompliance with filing requirements interferes with the
accurate administration and enforcement of Commission rules. Because
the failure to file hearing aid compatibility status reports
implicates similar public safety and enforcement concerns, we
exercised our discretionary authority and established a base
forfeiture amount of $6,000 for failure to file a hearing aid
compatibility report. Consistent with ASTCA, we believe the
established $6,000 base forfeiture for each violation of the hearing
aid compatibility reporting requirement should apply here, for a
proposed forfeiture of $6,000.
20. Failure to file these reports, as is the case here, can have an
adverse impact on the Commission's ability to ensure the commercial
availability of hearing aid-compatible digital wireless handsets, to
the detriment of consumers. Furthermore, in ASTCA, we made clear that
failure to file a hearing aid compatibility status report constitutes
a continuing violation that continues until the violation is cured.
STi Prepaid's failure to file the report on time had a continuing
adverse impact on the Commission's ability to ensure the commercial
availability of hearing aid-compatible digital wireless handsets. We
do not believe that the circumstances presented warrant any downward
adjustment of the proposed forfeiture amount. STi Prepaid maintains
that its failure to timely file the report was due to administrative
oversight and that it was not aware that it had an independent
obligation to file the report, given its contractual relationship with
Sprint Nextel. It is well established that administrative oversight or
inadvertence is not a mitigating factor warranting a downward
adjustment of a forfeiture. Likewise, a violator's lack of knowledge
or erroneous beliefs is not a mitigating factor warranting reduction
of a forfeiture. Accordingly, we propose a forfeiture of $6,000
against STi Prepaid for apparently willfully failing to timely file
the January 15, 2009 hearing aid compatibility status report in
violation of section 20.19(i)(1) of the Rules.
21. We have also exercised our discretion to set a higher base forfeiture
amount for violation of the web posting requirements set forth in
section 20.19(h) of the Rules. In determining the appropriate
forfeiture amount for violation of the web site posting requirements,
we noted that these requirements are "essential to the proper
functioning of our hearing aid compatibility rules" and serve to
increase the availability of up-to-date hearing aid compatibility
information to consumers and service providers. In particular, we
found that a web site may be the primary means through which consumers
obtain information, and that the updated information between status
reports is likely to be critical to both consumers and service
providers. We further found that the web site postings, which must be
updated within 30 days of a change in a manufacturer's or service
provider's offerings, will enable consumers to obtain up-to-date
hearing aid compatibility information from their service providers and
will also enable service providers to readily obtain up-to-date
information from their manufacturer suppliers. Accordingly, we
concluded that the same considerations that led us to increase the
base forfeitures for hearing aid compatibility status reporting
violations also apply to the requirement for web posting. We therefore
established $6,000 as the base forfeiture for violation of section
20.19(h).
22. As noted above, despite STi Prepaid's claims that posting a 200-page
user manual on its website constituted "substantial" compliance with
section 20.19(h) of the Rules, the record indicates that even this
manual did not include all the required information about the
company's hearing aid-compatible handset models. STi Prepaid also
presents no mitigating factors in its LOI Response justifying a
downward adjustment to the $6,000 base forfeiture. Accordingly, we
propose a forfeiture of $6,000 against STi Prepaid for apparently
willfully and repeatedly failing to provide required information
concerning its hearing aid-compatible handset models on its public web
site in violation of section 20.19(h) of the Rules.
23. Thus, we propose an aggregate forfeiture of $34,500 against STi
Prepaid for its apparent willful and repeated violations of sections
20.19(e)(2) and 20.19(h) of the Rules, and its apparent willful
violation of section 20.19(i)(1) of the Rules.
IV. ORDERING clauses
24. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the
Act, and section 1.80 of the Rules, STi Prepaid IS NOTIFIED of its
APPARENT LIABILITY FOR A FORFEITURE in the amount of thirty- four
thousand five hundred dollars ($34,500) for its apparent willful and
repeated violations of sections 20.19(e)(2) and 20.19(h) of the Rules,
and its apparent willful violation of section 20.19(i) of the Rules.
25. 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, STi Prepaid SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
26. 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 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. STi Prepaid must also send electronic
notification on the date said payment is made to
Katherine.Power@fcc.gov and Pamera.Hairston@fcc.gov.
27. 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 Katherine Power at Katherine.Power@fcc.gov and to
Pamera Hairston at Pamera.Hairston@fcc.gov.
28. 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.
29. 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 Mr. Richard Rebetti, Chief Technical
Officer, STi Prepaid, LLC, 1250 Broadway, 26th Floor, New York, New
York 10001.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Division
Enforcement Bureau
STi Prepaid also holds both domestic and international section 214
authorizations.
47 C.F.R. S: 20.19(e)(2).
47 C.F.R. S: 20.19(b)(2).
47 C.F.R. S: 20.19(i)(1).
47 C.F.R. S: 20.19(h).
See Section 68.4(a) of the Commission's Rules Governing Hearing
Aid-Compatible Telephones, Report and Order, 18 FCC Rcd 16753, 16787 P: 89
(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).
As subsequently amended, section 20.19(b)(1) provides that, for the period
beginning June 6, 2008 and ending January 1, 2010, a newly certified
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) provides that, for the period beginning June 6, 2008 and
ending January 1, 2010, a newly certified 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). Grants of certification issued before June 6, 2008,
under previous versions of ANSI C63.19 remain valid for hearing aid
compatibility purposes.
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:
20.19(c), (d).
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).
47 C.F.R. S: 20.19(e).
Id. We note that the Commission recently limited the de minimis exception
so that it is unavailable to 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, FCC
10-145 P:P: 35-59 (rel. Aug. 5, 2010).
See Hearing Compatibility First Report and Order, 23 FCC Rcd at 3443 P:
91.
Hearing Aid Compatibility Order, 18 FCC Rcd at 16787 P: 89; see also
Wireless Telecommunications Bureau Announces Hearing Aid Compatibility
Reporting Dates for Wireless Carriers and Handset Manufacturers, Public
Notice, 19 FCC Rcd 4097 (Wireless Tel. Bur. 2004).
See Hearing Compatibility First Report and Order, 23 FCC Rcd at 3445-46
P:P: 97-99.
Id. at P: 99.
Id. at 3450 P: 112.
Id.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Sam Tawfik,
Chief Executive Officer, STi Mobile (November 23, 2009).
See Letter from Richard Rebetti, Chief Technical Officer, STi Prepaid,
LLC, to Katherine Power, Esq., Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission (December 8, 2009) ("Response").
Id. at 1.
Id. at 2.
Id.
Id. at 1-2. Specifically, STi Prepaid states that it currently offers the
following three handset models: LG LX-225, Sanyo SCP-200, and Samsung
SPH-A660. Id. at 1. Commission records indicate that the LG LX-225 handset
(FCC ID BEJLX125) and the Sanyo SCP-200 handset (FCC ID AEZSCP-02H) both
meet an M3 rating for acoustic coupling but do not meet at least a T3
rating for inductive coupling. The Samsung SPH-A660 handset (FCC ID
A3LSPHA660) does not meet either the M3 or T3 rating.
Response at 2. See also http://www.stimobile.com/lg225-user-manual.pdf.,
pp. 185-6. (last visited December 30, 2010).
Response at 2.
Id.
STi Prepaid filed the report for the period July 1, 2008 through December
31, 2008 (originally due on January 15, 2009) on December 30, 2009. See
STi Prepaid Hearing Aid Compatibility Status Report (filed December 30,
2009) at http://fjallfoss.fcc.gov/ecfs/document/view?id=7020355066 ("2008
Report"). This report indicates that STi Prepaid offered only three
handset models during the 2008 reporting period: the LG LX-225, the Sanyo
SCP-200, and the Samsung SPH-A660.
STi Prepaid timely filed the report for the period January 1, 2009 through
December 31, 2009 on January 14, 2010. See STi Prepaid Hearing Aid
Compatibility Status Report (filed January 14, 2010) at
http://wireless.fcc.gov/hac_documents/100317/STi%20Prepaid,%20LLC%20on%20_95.PDF
("2009 Report"). The 2009 Report indicated that STi Prepaid only offered
the same three handset models during the 2009 reporting period as it did
during the 2008 reporting period: the LG LX-225, the Sanyo SCP-200, and
the Samsung SPH-A660.2009.
47 C.F.R. S: 20.19(e)(2) ("service providers that offer three digital
wireless handset models in an air interface must offer at least one
handset model compliant with paragraphs (b)(1) and (b)(2) of this section
in that air interface."); see also 47 C.F.R. S: 20.19(b)(1), (b)(2).
Response at 1, 2.
See supra notes 24, 29, and 30 and accompanying text.
Id.
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"); see also Telrite
Corporation, Notice of Apparent Liability for Forfeiture, 23 FCC Rcd 7231,
7237 P: 12 (2008) ("Telrite"); 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).
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 C.F.R. S: 20.19(i)(1).
See Hearing Compatibility First Report and Order, 23 FCC Rcd at 3443 P:
91.
Response at 2; see supra notes 28 and 29 and accompanying text.
47 C.F.R. S: 20.19(i)(1).
See Hearing Compatibility First Report and Order, 23 FCC Rcd at 3450 P:
112.
Response at 2.
See Hearing Compatibility First Report and Order, 23 FCC Rcd at 3448-9,
3450 P:P: 109, 112 (noting generally that "[t]he idea that consumers
should be able to access as much information as possible through easily
accessible connections to relevant material is a fundamental" and
"find[ing] it essential to the proper functioning of our hearing aid
compatibility rules that manufacturers and service providers make certain
limited categories of up-to-date information available on their websites")
(emphasis added).
While STi Prepaid does not indicate in its LOI response what, if any,
rating information it provided on its web site for the Sanyo SCP-200
handset, we note that the user guide for this handset posted on the STi
Prepaid website, does not include any hearing aid compatibility rating
information. See http://www.stimobile.com/s200-userguide.pdf (last visited
December 30, 2010).
47 C.F.R. S: 20.19(h).
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 has amended section 1.80(b)(3)
of the Rules, 47 C.F.R. S: 1.80(b)(3), three times 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); Amendment of Section
1.80 of the Commission's Rules and Adjustment of Forfeiture Maxima to
Reflect Inflation, Order, 19 FCC Rcd 10945, 10947 (2004) (adjusting the
maximum statutory amounts for common carriers from $120,000/$1,200,000 to
$130,000/$1,300,000); Amendment of Section 1.80 of the Commission's Rules
and Adjustment of Forfeiture Maxima to Reflect Inflation, Order, 15 FCC
Rcd 18221, 18223 (2000) (adjusting the maximum statutory amounts for
common carriers from $100,000/$1,000,000 to $120,000/$1,200,000). The most
recent inflation adjustment took effect September 2, 2008 and only applies
to violations that occur after that date. See 73 Fed. Reg. 44663-5. STi
Prepaid's apparent violations occurred after September 2, 2008, and
therefore are subject to the new forfeiture limits.
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").
See, e.g., SLO Cellular, Inc., Notice of Apparent Liability for
Forfeiture, 23 FCC Rcd 3990, 3996-97 P: 14 (Enf. Bur. 2008), response
received; NEP Cellcorp, Inc., Notice of Apparent Liability for Forfeiture,
24 FCC Rcd 8, 13 P: 11 (Enf. Bur., Spectrum Enf. Div. 2009), forfeiture
paid; Corr Wireless Communications, LLC, Notice of Apparent Liability for
Forfeiture, 23 FCC Rcd 11567, 11571 P: 11 (Enf. Bur., Spectrum Enf. Div.
2008), response received; Blanca Telephone Company, Notice of Apparent
Liability for Forfeiture, 23 FCC Rcd 9398, 9403 P: 12 (Enf. Bur., Spectrum
Enf. Div. 2008), response received; Pinpoint Wireless, Inc., Notice of
Apparent Liability for Forfeiture, 23 FCC Rcd 9290, 9295 P: 11 (Enf. Bur.,
Spectrum Enf. Div. 2008), forfeiture paid; 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 received.
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, 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, 23 FCC Rcd 4485 (Enf. Bur. 2008).
See supra note 50.
47 C.F.R. S: 20.19(e)(2).
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 STi Prepaid'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 STi Prepaid's apparent violations that occurred
within the past year.
47 C.F.R. S: 1.80(b).
See Forfeiture Policy Statement, 12 FCC Rcd at 17099 P: 22, 17101 P: 29.
See also 47 C.F.R. S:1.80(b)(4) ("The Commission and its staff may use
these guidelines in particular cases [and] retain the discretion to issue
a higher or lower forfeiture than provided in the guidelines, to issue no
forfeiture at all, or to apply alternative or additional sanctions as
permitted by the statute.") (emphasis added).
See American Samoa Telecommunications Authority, Notice of Apparent
Liability for Forfeiture, 23 FCC Rcd 16432 (Enf. Bur., Spectrum Enf. Div.
2008), response pending ("ASTCA").
See ASTCA, 23 FCC Rcd at 16436-7 P: 10.
Id.
Id.
Id.
Id. at 16437 P: 11. See also Telrite, 23 FCC Rcd at 7244-45 (determining
that the failure to file Telecommunications Reporting Worksheets was a
continuing violation); Compass Global, Inc., Notice of Apparent Liability
for Forfeiture, 23 FCC Rcd 6125, 6138 (2008) (same); VCI Company, Notice
of Apparent Liability for Forfeiture and Order, 22 FCC Rcd 15933, 15940
(2007) (determining that the failure to file Lifeline and Linkup
Worksheets was a continuing violation).
See Southern California, 6 FCC Rcd at 4387 (stating that "inadvertence ...
is at best, ignorance of the law, which the Commission does not consider a
mitigating circumstance").
See, e.g., Profit Enterprises, Inc., 8 FCC Rcd 2846, 2846 P: 5 (1993)
(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., 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., 15 FCC Rcd 12933, 12935 P: 7 (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., 8 FCC Rcd 784, 784 P: 2 (Mass Med. Bur. 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).
47 C.F.R. S: 20.19(i)(1).
See e.g., Locus Telecommunications, Inc., Notice of Apparent Liability for
Forfeiture, 25 FCC Rcd 330, 335 P: 13 (Enf. Bur., Spectrum Enf. Div. 2010)
("Locus") (quoting Hearing Aid Compatibility First Report and Order, 23
FCC Rcd at 3450 P: 112).
Locus, 25 FCC Rcd at 335 P: 14.
Id.
Id.
Id.
In this regard, we note that each manufacturer and service provider is
required to continuously maintain the required information concerning its
hearing aid-compatible handset models on its web site and to update the
web sites within 30 days of a change in its handset offerings.
47 C.F.R. S: 20.19(h).
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Federal Communications Commission DA 10-2439
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Federal Communications Commission DA 10-2439