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Before the

Federal Communications Commission

Washington, D.C. 20554

)

)
File No.: EB-10-SE-111
In the matter of )
NAL/Acct. No.: 201132100020
Epic Touch Co., Inc. )
FRN: 0005599634
)

)

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
propose a forfeiture of nineteen thousand five hundred dollars
($19,500) against Epic Touch Co., Inc. ("Epic Touch"), a Global System
for Mobile Communications-based ("GSM-based") Tier III carrier,
serving parts of Kansas and Oklahoma. As detailed herein, we find that
Epic Touch 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 compliance reports from service providers and
manufacturers.

4. On January 15, 2010, Epic Touch submitted its hearing aid
compatibility status report for the 2009 reporting period. A review of
Epic Touch's 2009 Report revealed apparent inconsistencies between the
hearing aid compatibility ratings for certain handsets listed in Epic
Touch's 2009 Report and the ratings for those handsets specified in
the Commission's equipment authorizations for those handsets. Taking
these apparent inconsistencies into account, Epic Touch's 2009 Report
indicated that between April 1, 2009 and December 31, 2009, it did not
offer the required number or percentage of handsets that met or
exceeded the M3 rating.

5. The Wireless Telecommunications Bureau subsequently referred Epic
Touch's apparent violation of the hearing aid-compatible handset
requirements to the Enforcement Bureau ("Bureau") for possible
enforcement action. On September 7, 2010, the Bureau issued a letter
of inquiry ("LOI") to Epic Touch. Epic Touch responded to the LOI on
September 17, 2010. In its LOI Response, Epic Touch explained that one
of its employees was responsible for ordering an appropriate set of
handsets with a mix of capabilities, including M3-rated phones that
would appeal to its customer base, while at the same time complying
with the FCC's hearing aid compatibility requirements. In order to
verify the hearing aid compatibility ratings of the handsets it
offered, Epic Touch stated that it utilized information on the
Phonescoop.com web site, which includes a link to the FCC's equipment
authorization database. Epic Touch asserted that its personnel
accessed the Phonescoop.com web site and used the links to the
relevant FCC database to verify the hearing aid compatibility rating
for the handsets it offered. Epic Touch also indicated that it had
again reviewed the information submitted in its 2009 Report and
identified only two typographical errors. Finally, Epic Touch claimed
that it complied with the requirements set forth in section
20.19(c)(3)(ii) of the Rules regarding the number of M3-rated handsets
it was required to offer between January 1, 2009 and December 31, 2009
because it offered a total of nine handsets that met the M3 rating
during the relevant time periods.

III. DISCUSSION

A. Failure to Comply with Hearing Aid-Compatible Handset Deployment
Requirements

6. We find that Epic Touch 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, Epic Touch
was obligated to offer at least eight hearing aid-compatible handset
models - less than half of the 19 handsets the company offered to
consumers without hearing loss. Epic Touch failed to meet this
standard, offering only seven M3-rated hearing aid-compatible handsets
during April and 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 Epic Touch
was thus required to offer at least nine M3-rated hearing
aid-compatible handsets during this period - significantly less than
the 19 to 27 handsets offered to non-hearing aid users - the company
again failed to offer the requisite number of hearing-aid compatible
handsets, repeatedly falling short by one to two models.

7. Notwithstanding this evidence, Epic Touch claimed that it offered the
required number of M3-rated handsets between January 1, 2009 and
December 31, 2009 because it offered nine handsets that met the M3
rating during the relevant time periods. We are unpersuaded by this
assertion. While Epic Touch may have offered a total of nine different
M3-rated handset models over the course of the period beginning on
January 1, 2009 through May 14, 2009, and a total of 11 different
M3-rated handset models over the course of the period beginning May
15, 2009 through December 31, 2009, its 2009 Report (as clarified in
the LOI Response) establishes that it did not offer the required
number of M3-rated handsets at all times throughout these periods. As
set forth above, Epic Touch offered only seven M3-rated handsets at
all times between April and July of 2009, and Epic Touch offered only
eight M3-rated handsets at all times between August and December of
2009. The only reasonable reading of our hearing aid compatibility
rules is that the required number of handsets must be available at all
times; otherwise, a company could, for example, offer nine M3-rated
handsets for a very short subset of the reporting period and still be
in compliance. Such an interpretation is not supported by the plain
language of the rules or their underlying intent, which is to ensure
that consumers have substantial and increasing choices of hearing
aid-compatible handsets, and such rationale has never been used by the
Commission to determine compliance with these vitally important rules.
Accordingly, we conclude that Epic Touch apparently willfully and
repeatedly violated section 20.19(c)(3)(ii) of the Rules for nine
months of the 12-month reporting period.

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 Epic Touch is apparently liable for a
forfeiture for its apparent willful and repeated violations of section
20.19(c)(3)(ii) of the Rules.

9. 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, 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."

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-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.

12. 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
below the minimum number of hearing aid-compatible models required by
the rules).

13. The record establishes that Epic Touch failed to offer the required
number of M3-rated handsets between April 1, 2009 and December 31,
2009, missing the benchmark by one to two handsets. Accordingly, and
consistent with section 503(b)(6) of the Act, Epic Touch is apparently
liable for a base forfeiture of $15,000 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.

14. This base forfeiture amount is, however, subject to upward adjustment.
We note, in this regard, that Epic Touch was out of compliance with
the hearing aid-compatible handset deployment requirements for nine of
the 12 months that constitute the 2009 reporting period. In view of
the extended 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 from $15,000 to
$19,500 is warranted. We therefore propose a $19,500 forfeiture
against Epic Touch 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, Epic Touch Co.,
Inc. IS NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the amount
of nineteen thousand five hundred dollars ($19,500) 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, Epic Touch Co., 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 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. Epic Touch Co., Inc. must also send electronic
notification on the date said payment is made to JoAnn Lucanik at
JoAnn.Lucanik@fcc.gov and 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 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 Robert Boaldin, President, Epic Touch Co., Inc., 610
South Cosmos, Elkhart, KS 67950.

FEDERAL COMMUNICATIONS COMMISSION

P. Michele Ellison

Chief, Enforcement Bureau

APPENDIX

Epic Touch Hearing Aid-Compatible Handset Offerings (M3 Rating)

Hearing
Aid- Hearing
Total Compatible Aid-Compatible
Period Handsets Handsets Handsets Compliance?
Offered Offered Required

(M3 (M3 rating)
rating)

January 7 14 Yes
2009

February 9 20 Yes
2009

March 8 21 Yes
2009

April 19 7 No
2009

May 1-14, 19 7 or
2009

May the total
15-31, 19 7 number of
2009

June 2009 19 7 offered 50% or No

July 2009 20 7 (April 1, 2009 at least No

August 22 8 total No
2009 May 14, 2009) number

September 25 8 handsets No
2009 offered

October 26 8 (May 15, No
2009 2009 -

November 27 8 31, No
2009 2009)

December 26 8 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).

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 ("the 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) 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) 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, FCC
10-145 P:P: 35-59 (rel. Aug. 5, 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.

See Epic Touch Co., Inc. Hearing Aid Compatibility Status Report (filed
January 15, 2010) ("2009 Report"), at
http://wireless.fcc.gov/hac_documents/100317/EpicTouchCo_86.PDF.

Specifically, Epic Touch's 2009 Report indicated that the Nokia 3610
handset (FCC ID QMNRM-429) has an M3/T3 rating. See 2009 Report.
Commission records, however, show that this handset has only a M3 rating
for hearing aid compatibility. In addition, Epic Touch's 2009 Report
indicated that the Motorola V306 handset (FCC ID IHDT56HJ1) has not been
rated for hearing aid compatibility; the Motorola A45EcoMurano (FCC ID
IHDP56KH1) has not been rated for hearing aid compatibility; and the
Motorola EM330 (FCC ID IHDP56JJ1) has an M3 rating. See 2009 Report.
Commission records indicate that the Motorola V306 handset has an M3/T3
rating; the Motorola A45EcoMurano has an M3 rating; and the Motorola EM330
has an M3/T3 rating.

See 2009 Report. Epic Touch's 2009 Report indicates that it offered the
required number of T3-rated handsets during the 2009 reporting period. Id.

See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Robert Boaldin,
President, Epic Touch Co., Inc. (September 7, 2010).

See Letter from Robert Boaldin, President, Epic Touch Co., Inc., to
Kathryn S. Berthot, Chief, Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission (September 17, 2010) ("LOI
Response").

Id. at 2.

Id.

LOI Response at 1. Epic Touch attributed the discrepancy between the
handset rating noted in its 2009 Report for the Nokia 3610 handset and the
rating specified in the Commission's records for this handset to a
typographical error. Epic Touch also noted that during the course of
preparing its LOI Response, it discovered an additional typographical
error. Specifically, with regard to the Sony Ericsson W580i handset (FCC
ID PY7A1052402), Epic Touch stated that handset was available at least
through September 2009, rather than May 2009, as specified in its 2009
Report. Id. at 1-2. The handset figures which form the basis for this NAL
include the Sony Ericsson W580i through September 2009.

Id. at 3.

See Appendix, Epic Touch Hearing Aid-Compatible Handset Offerings; see
also 47 C.F.R. S: 20.19(c)(3)(ii) (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 Epic Touch's
handsets for the 2009 reporting period operated only over the GSM air
interface.

Non-Tier I digital wireless service providers are required 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. 47 C.F.R. S: 20.19(c)(3)(ii).

See Appendix (indicating that between May 15, 2009 and December 31, 2009,
Epic Touch offered between 19 and 27 total handsets, only 7-8 of which
were hearing-aid compatible).

Specifically, Epic Touch stated that during the period beginning on
January 1, 2009 through May 14, 2009, it offered the following nine
M3-rated handsets: Motorola W510, Motorola V8, Motorola W230, Nokia 2760,
Nokia 3610, Nokia N76, Samsung t219, Samsung SGH-T439, Sony Ericsson
W580i. Epic Touch stated that during the period beginning on May 15, 2009
through December 31, 2009, it offered the following nine M3-rated
handsets: Motorola W510, Motorola V8, Motorola W230, Motorola EM330, Nokia
2720, Nokia 2760, Nokia 3610, Samsung SGH-T439, and Sony Ericsson W580i.
LOI Response at 3.

In this regard, we note that in two instances the inconsistencies in the
ratings information provided in Epic Touch's 2009 Report were resolved
favorably to Epic Touch. Specifically, in addition to the nine M3-rated
handsets listed by Epic Touch, we have concluded it also offered during
this period the Motorola V306 and the Motorola A45 EcoMurano, both of
which are M3-rated. See note 14 supra.

See Hearing Aid Compatibility First Report and Order, 23 FCC Rcd at 3444
P: 96 (clarifying that manufacturers and service providers must provide
the dates on which they began and ended offering specific models during
the past 12 months in order to demonstrate compliance over time and noting
that the revised reporting requirements will enable the Commission to
verify compliance with all of the hearing aid compatibility rules at all
relevant times).

Epic Touch was required to offer at least eight M3-rated handsets at all
times between April 1, 2009 and May 14, 2009, and at least nine M3-rated
handsets at all times between May 15, 2009 and December 31, 2009. See 47
C.F.R. S: 20.19(c)(3)(ii).

Section 20.19(c)(3)(ii) provides, in relevant part, that a non-Tier I
service provider must "ensure that it offers, at a minimum, the following
specified number of handset models that comply with paragraph (b)(1) of
this section ... [b]eginning May 15, 2009, at least nine (9) handset
models." See 47 C.F.R. S: 20.19(c)(3)(ii). See also Hearing Aid
Compatibility First Report and Order, 23 FCC Rcd at 3415-24 P:P: 26-46.

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). 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. The most recent inflation adjustment took effect September
2, 2008 and applies to violations that occur after that date. 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); 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., Oklahoma Independent RSA 5 Partnership, Notice of Apparent
Liability for Forfeiture, DA 10-1654 P: 11 (Enf. Bur. rel. August 30,
2010), response pending; OK-5 Licensee Co., LLC, Notice of Apparent
Liability for Forfeiture, DA 10-1659 P: 11 (Enf. Bur. rel. August 30,
2010), response pending; TX-10 Licensee, LLC dba Cellular One, Notice of
Apparent Liability for Forfeiture, DA 10-1657 P: 11 (Enf. Bur. rel. August
30, 2010), response pending; 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.

See id.

See paragraph 6 supra.

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 Epic Touch'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 Epic Touch'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, 1.80.

Federal Communications Commission DA 10-2440