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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-09-SE-164
East Kentucky Network, LLC ) NAL/Acct. No. 201032100012
d/b/a Appalachian Wireless ) FRN 0001786607
)
Notice of apparent Liability for forfeiture
Adopted: January 14, 2010 Released: January 14, 2010
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that East Kentucky Network, LLC d/b/a Appalachian Wireless ("East
Kentucky Network") apparently willfully violated the hearing aid
compatibility status report filing requirements set forth in Section
20.19(i)(1) of the Commission's Rules ("Rules"). For this apparent
violation, we propose a forfeiture in the amount of five thousand
dollars ($5,000).
II. BACKGROUND
2. In the 2003 Hearing Aid Compatibility Order, the Commission adopted
several measures to enhance the ability of individuals with hearing
disabilities to access digital wireless telecommunications. The
Commission established technical standards that digital wireless
handsets must meet to be considered compatible with hearing aids
operating in acoustic coupling and inductive coupling (telecoil)
modes. The Commission further established, for each standard,
deadlines by which manufacturers and service providers were required
to offer specified numbers or percentages of digital wireless
handsets per air interface that are compliant with the relevant
standard if they did not come under the de minimis exception. In
February 2008, as part of a comprehensive reconsideration of the
effectiveness of the hearing aid compatibility rules, the Commission
released an order that, among other things, adopted new compatible
handset deployment benchmarks beginning in 2008.
3. Of primary relevance, the Commission also adopted reporting
requirements to ensure that it could 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. 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 service providers that fit
within the de minimis exception.
4. East Kentucky Network failed to timely file the required report for
the period July 1, 2008 through December 31, 2008, filing it on
October 13, 2009, nearly nine months after the deadline of January
15, 2009. The Wireless Telecommunications Bureau ("WTB") referred
East Kentucky Network's apparent violation of the hearing aid
compatibility reporting requirements to the Enforcement Bureau for
action.
5. On October 8, 2009, the Spectrum Enforcement Division of the
Enforcement Bureau sent a Letter of Inquiry ("LOI") to East Kentucky
Network to investigate a potential violation of Section 20.19(i)(1)
of the Rules. East Kentucky Network responded to the LOI on October
14, 2009. In its Response, East Kentucky Network states that it
attempted to file the report on January 12, 2009, but the filing was
incomplete due to administrative error by the filing attorney, who
failed to attach and confirm attachment of the report. Following
receipt of the LOI, East Kentucky Network filed the report on October
13, 2009.
III. DISCUSSION
A. Failure to File Hearing Aid Compatibility Status Report
6. Section 20.19(i)(1) of the Rules requires service providers to file
hearing aid compatibility status reports under the current rules
initially on January 15, 2009 (covering the six month period ending
December 31, 2008) and then annually beginning January 15, 2009.
These reports are necessary to enable the Commission to perform its
enforcement function and evaluate whether East Kentucky Network is in
compliance with Commission mandates that were adopted to facilitate
the accessibility of hearing aid-compatible wireless handsets. These
reports also provide valuable information to the public concerning
the technical testing and commercial availability of hearing
aid-compatible handsets. East Kentucky Network did not file the
report covering the six month period ending December 31, 2008 until
October 13, 2009, nearly nine months after the January 15, 2009 due
date. Accordingly, we find that East Kentucky Network failed to
timely file the hearing aid compatibility status report in apparent
willful violation of the requirements set forth in Section
20.19(i)(1) of the Rules.
B. 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 East Kentucky
Network is apparently liable for forfeiture for its failure to timely
file the required hearing aid compatibility status report in apparent
willful violation of the requirements set forth in Section
20.19(i)(1) of the Rules.
8. The Commission's 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. In exercising such discretion, 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. 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 hold the digital wireless industry accountable to the
increasing number of hearing-impaired individuals. We noted that when
setting an $8,000 base forfeiture for violations of the hearing
aid-compatible handset labeling requirements, the Commission
emphasized that individuals with hearing impairments 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 upwardly adjusted the base forfeiture
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 hearing aid
compatibility reports. Consistent with ASTCA, we will apply the same
base forfeiture amount here.
10. 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. We find, however, that downward
adjustment from the $6,000 base forfeiture amount to $5,000 is
warranted based on East Kentucky Network's demonstrated good faith
effort in timely attempting to file the report, although
unsuccessfully. Accordingly, we propose a forfeiture of $5,000
against East Kentucky Network for apparently willfully failing to
timely file its January 15, 2009 hearing aid compatibility status
report in violation of Section 20.19(i)(1) of the Rules.
IV. ORDERING clauses
11. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Section 1.80 of the Rules, East Kentucky Network, LLC d/b/a
Appalachian Wireless IS NOTIFIED of its APPARENT LIABILITY FOR A
FORFEITURE in the amount of five thousand dollars ($5,000) for
failing to file its hearing aid compatibility status report in
apparent willful violation of the requirements set forth in Section
20.19(i)(1) of the Rules.
12. 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, East Kentucky Network SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
13. 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.
East Kentucky Network will also send electronic notification on the
date said payment is made to Katherine.Power@fcc.gov and
Ricardo.Durham@fcc.gov.
14. 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/Acct. No. referenced in the caption. The
statement should also be emailed to Ricardo Durham at
Ricardo.Durham@fcc.gov and Katherine Power at
Katherine.Power@fcc.gov.
15. 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.
16. 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 Gerald F. Robbinette,
Chief Executive Officer, East Kentucky Network LLC d/b/a Appalachian
Wireless, 101 Technology Trail, Ivel, Kentucky 41642, and to its
counsel, Pamela L. Gist, Esquire Lukas, Nace, Gutierrez & Sachs, LLP,
1650 Tysons Blvd., Suite 1500, McLean, Virginia 22102.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
47 C.F.R. S: 20.19(i)(1).
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 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").
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16777 P: 56; 47 C.F.R.
S:S: 20.19(b)(1) and (2).
The term "air interface" refers to the technical protocol that ensures
compatibility between mobile radio service equipment, such as handsets,
and the service provider's base stations. Currently, the leading air
interfaces include Code Division Multiple Access ("CDMA"), Global System
for Mobile Communications ("GSM"), Integrated Dispatch Enhanced Network
("iDEN") and Wideband Code Division Multiple Access ("WCDMA") a/k/a
Universal Mobile Telecommunications System ("UMTS").
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16780 P: 65; 47 C.F.R.
S:S: 20.19(c), (d). The de minimis exception provides that manufacturers
or mobile service providers that offer two or fewer digital wireless
handset models per air interface are exempt from the hearing aid
compatibility deployment requirements, and manufacturers or mobile service
providers that offer three digital wireless handset models per air
interface must offer at least one compliant model. 47 C.F.R. S: 20.19(e).
See Amendment of the Commission's Rules Governing Hearing Aid-Compatible
Mobile Handsets, First Report and Order, 23 FCC Rcd 3406 (2008) ("Hearing
Aid Compatibility First Report and Order"), Order on Reconsideration and
Erratum, 23 FCC Rcd 7249 (2008).
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.
See East Kentucky Network, LLC d/b/a Appalachian Wireless Hearing Aid
Compatibility Status Report, Docket No. 07-250 (October 13, 2009).
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Gerald Robbins,
GM/CEO, East Kentucky Network, dba Appalachian Wireless (October 8, 2009).
See Letter from Pamela L. Gist, Counsel for East Kentucky Network, LLC
d/b/a Appalachian Wireless, to Marlene H. Dortch, Secretary, Federal
Communications Commission (October 14, 2009) ("Response").
Id., at 2. East Kentucky Network acknowledges that it received a copy of
the electric confirmation receipt of the filing dated January 12, 2009
from the FCC's Electronic Comment Filing System ("ECFS"), which displays
the words "Number of Files Transmitted: 0," but states that it failed to
notice this wording until after receipt of the Division's LOI. We note
that ECFS provides detailed instructions for attaching documents to
electronic filings and provides a review page which enables users to view
the information they entered before submitting to ensure accuracy. ECFS
also provides instructions for checking the status of filings once they
are posted to ECFS. Given these instructions and safeguards, and the
electronic receipt received by East Kentucky Network, we think that East
Kentucky Network was on notice that it had failed to successfully transmit
its hearing aid compatibility status report.
Id.
47 C.F.R. S: 20.19(i)(1).
Section 312(f)(1) of the Act defines "willful" as "the conscious and
deliberate commission or omission of [any] act, irrespective of any intent
to violate" the law. 47 U.S.C. S: 312(f)(1). The legislative history of
Section 312(f)(1) of the Act clarifies that this definition of willful
applies to both Sections 312 and 503(b) of the Act, H.R. Rep. No. 97-765,
97th Cong. 2d Sess. 51 (1982), and the Commission has so interpreted the
term in the Section 503(b) context. See Southern California Broadcasting
Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 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).
47 C.F.R. S: 20.19(i)(1).
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 C.F.R. S: 20.19(i)(1).
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).
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 American Samoa Telecommunications Authority, Notice of Apparent
Liability for Forfeiture, 23 FCC Rcd 16432 (Enf. Bur., Spectrum Enf. Div.
2008), response pending ("ASTCA NAL").
See ASTCA NAL, 23 FCC Rcd at 16436-47 P: 10.
Id.
Id.
Id.
See Praise Communications, Inc., Forfeiture Order, 23 FCC Rcd 9130, 9141
(Med. Bur., Audio Div. 2008) (reduction given for two "good faith" but
unsuccessful attempts to file a renewal application in a timely manner);
Lazer Licenses, LLC, Forfeiture Order, 23 FCC Rcd 2589 (Enf. Bur., West.
Reg. 2008) (good faith reduction given for material timely prepared for
public inspection file but misplaced).
47 C.F.R. S: 20.19(i)(1).
Id.
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Federal Communications Commission DA 10-79
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Federal Communications Commission DA 10-79