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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.

   (Continued from previous page ...)

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   Federal Communications Commission DA 10-79

   2

   Federal Communications Commission DA 10-79