Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************



                                  May 26, 2010

   VIA CERTIFIED MAIL - RETURN RECEIPT REQUESTED

   Movida Cellular

   11910 Parklawn Drive, Suite U

   Rockville MD 20852

   Re: File No. EB-09-SE-182

   Dear Sir or Madam:

   This is an official CITATION issued to Movida Cellular ("Movida"), a
   reseller of wireless services, pursuant to section 503(b)(5) of the
   Communications Act of 1934, as amended ("Act"), for violating the digital
   wireless handset hearing aid compatibility status report filing
   requirements set forth in section 20.19(i)(1) of the Commission's rules
   ("rules"), and the public web site posting requirements set forth in
   section 20.19(h) of the rules. We also find that Movida violated a
   Commission order by failing to respond to an Enforcement Bureau Letter of
   Inquiry ("LOI") directing Movida to provide certain information and
   documents concerning its compliance with the digital wireless handset
   hearing aid compatibility requirements. As explained below, future
   violations of the Commission's rules in this regard may subject Movida to
   monetary forfeitures.

   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.

   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,
   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
   instituted a requirement that manufacturers and service providers with
   publicly-accessible web sites maintain a list of hearing aid-compatible
   handset models and 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, will enable
   consumers to obtain up-to-date hearing aid compatibility information from
   their service providers.

   Movida, a reseller of wireless service, did not file a hearing aid
   compatibility status report prior to the January 15, 2009 deadline. The
   Wireless Telecommunications Bureau referred Movida's apparent violation of
   the hearing aid compatibility reporting requirement to the Enforcement
   Bureau for possible enforcement action. On December 1, 2009, the Spectrum
   Enforcement Division of the Commission's Enforcement Bureau ("Division")
   issued Movida a Letter of Inquiry ("LOI") to investigate whether Movida
   violated the digital wireless handset hearing aid compatibility status
   report filing requirements set forth in section 20.19(i)(1), and the
   public web site posting requirements set forth in section 20.19(h) of the
   rules. Movida's response to the LOI, which was due on December 16, 2009,
   has not yet been received. Additionally, according to the Commission's
   records, Movida also has not filed its hearing aid compatibility status
   report that was due January 15, 2010.

   Sections 4(i), 4(j), and 403 of the Act afford the Commission broad
   authority to investigate the entities it regulates. Section 4(i)
   authorizes the Commission to "issue such orders, not inconsistent with
   this Act, as may be necessary in the execution of its functions." Section
   4(j) states that "[t]he Commission may conduct its proceedings in such
   manner as will best conduce to the proper dispatch of business and to the
   ends of justice." Section 403 grants the Commission "full authority and
   power at any time to institute an inquiry, on its own motion, in any case
   and as to any matter or thing concerning which complaint is authorized to
   be made, to or before the Commission by any provision of this Act, or
   concerning which any question may arise under any of the provisions of
   this Act."

   Pursuant to this authority, we sent Movida's attorney, Mr. Sellman, an LOI
   on December 1, 2009, directing Movida to provide certain information and
   documents. The Postal Service certified mail receipt indicates that the
   LOI was received in Mr. Sellman's office on December 2, 2009. However, the
   Commission has not received the information sought by the LOI.
   Accordingly, it appears that Movida has violated a Commission order by
   failing to respond to Enforcement Bureau directives to provide certain
   information and documents.

   A party may not ignore the directives in a Bureau inquiry letter. You are
   again ordered, pursuant to sections 4(i), 4(j) and 403 of the Act, to
   provide the information originally sought by our LOI of December 1, 2009
   (copy enclosed). Movida must provide this information in the manner
   indicated therein within 20 days of the date of this citation.

   Furthermore, we find that, as a reseller of wireless services, Movida is a
   service provider subject to the wireless handset hearing aid compatibility
   requirements. Movida resells prepaid wireless cards and services. The
   Commission has made clear that the hearing aid compatibility requirements
   apply to service providers such as resellers. Thus, Movida is a service
   provider subject to the wireless handset hearing aid compatibility
   requirements. Under section 20.19(i)(1) of the Rules, service providers
   must file hearing aid compatibility status reports initially on January
   15, 2009, and annually thereafter. These reports are necessary to enable
   the Commission to perform its enforcement function and evaluate whether
   Movida 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.  Based on the record before us, we find that
   Movida did not file the January 15, 2009 and January 15, 2010 reports.
   Accordingly, Movida violated the hearing aid compatibility status report
   filing requirements set forth in section 20.19(i)(1) of the rules

   Section 20.19(h) of the Rules requires that, beginning January 15, 2009,
   each manufacturer and service provider that operates a publicly-accessible
   web site make available on its web site a list of all hearing
   aid-compatible handset models currently offered, the ratings of those
   models, and an explanation of the rating system. In addition, the
   Commission has stated that any changes to a manufacturer's or service
   provider's offerings must be reflected on its public web site listing
   within 30 days. These web site postings provide consumers up-to-date
   hearing aid compatibility information. Based on our review of Movida's web
   site, it failed to post the required information on its web site in
   violation of section 20.19(h) of the rules.

   Movida should take prompt action to ensure that it does not continue to
   violate the Commission's wireless hearing aid compatibility rules. If,
   after receipt of this Citation, Movida violates the Communications Act or
   the Commission's rules or orders in any manner described herein, the
   Commission may impose monetary forfeitures not to exceed $150,000 for each
   such violation or each day of a continuing violation. 

   Movida may respond to this citation within 30 days from the date of this
   letter either through (1) a personal interview at the Commission's Field
   Office nearest to your place of business, or (2) a written statement.
   Movida's response should specify the actions that it is taking to ensure
   that it does not violate the Commission's rules governing the filing of
   hearing aid compatibility status reports in the future.

   The nearest Commission field office appears to be the Columbia District
   Office, in Columbia, Maryland. Please call Katherine Power at 202-418-1909
   if Movida wishes to schedule a personal interview. Movida should schedule
   any interview to take place within 30 days of the date of this letter.
   Movida should send any written statement within 30 days of the date of
   this letter to:

   Katherine Power

   Spectrum Enforcement Division

   Enforcement Bureau

   Re: EB-09-SE-182

   Federal Communications Commission

   445 12th Street, S.W., Rm. 3-A365

   Washington, D.C. 20554

   Under the Privacy Act of 1974, we are informing Movida that the
   Commission's staff will use all relevant material information before it,
   including information that Movida discloses in its interview or written
   statement, to determine what, if any, enforcement action is required to
   ensure Movida's compliance with the Communications Act and the
   Commission's rules and orders.

   The knowing and willful making of any false statement, or the concealment
   of any material fact, in response to this citation is punishable by fine
   or imprisonment.

   We thank Movida in advance for its anticipated cooperation.

   Sincerely,

   Kathryn Berthot

   Chief, Spectrum Enforcement Division

   Enforcement Bureau

   Enclosure

   cc: David S. Sellman, Esq.

   Movida is owned by Cozac Wireless, a subsidiary of APC Wireless. Each of
   the three entities lists the above address as its address.

   47 U.S.C. S: 503(b)(5).

   47 C.F.R. S: 20.19(i)(1).

   47 C.F.R. S: 20.19(h).

   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).

   See Hearing Aid Compatibility Order, 18 FCC Rcd at 16777 P: 56; 47 C.F.R.
   S: 20.19(b)(1), (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 Digital 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: 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 Aid 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 Aid Compatibility First Report and Order, 23 FCC Rcd at
   3445-46 P:P: 97-99.

   Id. P: 99.

   Id. at 3450 P: 112.

   Id.

   See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
   Enforcement Bureau , to David S. Sellman, Esq., counsel to Movida Cellular
   (December 1, 2009). On November 30, 2009, Mr. Sellman e-mailed Katherine
   Power, Attorney Advisor, Spectrum Enforcement Division, Enforcement
   Bureau, Federal Communications Commission, to inform her that he was
   representing Movida.

   Ms. Power telephoned Mr. Sellman in January, February and March, 2010, and
   left messages which were not returned.

   47 U.S.C. S:S: 154 (i), 154 (j), 403.

   47 U.S.C. S: 154 (i).

   47 U.S.C. S: 154 (j).

   47 U.S.C. S: 403.

   See USPS receipt No. 7008114000280562217, showing that the December 1,
   2009 LOI was signed by "K. Raymond," on December 2, 2009.

   See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589,
   7591 (2002). In SBC Communications, the Commission assessed a $100,000
   forfeiture against a carrier for its willful refusal to supply a sworn
   declaration in response to an Enforcement Bureau letter of inquiry. The
   Commission stated: "[T]he order here was squarely within the Commission's
   authority and, in any event, parties are required to comply with
   Commission orders even if they believe them to be outside the Commission's
   authority." Id. at 7591.

   See 47 C.F.R. S: 1.80(b)(3).

   According to its web site, Movida sells prepaid telephones and airtime for
   those telephones. See http://www.movidacelular.com (last visited May 12,
   2010).

   See e.g., Hearing Compatibility First Report and Order, 23 FCC Rcd at 3424
   P: 46 (concluding that a three-month extension of deadlines for meeting
   the handset deployment benchmarks is appropriate with regard to "service
   providers that are not Tier I nationwide providers, including regional and
   smaller providers, such as Tier II and Tier III carriers, and other
   service providers such as resellers and MVNOs.").

   See 7-Eleven, Inc., Citation, 25 FCC Rcd 344, 346 (Enf. Bur., Spectrum
   Enf. Div. 2010).

   47 C.F.R. S: 20.19(i)(1).

   47 C.F.R. S: 20.19(h).

   See Hearing Aid Compatibility First Report and Order, 23 FCC Rcd at 3450
   P: 112.

   See 47 C.F.R. S: 1.80(b)(3).

   See 5 U.S.C. S: 552a(e)(3).

   See 18 U.S.C. S: 1001.

   Federal Communications Commission DA 10-934

   1

   1

   Federal Communications Commission DA 10-934

                       FEDERAL COMMUNICATIONS COMMISSION

                             WASHINGTON, D.C. 20554