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
Liberty Wireless
11910 Parklawn Drive, Suite U
Rockville MD 20852
Re: File No. EB-09-SE-179
Dear Sir or Madam:
This is an official CITATION issued to Liberty Wireless ("Liberty"), 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 Liberty violated a
Commission order by failing to respond to an Enforcement Bureau Letter of
Inquiry ("LOI") directing Liberty 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 Liberty 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.
Liberty, 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 Liberty'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 Liberty a Letter of Inquiry ("LOI"), to investigate whether Liberty
violated the digital wireless handset hearing aid compatibility status
report filing requirements set forth in section 20.19(i)(1) of the rules,
and the public web site posting requirements set forth in section 20.19(h)
of the rules. Liberty's response to the LOI, which was due on December 16,
2009, has not yet been received. Additionally, according to the
Commission's records, Liberty 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 Liberty's attorney, Mr. Sellman, an
LOI on December 1, 2009, directing Liberty 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 Liberty 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). Liberty 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, Liberty is
a service provider subject to the wireless handset hearing aid
compatibility requirements. Liberty 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, Liberty
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 Liberty 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 Liberty did not file the January 15, 2009 and January 15, 2010
reports. Accordingly, Liberty 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 Liberty's
web site, it failed to post the required information on its web site in
violation of section 20.19(h) of the rules.
Liberty 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, Liberty 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.
Liberty 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.
Liberty'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 Liberty wishes to schedule a personal interview. Liberty should
schedule any interview to take place within 30 days of the date of this
letter. Liberty 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-179
Federal Communications Commission
445 12th Street, S.W., Rm. 3-A365
Washington, D.C. 20554
Under the Privacy Act of 1974, we are informing Liberty that the
Commission's staff will use all relevant material information before it,
including information that Liberty discloses in its interview or written
statement, to determine what, if any, enforcement action is required to
ensure Liberty'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 Liberty in advance for its anticipated cooperation.
Sincerely,
Kathryn Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
Enclosure
cc: David S. Sellman, Esq.
Liberty 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 Liberty
Wireless (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 Liberty.
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. 7008114000280562224, showing that the December 1,
2009 LOI was signed by "K. Raymond," on December 3, 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, Liberty sells prepaid telephones and airtime
for those telephones. See http://www.libertywireless.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 10-937
2
2
Federal Communications Commission DA 10-937
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554