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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No.: EB-11-SE-053
)
Keystone Wireless, LLC d.b.a. Immix NAL/Acct. No.: 201232100001
Wireless )
FRN: 0019600535
)
)
Notice of apparent Liability for forfeiture
Adopted: October 28, 2011 Released: October 28, 2011
By the Chief, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we
propose a forfeiture in the amount of one hundred thousand dollars
($100,000) against Keystone Wireless, LLC d.b.a. Immix Wireless
("Keystone Wireless"). As detailed herein, we find that Keystone
Wireless apparently willfully and repeatedly violated sections
20.19(c)(3)(ii) and 20.19(d)(3)(ii) of the Commission's rules
("Rules"). We further find that some of the apparent misconduct
continued for more than 11 of the 12 months in the reporting period.
Specifically, Keystone Wireless apparently failed to offer to
consumers the required number or percentage of hearing aid-compatible
digital wireless handset models as set forth in the Rules. These
hearing aid compatibility requirements serve to ensure that consumers
with hearing loss have access to advanced telecommunications services.
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
that are rated as hearing aid-compatible. The number or percentage of
digital wireless handset models required to be offered to consumers by
each deadline depends on the applicable interference standard ("M"
rating or "T" rating), and the deployment schedule is tailored to the
size of the service provider as measured by its number of subscribers.
Specifically, 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. Beginning May 15, 2010, non-Tier I service
providers were required to offer to consumers at least ten handset
models per digital air interface, or at least 50% of the models
offered per digital air interface, that met or exceeded the M3 rating.
Similarly, between May 15, 2010 and May 14, 2011, non-Tier I service
providers were required to offer at least seven handset models per
digital air interface, or at least one-third of the models offered per
digital air interface, that met or exceeded the T3 rating. 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.
4. On January 7, 2011, Keystone Wireless submitted its Hearing Aid
Compatibility Status Report for the 2010 reporting period ("2010
Report"). The 2010 Report identified each handset model offered by
Keystone Wireless during the 2010 reporting period by its FCC
Identification ("FCC ID"), as well as the handset model's hearing aid
compatibility rating, if any. After a careful review of the 2010
Report, the Wireless Telecommunications Bureau ("WTB") referred this
matter to the Enforcement Bureau ("Bureau") for investigation and
possible enforcement action. As part of its investigation, the Bureau
compared the hearing aid compatibility rating for each handset model
with the rating information contained in the FCC Office of Engineering
and Technology Equipment Authorization System. This review revealed
apparent inconsistencies between the hearing aid compatibility ratings
for certain handset models listed in Keystone Wireless's 2010 Report
and the ratings specified in the Commission's equipment authorizations
for those models. Taking these apparent inconsistencies into account,
we conclude that Keystone Wireless apparently failed to offer, for
extended periods during the 2010 reporting period, the required number
or percentage of handset models that met or exceeded the M3 rating and
the T3 rating.
III. DISCUSSION
A. Failure to Comply with Hearing Aid-Compatible Handset Deployment
Requirements
5. Acoustic Coupling ("M3" or higher rating). We find that Keystone
Wireless apparently failed to offer to consumers the required number
or percentage of hearing aid-compatible handset models that met or
exceeded the M3 rating. As noted above, the Commission has imposed
varying benchmarks for the deployment of hearing aid-compatible
handsets. Between January 1, 2010 and May 14, 2010, Keystone Wireless
was required to offer at least eight or nine M3 or higher rated
handset models per air interface-significantly less than the 15 to 22
handset models it made available to consumers without hearing loss. As
set forth in greater detail in Appendix A, Keystone Wireless
apparently failed to meet this standard, repeatedly falling short by
one to three handset models. During the latter part of the 2010
reporting period (between May 15, 2010 and December 31, 2010), the
handset deployment benchmarks for non-Tier I digital wireless service
providers increased, requiring Keystone Wireless to offer at least ten
handset models with a minimum M3 rating per air
interface-approximately half of the 19 to 22 handset models it made
available to non-hearing aid users. Keystone Wireless also apparently
failed to meet this standard by offering as few as eight and no more
than nine handset models with a minimum M3 rating from May 15, 2010
through October 2010. Accordingly, we find that Keystone Wireless
apparently willfully and repeatedly violated section 20.19(c)(3)(ii)
of the Rules by failing to offer to consumers the required number or
percentage of digital wireless handset models that met or exceeded the
M3 rating. We further find that this apparent misconduct continued for
nine and one-half months.
6. Inductive Coupling ("T3" or higher rating). We also find that Keystone
Wireless apparently failed to offer to consumers the required number
or percentage of hearing aid-compatible handset models that met or
exceeded the T3 rating. Between January 1, 2010 and May 14, 2010,
Keystone Wireless was required to offer at least five handset models
with a minimum T3 rating per air interface, significantly less than
the 15 to 22 handset models it made available to consumers without
hearing loss. As set forth in greater detail in Appendix B, Keystone
Wireless apparently failed to meet this standard by offering only four
handset models with a minimum T3 rating from January through April
2010. During the latter part of the reporting period (between May 15,
2010 and December 31, 2010), Keystone Wireless was required to offer
at least seven handset models with a minimum T3 rating per digital air
interface, again significantly less than the 19 to 22 handset models
it made available to non-hearing aid users. Keystone Wireless also
apparently failed to meet this standard by offering as few as three
and no more than five handset models with a minimum T3 rating from May
15, 2010 through December 2010. Accordingly, we find that Keystone
Wireless apparently willfully and repeatedly violated section
20.19(d)(3)(ii) of the Rules by failing to offer to consumers the
required number or percentage of digital wireless handset models that
met or exceeded the T3 rating. We also find that this apparent
misconduct continued for eleven and one-half months.
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 for forfeiture 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 Keystone
Wireless is apparently liable for a forfeiture for its apparent
willful and repeated violations of sections 20.19(c)(3)(ii) and
20.19(d)(3)(ii) of the Rules.
8. 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."
9. 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 in no way suggests that a forfeiture should not
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.
10. 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 advanced 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 public's
growing reliance on wireless technology and with the increasing median
age of our population.
11. We have previously determined that violations of the hearing
aid-compatible handset deployment requirements are serious in nature
because failure to make compatible handsets available to consumers
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 applied
the $15,000 base forfeiture on a per handset model basis (i.e., for
each handset model below the minimum number of hearing aid-compatible
models required by the Rules). We also impose separate base
forfeitures for the apparent M3-related and T3-related violations.
12. For purposes of calculating the base forfeiture amount for the
M3-related violations, we focus on Keystone Wireless's apparent
failure to offer to consumers the requisite number or percentage of
handset models with a minimum M3 rating in October 2010, where
Keystone missed the benchmark by one handset model. Accordingly, and
consistent with section 503(b)(6) of the Act, Keystone Wireless is
apparently liable for a base forfeiture of $15,000 for failing to
offer to consumers the required number or percentage of M3-rated
handset models in willful and repeated violation of section
20.19(c)(3)(ii) of the Rules.
13. Similarly, the record establishes that Keystone Wireless apparently
failed to offer the requisite number or percentage of handset models
with a minimum T3 rating from October through December 2010, missing
the benchmark by as many as four and as few as three handset models
during this period. Accordingly, and consistent with section 503(b)(6)
of the Act, Keystone Wireless is apparently liable for a base
forfeiture of $60,000 (four T3-rated handset models x $15,000) for
failing to offer to consumers the required number or percentage of
T3-rated handset models in willful and repeated violation of section
20.19(d)(3)(ii) of the Rules.
14. These base forfeiture amounts are, however, subject to upward
adjustment. Given the totality of the circumstances, and consistent
with the Forfeiture Policy Statement, we conclude that an upward
adjustment of the $75,000 total base forfeiture amount is warranted.
In this regard, we take into account that Keystone Wireless was out of
compliance with the hearing aid compatibility handset deployment
requirements for most of the 12-month reporting period-failing to
offer to consumers the requisite number or percentage of handset
models with a minimum M3 rating for nine and one-half months and
failing to offer the requisite number or percentage of handset models
with a minimum T3 rating for eleven and one-half months. Therefore,
based on all the factors and evidence, including the duration of the
violation and the potentially significant impact on consumers with
hearing loss, we propose a forfeiture of $100,000 against Keystone
Wireless for apparently willfully and repeatedly failing to comply
with the hearing aid-compatible handset deployment requirements set
forth in sections 20.19(c)(3)(ii) and 20.19(d)(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, Keystone Wireless,
LLC d.b.a. Immix Wireless IS NOTIFIED of its APPARENT LIABILITY FOR A
FORFEITURE in the amount of one hundred thousand dollars ($100,000) for
apparent willful and repeated violation of section 20.19(c)(3)(ii) and
(d)(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, Keystone Wireless, LLC d.b.a. Immix Wireless,
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 the 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. Keystone Wireless, LLC d.b.a.
Immix Wireless must also send electronic notification to Nissa Laughner at
Nissa.Laughner@fcc.gov and to Pamera Hairston at Pamera.Hairston@fcc.gov
on the date said payment is made.
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. This statement also must be emailed to Nissa Laughner at
Nissa.Laughner@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
("GAAP"); 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 C. Martin, Chief Executive Officer, Keystone
Wireless, LLC d.b.a. Immix Wireless, and Paul Snyder, Network Supervisor,
Keystone Wireless, LLC d.b.a. Immix Wireless, 53 Warwick Street,
Boyertown, PA 19512.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief
Enforcement Bureau
APPENDIX A
Keystone Wireless LLC d.b.a. Immix Wireless
Hearing Aid-Compatible Handset Model Offerings
(M3 or higher rating)
Total M3-rated M3
Period Handset Handset M3-rated Handset
Models Models Models Required Compliance?
Offered Offered
Jan. 15 5 No
2010
Feb. 18 7 No
2010
March 21 7 No
2010
April 21 8 No
2010
May
1-14, 22 9 Yes
2010
May the total number
15-31, 22 9 of handset No
2010 models offered
June 20 9 No
2010 at least 9
July 19 8 At least 50% of No
2010 (1/1/10-5/14/10) the total number
Aug. 21 9 offered or No
2010
Sept. 20 8 handset models No
2010
Oct. 21 9 No
2010
Nov. 22 10 Yes
2010
Dec. 22 10 Yes
2010
APPENDIX B
Keystone Wireless LLC d.b.a. Immix Wireless
Hearing Aid-Compatible Handset Offerings
(T3 or higher rating)
Total T3-rated T3
Period Handset Handset T3-rated Handset
Models Models Models Required Compliance?
Offered Offered
Jan. 15 4 No
2010
Feb. 18 4 No
2010
March 21 4 No
2010
April 21 4 No
2010
May
1-14, 22 5 Yes
2010
May the total number
15-31, 22 5 of handset No
2010 models offered
June 20 4 No
2010 at least 5
July 19 3 At least 1/3 of No
2010 (1/1/10-5/14/10) the total number
Aug. 21 4 offered or No
2010
Sept. 20 3 models No
2010
Oct. 21 3 No
2010
Nov. 22 4 No
2010
Dec. 22 4 No
2010
Keystone Wireless is a Global System for Mobile Communications-based
("GSM-based") Tier III carrier serving central Pennsylvania. Tier III
carriers are non-nationwide wireless radio service providers with 500,000
or fewer subscribers as of the end of 2001. 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), (d)(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
sound by the hearing aid speaker. 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 January 1, 2010, a wireless handset is deemed hearing
aid-compatible for radio frequency interference if, at a minimum, it meets
the M3 rating associated with the technical standard set forth in the
standard document "American National Standard Methods of Measurement of
Compatibility between Wireless Communication Devices and Hearing Aids,"
ANSI 63.19-2007 (June 8, 2007) ("ANSI 63.19-2007"), except that grants of
certification issued before January 1, 2010 under earlier versions of ANSI
C63.19 remain valid for hearing aid compatibility purposes. 47 C.F.R. S:
20.19(b)(1). Section 20.19(b)(2) provides that, for the period beginning
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 set forth in ANSI 63.19-2007, except that grants of
certification issued before January 1, 2010 under earlier versions of ANSI
C63.19 remain valid for hearing aid compatibility purposes. 47 C.F.R. S:
20.19(b)(2).
These handset deployment 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: 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). Effective September 10, 2012, the de minimis
exception will not be available to manufacturers or mobile service
providers that do not meet the definition of a "small entity" beginning
two years after their initial offerings. 47 C.F.R. S: 20.19(e)(1)(ii); see
also 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, 25 FCC Rcd 11167, 11180-11189 P:P: 35-59
(2010) ("Hearing Aid Compatibility Second Report and Order").
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 supra note 8.
See supra note 9.
See Hearing Aid Compatibility First Report and Order, 23 FCC Rcd at 3443
P: 91. 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. Hearing
Aid Compatibility First Report and Order, 23 FCC Rcd at 3445-46 P:P:
97-99. The Commission also made clear that these reporting requirements
apply to manufacturers and service providers that qualify for the de
minimis exception. Id. at 3446 P: 99; see also Hearing Aid Compatibility
Second Report and Order, 25 FCC Rcd at 11180-11189 P:P: 35-59 (2010).
Keystone Wireless, LLC d.b.a. Immix Wireless, Hearing Aid Compatibility
Status Report (filed January 7, 2011), available at
http://wireless.fcc.gov/hac_documents/110210/5928123_85.PDF.
The FCC Office of Engineering and Technology Equipment Authorization
System ("EAS") is an electronic database of all equipment certified under
FCC authority. The EAS identifies the hearing aid compatibility rating of
each device by FCC ID, as reported by the handset manufacturer in test
reports submitted to the Commission at the time of an equipment
authorization. See http://transition.fcc.gov/oet/ea/fccid/.
Specifically, Keystone Wireless's 2010 Report indicated that the Alcatel
Tribe Pro OT-802 handset model (FCC ID RAD133) is rated M3/T3 when in fact
Commission records show that the handset model has only a M3 rating; that
the Motorola Karma QA1 handset model (FCC ID IHDT56KE1) has a M3/T3 rating
when in fact Commission records show that the handset model has only a M3
rating; that the Motorola Milestone handset model (FCC ID IHDP56KC2) is
rated M3/T3 when in fact Commission records show that the handset model is
not rated for hearing aid compatibility; that the Nokia 7020 handset model
(FCC ID QTKRM-497) is rated M3/T3 when in fact Commission records show
that the handset model is rated M3/T4; and that the Samsung SGH-I9000T
Galaxy S handset model (FCC ID A3LGTI9000) has a M3/T3 rating when in fact
Commission records show that the handset model is not rated for hearing
aid compatibility.
See 2010 Report.
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) (requiring non-Tier I digital wireless
service providers to ensure that between May 15, 2009 and May 14, 2010,
either at least 50% of the handset models offered, or at least nine
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 Keystone
Wireless's handset models for the 2010 reporting period operated over the
GSM air interface.
See Appendix A, Keystone Wireless d.b.a. Immix Wireless Hearing
Aid-Compatible Handset Offerings (M3 or higher rating) (indicating that
between January 1, 2010 and April 30, 2010, Keystone Wireless offered
between 15 and 21 handset models, only five to eight of which had a
minimum M3 rating).
See 47 C.F.R. S: 20.19(c)(3)(ii) (requiring non-Tier I digital wireless
service providers to ensure that beginning May 15, 2010, either at least
50% of the handset models offered, or at least ten handset models, met or
exceeded the M3 rating for radio frequency interference).
See Appendix A (indicating that between May 15, 2010 and October 31, 2010,
Keystone Wireless repeatedly fell short of the hearing aid-compatible
handset requirements by one to two handset models).
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) (forfeiture paid); 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 P: 9 (2001),
forfeiture ordered, Forfeiture Order, 17 FCC Rcd 22626 (2002); Southern
California, 6 FCC Rcd at 4388 P: 5.
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) (requiring non-Tier I digital wireless
service providers to ensure that between May 15, 2009 and May 14, 2010,
either at least one-third of the handset models offered, or at least five
handset models, met or exceeded the T3 rating for inductive coupling).
See Appendix B, Keystone Wireless d.b.a. Immix Wireless Hearing
Aid-Compatible Handset Offerings (T3 or higher rating) (indicating that
between January 1, 2010 and April 30, 2010, Keystone Wireless repeatedly
fell short of the hearing aid-compatible handset requirements by one
handset model).
See 47 C.F.R. S: 20.19(d)(3)(ii) (requiring non-Tier I digital wireless
service providers to ensure that between May 15, 2010 and May 14, 2011,
either at least one-third of the handset models they offered, or at least
seven handset models, met or exceeded the T3 rating for inductive
coupling).
See Appendix B (indicating that between May 15, 2010 and December 31,
2010, Keystone Wireless repeatedly fell short of the hearing
aid-compatible handset requirements by two to four handset models).
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 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"); 47 C.F.R. S:S: 1.80, 20.19.
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, or 28
million Americans, 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 [2010]").
See South Canaan Cellular Communications Company, L.P, 23 FCC Rcd 20, 24
P: 11(Enf. Bur., Spectrum Enf. Div. 2008) (forfeiture paid) ("South
Canaan") (finding that "a violation of the labeling requirements, while
serious because it deprives hearing aid users from making informed
choices, is less egregious than a violation of the handset requirements
because failure to make compliant handsets available actually deprives
hearing aid users from accessing digital wireless communications."). See
also, e.g., NEP Cellcorp, Inc., Notice of Apparent Liability for
Forfeiture, 24 FCC Rcd 8, 13 P: 11 (Enf. Bur., Spectrum Enf. Div. 2009)
(forfeiture paid) ("NEP Cellcorp"); Pinpoint Wireless, Inc., Notice of
Apparent Liability for Forfeiture, 23 FCC Rcd 9290, 9295 P: 11 (Enf. Bur.,
Spectrum Enf. Div. 2008), consent decree ordered, Order and Consent
Decree, 24 FCC Rcd 2951 (Enf. Bur., Spectrum Enf. Div. 2009) ("Pinpoint
Wireless"); Smith Bagley, Inc., 24 FCC Rcd 14113, 14118 P: 11 (Enf. Bur.,
Spectrum Enf. Div. 2009), response pending ("Smith Bagley").
See, e.g., NEP Cellcorp, 24 FCC Rcd at 13 P: 11; Pinpoint Wireless, 23 FCC
Rcd at 9295 P: 11; Smith Bagley, 24 FCC Rcd at 14118 P: 11; South Canaan,
23 FCC Rcd at 24 P:11.
See supra note 38.
See supra para. 5.
See supra para. 6.
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 Keystone Wireless'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 P: 8 (2000); BASF Corporation, Notice of Apparent Liability
for Forfeiture, 25 FCC Rcd 17300, 17302 n.24 (Enf. Bur., Spectrum Enf.
Div. 2010); Call Mobile, Inc., Notice of Apparent Liability for
Forfeiture, 26 FCC Rcd 74, 76 n.23 (Enf. Bur., Spectrum Enf. Div. 2011).
The forfeiture amount we propose herein relates only to Keystone
Wireless's apparent violations that have occurred within the past year.
47 C.F.R. S: 20.19(c)(3)(ii), (d)(3)(ii).
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.311, 1.80.
47 C.F.R. S: 20.19(c)(3)(ii), (d)(3)(ii).
47 C.F.R. S: 1.80.
47 C.F.R. S:S: 1.80(f)(3), 1.16.
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Federal Communications Commission DA 11-1809
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Federal Communications Commission DA 11-1809