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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No.: EB-11-SE-045
Airadigm Communications, Inc. ) NAL/Acct. No.: 201232100010
dba Airfire Wireless ) FRN: 0002701688
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
AND ADMONISHMENT
Adopted: December 23, 2011 Released: December 23, 2011
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Admonishment
("NAL"), we propose a forfeiture in the amount of thirty thousand
dollars ($30,000) and issue an admonishment against Airadigm
Communications, Inc. dba Airfire Wireless ("Airadigm"). As detailed
herein, we find that Airadigm apparently willfully and repeatedly
violated sections 20.19(c)(3)(ii) and 20.19(d)(3)(ii) of the
Commission's rules ("Rules"). Specifically, Airadigm 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 must 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 compatibility 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.
4. On January 17, 2011, Airadigm submitted a Hearing Aid Compatibility
Status Report covering January 1, 2010 to December 31, 2010. Airadigm
identified each handset model it offered to consumers in its retail
stores and on its website, www.airfiremobile.com, and specified the
model's FCC Identification ("FCC ID") as well as the hearing aid
compatibility rating, if any. After a careful review of Airadigm's
submission, the Wireless Telecommunications Bureau referred this
matter to the Enforcement Bureau ("Bureau") for investigation. As part
of its investigation, the Bureau consulted the FCC Office of
Engineering and Technology ("OET") Equipment Authorization System to
independently confirm the hearing aid compatibility rating of each
handset model as established in the grant of equipment authorization
issued by the Commission for that handset. Taking into account the
manufacturer-reported information in the OET database, including
information that would be more favorable to Airadigm than the
information in its own submission, we conclude that Airadigm
apparently failed to offer during the 2010 calendar year 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
1. Acoustic Coupling ("M3" or higher rating). We find that Airadigm
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. In April 2010, Airadigm was required to offer at least six
M3 or higher rated handset models per air interface. As set forth in
greater detail in Appendix A, Airadigm apparently failed to meet this
standard, falling short by one handset model. Accordingly, we find
that Airadigm 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.
2. Inductive Coupling ("T3" or higher rating). We also find that
Airadigm apparently failed to offer to consumers the required number
or percentage of hearing aid-compatible handset models that met or
exceeded the T3 rating. From October to December 2010, Airadigm was
required to offer at least five handset models with a minimum T3
rating per air interface-significantly fewer than the 13 to 15
handset models it made available to consumers without hearing loss.
As set forth in greater detail in Appendix B, Airadigm apparently
failed to meet this standard by offering as few as three and no more
than four handset models with a minimum T3 rating during that period.
Accordingly, we find that Airadigm 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.
B. Proposed Forfeiture
3. 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
Airadigm is apparently liable for a forfeiture for its apparent
willful and repeated violation of section 20.19(d)(3)(ii) of the
Rules.
4. 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."
5. 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.
6. 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.
7. 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. Accordingly, 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).
8. For purposes of calculating the base forfeiture amount for the
T3-related violations, we focus on Airadigm's apparent failure to
offer to consumers the requisite number or percentage of handset
models with a minimum T3 rating in December 2010, when Airadigm
missed the benchmark by two handset models. Accordingly, and
consistent with section 503(b)(6) of the Act, Airadigm is apparently
liable for a base forfeiture of $30,000 (two 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.
C. Admonishment
9. The record also establishes that Airadigm apparently failed to offer
to consumers the required number or percentage of digital wireless
handset models that met or exceeded the M3 rating in April 2010,
missing the benchmark by one handset model. Although we believe that
a monetary forfeiture would be warranted for this violation, we note
that the statute of limitations for proposing a forfeiture is one
year from the date of the violation. Accordingly, based on our review
of the facts and circumstances of this case, we admonish Airadigm for
its failure to offer to consumers the requisite number or percentage
of handset models with a minimum M3 rating in April 2010, in
violation of section 20.19(c)(3)(ii) of the Rules.
IV. ORDERING CLAUSES
5. 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, Airadigm
Communications, Inc. dba Airfire Wireless IS NOTIFIED of its APPARENT
LIABILITY FOR A FORFEITURE in the amount of thirty thousand dollars
($30,000) for apparent willful and repeated violation of section
20.19(d)(3)(ii) of the Rules.
6. IT IS FURTHER ORDERED that Airadigm Communications, Inc. dba Airfire
Wireless IS ADMONISHED for its violation of section 20.19(c)(3)(ii)
of the Rules.
7. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the Rules,
within thirty (30) calendar days after the release date of this
Notice of Apparent Liability for Forfeiture and Admonishment,
Airadigm Communications, Inc. dba Airfire Wireless SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
8. 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.
Airadigm Communications, Inc. dba Airfire Wireless must also send
electronic notification to Pamera Hairston at
Pamera.Hairston@fcc.gov, Kathy Harvey at Kathy.Harvey@fcc.gov, and
Samantha Peoples at Sam.Peoples@fcc.gov on the date said payment is
made.
9. 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 Pamera Hairston at
Pamera.Hairston@fcc.gov and to Kathy Harvey at Kathy.Harvey@fcc.gov.
10. 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.
11. IT IS FURTHER ORDERED that a copy of this Notice of Apparent
Liability for Forfeiture and Admonishment shall be sent by first
class mail and certified mail return receipt requested to Robert
Galle, Chief Executive Officer, Airadigm Communications, Inc. dba
Airfire Wireless, 2301 Kelbe Drive, 206, Little Chute, WI 54140-1201.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief
Enforcement Bureau
APPENDIX A
Airadigm Communications, Inc. dba Airfire Wireless
Hearing Aid-Compatible Handset Model Offerings
(M3 or higher rating)
Total M3-rated
Period Handset Handset M3-rated Handset M3
Models Models Models Required Compliance?
Offered Offered
January 15 8 Yes
2010
February 12 7 Yes
2010
March 10 6 Yes
2010
April 11 5 No
2010
May 1-14, 12 6
2010 At least 50% of
May of handset
15-31, 12 6 models offered
2010 or
June 2010 13 7 at least 9 Yes
July 2010 13 7 At least 50% of Yes
August 12 7 of handset models Yes
2010 offered or
September 12 6 at least 10 Yes
2010 handset models
October 15 8 (5/15/10-12/31/10) Yes
2010
November 13 7 Yes
2010
December 13 7 Yes
2010
APPENDIX B
Airadigm Communications, Inc. dba Airfire Wireless
Hearing Aid-Compatible Handset Offerings
(T3 or higher rating)
Total T3-rated
Period Handset Handset T3-rated Handset T3
Models Models Models Required Compliance?
Offered Offered
January 15 7 Yes
2010
February 12 6 Yes
2010
March 10 5 Yes
2010
April 11 5 Yes
2010
May 1-14, 12 5
2010 At least 1/3 of
May of handset
15-31, 12 5 models offered
2010 or
June 2010 13 6 at least 5 Yes
July 2010 13 6 Yes
August 12 6 the total number Yes
2010 of handset models
September 12 5 least 7 handset Yes
2010 models
October 15 4 (5/15/10-12/31/10) No
2010
November 13 3 No
2010
December 13 3 No
2010
Airadigm is a Global System for Mobile Communications-based ("GSM-based")
Tier III carrier serving Wisconsin. 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: 22-23 (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)(B) of the Communications Act of
1934, as amended (the "Act"), 47 U.S.C. S: 610(b)(2)(B).
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 coupling (telecoil) 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.
Hearing Aid Compatibility Order, 18 FCC Rcd 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 C63.19-2007 (June 8, 2007) ("ANSI C63.19-2007"), 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
C63.19-2007, 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 requirements apply to each air interface over which service
providers offer service. See Amendment of the Commission's Rules Governing
Hearing Aid-Compatible Mobile Handsets, First Report and Order, 23 FCC Rcd
3406, 3419 P:P: 35-36 (2008) ("Hearing Aid Compatibility First Report and
Order"), Order on Reconsideration and Erratum, 23 FCC Rcd 7249 (2008)
(stating that the hearing aid-compatible handset requirements apply on a
per air interface basis). However, the handset deployment benchmarks do
not apply to service providers and manufacturers that meet the de minimis
exception. Id. at 3413 P: 20. See also 47 C.F.R. S: 20.19(e). 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, 11180-89 P:P: 35-59
(2010).
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.
Airadigm Communications, Inc. Hearing Aid Compatibility Status Report
(filed Jan. 17, 2011), available at
http://wireless.fcc.gov/hac_documents/110210/5947902_278.PDF ("2010
Report").
The FCC Office of Engineering and Technology Equipment Authorization
System is an electronic database of all equipment certified under FCC
authority. The database 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 or of any modifications to such authorization. See
http://transition.fcc.gov/oet/ea/fccid/.
We note that our review revealed apparent inconsistencies between the
hearing aid compatibility ratings for certain handset models listed in the
2010 Report and the ratings specified in the Commission's equipment
authorizations for those models. Specifically, Airadigm's 2010 Report
indicated that the Samsung T459 model (A3LSGHT459A) has an M3/T3 rating
when in fact Commission records show that the handset model is only M3
rated. In addition, Airadigm reported that the Motorola EM330 handset
model (FCC ID IHDP56JJ1) has only an M3 rating for hearing aid
compatibility while Commission records show that this handset model is
M3/T3 rated; that the Nokia 7020 handset model (FCC ID QTKRM-497) has an
M3/T3 rating when Commission records show that the handset model has a
M3/T4 rating; that the Samsung SGH-T219s model (FCC ID A3LSGHT219s) has
only an M3 rating while Commission records show that the handset is M3/T3
rated. See 2010 Report.
See id.
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). All of Airadigm's handset models for the 2010 calendar year
operated over the GSM air interface.
See Appendix A, Airadigm Communications, Inc. dba Airfire Wireless Hearing
Aid-Compatible Handset Offerings (M3 or higher rating) (indicating that in
April 2010, Airadigm offered eleven handset models, only five of which had
a minimum M3 rating).
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 clarifies that this definition of willful applies to both
sections 312 and 503 of the Act, H.R. Conf. Rep. No. 97-765 (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); 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 Monetary Forfeiture, 16 FCC Rcd 1359, 1362 P: 9 (2001),
forfeiture ordered, Forfeiture Order, 17 FCC Rcd 22626 (2002)(forfeiture
paid); 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, 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). We note that while non-hearing aid compatible handsets are
technically available to all consumers, these handsets may not function
effectively with hearing aids and can create excessive feedback and
"noise." See Hearing Aid Compatibility Order, 18 FCC Rcd at 16756 P: 6
("[D]igital wireless phones can cause interference to hearing aids and
cochlear implants because of electromagnetic energy emitted by the phone's
antenna, backlight, or other components. This interference can be
significant enough to prevent individuals with hearing aids or cochlear
implants from using digital wireless phones and services. In addition,
most wireless phones do not internally provide the capability to
inductively couple with hearing aids containing telecoils, as wireline
phones do.").
See Appendix B, Airadigm Communications, Inc. dba Airfire Wireless Hearing
Aid-Compatible Handset Offerings (T3 or higher rating) (indicating that
between October 1, 2010 and December 31, 2010, Airadigm fell short of the
hearing aid-compatible handset deployment requirements by one to two
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)(4); 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)(2)
of the Rules, 47 C.F.R. S: 1.80(b)(2), three times to increase the maximum
forfeiture amounts, in accordance with the inflation adjustment
requirements contained in the Federal Civil Penalties Inflation Adjustment
Act of 1990, 28 U.S.C. S: 2461 note, as amended by the Debt Collection
Improvement Act of 1996, 31 U.S.C. S: 3701 note. 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(b) of the
Commission's Rules, Adjustment of Forfeiture Maxima to Reflect Inflation,
23 FCC Rcd 9845, 9847 (2008) (adjusting the maximum statutory amounts for
common carriers from $130,000/$1,325,000 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)(5), Note to
paragraph (b)(5): 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 P: 22.
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 Section 68.4(a) of the Commission's
Rules Governing Hearing Aid-Compatible Telephones, Report on the Status of
Implementation of the Commission's Hearing Aid Compatibility Requirements,
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 people - with that number expected to reach
approximately 40 million people at the end of [2010]").
See South Canaan Cellular Communications Company, L.P, Notice of Apparent
Liability for Forfeiture, 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 33.
See supra para. 6.
See supra para. 5.
See 47 U.S.C. S: 503(b)(6)(A); 47 C.F.R. S: 1.80(c)(1).
See 47 C.F.R. S: 20.19(c)(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(d)(3)(ii).
47 C.F.R. S: 20.19(c)(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 11-2042
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Federal Communications Commission DA 11-2042