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.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No.: EB-11-SE-050
)
iSmart Mobile, LLC d/b/a NAL/Acct. No.: 201232100012
)
Big Sky Mobile FRN: 0019107051
)
)
Notice of apparent Liability for forfeiture
Adopted: December 23, 2011 Released: December 23, 2011
By the Acting Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we
propose a forfeiture in the amount of twenty-one thousand dollars
($21,000) against iSmart Mobile, LLC d/b/a Big Sky Mobile ("Big Sky").
As detailed herein, we find that Big Sky apparently willfully and
repeatedly violated section 20.19(c)(3)(ii) of the Commission's rules
("Rules"). We further find that the apparent misconduct continued for
the entire 2010 calendar year. Specifically, Big Sky 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 18, 2011, Big Sky submitted a hearing aid compatibility
status report covering January 1, 2010 to December 31, 2010. Big Sky
identified each handset model it offered to consumers and specified
the model's FCC Identification ("FCC ID") as well as the hearing aid
compatibility rating, if any. After a careful review of Big Sky'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, we conclude
that Big Sky apparently failed to offer, for extended periods during
the 2010 calendar year, the required number or percentage of handset
models that met or exceeded the M3 rating.
III. DISCUSSION
A. Failure to Comply with Hearing Aid-Compatible Handset Deployment
Requirements
5. We find that Big Sky 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 and December 31,
2010, Big Sky was required to offer at least five M3 or higher rated
handset models per air interface, half of the 10 handset models it
made available to consumers without hearing loss. As set forth in
greater detail in the Appendix, Big Sky apparently failed to meet this
standard, repeatedly falling short by one handset model. Accordingly,
we find that Big Sky 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 handset models that met or
exceeded the M3 rating. We further find that this apparent misconduct
continued for the entire 2010 calendar year.
B. Proposed Forfeiture
6. 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 Big Sky is
apparently liable for a forfeiture for its apparent willful and
repeated violations of section 20.19(c)(3)(ii) of the Rules.
7. 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."
8. 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.
9. 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.
10. 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).
11. For purposes of calculating the base forfeiture amount, we focus on
Big Sky's apparent failure in December 2010 to offer to consumers the
requisite number or percentage of handset models with a minimum M3
rating. Big Sky missed the established benchmark by one handset model.
Accordingly, and consistent with section 503(b)(6) of the Act, we
start with a base forfeiture of $15,000 for Big Sky's apparent failure
to offer to consumers the required number or percentage of handset
models with a minimum M3 rating in willful and repeated violation of
section 20.19(c)(3)(ii) of the Rules.
12. This base forfeiture amount, however, is subject to adjustment. Given
the totality of the circumstances, and consistent with the Forfeiture
Policy Statement, we conclude that an upward adjustment of the $15,000
total base forfeiture amount is warranted. In this regard, we take
into account that Big Sky was out of compliance with the hearing
aid-compatible handset deployment requirements for the entire 2010
calendar year. Based on all the factors and evidence, including the
fact that Big Sky was out of compliance with the hearing
aid-compatible handset deployment requirements for the entire 2010
calendar year, we propose a forfeiture of $21,000 against Big Sky for
apparently willfully and repeatedly failing to comply with the hearing
aid-compatible handset deployment requirements set forth in section
20.19(c)(3)(ii) of the Rules.
IV. ORDERING clauses
13. 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, iSmart Mobile, LLC
d/b/a Big Sky Mobile IS NOTIFIED of its APPARENT LIABILITY FOR A
FORFEITURE in the amount of twenty-one thousand dollars ($21,000) for
apparent willful and repeated violation of section 20.19(c)(3)(ii) of the
Rules.
14. 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, iSmart Mobile, LLC d/b/a Big Sky Mobile
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
15. 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. iSmart Mobile, LLC d/b/a Big Sky
Mobile must also send electronic notification to Paul Noone at
Paul.Noone@fcc.gov, Pamera Hairston at Pamera.Hairston@fcc.gov, and
Samantha Peoples at Sam.Peoples@fcc.gov on the date said payment is made.
16. 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 Paul Noone at
Paul.Noone@fcc.gov and Pamera Hairston at Pamera.Hairston@fcc.gov.
17. 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.
18. 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 Richard Stupansky Jr., Chief Operating Officer,
iSmart Mobile, LLC, 23500 Mercantile Road, Beachwood, OH 44122.
FEDERAL COMMUNICATIONS COMMISSION
John D. Poutasse
Acting Chief
Spectrum Enforcement Division
Enforcement Bureau
APPENDIX
iSmart Mobile, LLC d/b/a Big Sky Mobile
Hearing Aid-Compatible Handset Model Offerings
(M3 or higher rating)
Hearing Hearing
Total Aid-Compatible Aid-Compatible M3
Period Handset Handsets Handsets
Models Offered Required Compliance?
Offered
(M3 rating) (M3 rating)
January 10 4 No
2010
February 10 4 No
2010
March 10 4 No
2010
April 10 4 No
2010
May 1-14, 10 4 No
2010 At least 50%
May number of
15-31, 10 4 handset models No
2010 offered or At least
June 2010 10 4 at least 9 the total No
July 2010 10 4 handset No
August 10 4 5/14/10) offered No
2010 or
September 10 4 at least No
2010 10
October 10 4 models No
2010
November 10 4 - No
2010 12/31/10)
December 10 4 No
2010
Big Sky is a Tier III carrier serving the Bozeman, Montana area. 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). Big
Sky offers service over the Global System for Mobile Communications
("GSM") air interface.
47 C.F.R. S: 20.19(c)(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 a 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 deployment requirements
apply on a per air interface basis). However, the handset deployment
requirements 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 GSM, Code Division Multiple Access ("CDMA"), 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 iSmart Mobile, LLC d/b/a Big Sky Mobile Hearing Aid Compatibility
Status Report (filed January 18, 2011), available at
http://wireless.fcc.gov/hac_documents/110210/5950635_309.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, Big Sky's 2010 Report
indicated that the Motorola Z6 handset model (FCC ID IHDT56GG1) and the
Nokia 2760 handset model (FCC ID QTLRM-259) each has an M3/T3 rating when
in fact Commission records show that these handset models are not rated
for hearing aid compatibility. Moreover, although not relevant to our
findings herein, the review revealed an additional inconsistency: Big
Sky's 2010 Report indicated that the Samsung t219 handset model (FCC ID
A3LSGHT219S) has an M3 rating when Commission records show that the
handset model has an M3/T3 rating.
See 2010 Report.
All of Big Sky's handset models for the 2010 reporting period operated
over the GSM air interface. See id.
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, iSmart Mobile, LLC d/b/a Big Sky Mobile Hearing
Aid-Compatible Handset Model Offerings (M3 or higher rating) (indicating
that between January 2010 and December 2010, Big Sky offered 10 handset
models, only four 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.
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,
Order, 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, Report and
Order, 12 FCC Rcd 17087 (1997), recon. denied, Memorandum Opinion and
Order, 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., Notice
of Apparent Liability for Forfeiture, 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 32.
See supra para. 5.
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 Big Sky'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 Big Sky's apparent
violations that have occurred within the past year.
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(c)(3)(ii).
47 C.F.R. S: 1.80.
47 C.F.R. S:S: 1.80(f)(3), 1.16.
Federal Communications Commission DA 11-2061
3
Federal Communications Commission DA 11-2061