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
)
)
File No.: EB-11-SE-049
In the Matter of )
NAL/Acct. No.: 201232100014
General Communication, Inc. )
FRN: 0001568880
)
)
Notice of apparent Liability for forfeiture
Adopted: December 28, 2011 Released: December 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 fifty-one thousand dollars
($51,000) against General Communication, Inc. ("GCI"). As detailed
herein, we find that GCI apparently willfully and repeatedly violated
section 20.19(d)(3)(ii) of the Commission's rules ("Rules"). We
further find that this apparent misconduct continued for seven
consecutive months during the 2010 calendar year. Specifically, GCI
apparently failed to offer to consumers the required number or
percentage of hearing aid-compatible digital wireless handset models
that operate on the GSM air interface 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, GCI submitted a hearing aid compatibility status
report covering January 1, 2010 to December 31, 2010. GCI identified each
handset model it offered to consumers in its retail stores and on its
website, www.gci.com/for-home, and specified the model's FCC
Identification ("FCC ID") as well as the hearing aid compatibility rating,
if any. After a careful review of GCI'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 Equipment ("OET")
Authorization System to independently confirm the hearing aid
compatibility rating of each handset model as established in the grant of
equipment authorization issued by Commission for that handset. Taking into
account the manufacturer-reported information in the OET database,
including information that would be more favorable to GCI than the
information in its own submission, we conclude that GCI apparently failed
to offer, for an extended timeframe during the 2010 calendar year, the
required number or percentage of handset models rated T3 or higher that
operate on the GSM air interface.
III. DISCUSSION
A. Failure to Comply with Hearing Aid-Compatible Handset Deployment
Requirements
5. We find that GCI apparently failed to offer to consumers the required
number or percentage of hearing aid-compatible handset models rated T3 or
higher that operate on the GSM air interface. As noted above, the
Commission has imposed varying benchmarks for the deployment of hearing
aid-compatible handsets. In June 2010, GCI was required to offer at least
seven T3 or higher rated handset models that operate on the GSM air
interface; during the period July through September and December 2010, it
was required to offer at least six; and in October and November 2010, it
was required to offer at least five-all significantly fewer than the 15 to
19 handset models it made available to consumers without hearing loss. As
set forth in greater detail in the Appendix, GCI apparently failed to meet
this standard, repeatedly falling short by one to two handset models.
Accordingly, we find that GCI 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 rated T3
or higher that operate on the GSM air interface. We further find that this
apparent misconduct continued for seven consecutive months during the 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 GCI is apparently liable for a forfeiture for its apparent willful
and repeated violations of section 20.19(d)(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 amount 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 for the
apparent T3-related violations, we focus on GCI's failure in December 2010
to offer to consumers the requisite number or percentage of handset models
with a minimum T3 rating that operate on the GSM air interface, when GCI
missed the benchmark by two handset models. Accordingly, and consistent
with section 503(b)(6) of the Act, we start with a base forfeiture of
$30,000 (two T3-rated handset models x $15,000) for GCI's apparent failure
to offer to consumers the required number or percentage of T3-rated
handset models that operate on the GSM air interface in willful and
repeated violation of section 20.19(d)(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 $30,000
base forfeiture amount is warranted. In this regard, we take into account
that GCI was out of compliance with the hearing aid compatibility handset
deployment requirements for more than half of the 2010 calendar
year-failing to offer to consumers the requisite number or percentage of
handset models with a minimum T3 rating for seven consecutive months. In
addition, as the Commission made clear in the Forfeiture Policy Statement,
large or highly profitable entities, such as GCI, should expect
forfeitures higher than those reflected in the base amounts. Therefore,
based on all the factors and evidence, including the duration of the
violation, GCI's ability to pay the proposed forfeiture, and the
potentially significant impact on consumers with hearing loss, we propose
a forfeiture of $51,000 against GCI for apparently willfully and
repeatedly failing to comply with the hearing aid-compatible handset
deployment requirements set forth in section 20.19(d)(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, General
Communication, Inc. IS NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE
in the amount of fifty-one thousand dollars ($51,000) for willful and
repeated violation of section 20.19(d)(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, General Communication, Inc. 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 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. General Communication, Inc. also must send electronic
notification to Nissa Laughner at Nissa Laughner@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 Nissa Laughner at
Nissa.Laughner@fcc.gov and to 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 Chris Nierman, Director, Federal Regulatory Affairs,
General Communication, Inc., 1350 I Street, N.W., Suite 1260, Washington,
D.C. 20005.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief
Enforcement Bureau
APPENDIX
General Communication, Inc.
Hearing Aid-Compatible Handset Model Offerings
GSM Air Interface
(T3 or higher rating)
Total T3-rated T3
Period Handset Handset T3-rated Handset
Models Models Models Required Compliance?
Offered Offered
January 20 11 Yes
2010
February 23 11 Yes
2010
March 23 11 Yes
2010
April 25 12 Yes
2010
May 1-14, 25 12 Yes
2010 At least 1/3 of
May of handset
15-31, 25 12 models offered Yes
2010 or
June 2010 19 6 at least 5 No
July 2010 17 4 At least 1/3 of No
August 16 4 of handset models No
2010 offered or
September 17 4 at least 7 handset No
2010 models
October 15 4 (5/15/10-12/31/10) No
2010
November 15 4 No
2010
December 18 4 No
2010
GCI is a Tier III carrier serving Alaska. 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). GCI offers service over the
Global System for Mobile Communications ("GSM") and Code Division Multiple
Access ("CDMA") air interfaces.
47 C.F.R. S: 20.19(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. See also
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 handset deployment requirements apply to each air interface on which
service providers offer service. See Hearing Aid Compatibility First
Report and Order, 23 FCC Rcd at 3419 P:P: 35-36 (stating that the hearing
aid compatibility 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. See Amendment of the Commission's Rules Governing Hearing
Aid-Compatible Mobile Handsets, First Report and Order, 23 FCC Rcd 3406,
3413 P: 20 (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(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 CDMA, 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 General Communication, Inc., Hearing Aid Compatibility Status Report
(filed Jan. 18, 2011), available at
http://wireless.fcc.gov/hac_documents/110210/5951300_315.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/. In addition, the Bureau reviewed
each handset model's equipment authorization and other
manufacturer-reported information in the OET database to determine the air
interface(s) on which each handset model operates. Id.
We note that our review revealed apparent inconsistencies between the
hearing aid compatibility ratings for certain models listed in the 2010
Report and the ratings specified in the Commission's equipment
authorizations for these models. Specifically, GCI's 2010 Report indicated
that the Blackberry 8110 Pearl handset model (FCC ID L6ARBQ40GW) is rated
M3/T3 when in fact Commission records show that the model is not rated for
hearing aid compatibility; that the Blackberry 8520 Curve model (FCC ID
L6ARCG40GW) is rated M3/T3 while Commission records show that the model is
not rated for hearing aid compatibility; that the LG LG100C model (FCC ID
BEJLG100C) is rated M3 when Commission records show that the model is
rated M4/T4; that the Motorola EM 330 model (FCC ID IHDP56JJ1) is rated M3
while Commission records show that the model is rated M3/T3; that the
Motorola Quantico W845 model (FCC ID IHDT56KS1) is not rated for hearing
aid compatibility while Commission records show that the model is rated
M4/T3; that the Nokia 1606 model (FCC ID QMNRH-109) is not rated for
hearing aid compatibility when Commission records show that the model is
rated M3/T3; that the Nokia X3 model (FCC ID PPIRM-639) is rated M3 while
Commission records show that the model is not rated for hearing aid
compatibility; that the Samsung B2700 model (FCC ID A3LSWDB2700) is rated
M3 when Commission records show that the model is not rated for hearing
aid compatibility; that the Samsung B3310 model (FCC ID A3LGTB3310) is
rated M3 while Commission records show that the model is not rated for
hearing aid compatibility; that the Samsung T219S model (FCC ID
A3LSGHT219S) is not rated for hearing aid compatibility when Commission
records show that the model is rated M3/T3; that the Samsung T439 model
(FCC ID A3LSGHT439) is not rated for hearing aid compatibility while
Commission records show that the model is rated M3/T3; that the Samsung
T459 model (FCC ID A3LSGHT459) is not rated for hearing aid compatibility
when Commission records show that the model is rated M3; and that the
SonyEricsson S500i model (FCC ID PY7A1052041) is rated M3 while Commission
records show that the model is rated M3/T3. See 2010 Report. This review
also revealed an additional inconsistency that is not relevant to our
findings. Specifically, GCI's 2010 Report indicated that the Blackberry
8130 Pearl handset model (FCC ID L6ARBS20CW) is rated M3/T4 when
Commission records show that the model is rated M3/T3.
See supra notes 13 and 14 and accompanying text.
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, 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, General Communication, Inc. Hearing Aid-Compatible Handset
Model Offerings, GSM Air Interface (T3 or higher rating) (indicating that
between June 1, 2010 and December 31, 2010, GCI offered between 15 and 19
handset models, only four to six of which met or exceeded the T3 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, Memorandum Opinion and
Order, 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)(5), Note to Paragraph (b)(5): 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 a
notice of apparent liability for forfeiture, we may consider the fact that
GCI'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." See 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 GCI's apparent violations that have occurred within the past year.
GCI had estimated gross revenues of $651,300,000 in 2010. See General
Communication, Inc., Hoover's Company Records (Nov. 22, 2011). GCI had
estimated consolidated revenues of $164,777,000 as of the first quarter of
2011, $168,089,000 as of the second quarter of 2011, and $177,703,000 as
of the third quarter of 2011. See General Communication, Inc., Form 10-Q,
p. 6 (filed May 5, 2011), available at
http://www.sec.gov/Archives/edgar/data/808461/000080846111000011/gciform10q03312011.htm;
General Communication, Inc., Form 10-Q, p. 6 (filed Aug. 9, 2011),
available at
http://www.sec.gov/Archives/edgar/data/808461/000080846111000034/gciform10q06302011.htm;
General Communication, Inc., Form 10-Q, p. 6 (filed Nov. 4, 2011),
available at
http://www.sec.gov/Archives/edgar/data/808461/000080846111000054/gciform10q093011.htm.
Specifically, the Commission stated:
[W]e recognize that for large or highly profitable communication entities,
the base forfeiture amounts ... are generally low. In this regard, we are
mindful that, as Congress has stated, for a forfeiture to be an effective
deterrent against these entities, the forfeiture must be issued at a high
level. For this reason, we caution all entities and individuals that,
independent from the uniform base forfeiture amounts ..., we intend to
take into account the subsequent violator's ability to pay in determining
the amount of a forfeiture to guarantee that forfeitures issued against
large or highly profitable entities are not considered merely an
affordable cost of doing business. Such large or highly profitable
entities should expect in this regard that the forfeiture amount set out
in a Notice of Apparent Liability against them may in many cases be above,
or even well above, the relevant base amount.
Forfeiture Policy Statement, 12 FCC Rcd at 17099-100 P: 24.
47 C.F.R. S: 20.19(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: 1.80.
47 C.F.R. S:S: 1.80(f)(3), 1.16.
(Continued from previous page)
(continued...)
Federal Communications Commission DA 11-2075
2
Federal Communications Commission DA 11-2075