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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No.: EB-11-SE-047
In the Matter of
) NAL/Acct. No.:
Centennial Communications Corporation, 201232100013
wholly-owned subsidiary of AT&T, Inc. )
FRN: 0009631136
)
)
Notice of apparent Liability for forfeiture
Adopted: December 28, 2011 Released: December 29, 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 seventy-five thousand dollars
($75,000) against Centennial Communications Corporation
("Centennial"). As detailed herein, we find that Centennial apparently
willfully and repeatedly violated sections 20.19(d)(3)(ii) and
20.19(e)(2) of the Commission's rules ("Rules"). Specifically,
Centennial apparently failed to offer to consumers the required number
or percentage of hearing aid-compatible digital wireless handset
models that operate on the GSM and WCDMA air interfaces 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.
4. 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. However,
these handset deployment benchmarks do not apply to service providers
and manufacturers that meet the de minimis exception. The de minimis
exception provides that manufacturers or mobile service providers
that offer two or fewer digital wireless handset models per air
interface are exempt from the hearing aid compatibility deployment
requirements, and manufacturers or service providers that offer three
digital wireless handset models per air interface must offer at least
one compliant model.
5. On January 18, 2011, Centennial submitted a hearing aid compatibility
status report covering January 1, 2010 to December 31, 2010.
Centennial 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
Centennial'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 Centennial apparently failed to offer
during the 2010 calendar year the required number or percentage of
handset models with a minimum T3 rating that operate on both the GSM
and WCDMA air interfaces.
III. DISCUSSION
A. Failure to Comply with Hearing Aid-Compatible Handset Deployment
Requirements
6. We find that Centennial 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 and WCDMA air interfaces.
As noted above, the Commission has imposed varying benchmarks for the
deployment of hearing aid-compatible handsets. In November and
December 2010, Centennial was required to offer at least four handset
models rated T3 or higher that operate on the GSM air
interface-significantly fewer than the 11 to 12 handset models it made
available to consumers without hearing loss. As set forth in greater
detail in Appendix A, Centennial apparently failed to meet this
standard by offering only three handset models with a minimum T3
rating that operate on the GSM air interface. Accordingly, we find
that in November and December 2010 Centennial 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.
7. With respect to handsets that operate on the WCDMA air interface,
Centennial was required to offer at least one handset model rated T3
or higher in December 2010. As set forth in greater detail in Appendix
B, Centennial also apparently failed to meet this standard, offering
no handset models with a minimum T3 rating that operate on the WCDMA
air interface. Accordingly, we also find that in December 2010
Centennial apparently willfully and repeatedly violated section
20.19(e)(2) of the Rules by failing to offer to consumers any digital
wireless handset models with a minimum T3 rating that operate on the
WCDMA air interface.
B. Proposed Forfeiture
8. 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 Centennial is
apparently liable for a forfeiture for its apparent willful and
repeated violations of sections 20.19(d)(3)(ii) and 20.19(e)(2) of the
Rules.
9. 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."
10. 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.
11. 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.
12. We have previously determined that violations of the hearing
aid-compatible handset deployment requirements are serious in nature
because failure to make compatible handsets available to consumers
actually prevents hearing aid users from accessing digital wireless
communications. As such, we generally apply a base forfeiture amount
of $15,000 to reflect the gravity of these violations. We have applied
the $15,000 base forfeiture on a per handset model basis (i.e., for
each handset model below the minimum number of hearing aid-compatible
models required by the Rules). We also impose separate base
forfeitures for each air interface over which the service provider
offers service.
13. For purposes of calculating the base forfeiture amount for
Centennial's apparent T3-related violations on the GSM air interface,
we focus on the company's failure in December 2010 to offer to
consumers the requisite number or percentage of handset models with a
minimum T3 rating, when Centennial missed the 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 Centennial's apparent
failure to offer to consumers the required number or percentage of
handset models with a minimum T3 rating that operate on the GSM air
interface in willful and repeated violation of section 20.19(d)(3)(ii)
of the Rules.
14. Similarly, the record establishes that Centennial apparently failed in
December 2010 to offer to consumers any handset models with a minimum
T3 rating that operate on the WCDMA air interface. Accordingly, and
consistent with section 503(b)(6) of the Act, we assess a base
forfeiture of $15,000 for Centennial's apparent failure to offer to
consumers the required number or percentage of handset models with a
minimum T3 rating that operate on the WCDMA air interface in willful
and repeated violation of section 20.19(e)(2) of the Rules.
15. These base forfeiture amounts, however, are subject to adjustment.
Given the totality of the circumstances, and consistent with the
Forfeiture Policy Statement, we conclude that a substantial upward
adjustment of the $30,000 base forfeiture amount is warranted. In this
regard, we have previously held that violations of the hearing
aid-compatible handset deployment requirements by larger entities such
as Tier II carriers are more egregious, warranting a higher forfeiture
amount. We also have found it appropriate to set the forfeiture amount
at a higher level for highly profitable entities to ensure that the
forfeiture serves as an effective deterrent against their future
non-compliance with the hearing aid compatibility handset
requirements. Finally, we take into account that Centennial has
previously violated our hearing aid-compatible handset deployment
requirements. Therefore, based on all the factors and evidence,
including Centennial's status as a Tier II carrier, its ability to pay
the proposed forfeiture, its history of noncompliance with the hearing
aid-compatible handset deployment requirements, and the potentially
significant impact of the apparent violation on consumers with hearing
loss, we propose a forfeiture of $75,000 against Centennial for
apparently willfully and repeatedly failing to comply with the hearing
aid-compatible handset deployment requirements set forth in sections
20.19(d)(3)(ii) and 20.19(e)(2) of the Rules.
IV. ORDERING clauses
16. 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, Centennial
Communications Corporation IS NOTIFIED of its APPARENT LIABILITY FOR A
FORFEITURE in the amount of seventy-five thousand dollars ($75,000) for
apparent willful and repeated violation of sections 20.19(d)(3)(ii) and
20.19(e)(2) of the Rules.
17. 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, Centennial Communications Corporation
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
18. 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. Centennial Communications
Corporation must also 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.
19. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to sections
1.80(f)(3) and 1.16 of the Rules. The written statement must be mailed to
the Office of the Secretary, Federal Communications Commission, 445 12th
Street, S.W., Washington, D.C. 20554, ATTN: Enforcement Bureau - Spectrum
Enforcement Division, and must include the NAL/Account Number referenced
in the caption. This statement also must be emailed to Nissa Laughner at
Nissa.Laughner@fcc.gov and Pamera Hairston at Pamera.Hairston@fcc.gov.
20. 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.
21. 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 William L. Roughton, Jr., Vice President, Legal and
Regulatory Affairs, Centennial Communications Corporation, 3349 Route 148,
Building A, Wall, NJ 07719.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief Enforcement Bureau
APPENDIX A
Centennial Communications Corporation
Hearing Aid-Compatible Handset Model Offerings
GSM Air Interface
(T3 or higher rating)
Total T3-rated
Handset Handset T3-rated Handset T3
Period Models Models Models Required
Offered Compliance?
Offered
January 5 3 Yes
2010
February 6 3 Yes
2010
March 6 3 Yes
2010
April 6 3 Yes
2010
May 1-14, 6 3 Yes
2010 At least 1/3 of
May of handset
15-31, 6 3 models offered Yes
2010 or
June 2010 6 3 at least 5 Yes
July 2010 7 3 At least 1/3 of Yes
August 7 3 of handset models Yes
2010 offered or
September 8 3 at least 7 handset Yes
2010 models
October 9 3 (5/15/10-12/31/10) Yes
2010
November 11 3 No
2010
December 12 3 No
2010
APPENDIX B
Centennial Communications Corporation
Hearing Aid-Compatible Handset Model Offerings
WCDMA Air Interface
(T3 or higher rating)
Total T3-rated T3-rated T3
Period Handset Handset Handset
Models Models Models Compliance?
Offered Offered Required
At least
January one handset
2010-September 0 0 model if Exempt
2010 offering
three
models;
October 2010 1 0 Exempt if Exempt
offering
November 2010 2 0 fewer Exempt
models
December 2010 3 0 (de No
minimis)
Centennial is a Tier II carrier serving six states in the continental
United States, Puerto Rico, and the U.S. Virgin Islands. Tier II carriers
are non-nationwide wireless radio service providers with more than 500,000
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). In 2009, the Commission and
the Department of Justice approved the merger of Centennial and AT&T,
Inc., subject to divestiture of Centennial's wireless operations in
certain areas. See Applications of AT&T Inc. and Centennial Communications
Corp. for Consent to Transfer Control of Licenses, Authorizations, and
Spectrum Leasing Arrangements, Memorandum Opinion and Order, 24 FCC Rcd
13915 (2009) ("Centennial-AT&T Merger"); United States v. AT&T &
Centennial Corporation, Final Judgment, available at
http://www.justice.gov/atr/cases/f255200/255275.pdf. As a consequence of
the merger, Centennial became a wholly-owned subsidiary of AT&T, Inc. See
Centennial-AT&T Merger, 24 FCC Rcd 13920 P: 13. Centennial offers service
over the Global System for Mobile Communications ("GSM") and Wideband Code
Division Multiple Access ("WCDMA") a.k.a. Universal Mobile
Telecommunications System ("UMTS") air interfaces.
47 C.F.R. S: 20.19(d)(3)(ii), (e)(2).
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 over
which the 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) (stating that
the hearing aid compatibility handset deployment requirements apply on a
per air interface basis) ("Hearing Aid Compatibility First Report and
Order"), Order on Reconsideration and Erratum, 23 FCC Rcd 7249 (2008).
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, WCDMA a.k.a. UMTS, Code Division Multiple Access
("CDMA"), and Integrated Digital Enhanced Network ("iDEN").
See Hearing Aid Compatibility First Report and Order, 23 FCC Rcd at 3419
P: 35; 47 C.F.R. S: 20.19(c)(3)(ii).
See Hearing Aid Compatibility First Report and Order, 23 FCC Rcd at 3419
P: 36; 47 C.F.R. S: 20.19(d)(3)(ii).
See supra note 8.
See supra note 9.
See Hearing Aid Compatibility First Report and Order, 23 FCC Rcd at 3413
P: 20; 47 C.F.R. S: 20.19(e).
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).
See Centennial Communications Corporation, Hearing Aid Compatibility
Status Report (filed Jan. 18, 2011), available at
http://wireless.fcc.gov/hac_documents/110210/5950495_307.PDF ("2010
Report").
The FCC Office of Engineering and Technology Equipment Authorization
System is the 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/.
See supra note 15 and accompanying text.
See 47 C.F.R. S: 20.19(d)(3)(ii) (requiring non-Tier I digital wireless
service providers to ensure that between May 15, 2010 and May 14, 2011, 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 A, Centennial Communications Corporation Hearing
Aid-Compatible Handset Offerings, GSM Air Interface (T3 or higher rating)
(indicating that Centennial fell short of the hearing aid-compatible
handset deployment requirements for inductive coupling by one handset
model in November and December 2010).
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 47 C.F.R. S: 20.19(e)(2) (requiring digital wireless service providers
offering three handset models to offer at least one handset model rated T3
or higher and at least one handset model rated M3 or higher).
See Appendix B, Centennial Communications Corporation Hearing
Aid-Compatible Handset Offerings, WCDMA Air Interface (T3 or higher
rating).
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 35.
See supra note 6.
See supra para. 6.
See supra para. 7.
See Centennial Communications Corporation, Notice of Apparent Liability
for Forfeiture, 23 FCC Rcd 9406, 9412-13 P: 13 (Enf. Bur. 2008)
(forfeiture paid) ("2008 Centennial NAL") (finding that a substantial
upward adjustment of the base forfeiture was warranted for larger
entities, such as Tier II carriers); SunCom Wireless, Inc., Notice of
Apparent Liability for Forfeiture, 23 FCC Rcd 8681, 8688 P: 17 (Enf. Bur.
2008) (forfeiture paid) ("SunCom Wireless") (same).
See, e.g., 2008 Centennial NAL, 23 FCC Rcd at 9412-13 P: 13; SunCom
Wireless, 23 FCC Rcd at 8688 P: 17. As the Commission made clear in the
Forfeiture Policy Statement, highly profitable entities should expect
forfeitures higher than those reflected in the base amounts. 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. In addition,
we note that the Commission has upwardly adjusted a proposed forfeiture
based on the revenues of the parent corporation. See, e.g., ACR
Electronics, Inc., Notice of Apparent Liability for Forfeiture, 19 FCC Rcd
22293, 22303 n.62 and accompanying text (2004), forfeiture ordered,
Forfeiture Order, 1 FCC Rcd 3698 (2006). In the instant case, AT&T, Inc.,
Centennial's ultimate parent corporation, had estimated gross revenues of
more than $124 billion in 2010. See AT&T Inc. Annual Report Pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 for the Fiscal
Year Ended December 31, 2010, Form 10-K Exhibit 13-Selected Financial and
Operating Data at 1 (filed Feb. 28, 2011), available at
http://www.sec.gov/Archives/edgar/data/732717/000073271711000014/0000732717-11-000014-index.htm.
See 2008 Centennial NAL, 23 FCC Rcd at 9409-10 P: 6 (proposing a $15,000
forfeiture against Centennial for its failure to offer one handset model
rated T3 or higher that operates on the GSM interface, and admonishing
Centennial for its failure to offer any handset models rated T3 or higher
that operate on the CDMA interface). See also Forfeiture Policy Statement,
12 FCC Rcd at 17116 (including "prior violations of any FCC requirements"
as an upward adjustment factor); 47 C.F.R. S: 1.80(b)(5), Note to
paragraph (b)(5); Section II, Adjustment Criteria for Section 503
Forfeitures (same).
47 C.F.R. S: 20.19(d)(3)(ii), (e)(2).
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.
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Federal Communications Commission DA 11-2076
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Federal Communications Commission DA 11-2076