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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No.: EB-11-SE-056
)
Metropolitan Telecommunications NAL/Acct. No.: 201232100015
)
Holding Company d.b.a. MetTel FRN: 0009806019
)
)
Notice of apparent Liability for forfeiture
Adopted: December 29, 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 forty-eight thousand dollars
($48,000) against Metropolitan Telecommunications Holding Company
d.b.a. MetTel ("Metropolitan"). As detailed herein, we find that
Metropolitan 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 the entire 2010 calendar
year. Specifically, Metropolitan apparently failed to offer to
consumers the required number or percentage of hearing aid-compatible
digital wireless handset models that operate on the WCDMA and GSM 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.
1. 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.
2. On January 18, 2011, Metropolitan submitted a hearing aid
compatibility status report covering January 1, 2010 to December 31,
2010, which it subsequently amended on February 3, 2011. Metropolitan
identified each handset model 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 Metropolitan'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. The Bureau also reviewed
each handset model's equipment authorization and other
manufacturer-reported information in the OET database to determine the
air interface(s) on which the handset model operates. Taking into
account this manufacturer-reported information, including information
that would be more favorable to Metropolitan than the information in
its own submission, we conclude that Metropolitan apparently failed to
offer, for the entire 2010 calendar year, the required number or
percentage of handset models with a minimum T3 rating that operate on
the WCDMA and GSM air interfaces.
III. DISCUSSION
A. Failure to Comply with Hearing Aid-Compatible Handset Deployment
Requirements
3. We find that Metropolitan apparently failed to offer to consumers the
required number or percentage of hearing aid-compatible handset models
with a minimum T3 rating that operate on the WCDMA and GSM air
interfaces. As noted above, the Commission has imposed varying
benchmarks for the deployment of hearing aid-compatible handsets.
Between January 1 and December 31, 2010, Metropolitan was required to
offer at least two handset models with a minimum T3 rating that
operate on the WCDMA air interface-fewer than half the number of
handset models it made available to consumers without hearing loss. As
set forth in greater detail in the Appendix, Metropolitan apparently
failed to meet this standard, repeatedly falling short by one handset
model. Accordingly, we find that Metropolitan 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 with a minimum T3 rating that operate
on the WCDMA air interface. We further find that this apparent
misconduct continued for the entire 2010 calendar year.
4. With respect to handsets that operate on the GSM air interface,
Metropolitan was required to offer at least two handset models with a
minimum T3 rating between January 1, 2010 and December 31, 2010. As
set forth in greater detail in the Appendix, Metropolitan also
apparently failed to meet this standard, offering only one handset
model with a minimum T3 rating that operates on the GSM air interface.
Accordingly, we find that Metropolitan 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 with a minimum T3 rating that operate on the
GSM interface. We further find that this apparent misconduct continued
for the entire 2010 calendar year.
B. Proposed Forfeiture
5. 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 Metropolitan
is apparently liable for a forfeiture for its apparent willful and
repeated violations of section 20.19(d)(3)(ii) of the Rules.
6. 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."
7. 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.
8. 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.
9. 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). We also impose separate
base forfeitures for each air interface over which the service
provider offers service.
10. For purposes of calculating the base forfeiture amount for
Metropolitan's apparent T3-related violations on the WCDMA air
interface, we focus on the company's failure to offer to consumers the
requisite number or percentage of handset models with a minimum T3
rating in December 2010, when Metropolitan 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 Metropolitan'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(d)(3)(ii) of the Rules.
11. Similarly, the record establishes that Metropolitan apparently failed
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. Accordingly, and consistent with section
503(b)(6) of the Act, we assess a base forfeiture of $15,000 for
Metropolitan'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.
12. 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 an upward adjustment of
the $30,000 base forfeiture amount is warranted. In this regard, we
take into account that Metropolitan was out of compliance with the
hearing aid-compatible handset deployment requirements for the entire
2010 calendar year. In addition, as the Commission made clear in the
Forfeiture Policy Statement, large or highly profitable entities, such
as Metropolitan, 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, Metropolitan's ability to pay
the proposed forfeiture, and the potentially significant impact on
consumers with hearing loss, we propose a forfeiture of $48,000
against Metropolitan 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) 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, Metropolitan
Telecommunications Holding Company d.b.a. MetTel IS NOTIFIED of its
APPARENT LIABILITY FOR A FORFEITURE in the amount of forty-eight
thousand dollars ($48,000) for apparent willful and repeated
violations 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, Metropolitan Telecommunications
Holding Company d.b.a. MetTel 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 e-mail arinquiries@fcc.gov with any
questions regarding payment procedures. Metropolitan Telecommunications
Holding Company d.b.a. MetTel 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.
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 also 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 Joseph Farano, Corporate Counsel,
Metropolitan Telecommunications Holding Company d.b.a. MetTel, 55
Water Street, 31st Floor, New York, NY 10041 and to Michael P.
Donahue, Counsel for Metropolitan Telecommunications Holding Company
d.b.a. MetTel, Helein & Marashlian, LLC, 1420 Spring Hill Road, Suite
205, McLean, VA 22102.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief
Enforcement Bureau
APPENDIX
Metropolitan Telecommunications Holding Company d.b.a. MetTel
Hearing Aid-Compatible Handset Model Offerings
WCDMA and GSM Air Interfaces
(T3 or higher rating)
Total T3-rated
Period Handset Handset T3-rated Handset T3
Models Models Models Required Compliance?
Offered Offered
January 5 1 No
2010
February 5 1 No
2010
March 5 1 No
2010
April 5 1 No
2010
May 1-14, 5 1
2010 At least 1/3 of
May of handset
15-31, 5 1 models offered
2010 or
June 2010 5 1 at least 5 No
July 2010 5 1 At least 1/3 of No
August 5 1 of handset models No
2010 offered or
September 5 1 at least 7 handset No
2010 models
October 5 1 (5/15/10-12/31/10) No
2010
November 5 1 No
2010
December 5 1 No
2010
Metropolitan is a Tier III carrier that provides service throughout the
continental United States. 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). Metropolitan offers service over the Global System for
Mobile Communications ("GSM"), Wideband Code Division Multiple Access
("WCDMA"), 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 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-compatible 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). However,
these handset deployment benchmarks 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: 204 (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, Wideband Code Division Multiple Access
("WCDMA") a.k.a. Universal Mobile Telecommunications System ("UMTS"), 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 Metropolitan Telecommunications Holding Company d.b.a. MetTel, Hearing
Aid Compatibility Status Report (filed Jan. 18, 2011), available at
http://wireless.fcc.gov/hac_documents/110210/5949966_304.PDF.
See Metropolitan Telecommunications Holding Company d.b.a. MetTel, Hearing
Aid Compatibility Status Report (filed Feb. 3, 2011), available at
http://wireless.fcc.gov/hac_documents/110210/5949401_298.pdf ("Amended
2010 Report").
The FCC Office of Engineering and Technology Equipment Authorization
System is the electronic database of all equipment certified under FCC
authority. This 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 id.
We note that our review revealed apparent inconsistencies between the
hearing aid compatibility ratings for certain models listed in the Amended
2010 Report and the ratings specified in the Commission's equipment
authorizations for these models. Specifically, Metropolitan's Amended 2010
Report indicates that the Samsung Omnia model (FCC ID A3LSGHI900) is rated
M4 when in fact Commission records show that the model is not rated for
hearing aid compatibility. Our review also revealed apparent
inconsistencies between the information submitted by Metropolitan in its
Amended 2010 Report and the OET database concerning the air interface(s)
over which certain handset models operated. Specifically, Metropolitan's
2010 Report indicated that the Research in Motion 9700 (L6ARCM70UW)
operates on the CDMA air interface when the equipment authorization for
the handset model indicates that the model operates on the GSM and WCDMA
air interfaces; that the Samsung Convoy U640 (A3LSCHU640) operates on the
CDMA and WCDMA air interfaces when the equipment authorization for the
handset model indicates that the model only operates on the CDMA air
interface; and that the Samsung Omnia (A3LSGHI900) operates on the CDMA
air interface when the equipment authorization for the handset model
indicates that the model operates on the GSM and WCDMA air interfaces.
Finally, although not relevant to our findings herein, this review
revealed additional apparent inconsistencies between the hearing aid
compatibility ratings for certain handset models listed in Metropolitan's
Amended 2010 Report and the ratings specified in the Commission's
equipment authorizations for these models. Specifically, Metropolitan's
Amended 2010 Report indicates that the Huawei Incredible model (FCC ID
NM8PB31200) is rated M3/T4 when Commission records show that the model is
rated M4/T3; that the Motorola Devour A555 model (FCC ID IHDP56KW1) is
rated M4/T3 when Commission records show that the model is rated M4/T4;
and that the Motion Blackberry 8330 model (FCC ID L6ARBU20CW) is rated
M3/T3 when Commission records show that the model is rated M4/T4.
See supra notes 14 and 15 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, 2009 and May 14, 2010,
either at least one-third of the handset models offered, or at least five
handset models, met or exceeded the T3 rating for inductive coupling, and
that between May 15, 2010 and May 14, 2011, either at least one-third of
the handset models they offered, or at least seven handset models, met or
exceeded the T3 rating for inductive coupling).
We note that while non-hearing aid-compatible handsets are technically
available to all consumers, these handsets may not function effectively
with hearing aids and can create excessive feedback and "noise." See
Hearing Aid Compatibility Order, 18 FCC Rcd at 16756 P: 6 ("[D]igital
wireless phones can cause interference to hearing aids and cochlear
implants because of electromagnetic energy emitted by the phone's antenna,
backlight, or other components. This interference can be significant
enough to prevent individuals with hearing aids or cochlear implants from
using digital wireless phones and services. In addition, most wireless
phones do not internally provide the capability to inductively couple with
hearing aids containing telecoils, as wireline phones do.").
See Appendix, Metropolitan Telecommunications Holding Company d.b.a.
MetTel, Hearing-Aid Compatible Handset Model Offerings, WCDMA and GSM Air
Interfaces (T3 or higher rating) (indicating that between January 1, 2010
and December 31, 2010, Metropolitan offered five handset models that
operate on the WCDMA air interface, only one 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, 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(d)(3)(ii).
See Appendix (indicating that between January 1, 2010 and December 31,
2010, Metropolitan offered five handset models that operate on the GSM air
interface, only one of which met or exceeded the T3 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 Telephone, 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 36.
See supra note 6.
See supra para. 5.
See supra para. 6.
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
Metropolitan'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 Metropolitan's apparent violations that
have occurred within the past year.
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.
See, e.g., Metropolitan Telecommunications Holding Company,
www.Manta.com/c/mm0r360/metropolitan-telecommunications-holding -company
(estimating Metropolitan's annual revenue to be $126,929,115) (as of
December 13, 2011).
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: 20.19(d)(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 11-2077
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Federal Communications Commission DA 11-2077