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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
File No.: EB-11-SE-058
In the Matter of )
NAL/Acct. No.: 201232100016
NEP Cellcorp, Inc. )
FRN: 0014802284
)
)
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 twenty-five thousand five
hundred dollars ($25,500) against NEP Cellcorp, Inc. ("NEP"). As
detailed herein, we find that NEP apparently willfully and repeatedly
violated section 20.19(c)(3)(ii) of the Commission's rules ("Rules").
We further find that this apparent misconduct continued for five
consecutive months during the 2010 calendar year. Specifically, NEP
apparently failed to offer to consumers the required number or
percentage of hearing aid-compatible digital wireless handset models
as set forth in the Rules. These hearing aid compatibility
requirements serve to ensure that consumers with hearing loss have
access to advanced telecommunications services.
II. BACKGROUND
2. In the 2003 Hearing Aid Compatibility Order, the Commission adopted
several measures to enhance the ability of consumers with hearing loss
to access digital wireless telecommunications. The Commission
established technical standards that digital wireless handsets must
meet to be considered compatible with hearing aids operating in
acoustic coupling and inductive coupling (telecoil) modes.
Specifically, the Commission adopted a standard for radio frequency
interference (the "M3" rating) to enable acoustic coupling between
digital wireless phones and hearing aids operating in acoustic
coupling mode, and a separate standard (the "T3" rating) to enable
inductive coupling with hearing aids operating in telecoil mode.
3. In the 2008 Hearing Aid Compatibility First Report and Order, the
Commission established several deadlines between 2008 and 2011 by
which manufacturers and service providers must offer specified numbers
or percentages of digital wireless handset models that are rated as
hearing aid-compatible. The number or percentage of digital wireless
handset models required to be offered to consumers by each deadline
depends on the applicable compatibility standard ("M" rating or "T"
rating), and the deployment schedule is tailored to the size of the
service provider as measured by its number of subscribers.
Specifically, between May 15, 2009 and May 14, 2010, non-Tier I
service providers were required to ensure that at least nine handset
models per digital air interface, or at least 50% of the models
offered per digital air interface, met or exceeded the M3 rating, and
that at least five handset models per digital air interface, or at
least one-third of the models offered per digital air interface, met
or exceeded the T3 rating. Beginning May 15, 2010, non-Tier I service
providers were required to offer to consumers at least ten handset
models per digital air interface, or at least 50% of the models
offered per digital air interface, that met or exceeded the M3 rating.
Similarly, between May 15, 2010 and May 14, 2011, non-Tier I service
providers were required to offer at least seven handset models per
digital air interface, or at least one-third of the models offered per
digital air interface, that met or exceeded the T3 rating.
4. On January 18, 2011, NEP submitted a hearing aid compatibility status
report covering January 1, 2010 to December 31, 2010. NEP 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 NEP's submission, the
Wireless Telecommunications Bureau referred this matter to the
Enforcement Bureau ("Bureau") for investigation. As part of its
investigation, the Bureau consulted 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 NEP apparently failed to offer, for an extended timeframe during
the 2010 calendar year, the required number or percentage of handset
models that met or exceeded the M3 rating.
III. DISCUSSION
A. Failure to Comply with Hearing Aid-Compatible Handset Deployment
Requirements
5. We find that NEP apparently failed to offer to consumers the required
number or percentage of hearing aid-compatible handset models that met
or exceeded the M3 rating. As noted above, the Commission has imposed
varying benchmarks for the deployment of hearing aid-compatible
handsets. During the period August through October 2010, NEP was
required to offer at least seven M3 or higher rated handset models
over the GSM air interface, and during November and December 2010, it
was required to offer at least eight-significantly fewer than the 14
to 15 handset models it made available to consumers without hearing
loss. As set forth in greater detail in the Appendix, NEP apparently
failed to meet this standard, repeatedly falling short by one handset
model. Accordingly, we find that NEP apparently willfully and
repeatedly violated section 20.19(c)(3)(ii) of the Rules by failing to
offer to consumers the required number or percentage of digital
wireless handset models that met or exceeded the M3 rating. We further
find that this apparent misconduct continued for five 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 NEP is
apparently liable for a forfeiture for its apparent willful and
repeated violations of section 20.19(c)(3)(ii) of the Rules.
7. Section 503(b)(2)(B) of the Act authorizes a forfeiture assessment
against a common carrier up to $150,000 for each violation, or for
each day of a continuing violation, up to a maximum of $1,500,000 for
a single act or failure to act. In exercising such authority, we are
required to take into account "the nature, circumstances, extent, and
gravity of the violation and, with respect to the violator, the degree
of culpability, any history of prior offenses, ability to pay, and
such other matters as justice may require."
8. The Commission's Forfeiture Policy Statement and section 1.80 of the
Rules do not establish a base forfeiture amount for violations of the
hearing aid compatibility requirements set forth in section 20.19 of
the Rules. The fact that the Forfeiture Policy Statement does not
specify a base amount in no way suggests that a forfeiture should not
be imposed. The Forfeiture Policy Statement states that "any omission
of a specific rule violation from the ... [forfeiture guidelines] ...
should not signal that the Commission considers any unlisted violation
as nonexistent or unimportant." The Commission retains the discretion,
moreover, to depart from the Forfeiture Policy Statement and issue
forfeitures on a case-by-case basis, under its general forfeiture
authority contained in section 503 of the Act.
9. In determining the appropriate forfeiture amount for violation of the
hearing aid-compatible handset deployment requirements, we take into
account that these requirements serve to ensure that consumers with
hearing loss have access to advanced telecommunications services. In
adopting the hearing aid compatibility rules, the Commission
underscored the strong and immediate need for such access, stressing
that individuals with hearing loss should not be denied the public
safety and convenience benefits of digital wireless telephony.
Moreover, as the Commission has noted, the demand for hearing
aid-compatible handsets is likely to increase with the public's
growing reliance on wireless technology and with the increasing median
age of our population.
10. We have previously determined that violations of the hearing
aid-compatible handset deployment requirements are serious in nature
because failure to make compatible handsets available to consumers
actually prevents hearing aid users from accessing digital wireless
communications. Accordingly, we generally apply a base forfeiture
amount of $15,000 to reflect the gravity of these violations. We have
applied the $15,000 base forfeiture on a per handset model basis
(i.e., for each handset model below the minimum number of hearing
aid-compatible models required by the Rules).
11. For purposes of calculating the base forfeiture amount for the
apparent M3-related violations, we focus on NEP's failure to offer to
consumers the requisite number or percentage of handset models with a
minimum M3 rating in December 2010, when NEP 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 NEP's
apparent failure to offer to consumers the required number or
percentage of M3-rated handset models in willful and repeated
violation of section 20.19(c)(3)(ii) of the Rules.
12. This base forfeiture amount, however, is subject to adjustment. Given
the totality of the circumstances, and consistent with the Forfeiture
Policy Statement, we conclude that an upward adjustment of the $15,000
base forfeiture amount is warranted. In this regard, we take into
account that NEP was out of compliance with the hearing aid-compatible
handset deployment requirements for nearly half of the 2010 calendar
year-failing to offer to consumers the requisite number or percentage
of handset models with a minimum M3 rating for five consecutive
months. Further, we take into account that NEP has previously violated
our hearing aid-compatible handset deployment requirements. Therefore,
based on all the factors and evidence, including the duration of the
violation, NEP's history of noncompliance with the hearing
aid-compatible handset deployment requirements, and the potentially
significant impact on consumers with hearing loss, we propose a
forfeiture of $25,500 against NEP for apparently willfully and
repeatedly failing to comply with the hearing aid-compatible handset
deployment requirements set forth in sections 20.19(c)(3)(ii) of the
Rules.
IV. ORDERING clauses
13. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the
Act, and sections 0.111, 0.311, and 1.80 of the Rules, NEP Cellcorp,
Inc. IS NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the
amount of twenty-five thousand five hundred dollars ($25,500) for
willful and repeated violation of section 20.19(c)(3)(ii) of the
Rules.
14. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the Rules,
within thirty (30) calendar days after the release date of this Notice
of Apparent Liability for Forfeiture, NEP Cellcorp, 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. NEP Cellcorp, Inc. must also send
electronic notification to Linda Nagel at Linda.Nagel@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. The statement must
also be emailed to Linda Nagel at Linda.Nagel@fcc.gov and Pamera
Hairston at Pamera.Hairston@fcc.gov.
17. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices; 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 Steven Tourje, Chief Executive Officer,
NEP Cellcorp, Inc., 720 Main St., Post Office Box D, Forest City, PA
18421.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief
Enforcement Bureau
APPENDIX
NEP Cellcorp, Inc.
Hearing Aid-Compatible Handset Model Offerings
(M3 or higher rating)
Total M3-rated
Period Handset Handset M3-rated Handset M3
Models Models Models Required Compliance?
Offered Offered
Jan. 8 5 Yes
2010
Feb. 10 6 Yes
2010
March 10 6 Yes
2010
April 10 6 Yes
2010
May
1-14, 12 6 Yes
2010
May the total number
15-31, 12 6 of handset models Yes
2010 offered or
June 12 6 at least 9 Yes
2010 handset models
July 12 6 (5/15/09-5/14/10) At least 50% of Yes
2010 the total number
Aug. 14 6 offered or No
2010
Sept. 14 6 handset models No
2010
Oct. 14 6 No
2010
Nov. 15 7 No
2010
Dec. 15 7 No
2010
NEP is a Global System for Mobile Communications-based ("GSM-based") Tier
III carrier serving Northeast Pennsylvania. Tier III carriers are
non-nationwide wireless radio service providers with 500,000 or fewer
subscribers as of the end of 2001. See Revision of the Commission's Rules
to Ensure Compatibility with Enhanced 911 Emergency Calling Systems, Phase
II Compliance Deadlines for Non-Nationwide CMRS Carriers, Order to Stay,
17 FCC Rcd 14841, 14847-48 P:P: 22-23 (2002).
47 C.F.R. S: 20.19(c)(3)(ii).
Section 68.4(a) of the Commission's Rules Governing Hearing Aid-Compatible
Telephones, Report and Order, 18 FCC Rcd 16753 (2003); Erratum, 18 FCC Rcd
18047 (2003) ("Hearing Aid Compatibility Order"); Order on
Reconsideration and Further Notice of Proposed Rulemaking, 20 FCC Rcd
11221 (2005). The Commission adopted these requirements for digital
wireless telephones under the authority of the Hearing Aid Compatibility
Act of 1988, codified at section 710(b)(2)(B) of the Communications Act of
1934, as amended (the "Act"), 47 U.S.C. S: 610(b)(2)(B).
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16777 P: 56; 47 C.F.R.
S: 20.19(b)(1), (2). The Hearing Aid Compatibility Order described the
acoustic coupling and the inductive coupling (telecoil) modes as follows:
In acoustic coupling mode, the microphone picks up surrounding sounds,
desired and undesired, and converts them into electrical signals. The
electrical signals are amplified as needed and then converted back into
sound by the hearing aid speaker. In telecoil mode, with the microphone
turned off, the telecoil picks up the audio signal-based magnetic field
generated by the voice coil of a dynamic speaker in hearing aid-compatible
telephones, audio loop systems, or powered neck loops. The hearing aid
converts the magnetic field into electrical signals, amplifies them as
needed, and converts them back into sound via the speaker. Using a
telecoil avoids the feedback that often results from putting a hearing aid
up against a telephone earpiece, can help prevent exposure to over
amplification, and eliminates background noise, providing improved access
to the telephone.
Hearing Aid Compatibility Order, 18 FCC Rcd at 16763 P: 22.
As subsequently amended, section 20.19(b)(1) provides that, for the period
beginning January 1, 2010, a wireless handset is deemed hearing
aid-compatible for radio frequency interference if, at a minimum, it meets
the M3 rating associated with the technical standard set forth in the
standard document "American National Standard Methods of Measurement of
Compatibility between Wireless Communication Devices and Hearing Aids,"
ANSI C63.19-2007 (June 8, 2007) ("ANSI C63.19-2007"), except that grants
of certification issued before January 1, 2010 under earlier versions of
ANSI C63.19 remain valid for hearing aid compatibility purposes. 47 C.F.R.
S: 20.19(b)(1). Section 20.19(b)(2) provides that, for the period
beginning January 1, 2010, a wireless handset is deemed hearing
aid-compatible for inductive coupling if, at minimum, it meets the T3
rating associated with the technical standard set forth in ANSI
C63.19-2007, except that grants of certification issued before January 1,
2010 under earlier versions of ANSI C63.19 remain valid for hearing aid
compatibility purposes. 47 C.F.R. S: 20.19(b)(2).
These requirements apply to each air interface over which service
providers offer service. See Amendment of the Commission's Rules Governing
Hearing Aid-Compatible Mobile Handsets, First Report and Order, 23 FCC Rcd
3406, 3419 P:P: 35-36 (2008) ("Hearing Aid Compatibility First Report and
Order"), Order on Reconsideration and Erratum, 23 FCC Rcd 7249 (2008)
(stating that the hearing aid 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. Id. at 3413 P: 20. See
also 47 C.F.R. S: 20.19(e). The de minimis exception provides that
manufacturers or mobile service providers that offer two or fewer digital
wireless handset models per air interface are exempt from the hearing aid
compatibility requirements, and manufacturers or service providers that
offer three digital wireless handset models per air interface must offer
at least one compliant model. 47 C.F.R. S: 20.19(e). Effective September
10, 2012, the de minimis exception will not be available to manufacturers
or mobile service providers that do not meet the definition of a "small
entity" beginning two years after their initial offerings. 47 C.F.R. S:
20.19(e)(1)(ii); see also Amendment of the Commission's Rules Governing
Hearing Aid-Compatible Mobile Handsets, Policy Statement and Second Report
and Order and Further Notice of Proposed Rulemaking, 25 FCC Rcd 11167,
11180-89 P:P: 35-59 (2010).
The term "air interface" refers to the technical protocol that ensures
compatibility between mobile radio service equipment, such as handsets,
and the service provider's base stations. Currently, the leading air
interfaces include GSM, Code Division Multiple Access ("CDMA"), Integrated
Digital Enhanced Network ("iDEN"), and Wideband Code Division Multiple
Access ("WCDMA") a/k/a Universal Mobile Telecommunications System
("UMTS").
See Hearing Aid Compatibility First Report and Order, 23 FCC Rcd at 3419
P: 35; 47 C.F.R. S: 20.19(c)(3)(ii).
See Hearing Aid Compatibility First Report and Order, 23 FCC Rcd at 3419
P: 36; 47 C.F.R. S: 20.19(d)(3)(ii).
See supra note 8.
See supra note 9.
See NEP Cellcorp, Inc. Hearing Aid Compatibility Status Report (filed Jan.
18, 2011), available at
http://wireless.fcc.gov/hac_documents/110210/5949489_299.PDF ("2010
Report").
The FCC Office of Engineering and Technology Equipment Authorization
System is an electronic database of all equipment certified under FCC
authority. The database identifies the hearing aid compatibility rating of
each device by FCC ID, as reported by the handset manufacturer in test
reports submitted to the Commission at the time of an equipment
authorization or of any modifications to such authorization. See
http://transition.fcc.gov/oet/ea/fccid/.
We note that our review revealed apparent inconsistencies between the
hearing aid compatibility ratings for certain handset models listed in the
2010 report and the ratings information specified in the Commission's
equipment authorization for those models. Specifically, NEP's 2010 Report
indicated that the Samsung Galaxy i9000 handset (FCC ID A3LGTI9000) has an
M3/T3 rating when in fact Commission records show that this handset is not
rated for hearing aid compatibility; that the Motorola Milestone Android
handset (FCC ID IHDP56KC2) has an M3/T3 rating while Commission records
show that this handset is not rated for hearing aid compatibility; and
that the Motorola MB300 Backflip handset (FCC ID IHDP56KD2) has an M3
rating when Commission records show that this handset is not rated for
hearing aid compatibility.
See supra note 13 and accompanying text.
See 47 C.F.R. S: 20.19(c)(3)(ii) (requiring non-Tier I digital wireless
service providers to ensure that beginning May 15, 2010, either at least
50% of the handset models they offered, or at least 10 handset models, met
or exceeded the M3 rating for radio frequency interference). All of NEP's
handset models operated only over the GSM air interface during the 2010
reporting period.
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, NEP Cellcorp, Inc. Hearing Aid-Compatible Handset Offerings
(M3 or higher rating) (indicating that between August 1, 2010 and December
31, 2010, NEP offered either 14 or 15 handset models, only 6 to 7 of which
had a minimum M3 rating).
Section 312(f)(1) of the Act defines "willful" as "the conscious and
deliberate commission or omission of [any] act, irrespective of any intent
to violate" the law. 47 U.S.C. S: 312(f)(1). The legislative history of
section 312 clarifies that this definition of willful applies to both
sections 312 and 503(b) 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 (2001),
forfeiture ordered, Forfeiture Order, 17 FCC Rcd 22626 (2002) (forfeiture
paid); Southern California, 6 FCC Rcd at 4388.
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 (2002).
47 U.S.C. S: 503(b)(2)(B). The Commission has amended section 1.80(b)(2)
of the Rules, 47 C.F.R. S: 1.80(b)(2), three times to increase the maximum
forfeiture amounts, in accordance with the inflation adjustment
requirements contained in the Federal Civil Penalties Inflation Adjustment
Act of 1990, 28 U.S.C. S: 2461 note, as amended by the Debt Collection
Improvement Act of 1996, 31 U.S.C. S: 3701 note. The most recent inflation
adjustment took effect September 2, 2008 and applies to violations that
occur after that date. See Amendment of Section 1.80(b) of the
Commission's Rules, Adjustment of Forfeiture Maxima to Reflect Inflation,
Order, 23 FCC Rcd 9845, 9847 (2008) (adjusting the maximum statutory
amounts for common carriers from $130,000/$1,325,000 to
$150,000/$1,500,000); 73 Fed. Reg. 44663-5.
47 U.S.C. S: 503(b)(2)(E). See also 47 C.F.R. S: 1.80(b)(5), Note to
paragraph (b)(5): Section II. Adjustment Criteria for Section 503
Forfeitures.
See The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and
Order, 12 FCC Rcd 17087 (1997), recon. denied, Memorandum Opinion and
Order, 15 FCC Rcd 303 (1999) ("Forfeiture Policy Statement"); 47 C.F.R.
S:S: 1.80, 20.19.
Forfeiture Policy Statement, 12 FCC Rcd at 17099 P: 22.
Id.
Hearing Aid Compatibility Order, 18 FCC Rcd at 16755 P: 4.
Id. at 16756 P: 5 (noting that approximately one in ten Americans, or 28
million Americans, have some level of hearing loss, that the proportion
increases with age, and that the number of those affected will likely grow
as the median age increases). See also Section 68.4(a) of the Commission's
Rules Governing Hearing Aid-Compatible Telephones, Report on the Status of
Implementation of the Commission's Hearing Aid Compatibility Requirements,
22 FCC Rcd 17709, 17719 P: 20 (2007) (noting, just four years later, that
the number of individuals with hearing loss in the United States was "at
an all time high of 31 million people - with that number expected to reach
approximately 40 million people at the end of [2010]").
See South Canaan Cellular Communications Company, L.P, Notice of Apparent
Liability for Forfeiture, 23 FCC Rcd 20, 24 P: 11(Enf. Bur., Spectrum Enf.
Div. 2008) (forfeiture paid) ("South Canaan") (finding that "a violation
of the labeling requirements, while serious because it deprives hearing
aid users from making informed choices, is less egregious than a violation
of the handset requirements because failure to make compliant handsets
available actually deprives hearing aid users from accessing digital
wireless communications."). See also, e.g., NEP Cellcorp, Inc., Notice of
Apparent Liability for Forfeiture, 24 FCC Rcd 8, 13 P: 11 (Enf. Bur.,
Spectrum Enf. Div. 2009) (forfeiture paid) ("NEP Cellcorp"); Pinpoint
Wireless, Inc., Notice of Apparent Liability for Forfeiture, 23 FCC Rcd
9290, 9295 P: 11 (Enf. Bur., Spectrum Enf. Div. 2008), consent decree
ordered, Order and Consent Decree, 24 FCC Rcd 2951 (Enf. Bur., Spectrum
Enf. Div. 2009) ("Pinpoint Wireless"); Smith Bagley, Inc., Notice of
Apparent Liability for Forfeiture, 24 FCC Rcd 14113, 14118 P: 11 (Enf.
Bur., Spectrum Enf. Div. 2009), response pending ("Smith Bagley").
See, e.g., NEP Cellcorp, 24 FCC Rcd at 13 P: 11; Pinpoint Wireless, 23 FCC
Rcd at 9295 P: 11; Smith Bagley, 24 FCC Rcd at 14118 P: 11; South Canaan,
23 FCC Rcd at 24 P:11.
See supra note 32.
See supra para. 5.
See 47 C.F.R. S: 1.80(b)(4), Note to Paragraph (b)(4): Section II.
Adjustment Criteria for Section 503 Forfeitures (establishing "repeated or
continuous violation" as an upward adjustment factor). While section
503(b)(6) of the Act bars the Commission from proposing a forfeiture for
violations that occurred more than a year prior to the issuance of an NAL,
we may consider the fact that NEP's misconduct occurred over an extended
period to place "the violations in context, thus establishing the
licensee's degree of culpability and the continuing nature of the
violations." Roadrunner Transportation Inc., Forfeiture Order, 15 FCC Rcd
9669, 9671-72 P: 8 (2000); BASF Corporation, Notice of Apparent Liability
for Forfeiture, 25 FCC Rcd 17300, 17302 n.24 (Enf. Bur., Spectrum Enf.
Div. 2010); Call Mobile, Inc., Notice of Apparent Liability for
Forfeiture, 26 FCC Rcd 74, 76 n.23 (Enf. Bur., Spectrum Enf. Div. 2011).
The forfeiture amount we propose herein relates only to NEP's apparent
violations that have occurred within the past year.
See NEP Cellcorp, Inc., Notice of Apparent Liability for Forfeiture, 24
FCC Rcd 8, 13 P: 11 (Enf. Bur., Spectrum Enf. Div. 2009) (proposing a
$12,000 forfeiture for the failure to offer at least two models that meet
the inductive coupling standards for hearing aid compatibility)
(forfeiture paid).
47 C.F.R. S: 20.19(c)(3)(ii).
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.311, 1.80.
47 C.F.R. S: 1.80(f)(3), 1.16.
Federal Communications Commission DA 11-2079
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Federal Communications Commission DA 11-2079