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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No.: EB-07-SE-327
In the Matter of
) NAL/Acct. No.: 200832100064
Corr Wireless Communications, LLC
) FRN: 0003804101
)
FORFEITURE ORDER
Adopted: July 6, 2012 Released: July 6, 2012
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (Order), we issue a monetary forfeiture in
the amount of twenty thousand dollars ($20,000) to Corr Wireless
Communications, LLC (Corr) for willfully and repeatedly violating
former Section 20.19(d)(2) of the Federal Communications Commission's
(Commission or FCC) rules (Rules) by failing to include in its digital
wireless handset offerings at least two handset models that met the
inductive coupling standard for hearing aid compatibility by the
applicable deadline. 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 individuals 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 (formerly the U3 rating, now the M3 rating) to enable
acoustic coupling between digital wireless phones and hearing aids
operating in acoustic coupling mode, and a separate standard
(formerly the U3T rating, now the T3 rating) to enable inductive
coupling with hearing aids operating in telecoil mode. The Commission
further established, for each standard, deadlines by which handset
manufacturers and digital wireless service providers were required to
offer specified numbers of digital wireless handset models rated
hearing aid-compatible. Specifically, by September 16, 2005,
manufacturers and service providers were required to offer at least
two handset models per air interface that met the M3 rating for radio
frequency interference. In addition, by September 18, 2006,
manufacturers and service providers were required to offer at least
two handset models per air interface that met the T3 rating for
inductive coupling. These handset deployment requirements apply to
each air interface over which service providers offer service.
3. Corr is a Tier III wireless carrier that offers service over the GSM
air interface. In its November 10, 2006, Status Report on Hearing Aid
Compatibility, Corr reported that it offered for sale several handset
models that met the M3 rating for radio frequency interference.
However, Corr's 2006 Report did not address its handset model
offerings that were rated T3 for inductive coupling. The Wireless
Telecommunications Bureau referred the matter to the Enforcement
Bureau (Bureau) for investigation and possible enforcement action.
4. Subsequently, the Bureau's Spectrum Enforcement Division (Division)
issued a letter of inquiry (LOI) to Corr, directing the company to
submit a sworn written response to a series of questions related to
its compliance with the hearing aid compatibility requirements. Corr
responded to the LOI on September 21, 2007. In its LOI Response, Corr
asserted that it began offering for sale one T3-rated handset model,
the Motorola V3i, on October 23, 2006. Corr further asserted that it
began offering for sale two additional T3-rated handset models, the
Nokia 6085 and the Nokia 6126h, in August 2007.
5. On July 31, 2008, the Division issued a Notice of Apparent Liability
for Forfeiture (NAL) against Corr, finding that Corr apparently
willfully and repeatedly violated former Section 20.19(d)(2) of the
Rules by failing to offer to consumers at least two T3-rated handset
models by September 18, 2006. The Division noted in the NAL that Corr
began offering its first T3-rated handset model on October 23, 2006,
and that Corr did not come into full compliance by offering a second
T3-rated handset model until August 2007, nearly a full year after the
deadline. The Division also found that Corr's atypical size for a Tier
III carrier, its ability to pay a forfeiture, and the duration of the
violation warranted an upward adjustment of the $15,000 base
forfeiture. Accordingly, the Division found Corr apparently liable for
a forfeiture in the amount of $30,000.
6. On August 29, 2008, Corr filed a response to the NAL requesting that
the proposed forfeiture be reduced or canceled. In its NAL Response,
Corr first argues that the proposed forfeiture should be canceled
because two of the handset models it offered prior to the applicable
deadline_the Nokia 6101h and 6102h handset models_would qualify for a
T3 rating if used in conjunction with an external add-on component,
the Nokia LPS-4 loop set attachment. In support, Corr asserts that
former Section 20.19(b) of the Rules is silent on whether a handset
model's hearing aid compatibility function must be internal to the
handset and that language in the Hearing Aid Compatibility Order
indicating that a handset model's hearing aid compatibility function
"must be provided as an integral part of the phone" is not
controlling. In the alternative, Corr argues that the Hearing Aid
Compatibility Order expressly permits the use of external add-ons that
do not "significantly enlarge or alter the shape or weight of the
phone as compared to other phones offered by the manufacturer." Corr
therefore claims that because the Nokia LPS-4 Loop set attachment did
not alter the shape, size, or weight of the handset models with which
it was used, the Nokia handset models it offered were compliant with
former Section 20.19(d)(2).
7. Corr also argues that the proposed forfeiture should be reduced
because it is excessive, arbitrary, and capricious. In this regard,
Corr asserts that Section 1.80 of the Rules does not establish a base
forfeiture amount for failure to comply with the hearing aid
compatibility requirements and that the Commission may not establish
and impose such a fine ex post facto. Corr also asserts that the
$15,000 base forfeiture is excessive in light of the small number of
Corr's subscribers who were potentially affected and in comparison to
other forfeitures specified in Section 1.80.
8. Corr further contends that the Division's assessment of a $15,000
upward adjustment of the base forfeiture is inconsistent with prior
precedent involving violations of the hearing aid-compatible handset
deployment requirements by other Tier III carriers and is not
reconcilable with similar upward adjustments assessed against much
larger and more profitable carriers. In this regard, Corr claims that
the Division's characterization of Corr as an atypical Tier III
carrier with over 300,000 subscribers was inaccurate, and that Corr is
not the type of "mega-conglomerate" for which ability to pay upward
adjustments were intended. Finally, Corr raises several arguments that
it contends justify a reduction of the proposed forfeiture, including
a claim that it "voluntary disclosed" the handsets it listed in the
2006 Report; that the company has a history of overall compliance; and
that the company made good faith efforts to comply much like parties
that had received waivers of the hearing aid compatibility requirement
in the past.
III. DISCUSSION
9. The forfeiture amount proposed in this case was assessed in accordance
with Section 503(b) of the Communications Act of 1934, as amended
(Act), Section 1.80 of the Rules, and the Commission's Forfeiture
Policy Statement. In examining Corr's NAL Response, Section
503(b)(2)(E) of the Act requires that we 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. As discussed below, we are unpersuaded by Corr's legal and
equitable arguments and find that a forfeiture was validly proposed
for Corr's continuing violation of former Section 20.19(d)(2) of the
Rules during nearly an entire calendar year. However, we conclude that
a reduction of the forfeiture to $20,000 is warranted in light of
additional information provided by Corr in its NAL Response concerning
its actual size.
10. At the outset, we reject Corr's contention that former Section
20.19(b) and the Hearing Aid Compatibility Order permit the use of
add-on components to achieve a handset model's hearing aid
compatibility. The statutory mandate on this point is clear: the
Hearing Aid Compatibility Act expressly states that telephones must
"provide internal means for effective use with hearing aids that are
designed to be compatible with telephones which meet established
technical standards for hearing aid compatibility." We therefore
reject Corr's argument that former Section 20.19(b) could or should be
construed in a manner inconsistent with the plain language of the
Hearing Aid Compatibility Act.
11. In addition, Corr's argument misses the fundamental point of the
Commission's action_to transition from the use of add-on components,
an acceptable approach prior to the effective date of the Hearing Aid
Compatibility Order, to requiring hearing aid compatibility as an
internal function of the phone. Specifically, the Hearing Aid
Compatibility Order makes clear that "[u]ntil hearing aid
compatibility is provided internally in digital wireless handsets in
accordance with this Order, consumers can reduce or even eliminate the
interference to their hearing aids by increasing the distance between
the hearing aid and the wireless phone through the use of accessory
devices such as neck loops or hands-free headsets." Thus, by September
18, 2006_the deadline by which manufacturers and service providers
were required to offer at least two handset models per air interface
that met the T3 rating for inductive coupling in accordance with the
Hearing Aid Compatibility Order_the Rules required that a handset's
hearing aid compatibility function be internal to the handset.
12. Corr acknowledges that the handset manufacturer itself confirmed,
after Corr received the Division's LOI, that coupling the Nokia 6101h
and 6102h handset models with the Nokia LPS-4 loop set attachment did
not, in fact, render these handset models hearing aid-compatible. We
are not persuaded by Corr's argument that it was entitled to rely on
initial advice from a Nokia representative that the Nokia 6101h and
6102h handset models qualified for a T3 rating when used in
conjunction with the Nokia LPS-4 loop set attachment. As a Commission
licensee, Corr is charged with the responsibility of knowing and
complying with the Act and the Rules. The Commission has long held
that mitigation of a forfeiture is not justified where violators claim
their actions or omissions were due to inadvertent errors or
unfamiliarity with the statutory or regulatory requirements.
13. We also reject Corr's argument that the Commission is precluded from
assessing a forfeiture for violations of the hearing aid-compatible
handset deployment requirements and that the $15,000 base forfeiture
is excessive. As we have repeatedly noted, the fact that 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 deployment requirements set forth in
Section 20.19 of the Rules in no way suggests that a forfeiture should
not be imposed for such violations. 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.
14. We are similarly unpersuaded by Corr's claim that the forfeiture is
excessive. As noted in the NAL, in determining the appropriate
forfeiture amount for violation of the hearing aid-compatible handset
deployment requirements, we have taken 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. As the Commission has
explained, 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. In addition, the
Commission has repeatedly emphasized that violations of the hearing
aid-compatible handset deployment requirements are serious in nature
because "the 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).
15. Corr further argues that the proposed forfeiture should be canceled or
reduced on equitable grounds because the Commission had previously
granted requests for waiver of a different hearing aid-compatible
handset deployment deadline. We disagree. The extensions of time to
which Corr refers were granted to companies that timely sought waiver
of the hearing aid compatibility rules. In contrast, Corr did not seek
such a waiver or request an extension of the deployment deadline.
16. Corr's claimed downward adjustment for a "voluntary disclosure" is
also without merit. In T-Mobile Northeast, the Bureau found that a
downward adjustment was appropriate based on the company's voluntary
disclosure of the violation to Commission staff "prior to the
Commission's initiation of an investigation." In this case, however,
Corr did not disclose to the Commission its hearing aid-compatible
handset deployment violations prior to filing its 2006 Report. In
fact, Corr submitted its 2006 Report identifying its handset model
offerings in response to a Commission requirement. Consequently, we
decline to reduce the forfeiture amount on that basis.
17. Although Corr claims to have a history of overall compliance with the
Commission's rules, we note that on May 11, 2009, Corr was issued a
Notice of Apparent Liability for Forfeiture for its violation of
Section 1.903(a) of the Rules for operating Common Carrier Fixed
Point-to-Point Microwave stations on unauthorized frequencies. Based
on the record in that proceeding, Corr discovered that it was in
violation of Section 1.903 on June 16, 2008, shortly before the
release of the NAL. We therefore find that Corr did not have a history
of compliance and decline to reduce the forfeiture amount on that
basis.
18. After considering all the facts and circumstances, including Corr's
annual revenues of approximately $28.8 million at the time the NAL was
issued, the duration of the violation which continued for nearly one
year after the September 18, 2006, deployment deadline, and more
accurate information about Corr's size, we conclude that a modest
downward adjustment of the forfeiture amount proposed in the NAL is
warranted.
19. Accordingly, based on the record before us, we conclude that Corr
willfully and repeatedly violated former Section 20.19(d)(2) of the
Rules, but reduce the proposed $30,000 forfeiture to $20,000.
IV. ORDERING CLAUSES
20. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Sections 0.111, 0.311, and 1.80(f)(4) of the Rules, Corr
Wireless Communications, LLC IS LIABLE FOR A MONETARY FORFEITURE in
the amount of twenty thousand dollars ($20,000) for willful and
repeated violation of former Section 20.19(d)(2) of the Rules.
21. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within thirty (30) calendar days after the
release date of this Forfeiture Order. If the forfeiture is not paid
within the period specified, the case may be referred to the U.S.
Department of Justice for enforcement of the forfeiture pursuant to
Section 504(a) of the Act. Corr Wireless Communications, LLC shall
send electronic notification of payment to Pamera Hairston at
Pamera.Hairston@fcc.gov, Kathy Harvey at Kathy.Harvey@fcc.gov, and
Samantha Peoples at Sam.Peoples@fcc.gov on the date said payment is
made.
22. The payment must be made by check or similar instrument, wire
transfer, or credit card, and must include the NAL/Account number and
FRN referenced above. Regardless of the form of payment, a completed
FCC Form 159 (Remittance Advice) must be submitted. When completing
the FCC Form 159, enter the Account Number in block number 23A (call
sign/other ID) and enter the letters "FORF" in block number 24A
(payment type code). Below are additional instructions you should
follow based on the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
23. Any request for full payment under an installment plan should be sent
to: Chief Financial Officer-Financial Operations, Federal
Communications Commission, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk by
phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
24. IT IS FURTHER ORDERED that a copy of this Order shall be sent by
first class mail and certified mail return receipt requested to Tom
Buchanan, Corr Wireless Communications, LLC, P. O. Box 1500, Oneonta,
AL 35121, and to Donald J. Evans, Esq., counsel for Corr Wireless
Communications, LLC, Fletcher, Heald & Hildreth, P.L.C., 1300 North
17th Street, 11th Floor, Arlington, VA 22209.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
47 C.F.R. S: 20.19(d)(2) (2006).
See 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, 11174, para. 18 (2010)
(2010 Policy Statement).
See 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) (Hearing Aid Compatibility Reconsideration Order). 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)(C) of the Communications Act of 1934, as amended, 47
U.S.C. S: 610(b)(2)(C) (Hearing Aid Compatibility Act).
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16777, para. 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, para. 22.
Former Section 20.19(b)(1) provided that a wireless handset is deemed
hearing aid-compatible for radio frequency interference if, at minimum, it
receives a U3 rating as set forth in "American National Standard for
Methods of Measurement of Compatibility between Wireless Communications
Devices and Hearing Aids, ANSI C63.19-2001." 47 C.F.R. S: 20.19(b)(1)
(2006). Former Section 20.19(b)(2) provided that a wireless handset is
deemed hearing aid-compatible for inductive coupling if, at minimum, it
receives a U3T rating as set forth in ANSI C63.19-2001. 47 C.F.R. S:
20.19(b)(2) (2006). On April 25, 2005, the Commission's Office of
Engineering and Technology (OET) announced that it would also certify
handsets as hearing aid-compatible based on the revised version of the
standard, ANSI C63.19-2005. See OET Clarifies Use of Revised Wireless
Phone Hearing Aid Compatibility Standard Measurement Procedures and Rating
Nomenclature, Public Notice, 20 FCC Rcd 8188 (OET 2005). On June 6, 2006,
the Commission's Wireless Telecommunications Bureau (WTB) and OET
announced that the Commission would also certify handsets as hearing
aid-compatible based on the revised version of the standard, ANSI
C63.19-2006. Thus, during the time period relevant here, applicants for
certification could rely on either the 2001 version, the 2005 version, or
the 2006 version of the ANSI C63.19 standard. See Wireless
Telecommunications Bureau and Office of Engineering and Technology Clarify
Use of Revised Wireless Phone Hearing Aid Compatibility Standard, Public
Notice, 21 FCC Rcd 6384 (WTB/OET 2006). In addition, because the 2001 and
2005 versions of the ANSI C63.19 technical standard used the same
technical criteria to determine the hearing aid compatibility and the
inductive coupling capability of a wireless phone, to avoid confusion, the
"M" and "T" labeling system associated with the 2005 and 2006 versions of
the standard may be used for compatibility testing performed under any of
these versions. See Hearing Aid Compatibility Reconsideration Order, 20
FCC Rcd at 11238, n.118.
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16780, para. 65; see
also 47 C.F.R. S: 20.19(c), (d) (2006). These requirements did not apply
to service providers and manufacturers that met the de minimis exception.
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16775-76, para. 53. In
order to monitor the availability of these handsets, the Commission also
required manufacturers and service providers to report every six months on
efforts toward compliance with the hearing aid compatibility requirements
for the first three years of implementation, and then annually thereafter
through the fifth year of implementation. See Hearing Aid Compatibility
Order, 18 FCC Rcd at 16787, para. 89; see also Wireless Telecommunications
Bureau Announces Hearing Aid Compatibility Reporting Dates for Wireless
Carriers and Handset Manufacturers, Public Notice, 19 FCC Rcd 4097 (WTB
2004).
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16780, para. 65; see
also 47 C.F.R. S: 20.19(c).
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16780, para. 65; see
also 47 C.F.R. S: 20.19(d).
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16780, para. 65. 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. At the time the Hearing Aid
Compatibility Order was released, the leading air interfaces included Code
Division Multiple Access (CDMA), Time Digital Multiple Access (TDMA),
Global System for Mobile Communications (GSM), and Integrated Dispatch
Enhanced Network (iDEN). See id. at n.127.
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, paras. 22-23 (2002).
See Corr Wireless Communications Status Report on Hearing Aid
Compatibility, WT Docket No. 01-309 (Nov. 10, 2006) (2006 Report), at 1.
See id.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
FCC Enforcement Bureau, to Tom Buchanan, Corr Wireless Communications, LLC
(Sept. 10, 2007) (on file in EB-07-SE-327).
See Letter from Donald J. Evans, Esq., Fletcher, Heald & Hildreth, P.L.C.,
Counsel to Corr Wireless Communications, LLC, to Marlene Dortch,
Secretary, FCC Office of the Secretary (Sept. 21, 2007) (on file in
EB-07-SE-327) (LOI Response).
See id. at 3.
See id. at 4.
See Corr Wireless Communications, LLC, Notice of Apparent Liability for
Forfeiture, 23 FCC Rcd 11567 (Enf. Bur. 2008).
See id. at 11567, para. 1.
See id. at 11572, para. 12. We note that given the Division's analysis at
the time, a monetary forfeiture was not imposed for Corr's failure to
offer its first T3-rated handset model after the September 18, 2006
deadline. See id. at 11572-73, paras. 12-13.
See id. at 11572-73, para. 13.
See id. at 11573, para. 13.
See Corr Wireless Communications, LLC, Response to Notice of Apparent
Liability for Forfeiture (Aug. 29, 2008) (NAL Response).
See id. at 1.
See id. at 3-4.
See id. at 4 (quoting Hearing Aid Compatibility Order, 18 FCC Rcd at
16778, para. 61).
Id.
See id. at 4-5. In this regard, Corr also notes that a Nokia
representative initially advised Corr that the Nokia LPS-4 loop set
attachment, when coupled with the Nokia handsets, met the T3 standard. See
id. at 3. But see infra para. 12.
See id. at 1.
See id. at 5.
See id. at 5-6. Corr claims that "of its almost 40,000 subscribers, only
about 880 people might have a use for the HAC products mandated by the
Commission's rules." Id. at 5. Corr provides this estimate based on data
that it contends indicate that approximately 10% of the American
population is hearing impaired to some extent, although only 22% of that
number are sufficiently impaired to use a hearing aid. See id. (citing
http://www.americanhearingbenefits.com/hearing_losshtml (2008)).
See id. at 6 (citing Blanca Telephone Company, Notice of Apparent
Liability for Forfeiture, 23 FCC Rcd 9398 (Enf. Bur. 2008) (response
pending)).
See id. at 6-7 (citing T-Mobile Northeast, L.L.C., Notice of Apparent
Liability for Forfeiture, 21 FCC Rcd 11799, 11806-07, para. 19 (Enf. Bur.
2006) (T-Mobile Northeast) (upwardly adjusting a $7,000 base forfeiture
to $14,000 based on the company's size and ability to pay, and downwardly
adjusting the proposed forfeiture based on the company's voluntary
disclosures), consent decree ordered, Order and Consent Decree, 24 FCC Rcd
160 (Enf. Bur. 2009); SunCom Wireless, Inc., Notice of Apparent Liability
for Forfeiture, 23 FCC Rcd 8681, 8688-89, paras. 17-18 (Enf. Bur. 2008)
(forfeiture paid) (upwardly adjusting a $30,000 base forfeiture to $60,000
based on a finding, inter alia, that it is "appropriate to set the
forfeiture amount at a higher level for larger entities, such as Tier II
carriers")).
See id. Specifically, Corr asserts that it is a small Tier III rural
cellular telephone company that operates outside of any top 100 market and
that Corr's 2007 Form 477 (Local Telephone Competition and Broadband
Reporting) indicates that it had only 39,481 subscribers. See id. Corr
further argues that the forfeiture proposed in the NAL "creates the
appearance" that the Division simply doubled the $15,000 forfeiture for
the violation that was within the statute of limitations because no
forfeiture could be assessed for the violation that was outside the
statute of limitations. See id. at 7.
See id. at 6-7.
See id.
See id.
See id. at 1-3. Corr explains that the Commission's earlier approval of
several requests for waiver of a different hearing aid-compatible handset
deployment deadline was prompted by the fact that there was widespread
confusion within the industry concerning which handset models were hearing
aid-compatible. Corr then appears to reason that similar leniency should
be afforded to Corr on the basis of its good faith efforts to comply. See
id. (citing Section 68.4(a) of the Commission's Rules Governing Hearing
Aid-Compatible Telephones, Memorandum Opinion and Order, 22 FCC Rcd 20459,
20472, para. 30 (2007) (Hearing Aid Compatibility GSM Waivers Extension
Order) (granting seven petitioners extensions of an earlier deployment
deadline and relying on "the difficulty they had in obtaining the correct
compatibility information created unique and unusual circumstances.")).
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
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, 15 FCC Rcd 303 (1999) (Forfeiture
Policy Statement).
See 47 U.S.C. S: 503(b)(2)(E).
See NAL Response at 3-5.
47 U.S.C. S: 610(b)(1)(B) (emphasis added).
Hearing Aid Compatibility Order, 18 FCC Rcd at 16778, para. 61.
See id. at 16780, para. 65. The Hearing Aid Compatibility Order required
manufacturers and service providers to offer at least two handset models
per air interface that met the T3 rating for inductive coupling by three
years after the date the rule changes were published in the Federal
Register. See id. at 16802. These rule changes were published in the
Federal Register on September 16, 2003. See 68 Fed. Reg. 54,173 (Sept. 16,
2003).
See NAL Response at 3.
See id.
See Discussion Radio, Inc., Memorandum Opinion and Order and Notice of
Apparent Liability, 19 FCC Rcd 7433, 7437, para. 12 (2004).
See, e.g., Emery Telephone, Notice of Apparent Liability for Forfeiture,
13 FCC Rcd 23854, 23859, para. 12 (1998), recon. dismissed in part and
denied in part, Memorandum Opinion and Order, 15 FCC Rcd 7181 (1999);
Profit Enterprises, Inc., Forfeiture Order, 8 FCC Rcd 2846, 2846, para. 5
(1993); Southern California Broadcasting Company, Memorandum Opinion and
Order, 6 FCC Rcd 4387, 4388, para. 3 (1991); Lakewood Broadcasting
Service, Inc., Memorandum Opinion and Order, 37 FCC 2d 437, 438, para. 6
(1972). Moreover, the Commission has consistently "refused to excuse
licensees from forfeiture penalties where the actions of employees or
independent contractors have resulted in violations." See also Eure Family
Limited Partnership, Memorandum Opinion and Order, 17 FCC Rcd 21861,
21863-64, para. 7 (2002); Triad Broadcasting Company, Inc., Memorandum
Opinion and Order, 96 FCC 2d 1235, 1244, para. 21 (1984).
See NAL Response at 5-6.
See, e.g., Farmers Cellular Telephone, Inc., Notice of Apparent Liability
for Forfeiture, 23 FCC Rcd 8622, 8627, paras. 10, 13 (Enf. Bur. 2008),
(response pending) (proposing a forfeiture of $30,000 for failure to offer
two handset models that met the T3 rating for inductive coupling by the
applicable deadline); South Slope Cooperative Telephone Company d/b/a
South Slope Wireless, Notice of Apparent Liability for Forfeiture, 23 FCC
Rcd 4706, 4710, paras. 9, 12 (Enf. Bur. 2008), (response pending)
(proposing a $15,000 forfeiture for failure to offer two handset models
that met the T3 rating for inductive coupling by the applicable deadline);
see also Panhandle Telecommunications Systems, Inc., 21 FCC Rcd 11788,
11794-95, paras. 16-18 (Enf. Bur. 2006) (forfeiture paid) (establishing a
$7,000 base forfeiture for constructing a facility prior to completing
historic preservation or other environmental reviews required under
Section 1.1307(a) of the Rules).
Forfeiture Policy Statement, 12 FCC Rcd at 17099, para. 22.
See id.
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16755, para. 4.
See id. at 16756, para. 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, para. 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 T-Mobile USA, Inc., File No. EB-10-SE-127, Notice of Apparent
Liability for Forfeiture, FCC 12-39, 2012 WL 1305323, at *5, para. 18
(Apr. 13, 2012) (T-Mobile USA); see also, South Canaan Cellular
Communications Company, L.P., Notice of Apparent Liability for Forfeiture,
23 FCC Rcd 20, 24, para. 11 (Enf. Bur. 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, para. 11 (Enf. Bur. 2009) (forfeiture paid)
(NEP Cellcorp); Pinpoint Wireless, Inc., Notice of Apparent Liability for
Forfeiture, 23 FCC Rcd 9290, 9295, para. 11 (Enf. Bur. 2008), consent
decree ordered, Order and Consent Decree, 24 FCC Rcd 2951 (Enf. Bur. 2009)
(Pinpoint Wireless); Smith Bagley, Inc., 24 FCC Rcd 14113, 14118, para. 11
(Enf. Bur. 2009) (response pending) (Smith Bagley).
See e.g., NEP Cellcorp, 24 FCC Rcd at 13, para. 11; Pinpoint Wireless, 23
FCC Rcd at 9295, para. 11; Smith Bagley, 24 FCC Rcd at 14118, para. 11;
South Canaan, 23 FCC Rcd at 24, para. 11. See also, T-Mobile USA, 2012 WL
1305323 at *6, para. 23 (stating that "[g]iven the potentially substantial
and tangible impact on consumers with hearing loss, we will continue to
apply the $15,000 per handset base amount"). In this regard, we also
reject Corr's argument that the base forfeiture amount is excessive in
light of Corr's estimation of the number of its subscribers who may
require a hearing aid-compatible phone. Even assuming that Corr's estimate
was accurate, we nevertheless conclude that Corr's violation was serious
because its failure to offer the requisite number of hearing
aid-compatible handset models may have prevented Corr's hearing disabled
customers from accessing digital wireless communications.
See supra note 57. We note that in T-Mobile USA, the Commission determined
that the Bureau's prior decisions on delegated authority that applied the
$15,000 per handset base forfeiture only with respect to the calendar
month within the statute of limitations when the manufacturer or service
provider fell the furthest short of the required deployment benchmark-the
highest handset shortfall approach-"does not adequately reflect the nature
and scope of the violations of hearing aid compatibility rules." T-Mobile
USA, 2012 WL 1305323 at *5, para. 18. Accordingly, the Commission applied
the $15,000 base forfeiture "to each failure to offer a hearing
aid-compatible handset during each month of the calendar year, rather than
a limited subset of such handset shortages as the Bureau did previously."
Id. at *6, para. 23 (emphasis in original). The proposed forfeiture in
this case predates the T-Mobile decision.
See NAL Response at 3.
We also note that Corr's reliance on the waivers granted in the Hearing
Aid Compatibility GSM Waivers Extension Order is misplaced. That decision
addressed petitions for extensions of previously granted limited waivers
of former Section 20.19(c)(2)(i)(A), pertaining to the obligation to offer
two M3-rated handset models. In the waiver decision, the Commission
decided to accept a GSM dual-band handset's hearing aid compatibility
rating in the 1900 MHz band as the rating for the handset overall. Hearing
Aid Compatibility GSM Waivers Extension Order, 22 FCC Rcd 20459,
20460-20461, para. 1. The Commission granted extensions of these waivers
based on a record demonstrating widespread uncertainty regarding the
circumstances under which these particular handsets would be considered to
be hearing aid compatible. Therefore, the waivers granted in the Hearing
Aid Compatibility GSM Waivers Extension Order are not analogous to this
case.
We also reject Corr's argument that the Division doubled the $15,000
forfeiture for the violation that was within the statute of limitations
because no forfeiture could be assessed for the violation that was outside
the statute of limitations. After carefully considering all of the
statutory factors outlined in Section 503(b)(2)(E) of the Act, and
consistent with the Forfeiture Policy Statement, the Division proposed an
upward adjustment of the $15,000 base forfeiture because Corr was in
violation of former Section 20.19(d)(2) for almost a full year after the
September 18, 2006 deadline, and because of the Division's determination
that Corr was an atypical Tier III carrier. Thus, contrary to Corr's
assertions, the NAL did not improperly assess a second $15,000 base
forfeiture against Corr for the handset deployment violation that was
beyond the statute of limitations.
T-Mobile Northeast, 21 FCC Rcd at 11806-07, para. 19.
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16787, para. 89.
See SBC Communications, Inc., Forfeiture Order, 16 FCC Rcd 10963, 10969,
para. 16 (Enf. Bur. 2001) (finding that a carrier's disclosure of certain
collocation violations in an audit report it was required to file did not
constitute a voluntary disclosure, and thus did not warrant a reduction in
the forfeiture).
See Corr Wireless Communications, LLC, Notice of Apparent Liability for
Forfeiture, 24 FCC Rcd 5419 (Enf. Bur. 2009) (forfeiture paid).
See id. at 5419, para. 3.
NAL, 23 FCC Rcd at 11572-73, para. 13. We note that Corr does not
challenge the accuracy of the revenue figure referenced in the NAL.
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, 6 FCC Rcd at 4388, para. 5; see also Telrite
Corporation, Notice of Apparent Liability for Forfeiture, 23 FCC Rcd 7231,
7237, para. 12 (2008); San Jose Navigation, Inc., Forfeiture Order, 22 FCC
Rcd 1040, 1042, para. 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, para. 9
(2001), forfeiture ordered, Forfeiture Order, 17 FCC Rcd 22626 (2002)
(forfeiture paid); Southern California, 6 FCC Rcd at 4388, para. 5.
47 U.S.C. S: 503(b).
47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4).
Id. S: 20.19(d)(2) (2006).
See id. S: 1.80.
47 U.S.C. S: 504(a).
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission DA 12-1049