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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
) File Nos.: EB-10-SE-121
In the Matter of
) EB-09-SE-161
Smith Bagley, Inc.
) Acct. No.: 201232100037
dba Cellular One
) FRN: 0002154706
)
)
ORDER
Adopted: August 14, 2012 Released: August 14, 2012
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau (Bureau) of the Federal Communications
Commission (Commission) and Smith Bagley, Inc. dba Cellular One (Smith
Bagley). The Consent Decree resolves and terminates the Bureau's
investigations into Smith Bagley's compliance with Sections
20.19(c)(3) and 20.19(d)(3) of the Commission's rules (Rules)
pertaining to the deployment of hearing aid-compatible digital
wireless handsets.
2. The Bureau and Smith Bagley have negotiated the Consent Decree that
resolves this matter. A copy of the Consent Decree is attached hereto
and incorporated herein by reference.
3. After reviewing the terms of the Consent Decree and evaluating the
facts before us, we find that the public interest would be served by
adopting the Consent Decree and terminating the investigations.
4. In the absence of material new evidence relating to this matter, we
conclude that our investigations raise no substantial or material
questions of fact as to whether Smith Bagley possesses the basic
qualifications, including those related to character, to hold or
obtain any Commission license or authorization.
5. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and 503(b)
of the Communications Act of 1934, as amended, and Sections 0.111 and
0.311 of the Rules, the Consent Decree attached to this Order IS
ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned investigations ARE
TERMINATED.
7. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested, to Louise Finnegan, Chief Executive Officer, Smith Bagley,
Inc. dba Cellular One, 500 South White Mountain Road, Suite 103, Show
Low, AZ 85901 and to David LaFuria, Esq. and Todd Slamowitz, Esq.,
counsel for Smith Bagley, Inc. dba Cellular One, Lukas, Nace,
Gutierrez & Sachs, LLP, 8300 Greensboro Drive, Suite 1200, McLean, VA
22102.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
) File Nos.: EB-10-SE-121
In the Matter of
) EB-09-SE-161
Smith Bagley, Inc.
) Acct. No.: 201232100037
dba Cellular One
) FRN: 0002154706
)
)
CONSENT DECREE
The Enforcement Bureau of the Federal Communications Commission and Smith
Bagley, Inc. dba Cellular One, by their authorized representatives, hereby
enter into this Consent Decree for the purpose of terminating the
Enforcement Bureau's investigations into possible violations of Sections
20.19(c)(3) and 20.19(d)(3) of the Commission's rules pertaining to the
deployment of digital wireless hearing aid-compatible handsets.
I. DEFINITIONS
1. For the purposes of this Consent Decree, the following definitions
shall apply:
a. "Act" means the Communications Act of 1934, as amended, 47 U.S.C. S:
151 et seq.
b. "Adopting Order" means an order of the Bureau adopting the terms of
this Consent Decree without change, addition, deletion, or
modification.
c. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
d. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
e. "Communications Laws" means collectively, the Act, the Rules, and the
published and promulgated orders and decisions of the Commission to
which Smith Bagley is subject by virtue of its business activities,
including but not limited to, the Hearing Aid Compatibility Rules.
f. "Compliance Plan" means the compliance obligations, program, and
procedures described in this Consent Decree at paragraph 10.
g. "Covered Employees" means all employees and agents of Smith Bagley who
perform, or supervise, oversee, or manage the performance of, duties
that relate to Smith Bagley's responsibilities under the Hearing Aid
Compatibility Rules.
h. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
i. "Hearing Aid Compatibility Rules" means Section 20.19 of the Rules and
other Communications Laws governing digital wireless hearing aid
compatibility, such as the Rules governing the design, selection, or
acquisition of digital wireless handsets and the marketing or
distribution of such handsets to consumers in the United States.
j. "Investigations" means collectively, the 2008 Reporting Period
Investigation and the 2009 Reporting Period Investigation.
k. "NAL" means the Notice of Apparent Liability for Forfeiture issued by
the Commission against Smith Bagley on November 25, 2009.
l. "Operating Procedures" means the standard, internal operating
procedures and compliance policies established by Smith Bagley to
implement the Compliance Plan.
m. "Parties" means Smith Bagley and the Bureau, each of which is a
"Party."
n. "Rules" means the Commission's regulations found in Title 47 of the
Code Federal Regulations.
o. "Smith Bagley" means Smith Bagley, Inc. dba Cellular One and its
predecessors-in-interest and successors-in-interest.
p. "2008 Reporting Period Investigation" means the investigation
initiated by the Bureau regarding Smith Bagley's deployment of digital
wireless hearing aid-compatible handset models during the July 1,
2008, to December 31, 2008, reporting period, which culminated in the
issuance of the NAL.
q. "2009 Reporting Period Investigation" means the investigation
commenced by the Bureau's October 1, 2010, letter of inquiry regarding
Smith Bagley's deployment of digital wireless hearing aid-compatible
handset models during the January 1, 2009, to December 31, 2009,
reporting period.
II. BACKGROUND
1. 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 for radio frequency interference (the
M rating) and inductive coupling (the T rating) that digital wireless
handsets must meet to be considered compatible with hearing aids
operating in acoustic coupling and inductive coupling (telecoil)
modes, respectively. For each of these standards, the Commission
further established deadlines by which manufacturers and service
providers must offer specified numbers or percentages of digital
wireless handsets per air interface that are compliant with the
relevant standard. In February 2008, as part of a comprehensive
reconsideration of the effectiveness of the Hearing Aid Compatibility
Rules, the Commission released an order that, among other things,
adopted new hearing aid-compatible handset deployment benchmarks
beginning in 2008.
2. Smith Bagley provides commercial mobile wireless service in Arizona,
New Mexico, and Utah, and has extensive wireless coverage throughout
Native American lands, including federally recognized tribal lands
such as the Navajo Nation and the White Mountain Apache Indian
Reservation. On January 15, 2009, Smith Bagley submitted its annual
hearing aid compatibility status report for the July 1, 2008, to
December 31, 2008, reporting period. On August 6, 2009, Smith Bagley
filed an amendment to its January 15, 2009, annual hearing aid
compatibility status report in response to an inquiry from the
Wireless Telecommunications Bureau (Wireless Bureau). On September 16,
2009, the Wireless Bureau referred Smith Bagley's apparent violations
of the hearing aid-compatible digital wireless handset deployment
requirements during the July 1, 2008, to December 31, 2008, reporting
period to the Bureau for investigation and possible enforcement
action. On November 25, 2009, the Bureau's Spectrum Enforcement
Division (Division) released the NAL against Smith Bagley for its
apparent willful and repeated violation of Section 20.19(c)(3) of the
Rules by apparently failing to offer to consumers the requisite number
or percentage of digital wireless handset models that met or exceeded
the radio frequency interference standards for hearing aid
compatibility set forth in Section 20.19(b)(1) of the Rules.
4. On January 21, 2010, Smith Bagley submitted its annual hearing aid
compatibility status report for the January 1, 2009, to December 31, 2009,
reporting period. On August 12, 2010, the Wireless Bureau referred Smith
Bagley's apparent violations of the hearing aid-compatible digital
wireless handset deployment requirements during the 2009 reporting period
to the Bureau for investigation and possible enforcement action. On
October 1, 2010, the Division issued a letter of inquiry (LOI) to Smith
Bagley. The LOI directed Smith Bagley to submit a sworn written response
to a series of questions related to Smith Bagley's compliance with
Sections 20.19(c)(3) and 20.19(d)(3) of the Rules. Smith Bagley responded
to the LOI on October 21, 2010. In its LOI Response, Smith Bagley claimed
that in 2009 the company had procedures in place to ensure compliance with
the hearing aid-compatible handset deployment requirements. Smith Bagley
also argued that as a Tier III rural GSM carrier, it relies on third-party
vendors who do not always convey accurate hearing aid compatibility
information. The Bureau and Smith Bagley entered into tolling agreements
to toll the statute of limitations, and negotiated the terms of this
Consent Decree.
III. TERMS OF AGREEMENT
1. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to final approval by the Bureau by
incorporation of such provisions by reference in the Adopting Order.
3. Jurisdiction. Smith Bagley agrees that the Bureau has jurisdiction
over it and the matters contained in this Consent Decree and that the
Bureau has the authority to enter into and adopt this Consent Decree.
4. Effective Date; Violations. The Parties agree that this Consent
Decree shall become effective on the Effective Date as defined herein.
As of the Effective Date, the Adopting Order and this Consent Decree
shall have the same force and effect as any other order of the
Commission. Any violation of the Adopting Order or of the terms of
this Consent Decree shall constitute a separate violation of a
Commission order, entitling the Commission to exercise any rights and
remedies attendant to the enforcement of a Commission order.
5. Termination of Investigations. In express reliance on the covenants
and representations in this Consent Decree and to avoid further
expenditure of public resources, the Bureau agrees to terminate the
Investigations. In consideration for the termination of the
Investigations, Smith Bagley agrees to the terms, conditions, and
procedures contained herein. The Bureau further agrees that in the
absence of new material evidence, the Bureau will not use the facts
developed in the Investigations through the Effective Date, or the
existence of this Consent Decree, to institute on its own motion any
new proceeding, formal or informal, or take any action on its own
motion against Smith Bagley concerning the matters that were the
subject of the Investigations. The Bureau also agrees that in the
absence of new material evidence it will not use the facts developed
in these Investigations through the Effective Date, or the existence
of this Consent Decree, to institute on its own motion any proceeding,
formal or informal, or take any action on its own motion against Smith
Bagley with respect to Smith Bagley's basic qualifications, including
its character qualifications, to be a Commission licensee or to hold
Commission licenses or authorizations.
9. Compliance Officer. Within thirty (30) calendar days after the
Effective Date, Smith Bagley shall designate a senior corporate manager
with the requisite corporate and organizational authority to serve as
Compliance Officer and to discharge the duties set forth below. The person
designated as the Compliance Officer shall be responsible for developing,
implementing, and administering the Compliance Plan and ensuring that
Smith Bagley complies with the terms and conditions of the Compliance Plan
and this Consent Decree. In addition to the general knowledge of the
Communications Laws necessary to discharge his/her duties under this
Consent Decree, the Compliance Officer shall have specific knowledge of
the Hearing Aid Compatibility Rules prior to assuming his/her duties.
10. Compliance Plan. For purposes of settling the matters set forth
herein, Smith Bagley agrees that it shall within sixty (60) calendar days
after the Effective Date, develop and implement a Compliance Plan designed
to ensure future compliance with the Communications Laws and with the
terms and conditions of this Consent Decree. With respect to the Hearing
Aid Compatibility Rules, Smith Bagley shall implement the following
procedures:
a. Operating Procedures on Hearing Aid Compatibility. Within sixty (60)
calendar days after the Effective Date, Smith Bagley shall establish
Operating Procedures that all Covered Employees must follow to help
ensure Smith Bagley's compliance with the Hearing Aid Compatibility
Rules. Smith Bagley's Operating Procedures shall include internal
procedures and policies specifically designed to ensure that Smith
Bagley offers the requisite number or percentage of hearing
aid-compatible digital wireless handset models to consumers as
required by the Hearing Aid Compatibility Rules. Smith Bagley also
shall develop a Compliance Checklist that describes the steps that a
Covered Employee must follow to ensure that the inclusion of a new
handset model, or discontinuance of an existing handset model
offering, will not result in a violation of the Commission's digital
wireless hearing aid-compatible handset deployment requirements. At a
minimum, the Compliance Checklist shall require Covered Employees to
verify the hearing aid compatibility rating of each existing and
proposed handset model offering using the Commission's equipment
authorization database.
b. Compliance Manual. Within sixty (60) calendar days after the
Effective Date, the Compliance Officer shall develop and distribute a
Compliance Manual to all Covered Employees. The Compliance Manual
shall explain the Hearing Aid Compatibility Rules and set forth the
Operating Procedures that Covered Employees shall follow to help
ensure Smith Bagley's compliance with the Hearing Aid Compatibility
Rules. Smith Bagley shall periodically review and revise the
Compliance Manual as necessary to ensure that the information set
forth therein remains current and complete. Smith Bagley shall
distribute any revisions to the Compliance Manual promptly to all
Covered Employees.
c. Compliance Training Program. Smith Bagley shall establish and
implement a Compliance Training Program on compliance with the
Hearing Aid Compatibility Rules and the Operating Procedures. As part
of the Compliance Training Program, Covered Employees shall be
advised of Smith Bagley's obligation to report any noncompliance with
the Hearing Aid Compatibility Rules under paragraph 11 of this
Consent Decree and shall be instructed on how to disclose
noncompliance to the Compliance Officer. All Covered Employees shall
be trained pursuant to the Compliance Training Program within sixty
(60) calendar days after the Effective Date, except that any person
who becomes a Covered Employee at any time after the Effective Date
shall be trained within thirty (30) calendar days after the date such
person becomes a Covered Employee. Smith Bagley shall repeat the
compliance training on an annual basis, and shall periodically review
and revise the Compliance Training Program as necessary to ensure
that it remains current and complete and to enhance its
effectiveness.
d. Outreach Program. As more fully described in Smith Bagley's proposal
and presentation to the Bureau on May 4, 2012 (which is incorporated
herein by reference), within sixty (60) calendar days after the
Effective Date, Smith Bagley shall implement a comprehensive hearing
aid compatibility outreach program to residents of Navajo County and
Apache County, Arizona, targeting consumers who are undergoing
hearing diagnostics or other examinations for hearing problems and
may need a hearing aid. The purpose of the outreach program will be
to educate these consumers about the ratings and capabilities of
hearing aid-compatible digital wireless handset models and to help
ensure that these consumers have access to reliable information about
the hearing aid-compatible handset model most suited to their hearing
aid or other assistive device. Smith Bagley represents that it will
partner with a local audiology services provider, White Mountain
Hearing Services, L.L.C. (WMHS), which offers hearing care services
in the target counties. As part of the outreach program, Smith Bagley
shall make available at the WMHS clinic a full range of its hearing
aid-compatible handset models which comply with the Commission's
wireless hearing aid compatibility rules, provide assistance to WMHS
staff concerning the demonstration and testing of the handset models,
and provide a sizeable discount to the target consumers toward the
purchase of any new hearing aid-compatible wireless handset. Smith
Bagley shall implement the outreach program as described herein and
in its presentation to the Bureau and shall widely publicize the
availability of the program to the residents of Navajo and Apache
Counties and of nearby Native American tribal reservations via its
website and other means as appropriate to reach the target
population.
1. Reporting Noncompliance. Smith Bagley shall report any noncompliance
with the Hearing Aid Compatibility Rules and with the terms and
conditions of this Consent Decree within fifteen (15) calendar days
after discovery of such noncompliance. Such reports shall include a
detailed explanation of (i) each instance of noncompliance; (ii) the
steps that Smith Bagley has taken or will take to remedy such
noncompliance; (iii) the schedule on which such remedial actions will
be taken; and (iv) the steps that Smith Bagley has taken or will take
to prevent the recurrence of any such noncompliance. All reports of
noncompliance shall be submitted to the Chief, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission, Room
3-C366, 445 12th Street, S.W., Washington, D.C. 20554, with a copy
submitted electronically to Nissa Laughner at Nissa.Laughner@fcc.gov
and to Pamera Hairston at Pamera.Hairston@fcc.gov.
6. Compliance Reports. Smith Bagley shall file Compliance Reports with
the Commission ninety (90) calendar days after the Effective Date,
twelve (12) months after the Effective Date, and twenty-four (24)
months after the Effective Date.
a. Each compliance report shall include a detailed description of Smith
Bagley's efforts during the relevant period to comply with the terms
and conditions of this Consent Decree and the Hearing Aid
Compatibility Rules. In addition, each Compliance Report shall include
a certification by the Compliance Officer, as an agent of and on
behalf of Smith Bagley, stating that the Compliance Officer has
personal knowledge that Smith Bagley (i) has established and
implemented the Compliance Plan; (ii) has conducted the Outreach
Program as set forth in paragraph 10(d); (iii) has utilized the
Operating Procedures since the implementation of the Compliance Plan;
and (iv) is not aware of any instances of noncompliance with the terms
and conditions of this Consent Decree, including the reporting
obligations set forth in paragraph 11 hereof.
b. The Compliance Officer's certification shall be accompanied by a
statement explaining the basis for such certification and must comply
with Section 1.16 of the Rules and be subscribed to as true under
penalty of perjury in substantially the form set forth therein.
c. If the Compliance Officer cannot provide the requisite certification,
the Compliance Officer, as an agent of and on behalf of Smith Bagley,
shall provide the Commission with a detailed explanation of the
reason(s) why and describe fully (i) each instance of noncompliance;
(ii) the steps that Smith Bagley has taken or will take to remedy such
noncompliance, including the schedule on which proposed remedial
actions will be taken; and (iii) the steps that Smith Bagley has taken
or will take to prevent the recurrence of any such noncompliance,
including the schedule on which such preventive action will be taken.
d. All Compliance Reports shall be submitted to the Chief, Spectrum
Enforcement Division, Enforcement Bureau, Federal Communications
Commission, Room 3-C366, 445 12th Street, S.W., Washington, D.C.
20554, with a copy submitted electronically to Nissa Laughner at
Nissa.Laughner@fcc.gov and to Pamera Hairston at
Pamera.Hairston@fcc.gov.
1. Termination Date. Unless stated otherwise, the requirements of
paragraphs 9 through 12 of this Consent Decree shall expire
twenty-four (24) months after the Effective Date.
7. Section 208 Complaints; Subsequent Investigations. Nothing in this
Consent Decree shall prevent the Commission or its delegated authority
from adjudicating complaints filed pursuant to Section 208 of the Act
against Smith Bagley or its affiliates for alleged violations of the
Act, or for any other type of alleged misconduct, regardless of when
such misconduct took place. The Commission's adjudication of any such
complaints will be based solely on the record developed in that
proceeding. Except as expressly provided in this Consent Decree, this
Consent Decree shall not prevent the Commission from investigating new
evidence of noncompliance by Smith Bagley with the Communications
Laws.
8. Voluntary Contribution. Smith Bagley agrees that it will make a
voluntary contribution to the United States Treasury in the amount of
sixty-five thousand dollars ($65,000) within thirty (30) calendar days
after the Effective Date. Smith Bagley shall also send electronic
notification of payment to Nissa Laughner at Nissa.Laughner@fcc.gov
and to Samantha Peoples at Sam.Peoples@fcc.gov on the date said
payment is made. 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.
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.
16. Waivers. Smith Bagley waives any and all rights it may have to seek
administrative or judicial reconsideration, review, appeal, or stay,
or to otherwise challenge or contest the validity of this Consent
Decree and the Adopting Order, provided the Bureau issues an Adopting
Order as defined herein. Smith Bagley shall retain the right to
challenge Commission interpretation of the Consent Decree or any terms
contained herein. If either Party (or the United States on behalf of
the Commission) brings a judicial action to enforce the terms of the
Adopting Order, neither Smith Bagley nor the Commission shall contest
the validity of the Consent Decree or of the Adopting Order, and Smith
Bagley shall waive any statutory right to a trial de novo. Smith
Bagley hereby agrees to waive any claims it may have under the Equal
Access to Justice Act, relating to the matters addressed in this
Consent Decree.
1. Invalidity. In the event that this Consent Decree in its entirety is
rendered invalid by any court of competent jurisdiction, it shall
become null and void and may not be used in any manner in any legal
proceeding.
9. Subsequent Rule or Order. The Parties agree that if any provision of
the Consent Decree conflicts with any subsequent Rule or order adopted
by the Commission (except an order specifically intended to revise the
terms of this Consent Decree to which Smith Bagley does not expressly
consent), that provision will be superseded by such Rule or Commission
order.
10. Successors and Assigns. Smith Bagley agrees that the provisions of
this Consent Decree shall be binding on its successors, assigns, and
transferees.
11. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties with
respect to the Investigations. The Parties further agree that this
Consent Decree does not constitute either an adjudication on the
merits or a factual or legal finding or determination regarding any
compliance or noncompliance with the Communications Laws.
12. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
13. Paragraph Headings. The headings of the paragraphs in this Consent
Decree are inserted for convenience only and are not intended to
affect the meaning or interpretation of this Consent Decree.
14. Authorized Representative. The individual signing this Consent Decree
on behalf of Smith Bagley represents and warrants that he is
authorized by Smith Bagley to execute this Consent Decree and to bind
Smith Bagley to the obligations set forth herein. The FCC signatory
represents that she is signing this Consent Decree in her official
capacity and that she is authorized to execute this Consent Decree.
15. Counterparts. This Consent Decree may be signed in any number of
counterparts (including by facsimile), each of which, when executed
and delivered, shall be an original, and all of which counterparts
together shall constitute one and the same fully executed instrument.
________________________________
P. Michele Ellison
Chief
Enforcement Bureau
________________________________
Date
_____________________________
Louise Finnegan
Chief Executive Officer
Smith Bagley, Inc. dba Cellular One
_____________________________
Date
47 C.F.R. S: 20.19(c)(3), (d)(3).
47 U.S.C. S:S: 154(i), 503(b).
47 C.F.R. S:S: 0.111, 0.311.
47 C.F.R. S: 20.19(c)(3), (d)(3).
See Smith Bagley, Inc. dba Cellular One of NE Arizona, Notice of Apparent
Liability for Forfeiture, 24 FCC Rcd 14113 (Enf. Bur. 2009).
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
FCC Enforcement Bureau, to Zechariah H. Crook, Handset Development
Coordinator, Smith Bagley, Inc. (Oct. 1, 2010) (on file in EB-10-SE-121).
The Commission adopted these requirements for digital wireless telephones
under the authority of the Hearing Aid Compatibility Act of 1988, Pub. L.
No. 100-394, 102 Stat. 976 (codified at 47 U.S.C. S:S: 609 note, 610, 610
note). See Section 68.4(a) of the Commission's Rules Governing Hearing
Aid-Compatible Telephones, Report and Order, 18 FCC Rcd 16753, 16787,
para. 89 (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).
As subsequently amended, Section 20.19(b)(1) provides that, for the period
beginning June 6, 2008, and ending December 31, 2009, a newly certified
wireless handset is deemed hearing aid-compatible for radio frequency
interference if, at minimum, it meets the M3 rating associated with the
technical standard set forth in either the standard document "American
National Standard Methods of Measurement of Compatibility between Wireless
Communication Devices and Hearing Aids," ANSI C63.19-2006 (June 12, 2006)
or ANSI C63.19-2007 (June 8, 2007). Beginning January 1, 2010, a newly
certified handset must meet at least an M3 rating under ANSI C63.19-2007
to be considered hearing aid-compatible for radio frequency interference.
47 C.F.R. S: 20.19(b)(1). Section 20.19(b)(2) provides that, for the
period beginning June 6, 2008, and ending December 31, 2009, a newly
certified wireless handset is deemed hearing aid-compatible for inductive
coupling if, at minimum, it meets the T3 rating associated with the
technical standard as set forth in ANSI C63.19-2006 or ANSI C63.19-2007,
and beginning January 1, 2010, it is deemed hearing aid-compatible for
inductive coupling if it meets at least a T3 rating under ANSI
C63.19-2007. Id. S: 20.19(b)(2). Grants of certification issued before
June 6, 2008, under previous versions of ANSI C63.19 remain valid for
hearing aid compatibility purposes. A recently adopted further amendment
to Section 20.19(b) of the Rules will permit manufacturers to test
handsets for hearing aid compatibility using the 2011 version of the ANSI
standard (ANSI C63.19-2011) as an alternative to ANSI C63.19-2007. See
Amendment of the Commission's Rules Governing Hearing Aid-Compatible
Mobile Handsets, Third Report and Order, 27 FCC Rcd 3732 (WTB/OET 2012).
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 Code Division Multiple Access (CDMA), Global System for
Mobile Communications (GSM), Integrated Digital Enhanced Network (iDEN),
and Wideband Code Division Multiple Access (WCDMA) a/k/a Universal Mobile
Telecommunications System (UMTS).
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16780, para. 65; 47
C.F.R. S: 20.19(c), (d).
See Amendment of the Commission's Rules Governing Hearing Aid-Compatible
Mobile Handsets, First Report and Order, 23 FCC Rcd 3406 (2008); Order on
Reconsideration and Erratum, 23 FCC Rcd 7249 (2008). These handset
deployment requirements do not apply to service providers and
manufacturers that meet the de minimis exception. The de minimis exception
provides that manufacturers or mobile service providers that offer two or
fewer digital wireless handset models per air interface are exempt from
the hearing aid compatibility 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. Id. 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, paras. 35-59 (2010).
See Smith Bagley, Inc., Hearing Aid Compatibility Status Report, Docket
No. 07-250 (Jan. 15, 2009), at
http://fjallfoss.fcc.gov/ecfs/document/view?id=6520193537.
See Smith Bagley, Inc., Amendment to Hearing Aid Compatibility Status
Report, Docket No. 07-250 (Aug. 6, 2009), at
http://fjallfoss.fcc.gov/ecfs/document/view?id=7019934625.
See NAL, 24 FCC Rcd at 14118, paras. 12-13.
See Smith Bagley, Inc., Hearing Aid Compatibility Report, Docket No.
07-250 (Jan. 21, 2010), at
http://wireless.fcc.gov/hac_documents/100317/Smith%20Bagley%20INC_51.PDF.
See supra note 3.
See Letter from David A. LaFuria, Esq. and Todd Slamowitz, Esq., counsel
for Smith Bagley, Inc., Lukas, Nace, Gutierrez & Sachs, LLP, to Marlene H.
Dortch, FCC (Oct. 21, 2010) (on file in EB-10-SE-121) (LOI Response).
Id. at 2.
Id.
See, e.g., Tolling Agreement Extension, File No. EB-10-SE-121, executed
by and between John D. Poutasse, Chief, Spectrum Enforcement Division, FCC
Enforcement Bureau, and Gayle L. Gouker, Chief Financial Officer, Smith
Bagley, Inc. (Apr. 16, 2012).
The Bureau analyzed Smith Bagley's possible violations of Sections
20.19(c)(3) and 20.19(d)(3) of the Rules consistent with the new base
forfeiture calculation methodology set forth in the Commission's recent
T-Mobile decision (see T-Mobile USA, Inc., Notice of Apparent Liability
for Forfeiture, 27 FCC Rcd 4405 (2012)) and applied the statutory factors
set forth in Section 503(b)(2)(E) of the Act. We also took into
consideration the fact that settlement negotiations over the terms of this
Consent Decree were nearly complete prior to the release of the T-Mobile
decision.
47 C.F.R. S: 1.16.
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
Equal Access to Justice Act, Pub L. No. 96-481, 94 Stat. 2325 (1980)
(codified at 5 U.S.C. S: 504); see also 47 C.F.R. S:S: 1.1501-1.1530.
Federal Communications Commission DA 12-1274
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Federal Communications Commission DA 12-1274