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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No.: EB-08-SE-143
In the Matter of
) NAL/Acct. No.:
American Samoa Telecommunications 200932100005
Authority )
FRN: 0001726488
)
)
FORFEITURE ORDER
Adopted: October 19, 2012 Released: October 19, 2012
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Forfeiture Order, we issue a monetary forfeiture in the amount
of six thousand dollars ($6,000) to American Samoa Telecommunications
Authority (ASTCA) for willfully and repeatedly violating the hearing
aid compatibility status report filing requirements set forth in the
Commission's 2003 Hearing Aid Compatibility Order.
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 applied to each air interface over which service providers
offer service.
3. In order to monitor the availability of hearing aid-compatible digital
wireless handsets, the Commission required manufacturers and digital
wireless service providers to report every six months on efforts toward
compliance with the hearing aid compatibility requirements for the first
three years of implementation (May 17, 2004, November 17, 2004, May 17,
2005, November 17, 2005, May 17, 2006, and November 17, 2006), and then
annually thereafter through the fifth year of implementation (November 19,
2007, and November 17, 2008).
4. In March 2008, the Spectrum Enforcement Division (Division) of the
Enforcement Bureau received a complaint alleging that ASTCA had failed to
file the required hearing aid compatibility status reports and therefore
might not be in compliance with the hearing aid compatibility
requirements. On March 24, 2008, the Division issued ASTCA a letter of
inquiry (LOI). ASTCA responded to the Division's LOI on May 9, 2008. In
its LOI Response, ASTCA explained that it failed to file the required
reports because it was not aware of the Hearing Aid Compatibility Order or
its subsequent amendments. ASTCA also provided a list of all digital
wireless handset models it offered since September 2005. Based on this
list, the Division determined that ASTCA apparently offered its first
digital wireless handset model meeting the Commission's standards for
radio frequency interference, the Motorola v265, on October 27, 2005, and
its second, the Motorola v266, on April 10, 2006. The Division also
determined that ASTCA apparently offered its first inductive
coupling-compliant handset model, the Motorola v323i, on March 21, 2007,
and its second, the Motorola Razr v3m, on May 3, 2007.
5. On November 5, 2008, the Division released a Notice of Apparent
Liability for Forfeiture (NAL) against ASTCA, concluding that ASTCA
apparently willfully and repeatedly violated the hearing aid compatibility
status report filing requirements set forth in the Commission's 2003
Hearing Aid Compatibility Order by failing to file seven hearing aid
compatibility status reports between May 2004 and November 2007. The
Division held that the failure to file hearing aid compatibility status
reports had a continuing negative impact on the implementation of the
hearing aid compatibility rules, and thus, the statute of limitations
under Section 503(b)(6)(B) of the Act did not begin to run until the
reports were filed. Nevertheless, the Division exercised its prosecutorial
discretion and proposed a $6,000 forfeiture for ASTCA's failure to file a
single hearing aid compatibility status report, which was due on November
19, 2007. The proposed $6,000 forfeiture reflected an increase above the
$3,000 base forfeiture for failure to file required forms or information
set forth in the Forfeiture Policy Statement and Section 1.80(b) of the
Commission's rules (Rules) in recognition of the Commission's heightened
interest in ensuring full access to the public safety benefits of digital
wireless service, as well as the importance of these reports in providing
consumers with information and enabling accurate administration and
enforcement of the Rules. The Division also admonished ASTCA for violating
former Section 20.19(c)(2)(i)(B)(1) of the Rules by failing to offer, by
September 16, 2005, at least two handset models that met at least a M3
rating for radio frequency interference, and former Section 20.19(d)(2) of
the Rules by failing to offer by September 18, 2006, at least two handset
models for each air interface that met at least a T3 rating for inductive
coupling.
6. On December 5, 2008, ASTCA filed a response to the NAL, requesting
cancellation or reduction of the forfeiture amount. In its NAL Response,
ASTCA states that it failed to file hearing aid compatibility status
reports because it was unfamiliar with the hearing aid compatibility
status report filing requirements, citing the physical distance between
American Samoa and Washington D.C. to explain its unfamiliarity. ASTCA
further states that upon becoming aware of its obligation to file hearing
aid compatibility status reports on May 9, 2008, it filed the data
required in the reports with respect to all digital wireless handset
models that it had purchased for resale at ASTCA retail outlets since
September 2005. ASTCA then claims that the forfeiture should be reduced
because its failure to file did not "directly thwart" public access to
information regarding hearing aid compatibility features of digital
wireless handsets because such information was made available to the
public via the hearing aid-compatible handset labels required by former
Section 20.19(f) of the Rules. ASTCA also claims that the forfeiture
should be reduced because of its history of compliance with the rules and
regulations of the Commission. Finally, ASTCA argues that the forfeiture
should be reduced because ASTCA will pass on the cost of the forfeiture to
its customers, thereby further burdening the lower socioeconomic
demographic it serves.
III. DISCUSSION
7. The forfeiture amount proposed in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Rules, and the
Commission's Forfeiture Policy Statement. In examining ASTCA'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 not persuaded by ASTCA's legal
arguments and find that a forfeiture was validly proposed against ASTCA
for its continuing violation of the hearing aid compatibility status
report filing requirements set forth in the Commission's 2003 Hearing Aid
Compatibility Order.
8. As noted above, ASTCA raises a number of arguments to support its
request for reduction or cancellation of the proposed forfeiture. We find
these arguments unpersuasive. First, ASTCA states that it did not
knowingly fail to file its hearing aid compatibility status reports,
suggesting that the violations were inadvertent and therefore not willful.
Specifically, ASTCA argues that because of the physical distance between
American Samoa and Washington D.C., ASTCA was unfamiliar with the 2003
Hearing Aid Compatibility Order and its subsequent amendments. Licensees,
however, are expected to know and comply with the Rules, regardless of
their geographic distance from the FCC's headquarters. As the Commission
has repeatedly held, violations resulting from inadvertent error or
failure to become familiar with the FCC's requirements can be and often
are willful violations. In the context of a forfeiture action, "willful"
does not require a finding that the rule violation was intentional.
Rather, the term "willful" means that the violator knew it was taking (or
in this case, not taking) the action in question, irrespective of any
intent to violate the law. In any event, as noted in the NAL, ASTCA's
violations were repeated, which provides an independent basis for imposing
the proposed forfeiture. Accordingly, ASTCA's unfamiliarity with the
hearing aid compatibility requirements is not a mitigating circumstance
warranting cancellation or downward adjustment of the proposed forfeiture
amount.
9. Second, ATSCA seeks reduction or cancellation of the proposed
forfeiture based on its subsequent remedial efforts. While ASTCA states
that it filed the information required in its November 19, 2007, report on
May 9, 2008, it did so more than five months after the filing deadline and
only in response to the initiation of our investigation. Although we have
adjusted forfeitures downward when a licensee makes voluntary disclosures
to Commission staff and takes corrective measures after discovering its
violations and prior to any Commission inquiry or initiation of
enforcement action, we have not reduced forfeitures based on a licensee's
remedial conduct after the initiation of an investigation. As the
Commission has long held, corrective action to come into compliance with
the Rules is expected, and such corrective action does not nullify or
mitigate prior violations or associated forfeiture liability.
10. ASTCA also challenges our assessment of the egregiousness of its
violation, stating that its failure to file its hearing aid compatibility
status reports only minimally impacted consumer access to information
concerning the hearing aid compatibility of digital wireless handset
models because such information was available on hearing aid-compatible
digital wireless handset labels. We disagree. While consumers may access
information about the hearing aid compatibility of particular digital
wireless handsets on the labels required by the Rules, these labels do not
provide the comprehensive, consolidated information available in the
hearing aid compatibility status reports. Moreover, we note that ASTCA's
failure to file its November 19, 2007, report, and the six preceding
reports, also interfered with the ability of the Commission to fully
monitor the deployment of hearing aid-compatible digital wireless handset
models in American Samoa. We are therefore unpersuaded that ASTCA's
violations had a minimal impact, and decline to either reduce or cancel
the proposed forfeiture on this basis.
11. We also reject ASTCA's contention that its history of compliance
warrants reduction or cancellation of the proposed forfeiture amount.
ASTCA acknowledges that it failed to file seven different hearing aid
compatibility status reports. As stated in the NAL, each failure to file
constitutes a separate continuing violation. Moreover, the Division
admonished ASTCA for violating former Section 20.19(c)(2)(i)(B)(1) of the
Rules by failing to offer, by September 16, 2005, at least two handset
models for each air interface that met at least a M3-rating for radio
frequency interference, and former Section 20.19(d)(2) of the Rules by
failing to offer by September 18, 2006, at least two handset models for
each air interface that met at least a T3 rating for inductive coupling.
Because of these multiple violations of our hearing aid compatibility
requirements, ASTCA's past performance does not warrant reduction of the
proposed forfeiture amount.
12. We also decline to reduce the forfeiture based on ASTCA's unsupported
assertion that the cost of the forfeiture will be passed through to its
customers, many of whom, ASTCA asserts, are in lower socioeconomic
brackets. ASTCA's response fails to take into account, however, the cost
to the hearing impaired community of its failure to comply. Moreover,
ASTCA does not allege that it is unable to pay the proposed forfeiture. In
the absence of such a claim and the requisite supporting evidence,ASTCA
has failed to justify a reduction of the forfeiture on this basis.
13. As detailed above, we have examined ASTCA's NAL Response pursuant to
the statutory factors prescribed by Section 503(b)(2)(E) of the Act and in
conjunction with the Forfeiture Policy Statement. We conclude that ASTCA
willfully and repeatedly violated the hearing aid compatibility status
report filing requirements set forth in the Commission's 2003 Hearing Aid
Compatibility Order by failing to file seven hearing aid compatibility
status reports between May 2004 and November 2007. In this regard, we
analyze the failure to file hearing aid compatibility status reports as
continuing violations for which the statute of limitations does not begin
to run until the requisite reports have been filed, thus curing the
violations. As such, we have the authority to impose forfeiture liability
for each such continuing violation. Here, we exercised our prosecutorial
discretion and declined to pursue forfeitures for six of those violations,
and we find no basis for further limiting ASTCA's liability through
reduction of the forfeiture amount proposed in the NAL. Accordingly, we
hold ASTCA liable for a total forfeiture in the amount of six thousand
dollars ($6,000).
IV. ORDERING Clauses
14. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311, and
1.80(f)(4) of the Commission's rules, American Samoa Telecommunications
Authority IS LIABLE FOR A MONETARY FORFEITURE in the amount of six
thousand dollars ($6,000) for willfully and repeatedly violating the
hearing aid compatibility status report filing requirements set forth in
the Commission's 2003 Hearing Aid Compatibility Order by failing to file
the hearing aid compatibility status report due November 19, 2007.
15. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Commission's rules within fifteen (15) 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 Communications Act of 1934, as amended. American
Samoa Telecommunications Authority shall send electronic notification of
payment to Nissa Laughner at Nissa.Laughner@fcc.gov, Pamera Hairston at
Pamera.Hairston@fcc.gov, and to Samantha Peoples at Sam.Peoples@fcc.gov on
the date said payment is made.
16. 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.
17. 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.
18. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
sent by First Class and Certified Mail Return Receipt Requested to Aliki
Sene, Executive Director, American Samoa Telecommunications Authority,
P.O. Box M, Pago Pago, American Samoa 96788, and to Gwen
Tauiliili-Langkilde, Esq., counsel for American Samoa Telecommunications
Authority, American Samoa Telecommunications Authority, P.O. Box M, Pago
Pago, American Samoa 96799.
FEDERAL COMMUNICATIONS COMMISSION
John D. Poutasse
Chief, Spectrum Enforcement Division
Enforcement Bureau
Section 68.4(a) of the Commission's Rules Governing Hearing Aid-Compatible
Telephones, Report and Order, 18 FCC Rcd 16753, 16787, paras. 89-91
(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, Pub. L. No. 100-394, 102 Stat. 976 (codified at
47 U.S.C. S:S: 609 note, 610, 610 note).
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16777, 16779, paras.
56, 63; see also 47 C.F.R. S: 20.19(b)(1), (2) (2003). 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) of the Rules provided that a digital wireless
handset model 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 Device and Hearing Aids, ANSI
C63.19-2001." 47 C.F.R. S: 20.19(b)(1) (2007). Former Section 20.19(b)(2)
of the Rules provided that a digital wireless handset model 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)
(2007). On April 25, 2005, the Commission's Office of Engineering and
Technology (OET) announced it would also certify digital wireless 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); see also 47 C.F.R. S:
20.19(b)(2) (2007). On June 6, 2006, the Commission's Wireless
Telecommunications Bureau (WTB) and OET announced the Commission would
also certify digital wireless handset models as hearing aid-compatible
based on the revised version of the standard, ANSI C63.19-2006. 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); see also 47
C.F.R. S: 20.19(b)(2) (2007). 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. 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 handset
model, 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.
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 digital
wireless handsets, and the service provider's base stations. When the
Commission released the Hearing Aid Compatibility Order, 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 16771 n.127.
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) (announcing the
reporting dates set forth in the Hearing Aid Compatibility Order). In its
2008 Hearing Aid Compatibility First Report and Order, the Commission
extended these reporting requirements with certain modifications on an
open-ended basis, beginning January 15, 2009. See Amendment of the
Commission's Rules Governing Hearing Aid-Compatible Mobile Handsets, First
Report and Order, 23 FCC Rcd 3406, 3445-46, paras. 97-99 (2008); Order on
Reconsideration and Erratum, 23 FCC Rcd 7249, 7250, para. 4 (2008)
(Hearing Aid Compatibility First Report and Order). The Commission also
made clear that these reporting requirements applied to carriers
qualifying for the de minimis exception. See id. at 3446, para. 99.
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division, FCC
Enforcement Bureau, to Aliki Sene, Executive Director, American Samoa
Telecommunications Authority (Mar. 24, 2008) (on file in EB-08-SE-143).
Letter from Gwen Tauiliili-Langkilde, Esq., Legal Counsel, American Samoa
Telecommunications Authority, to Nissa Laughner, Attorney Advisor,
Spectrum Enforcement Division, FCC Enforcement Bureau (May 9, 2008) (on
file in EB-08-SE-143) (LOI Response).
See id. at 1-2.
See id. at Attachment A.
See id.
See id.
See American Samoa Telecommunications Authority, Notice of Apparent
Liability for Forfeiture, 23 FCC Rcd 16432 (Enf. Bur. 2008).
Section 312(f)(1) of the Communications Act of 1934, as amended (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(f)(1) of the Act
clarifies that this definition of willful applies to both Sections 312 and
503(b) of the Act, H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982),
and the Commission has so interpreted the term in the Section 503(b)
context. See 47 C.F.R. S:S: 312, 503(b); Southern California Broadcasting
Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388, para. 5 (1991)
(Southern California), recon. denied, Memorandum Opinion and Order, 7 FCC
Rcd 3454 (1992) (Southern California Reconsideration Order); see also
Telrite Corp., Notice of Apparent Liability for Forfeiture, 23 FCC Rcd
7231, 7237, para. 12 (2008) (Telrite), consent decree ordered, Order and
Consent Decree, 27 FCC Rcd 4110 (2012); Regent USA, Inc., Notice of
Apparent Liability for Forfeiture, 22 FCC Rcd 10520, 10523, para. 9 (2007)
(forfeiture paid); 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:S: 312(f)(2). See Callais Cablevision, Inc., Notice of
Apparent Liability for Forfeiture, 16 FCC Rcd 1359, 1362, para. 9 (2001),
forfeiture ordered, Forfeiture Order, 17 FCC Rcd 22626 (2002); Southern
California, 6 FCC Rcd at 4388, para. 5.
See NAL, 23 FCC Rcd at 16435, para. 6.
47 U.S.C. S: 503(b)(6)(B).
See NAL, 23 FCC Rcd at 16437, para. 11.
See id.
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, 17113 (1997) (Forfeiture Policy Statement), recon.
denied, Memorandum Opinion and Order, 15 FCC Rcd 303 (1999).
47 C.F.R. S: 1.80(b).
See NAL, 23 FCC Rcd at 16436, para. 10.
47 C.F.R. S: 20.19(c)(2)(i)(B)(1) (2007).
Id. S: 20.19(d)(2) (2007).
See NAL, 23 FCC Rcd at 16437-38, paras. 12-13.
See Letter from Gwen Tauiliili-Langkilde, Esq., Legal Counsel, American
Samoa Telecommunications Authority, to Kathryn S. Berthot, Chief, Spectrum
Enforcement Division, FCC Enforcement Bureau (Dec. 5, 2008) (on file in
EB-08-SE-143) (NAL Response).
See id. at 1-2.
See id. at 2.
See id. Under former Section 20.19(f) of the Rules, 47 C.F.R. S: 20.19(f)
(2007), the Commission required wireless handset manufacturers to label
the exterior packaging of each of their handsets with the handset's
technical rating, and to include more detailed information on the ANSI
standard either in a product insert or in the handset's manual. See also
Hearing Aid Compatibility Reconsideration Order, 20 FCC Rcd at 11238,
para. 33 ("We continue to believe that the two-pronged approach --
placement of a prominent exterior label indicating the handset's technical
rating, combined with more detailed information located inside the package
-- will provide consumers with a quick synopsis of the information
necessary to make an informed decision without impairing the ability of
digital wireless handset manufacturers and service providers to engage in
myriad marketing efforts."); Hearing Aid Compatibility Order, 18 FCC Rcd
at 16785, paras. 83, 85-86 (adopting Section 20.19(f) of the Rules). The
Commission also imposed similar labeling requirements on service
providers. See 47 C.F.R. S: 20.19(f) (2007); see also Hearing Aid
Compatibility Order, 18 FCC Rcd at 16785, para. 83 (requiring "service
providers to ensure that the label is made visible to individuals with
hearing disabilities so they may determine which wireless telephone best
meets their individual needs"). As revised by the Hearing Aid
Compatibility First Report and Order, Section 20.19(f)(1) of the Rules
requires manufacturers and service providers to ensure that each hearing
aid-compatible digital wireless handset is labeled with the appropriate
rating, and clarifies that such rating is the lowest rating assigned to
that handset for any air interface or frequency band. See 47 C.F.R. S:
20.19(f)(1); see also Hearing Aid Compatibility First Report and Order, 23
FCC Rcd at 3451, para. 116 (finding that "the most useful information for
consumers is a single `worst case' rating constituting the handset's
lowest rating for any air interface or frequency band").
See NAL Response at 2.
See id.
47 U.S.C. S: 503(b); see also id. S: 503(b)(2)(B) (setting forth the
statutory maximum forfeiture for common carriers). 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, Pub. L. 101-410, 104 Stat. 890 (codified
at 28 U.S.C. S: 2461 note, as amended by the Debt Collection Improvement
Act of 1996, Pub. L. 104-134, 110 Stat. 1321 (codified at 31 U.S.C. S:
3720B-3720E)). The most recent inflation adjustment took effect September
2, 2008, and applies to violations occurring after that date. See
Amendment of Section 1.80 of the Commission's Rules and Adjustment of
Forfeiture Maxima to Reflect Inflation, 23 FCC Rcd 9845, 9847 (2008)
(adjusting the maximum statutory amounts for common carriers from
$130,000/$1,300,000 to $150,000/$1,500,000); 73 Fed. Reg. 44663-5. The
violation in this case occurred before September 2, 2008, and thus, the
forfeiture imposed against ASTCA for this violation may not exceed the
lesser statutory amounts. See 47 C.F.R. S: 1.80(b)(2) (2007).
47 C.F.R. S: 1.80.
See supra note 22.
47 U.S.C. S: 503(b)(2)(E).
See NAL Response at 1-2.
See id.
See Forfeiture Policy Statement, 12 FCC Rcd at 17099, para. 22 ("[t]he
Commission expects [each licensee], and it is each licensee's obligation,
to know and comply with all of the Commission's rules"); see also, e.g.,
Discussion Radio, Inc., Memorandum Opinion and Order and Notice of
Apparent Liability, 19 FCC Rcd 7433, 7437, para. 12 (2004) (Discussion
Radio) (by issuing forfeitures for violations that may have been
inadvertent, the bureau "impel[s] . . . licensees to become familiar with
the terms of their licenses and the applicable rules, and to adopt
procedures, including periodic review operations, which will ensure that
stations will be operated in substantial compliance with their licenses
and the Commission's rules") (quoting Crowell-Collier Broadcasting Corp.,
Memorandum Opinion and Order, 44 FCC 2d 2444, 2449-50 (1961)), forfeiture
ordered, Memorandum Opinion and Order, 24 FCC Rcd 2206 (Med. Bur. 2009)).
See, e.g., Emery Telephone, Memorandum Opinion and Order, 13 FCC Rcd
23854, 23859, para. 12 (1998) (Emery Telephone) (by issuing forfeitures
for inadvertent violations corrected after the fact, "the Bureau impels
licensees to be more familiar with the applicable rules in structuring
future conduct"), 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) (in denying a
mitigation claim based on the mistaken belief that certain Rules were
inapplicable, the Commission explained that "prior knowledge or
understanding of the law is unnecessary to a determination of whether a
violation existed . . . . [I]gnorance of the law is [not] a mitigating
factor."), cancelled on other grounds, Order, 12 FCC Rcd 14999 (1997); PJB
Communications of Virginia, Inc., Memorandum Opinion and Order, 7 FCC Rcd
2088, 2088, para. 5 (1992) (stating that inadvertent violations are
"willful" violations as "[a]ll that is necessary is that the licensee knew
it was doing the act in question"); Southern California, 6 FCC Rcd at
4387, para. 3 ("`inadvertence,' . . . is at best, ignorance of the law,
which the Commission does not consider a mitigating circumstance");
Lakewood Broadcasting Service, Inc., Memorandum Opinion and Order, 37 FCC
2d 437, 438, para. 6 (1972) ("If ignorance of [the Rules] were accepted as
an excuse, we would be encouraging licensees to know as little as
possible.").
See, e.g., Tidewater Communications, LLC, Order on Review, 25 FCC Rcd
1675, 1676, para. 5 (2010) ("To be willful, the violator must consciously
commit or omit certain actions and need not be aware that such actions
violate the Rules."); Southern California, 6 FCC Rcd at 4388, para. 5
(holding that, consistent with the Congressional record accompanying the
1982 amendments to the Act, a "willful" violation need not be
intentional); Princess K Fishing Corp., Forfeiture Order, 24 FCC Rcd 2606,
2608-09, para. 8 (Enf. Bur. 2009) (stating that a licensee need not have
the mens rea to commit a violation in order for a violation to be
"willful"), recon. dismissed, Memorandum Opinion and Order, 27 FCC Rcd
4707 (Enf. Bur. 2012).
See supra note 16; see also H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51
(1982) ("`willful' means that the licensee knew that he was doing the act
in question, regardless of whether there was an intent to violate the
law").
See NAL, 23 FCC Rcd at 16437, para. 11.
See NAL Response at 2.
See id. at 2. In response to the LOI, ASTCA not only provided the
information required, but it provided additional information as well. With
respect to the information ASTCA was required to provide, ASTCA was under
the obligation to be completely candid in its response to a Commission
inquiry. See 47 C.F.R. S: 1.17(a), (b) (prohibiting in any investigatory
or adjudicatory matter, the provision of incorrect material factual
information or the omission of material factual information when necessary
to prevent information from being false or misleading, whether done
intentionally or "without a reasonable basis for believing that any such
material factual statement is correct and not misleading"); see also
Southern California Reconsideration Order, 7 FCC Rcd at 3455, para. 7
(finding that a licensee's "frank" response to a letter of inquiry did not
warrant a downward adjustment as "complete candor" is required).
See, e.g., Sutro Broad. Corp., Memorandum Opinion and Order, 19 FCC Rcd
15274, 15277, para. 10 (2004) ("In forfeiture proceedings, [the
Commission] ha[s] generally provided reductions based on the good faith
corrective efforts of a violator when those corrective efforts were taken
prior to Commission notification of the violation."); Emery Telephone, 13
FCC Rcd at 23856, 23858, paras. 5, 10 (affirming the bureau's decision to
reduce an aggregate forfeiture from $12,000 to $6,000 for failing to file
certain required notifications because the carrier voluntarily disclosed
the violations and promptly filed the required forms); Victoria Cellular
Corp., Memorandum Opinion and Order, 7 FCC Rcd 7853, 7854, paras. 9-11
(1992) (reducing a proposed forfeiture from $15,000 to $6,000 for failing
to file certain required notifications because the carrier made a
voluntary disclosure); see also 47 C.F.R. S: 1.80(b)(6), Note to
paragraph (b)(6): Section II. Adjustment Criteria for Section 503
Forfeitures ("The Commission and its staff retain the discretion to issue
a higher or lower forfeiture than provided in the guidelines, to issue no
forfeiture at all, or to apply alternative or additional sanctions as
permitted by the statute.").
See, e.g., International Broadcasting Corp., Order on Review, 25 FCC Rcd
1538, 1540, para. 5 (2010) ("[T]he forfeiture provisions of section 503 of
the Communications Act are intended to encourage broadcast station
licensees to take appropriate action to prevent violations. Basing
mitigation or cancellation of a forfeiture upon corrective action taken
subsequent to the misconduct upon which liability is based would tend to
encourage remedial, rather than preventive, action.") (quoting
International Broadcasting Corp., Memorandum Opinion and Order, 19 FCC 2d
793, 793, para. 5 (1969)); Cumulus Licensing Corp., Memorandum Opinion
and Order, 23 FCC Rcd 5286, 5290-91, para. 12 (2008) (finding that
post-notification remedial efforts do not warrant mitigation of a
forfeiture); CB Radio, Inc., Memorandum Opinion and Order, 22 FCC Rcd
8836, 8839-40, para. 9 (2007) ("It is well established that
post-investigational efforts to correct a violation do not mitigate the
forfeiture or warrant a reduction in the assessed forfeiture amount.");
Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099, 6099, para. 7
(1994) ("[C]orrective action taken to come into compliance with Commission
rules or policy is expected, and does not nullify or mitigate any prior
forfeitures or violations.").
See NAL Response at 2.
See supra note 31.
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16787, para. 91
(stating that hearing aid compatibility status reports "should provide as
much specific information as possible concerning the cost of implementing
hearing aid compatibility into the remaining digital wireless phones
manufactured, as well as a comprehensive list of all such phones offered
at that time"); see also Hearing Aid Compatibility First Report and Order,
23 FCC Rcd at 3444, para. 96 (revised hearing aid compatibility status
report filing requirements require each service provider to "include an
explanation of its methodology for dividing its hearing aid-compatible
phones into different levels of functionality, which will help the
Commission as well as the public know the range of compatible handsets
that are being made available"); Hearing Aid Compatibility Reconsideration
Order, 20 FCC Rcd at 11241, para. 43 (identifying the "Commission's
interest in having timely, consolidated information" in the form of
hearing aid compatibility status reports).
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16787, para. 89
(stating that one of the purposes of the hearing aid compatibility status
report filing requirements is to allow the Commission to monitor progress
in the implementation of the hearing aid compatibility rules).
See NAL, 23 FCC Rcd at 16436, para. 6.
See id. at 16437.
See NAL, 23 FCC Rcd at 16437-38, paras. 12-13.
Section 504(c) of the Act, 47 C.F.R. S: 504(c), prohibits the use of a
non-final, non-adjudicated forfeiture proceeding in any other proceeding
before the Commission. The Commission, however, may consider the
underlying facts associated with non-final, non-adjudicated forfeiture
proceedings. See Forfeiture Policy Statement, 12 FCC Rcd at 17102-03,
paras. 32-35. Such facts may be used to demonstrate "a pattern of
non-complaint behavior against a licensee in a subsequent renewal,
forfeiture, transfer, or other proceeding." Id. at 17103, para. 34; see
also Paulino Bernal Evangelism, Memorandum Opinion and Order, 21 FCC Rcd
9532, 9535, para. 11 (Enf. Bur. 2006) (in considering whether a history of
compliance exists, the Commission may consider violations occurring in
cases where there has been no final determination), modified on other
grounds, Order on Review, 23 FCC Rcd 15959 (Enf. Bur. 2006).
See NAL Response at 2.
As stated in the NAL, the Commission requires federal tax returns for the
most recent three-year period, financial statements prepared according to
generally accepted accounting practices (GAAP), or some other reliable and
objective documentation that accurately reflects the petitioner's current
financial status. See NAL, 23 FCC Rcd at 16439, para. 19. Any claim of
inability to pay must specifically identify the basis for the claim by
reference to the financial documentation submitted. See, e.g., Discussion
Radio, 19 FCC Rcd at 7441, para. 28.
See, e.g., Mt. Rushmore Broadcasting, Inc., Memorandum Opinion and Order,
26 FCC Rcd 12845, 12847, para. 6 (Enf. Bur. 2011) (finding that, in the
absence of adequate supporting documentation, the bureau will not consider
a request for downward adjustment of a forfeiture based on an inability to
pay); Casey Network LLC, Notice of Apparent Liability for Forfeiture, 19
FCC Rcd 14800, 14800, para. 3 (Enf. Bur. 2004) (finding that, in the
absence of adequate supporting documentation, the licensee is not entitled
to a downward adjustment for an inability to pay based on service to "a
shrinking Alabama town whose only industry has mostly shifted to Mexico,"
and claims of "severe economic depression"); Forrester et al., Forfeiture
Order, 19 FCC Rcd 11030, 11031-32, para. 8 (Enf. Bur. 2004) (finding that,
in the absence of supporting documentation, the licensee is not entitled
to a downward adjustment for an inability to pay based on service to "a
very small and economically depressed area" and claims of "serious
financial difficulties").
See, e.g., Compass Global, Inc., Notice of Apparent Liability for
Forfeiture, 23 FCC Rcd 6125, 6138, para. 29 (2008) (finding that failures
to file are continuing violations that toll the statute of limitations for
forfeiture until the violations are cured); Telrite, 23 FCC Rcd at 7244,
para. 30 (same); VCI Co., Notice of Apparent Liability for Forfeiture and
Order, 22 FCC Rcd 15933, 15940, para. 20 (2007) (same).
47 U.S.C. S: 503(b).
47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4).
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 12-1681
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Federal Communications Commission DA 12-1681