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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

   In the Matter of Kyocera Communications, Inc. Kyocera Corporation ) ) ) )
   ) ) File No.: EB-SED-12-00005491 NAL/Acct. No.: 201332100003 FRNs:
   0004265831, 0017617366




                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: May 1, 2013 Released: May 1, 2013

   By the Chief, Spectrum Enforcement Division, Enforcement Bureau:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture, we propose a
       forfeiture in the amount of twelve thousand dollars ($12,000) against
       Kyocera Communications, Inc. and its corporate parent, Kyocera
       Corporation (collectively, Kyocera).^ As detailed herein, we find that
       Kyocera apparently willfully and repeatedly violated the digital
       wireless handset hearing aid compatibility status report filing
       requirements set forth in Section 20.19(i)(1) of the Commission's
       rules (Rules).^

   II. BACKGROUND

    2. In the 2003 Hearing Aid Compatibility Order, the Commission adopted
       several measures to enhance the ability of consumers with hearing loss
       to access digital wireless telecommunications.^ The Commission
       established technical standards that digital wireless handsets must
       meet to be considered compatible with hearing aids operating in
       acoustic coupling and inductive coupling (telecoil) modes.^
       Specifically, the Commission adopted a standard for radio frequency
       interference (the M3 rating) to enable acoustic coupling between
       digital wireless phones and hearing aids operating in acoustic
       coupling mode, ^ and a separate standard (the T3 rating) to enable
       inductive coupling with hearing aids operating in telecoil mode.^ In
       the 2008 Hearing Aid Compatibility First Report and Order, the
       Commission established various deadlines commencing in 2008 by which
       manufacturers and service providers were required to offer specified
       numbers of digital wireless handset models rated hearing
       aid-compatible.^

    3. The Commission also adopted reporting requirements to ensure that it
       could monitor the availability of hearing aid-compatible handsets and
       to provide valuable information to the public concerning the technical
       testing and commercial availability of these handsets.^ The Commission
       initially 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, and then annually thereafter through the fifth year
       of implementation.^ In its 2008 Hearing Aid Compatibility First Report
       and Order, the Commission extended these reporting requirements with
       certain modifications on an open-ended basis.^

    4. Kyocera failed to timely file its hearing aid compatibility status
       report for the period July 1, 2011 through June 30, 2012. The required
       report was due to be filed on July 16, 2012.^ Staff from the
       Commission's Wireless Telecommunications Bureau (Wireless Bureau)
       notified Kyocera of its failure to file the status report on July 24,
       2012. The Wireless Bureau reopened the filing window on September 10,
       2012, at which time Kyocera filed its status report for the reporting
       period ending June 30, 2012.^ The Wireless Bureau subsequently
       referred Kyocera's apparent violation of the hearing aid compatibility
       reporting requirement to the Enforcement Bureau for investigation and
       possible enforcement action.

   III. DISCUSSION

          A. Failure to Timely File Hearing Aid Compatibility Status Report

    5. Section 20.19(i)(1) of the Rules requires handset manufacturers to
       file hearing aid compatibility status reports.^ These reports are
       necessary to enable the Commission to perform its enforcement function
       and to evaluate whether Kyocera is in compliance with Commission
       mandates that were adopted to facilitate the accessibility of hearing
       aid-compatible wireless handsets. These reports also provide valuable
       information to the public concerning the technical testing and
       commercial availability of hearing aid-compatible handsets. In
       addition, accurate reporting of a handset model's hearing aid
       compatibility rating by the handset manufacturer may assist service
       providers in complying with the hearing aid compatibility rules.^
       Kyocera failed to timely file the hearing aid compatibility status
       report due on July 16, 2012 in apparent willful^ and repeated^
       violation of Section 20.19(i)(1) of the Rules.^

     A. Proposed Forfeiture

    6. Under Section 503(b)(1)(B) of the Communications Act of 1934, as
       amended (Act), any person who is determined by the Commission to have
       willfully or repeatedly failed to comply with any provision of the Act
       or any rule, regulation, or order issued by the Commission shall be
       liable to the United States for a forfeiture penalty.^ To impose such
       a forfeiture penalty, the Commission must first issue a notice of
       apparent liability for forfeiture and the person against whom such
       notice has been issued must have an opportunity to show, in writing,
       why no such forfeiture penalty should be imposed.^ The Commission will
       then issue a forfeiture if it finds by a preponderance of the evidence
       that the person has violated the Act or the Rules.^ We conclude that
       Kyocera is apparently liable for a forfeiture for its failure to
       timely file the required hearing aid compatibility status report in
       apparent willful and repeated violation of Section 20.19(i)(1) of the
       Rules.^

    7. The Commission's Forfeiture Policy Statement and Section 1.80(b) of
       the Rules set a base forfeiture amount of $3,000 for the failure to
       file required forms or information.^ While the base forfeiture
       requirements are guidelines lending some predictability to the
       forfeiture process, the Commission retains the discretion to depart
       from these guidelines and issue forfeitures  on a case-by-case basis
       under its general forfeiture authority contained in Section 503 of the
       Act.^

    8. We have exercised our discretion to set a higher base forfeiture
       amount for violations of the wireless hearing aid compatibility
       reporting requirements. In ASTCA, we found that the status reports are
       essential to the implementation and enforcement of the hearing aid
       compatibility rules.^ The Commission relies on these reports to
       provide consumers with information regarding the technical
       specifications and commercial availability of hearing aid-compatible
       digital wireless handsets and to ensure that the digital wireless
       industry meets the needs of the increasing number of consumers with
       hearing loss.^ In an analogous context, we noted that when setting an
       $8,000 base forfeiture for violations of the hearing aid-compatible
       handset labeling requirements, the Commission emphasized that
       consumers with hearing loss could only take advantage of critically
       important public safety benefits of digital wireless services if they
       had access to accurate information regarding hearing aid compatibility
       features of handsets.^ We also noted that the Commission has adjusted
       the base forfeiture upward when noncompliance with filing requirements
       interferes with the accurate administration and enforcement of
       Commission rules.^ Because the failure to file hearing aid
       compatibility status reports implicates similar public safety and
       enforcement concerns, we exercised our discretionary authority and
       established a base forfeiture amount of $6,000 for failure to file a
       hearing aid compatibility report.^ Consistent with ASTCA, we believe
       the established $6,000 base forfeiture for violation of the hearing
       aid compatibility reporting requirement should apply here, for a
       proposed base forfeiture of $6,000.

    9. The $6,000 base forfeiture, however, is subject to adjustment. In
       assessing forfeitures, 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."^ Failure to file this report,
       as is the case here, can have an adverse impact on the Commission's
       ability to ensure the commercial availability of hearing
       aid-compatible digital wireless handsets, to the detriment of
       consumers. Furthermore, as we noted in ASTCA, the failure to file a
       hearing aid compatibility status report constitutes a continuing
       violation that continues until the violation is cured.^ Consequently,
       we do not believe that the circumstances presented warrant any
       downward adjustment of the proposed forfeiture amount.

   10. Given the totality of the circumstances and having considered the
       statutory factors enumerated above, we conclude that an upward
       adjustment is warranted. Specifically, we take into account Kyocera's
       high revenues and ability to pay a forfeiture in determining the
       appropriate forfeiture amount. As the Commission made clear in the
       Forfeiture Policy Statement, companies with higher revenues, such as
       Kyocera,^ could expect forfeitures higher than those reflected in the
       base amounts.^ Accordingly, we propose a forfeiture of $12,000 against
       Kyocera for failing to timely file its hearing aid compatibility
       status report for the period ending June 30, 2012 by the July 16, 2012
       deadline in apparent willful and repeated violation of Section
       20.19(i)(1) of the Rules.^

   IV. ORDERING CLAUSES

   11. 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 of the Commission's rules,^ Kyocera Communications, Inc. and
       Kyocera Corporation ARE NOTIFIED of their APPARENT JOINT AND SEVERAL
       LIABILITY FOR A FORFEITURE in the amount of twelve thousand dollars
       ($12,000) for willful and repeated violation of Section 20.19(i)(1) of
       the Commission's rules.^

   12. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
       Commission's rules, within thirty (30) calendar days after the release
       date of this Notice of Apparent Liability for Forfeiture, Kyocera
       Communications, Inc. and Kyocera Corporation SHALL PAY the full amount
       of the proposed forfeiture, for which they are jointly and severally
       liable, or SHALL FILE a written statement seeking reduction or
       cancellation of the proposed forfeiture consistent with paragraph 15
       below.

   13. Payment of the forfeiture must be made by check or similar instrument,
       wire transfer, or credit card, and must include the NAL/Account number
       and FRN referenced above. Kyocera Communications, Inc. and Kyocera
       Corporation shall send electronic notification of payment to Pamera
       Hairston at Pamera.Hairston@fcc.gov, Jason Koslofsky at
       Jason.Koslofsky@fcc.gov, and Samantha Peoples at Sam.Peoples@fcc.gov
       on the date said payment is made. 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.

   14. 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.

   15. The written statement seeking reduction or cancellation of the
       proposed forfeiture, if any, must include a detailed factual statement
       supported by appropriate documentation and affidavits pursuant to
       Sections 1.80(f)(3) and 1.16 of the Commission's rules.^ The written
       statement must be mailed to the Office of the Secretary, Federal
       Communications Commission, 445 12th Street, S.W., Washington, D.C.
       20554, ATTN: Enforcement Bureau - Spectrum Enforcement Division, and
       must include the NAL/Account Number referenced in the caption. The
       statement must also be emailed to Pamera Hairston at
       Pamera.Hairston@fcc.gov and to Jason Koslofsky at
       Jason.Koslofsky@fcc.gov. The Commission will not consider reducing or
       canceling a forfeiture in response to a claim of inability to pay
       unless the petitioner submits: (1) federal tax returns for the most
       recent three-year period; (2) financial statements prepared according
       to generally accepted accounting practices; or (3) some other reliable
       and objective documentation that accurately reflects the petitioner's
       current financial status. Any claim of inability to pay must
       specifically identify the basis for the claim by reference to the
       financial documentation.

   16. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
       for Forfeiture  shall be sent by first class mail and certified mail
       return receipt requested to Yasuhiro Oishi, President, Kyocera
       Communications, Inc., 9520 Towne Centre Drive, San Diego, CA 92121,
       and to Goro Yamaguchi, President, Kyocera Corporation, 9520 Towne
       Centre Drive, San Diego, CA 29121.

   FEDERAL COMMUNICATIONS COMMISSION

   John D. Poutasse

   Chief, Spectrum Enforcement Division

   Enforcement Bureau

   ^ Kyocera Communications, Inc. is a subsidiary of Kyocera Corporation. See
   Kyocera Corporation, Corporate Profile,
   http://global.kyocera.com/company/download/pdf/all_en.pdf (last visited
   Apr. 12, 2012). Kyocera Corporation manufactures mobile telephones and
   other electronic devices. Id. Kyocera Communications, Inc. "is the sales,
   marketing and service headquarters for Kyocera - and Sanyo-branded
   wireless products and accessories in the Americas." Kyocera
   Communications, Inc., Kyocera Corporate Overview,
   http://www.kyocera-wireless.com/company-information/overview.htm (last
   visited Apr. 12, 2013).

   ^ 47 C.F.R. S 20.19(i)(1).

   ^ 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), Order on Reconsideration and Further
   Notice of Proposed Rulemaking, 20 FCC Rcd 11221 (2005) (Hearing Aid
   Compatibility 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 610).

   ^ 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).

   ^ See 47 C.F.R. S20.19(b).

   ^ See Amendment of the Commission's Rules Governing Hearing Aid-Compatible
   Mobile Handsets, First Report and Order, 23 FCC Rcd 3406, 3418-20, paras.
   35-36 (2008), Order on Reconsideration and Erratum, 23 FCC Rcd 7249 (2008)
   (Hearing Aid Compatibility First Report and Order).

   ^ See id.  at 3443, para. 91; see also 47 C.F.R. S 20.19(i).

   ^ 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 (Wireless Tel. Bur. 2004).

   ^ See Hearing Compatibility First Report and Order, 23 FCC Rcd at 3444-46,
   paras. 97-99, 101. The extensions of these reporting requirements became
   effective on December 13, 2011. See 76 Fed. Reg. 77,415 (Dec. 13, 2011).
   The Commission also made clear that these reporting requirements apply to
   manufacturers and service providers that meet the de minimis exception.
   See Hearing Compatibility First Report and Order, 23 FCC Rcd at 3446,
   para. 99.

   ^ Manufacturers are required to file their hearing aid compatibility
   status reports on July 15^th of each year. See 47 C.F.R. S 20.19(i)(1).
   However, because July 15, 2012 fell on a Sunday, the report was due the
   next business day, July 16, 2012. See id. S 1.4(e)(1) (defining "holiday"
   to include Sunday); Id. S 1.4(j) (when a deadline falls on a holiday, the
   deadline is extended until the next business day); see also Hearing Aid
   Compatibility Status Reporting, http://wireless.fcc.gov/hac.

   ^ See Kyocera Communications, Inc.,  Hearing Aid Compatibility Report
   (Sept. 10, 2012),
   http://wireless.fcc.gov/hac_documents/120928/7058833_23.PDF.

   ^ See 47 C.F.R. S 20.19(i)(1).

   ^ See Hearing Compatibility First Report and Order, 23 FCC Rcd at 3446,
   para. 98 (stating that a handset model's hearing aid compatibility rating,
   among other relevant information, "should be readily available to service
   providers either from the manufacturer's previous reports to the
   Commission, from the manufacturer's own website, or from the manufacturer
   directly."). We note, however, that the Commission's Equipment
   Authorization System is the most reliable source for information on a
   handset's hearing aid compatibility rating. The Equipment Authorization
   System is an electronic database of all equipment certified under
   Commission authority. The database identifies the hearing aid
   compatibility rating of each handset by FCC ID, as reported by the handset
   manufacturer in test reports submitted to the Commission at the time of an
   equipment authorization or of any modification to such authorization. See
   http://transition.fcc.gov/oet/ea/fccid/.

   ^ 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 Sections
   312 and 503 of the Act, H.R. Rep. No. 97-765 (1982) (Conf. Rep.), and the
   Commission has so interpreted the term in the Section 503(b) context. See
   So. Cal. Broad. Co., Memorandum Opinion and Order, 6 FCC Rcd 4387,
   4387-88, para. 5 (1991), recon. denied, 7 FCC Rcd 3454 (1992) (Southern
   California).

   ^ Section 312(f)(2) of the Act, which also applies to forfeitures assessed
   pursuant to Section 503(b) of the Act, defines "repeated" as "the
   commission or omission of [any] 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 also Southern California, 6 FCC Rcd at 4388, para. 5.

   ^ 47 C.F.R. S 20.19(i)(1).

   ^ 47 U.S.C. S 503(b)(1)(B); see also 47 C.F.R. S 1.80(a).

   ^ 47 U.S.C. S 503(b); 47 C.F.R. S 1.80(f).

   ^ See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589,
   7591, para. 4 (2002).

   ^ 47 C.F.R. S 20.19(i)(1).

   ^ See The Commission's Forfeiture Policy Statement and Amendment of
   Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report
   and Order, 12 FCC Rcd 17087, 17113, Appendix A, Section I, recon. denied,
   Memorandum Opinion and Order,  15 FCC Rcd 303 (1999) (Forfeiture Policy
   Statement); 47 C.F.R. S 1.80.

   ^ See Forfeiture Policy Statement, 12 FCC Rcd  at 17099, 17101, paras. 22,
   29; see also 47 C.F.R. S 1.80.

   ^ See American Samoa Telecommunications Authority, Notice of Apparent
   Liability for Forfeiture, 23 FCC Rcd 16432, 16436-37, para. 10 (Enf. Bur.
   2008), forfeiture ordered, Forfeiture Order, 27 FCC Rcd 13174 (Enf. Bur.
   2012) (forfeiture paid) (ASTCA).

   ^ See id.

   ^ See id.

   ^ See id.

   ^ See id.

   ^ 47 U.S.C. S 503(b)(2)(E).

   ^ See ASTCA, 23 FCC Rcd at 16437, para. 11; see also Compass Global, Inc.,
   Notice of Apparent Liability for Forfeiture, 23 FCC Rcd 6125, 6138, para.
   29 (2008) (determining that failure to file Telecommunications Reporting
   Worksheets was a continuing violation); VCI Company, Notice of Apparent
   Liability for Forfeiture and Order, 22 FCC Rcd 15933, 15940, para. 20
   (2007) (determining that failure to file Form 497 was a continuing
   violation).

   ^ Kyocera Communications, Inc. is a subsidiary of Kyocera Corporation. See
   supra note 1. Kyocera Corporation has significant gross revenues based on
   its reported net sales of approximately $14.5 billion for the fiscal year
   ending March 2012. See News Release, KYOCERA Honored as "Device Vendor of
   the Year" by RadioShack (Nov. 1, 2012),
   http://americas.kyocera.com/news/news_detail.cfm?key=2198.

   ^ Specifically, the Commission stated:

   [O]n the other end of the spectrum of potential violators, we recognize
   that for large or highly profitable communications entities, the base
   forfeiture amounts . . . are generally low. In this regard, we are mindful
   that, as Congress has stated, for a forfeiture to be an effective
   deterrent against these entities, the forfeiture must be issued at a high
   level. For this reason, we caution all entities and individuals that,
   independent from the uniform base forfeiture amounts . . . we intend to
   take into account the subject violator's ability to pay in determining the
   amount of a forfeiture to guarantee that forfeitures issued against large
   or highly profitable entities are not considered merely an affordable cost
   of doing business. Such large or highly profitable entities should expect
   in this regard that the forfeiture amount set out in a Notice of Apparent
   Liability against them may in many cases be above, or even well above, the
   relevant base amount.

   Forfeiture Policy Statement, 12 FCC Rcd at 17099-100, para. 24.

   ^ 47 C.F.R. S 20.19(i)(1).

   ^ 47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.311, 1.80.

   ^ 47 C.F.R. S 20.19(i)(1).

   ^ An FCC Form 159 and detailed instructions for completing the form may be
   obtained at http://www.fcc.gov/Forms/Form159/159.pdf.

   ^ 47 C.F.R. SS 1.80(f)(3), 1.16.

   (Continued from previous page)

   (continued....)

   Federal Communications Commission DA 13-35

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   Federal Communications Commission DA 13-35