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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)
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Federal Communications Commission DA 13-35
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Federal Communications Commission DA 13-35