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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Assist Wireless, LLC
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File No.: EB-SED-14-00013385
NAL/Acct. No.: 201432100012
FRN: 0020277489
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: February 18, 2014 Released: February 18, 2014
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
INTRODUCTION
In this Notice of Apparent Liability for Forfeiture, we propose a forfeiture in the amount of six thousand dollars ($6,000) against Assist Wireless, LLC (Assist Wireless). We find that Assist Wireless 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).
BACKGROUND
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 by which manufacturers and service providers were required to offer specified numbers of digital wireless handset models rated hearing aid-compatible.
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 indefinitely extended these reporting requirements with certain modifications.
Assist Wireless failed to timely file its hearing aid compatibility status report for the period January 1, 2012, through December 31, 2012 (2012 Status Report), which was due to be filed on January 15, 2013. Commission records indicate that an agent of Assist Wireless initially contacted the Commission's Wireless Telecommunications Bureau (Wireless Bureau) on or about February 15, 2013, advising the Wireless Bureau that Assist Wireless had been unable to file its 2012 Status Report by the January 15, 2013 filing deadline. In response, the Wireless Bureau opened filing windows on February 26 - 27, 2013, and again on March 19 - 20, 2013, to permit the filing of the overdue report. Assist Wireless filed its 2012 Status Report on March 20, 2013. The Wireless Bureau subsequently referred Assist Wireless's apparent violation of the hearing aid compatibility reporting requirement to the Enforcement Bureau (Bureau).
On December 11, 2013, the Bureau's Spectrum Enforcement Division (Division) issued a letter of inquiry (LOI) to Assist Wireless, directing the company to submit a sworn written response to a series of questions related to its compliance with the hearing aid compatibility reporting requirement. Assist Wireless responded to the LOI on January 8, 2014. In its LOI Response, Assist Wireless states that, as a result of a corporate reorganization, the responsibility for hearing aid compatibility status reporting was shifted to a new employee. According to Assist Wireless, when company management became aware on January 13, 2013, that its 2012 Status Report had not been filed, there was insufficient time to compile the required data and file its report by the January 15, 2013, filing deadline. In response to a subsequent inquiry from the Division, Assist Wireless asserts that its agent, Visi Consulting Services, LLC, had requested from the Wireless Bureau an extension of time to file its 2012 Status Report, and suggests that by opening a subsequent filing window, the Wireless Bureau had granted that request.
DISCUSSION
Failure to Timely File Hearing Aid Compatibility Status Report
Section 20.19(i)(1) of the Rules requires service providers to file hearing aid compatibility status reports. These reports are necessary to enable the Commission to perform its enforcement function and to evaluate whether Assist Wireless 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.
As the record in this case reflects, Assist Wireless failed to timely file its 2012 Status Report by January 15, 2013. In this regard, we reject Assist Wireless's suggestion that, by opening a new filing window for Assist Wireless, the Wireless Bureau had effectively extended the deadline by which Assist Wireless was required to file that report. At the outset, Commission records indicate that Assist Wireless did not contact the Wireless Bureau until approximately one month after its hearing aid compatibility status report was due. Moreover, the opening of a new filing window to permit the filing of an otherwise late-filed status report does not, standing alone, constitute an extension of the status report filing deadline. In this instance, Assist Wireless has failed to provide any written documentation or other evidence that the Wireless Bureau granted Assist Wireless an extension of time to file its 2012 Status Report. Because of the important enforcement and consumer awareness goals that hearing aid compatibility status reports serve, the Wireless Bureau requires service providers and handset manufacturers that fail to submit required reports by the filing deadline to submit late-filed status reports, and the Wireless Bureau routinely opens new filing windows for that purpose. The Wireless Bureau does not, however, routinely extend the hearing aid compatibility status report filing deadline under such circumstances. Absent any reliable evidence that Assist Wireless was granted such an extension, we find that Assist Wireless failed to timely file the hearing aid compatibility status report due on January 15, 2013, in apparent willful and repeated violation of Section 20.19(i)(1) of the Rules.
Proposed Forfeiture
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 Assist Wireless 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.
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 in Section 503 of the Act.
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 implement and enforce 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 $6,000 base forfeiture for violation of the hearing aid compatibility reporting requirement should apply here.
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." We see no basis to reduce the proposed forfeiture. Although Assist Wireless indicates in its LOI Response that its failure to timely file was an oversight, it is well established that administrative oversight or inadvertence is not a mitigating factor warranting a downward adjustment of a forfeiture. Similarly, a violator's lack of knowledge or erroneous belief does not warrant a forfeiture's downward adjustment. In addition, we have declined to downwardly adjust a forfeiture based on claims that changes in personnel contributed to the violation. In view of all the factual circumstances presented, and having considered the statutory factors enumerated above, we propose a forfeiture in the amount of $6,000 against Assist Wireless for failing to file its hearing aid compatibility status report for the period ending December 31, 2012 by the January 15, 2013 deadline, in apparent willful and repeated violation of Section 20.19(i)(1) of the Rules.
ORDERING CLAUSES
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, Assist Wireless, LLC is hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFFEITURE in the amount of six thousand dollars ($6,000) for willful and repeated violation of Section 20.19(i)(1) of the Commission's rules.
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, Assist Wireless, LLC SHALL PAY the full amount of the proposed forfeiture, or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture consistent with paragraph 16 below.
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. Assist Wireless, LLC shall send electronic notification of payment to Pamera Hairston at Pamera.Hairston@fcc.gov, Kathy Harvey at Kathy.Harvey@fcc.gov, and Samantha Peoples at Sam.Peoples@fcc.gov on the date said payment is made. 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 Assist Wireless, LLC should follow based on the form of payment it selects:
* 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.
Any request for making full payment over time 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, DC 20554. If Assist Wireless, LLC has questions regarding payment procedures, it should contact the Financial Operations Group Help Desk by phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
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, DC 20554, ATTN: Enforcement Bureau - Spectrum Enforcement Division, and must include the NAL/Account Number referenced in the caption. The statement must also be e-mailed to Pamera Hairston at Pamera.Hairston@fcc.gov and to Kathy Harvey at Kathy.Harvey@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.
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 Byron Young, Chief Executive Officer, Assist Wireless, LLC, 2402 Gravel Drive, Fort Worth, TX 76118.
* FEDERAL COMMUNICATIONS COMMISSION
John D. Poutasse
Chief, Spectrum Enforcement Division
Enforcement Bureau