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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Indigo Wireless, Inc.
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File No.: EB-SED-13-00009306
NAL/Acct. No.: 201132100018
FRN: 0009120999
forfeiture ORDER
Adopted: June 20, 2014 Released: June 20, 2014
By the Acting Chief, Enforcement Bureau:
INTRODUCTION
We impose a penalty of $39,000 against Indigo Wireless, Inc. (Indigo Wireless) for failing to offer to consumers the required number or percentage of digital wireless handset models that met or exceeded the radio frequency interference standards for hearing aid compatibility in 2009. The Commission's hearing aid compatibility rules were adopted to enhance the ability of consumers with hearing loss to access digital wireless telecommunications. In adopting the hearing aid compatibility rules, the Commission recognized the immediate need for such access and determined that individuals with hearing loss should not be denied the public safety and convenience benefits of digital wireless telephones. This need has become more critical, given the increased demand for hearing-aid compatible handsets. It is therefore necessary to continue our strong enforcement efforts in this area. Here, notwithstanding a violation of our hearing aid compatibility rules, Indigo Wireless urges us to cancel the proposed forfeiture based primarily on its asserted belief that it made good efforts to otherwise comply with the requirements. As discussed below, we find this and other arguments insufficient to warrant cancellation or reduction of the forfeiture.
BACKGROUND
On December 30, 2010, the Enforcement Bureau (Bureau) issued a Notice of Apparent Liability for Forfeiture (NAL) against Indigo Wireless in the amount of $39,000 for its apparent willful and repeated violation of Section 20.19(c)(3)(ii) of the Commission's rules (Rules) by failing to offer the required number or percentage of hearing aid-compatible handset models that met or exceeded the M3 rating for nine months during the 2009 reporting period.
On January 28, 2011, Indigo Wireless filed a response to the NAL requesting cancellation of the proposed forfeiture because (it insists) it reasonably believed that it was in compliance with the Rules and that any finding of noncompliance with the Rules was not willful. Further, Indigo Wireless argues that the proposed forfeiture is excessive, arbitrary, and would cause financial hardship to the company. Indigo Wireless also argues that the Bureau should downwardly adjust the proposed forfeiture because the violation was minor; that it made good-faith efforts to comply with the hearing aid compatibility requirements; and that it has a history of compliance. On March 14, 2011, Indigo Wireless submitted a Supplemental NAL Response in further support of its request for cancellation of the forfeiture.
DISCUSSION
The proposed forfeiture in this case was assessed in accordance with Section 503(b) of the Communications Act of 1934, as amended (Act), Section 1.80 of the Rules, and the Commission's Forfeiture Policy Statement. 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." As discussed below, we have fully considered Indigo Wireless's NAL Response and Supplemental NAL Response in light of these statutory factors and find no basis for cancellation or reduction of the proposed forfeiture. In this Forfeiture Order, we affirm the NAL's finding that Indigo Wireless willfully and repeatedly violated Section 20.19(c)(3)(ii) of the Rules by failing to offer to consumers for nine months the required number or percentage of digital wireless hearing aid-compatible handset models that met or exceeded the M3 rating.
In its NAL Response, Indigo Wireless argues that it did not violate Section 20.19 of the Rules because it "reasonably believed (and continues to believe) that the Pantech c810 was hearing-aid compatible" based on Internet sources. Indigo Wireless argues that determining hearing-aid compatibility using official FCC resources is "difficult to impossible" and, therefore, Indigo Wireless's reliance on Internet sources should be deemed reasonable. As such, Indigo Wireless argues, the Pantech c810 should be considered hearing aid compatible. We are not persuaded by this line of argument. Whatever Indigo Wireless's belief, it is indisputable that the Pantech c810 was not hearing aid-compatible according to Commission records. As noted in the NAL, it is well established that a violator's erroneous beliefs are not a mitigating factor warranting cancellation of a forfeiture. Furthermore, despite its insistence, we find that Indigo Wireless's efforts to ascertain ratings information (by relying on third party internet sources) do not reflect sufficient diligence to excuse the violation. In this regard, we note that the Commission's Equipment Authorization System is the most reliable source for information on a handset model'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 compatible rating of each handset model 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. Despite its assertion of the difficulties with FCC databases, there is no evidence to reflect that the relevant databases at the time were unreliable. Accordingly, we conclude that Indigo Wireless violated Section 20.19(c)(3)(ii) of the Rules because it failed to offer the required number of M3-rated handset models from March through July of 2009 and from September through December of 2009.
We also reject Indigo Wireless's argument that its noncompliance was not willful. Specifically, Indigo Wireless argues that it did not knowingly offer less than the minimum required number of handset models and therefore it did not act willfully. As noted in the NAL, however, willful noncompliance is not predicated on a finding of knowledge or intent to violate the law. Furthermore, even if Indigo Wireless were successful in demonstrating that it did not willfully violate the rules, the violation was nevertheless repeated (which Indigo Wireless does not dispute), which is sufficient under Section 503(b)(1)(B) to support the imposition of a forfeiture penalty.
We are also unpersuaded by Indigo Wireless's claims that the forfeiture is excessive or that the violation is minor in light of the statute of limitations. A carrier's failure to offer the requisite number or percentage of digital hearing aid-compatible handset models can never be regarded as a minor violation, given the significance of the requirement. In determining the appropriate forfeiture amount for violations of the hearing aid-compatible handset deployment requirements, the Commission considered that these requirements serve to ensure that consumers with hearing loss have access to advanced telecommunications services. In adopting the hearing aid compatibility rules, the Commission underscored the strong and immediate need for such access. As the Commission has explained, the demand for hearing aid-compatible handsets is likely to increase with the public's growing reliance on wireless technology and with the increasing median age of our population. Accordingly, the Commission determined that a base forfeiture amount of $15,000 per handset model shortfall is necessary to reflect the gravity of the noncompliance. Here, Indigo Wireless was short two handset models in December 2009 (during a period within the applicable statute of limitations), which is the basis of the $30,000 base forfeiture; and because of the duration of the violation, an upward adjustment of the base forfeiture amount was made. The calculation of the proposed forfeiture was entirely consistent with Commission precedent and not excessive, and Indigo Wireless makes no argument that the violation occurred outside of the statute of limitations.
Indigo Wireless also asserts that it has a history of overall compliance with the Rules that warrants cancellation or reduction of the proposed forfeiture. We disagree. When evaluating a request for a forfeiture reduction based on a claim that an individual or entity has not previously violated our Rules, we take into account both prior and concurrent violations, including violations occurring outside the statute of limitations, as well as the duration of each such violation. In light of the fact that Indigo Wireless failed to offer to consumers the requisite number of digital wireless hearing aid-compatible handset models for nine months of the reporting period, we do not believe that Indigo Wireless can be said to have a history of overall compliance with the Commission's rules and, therefore, no reduction of the forfeiture based on this factor is warranted. We also reject Indigo Wireless's suggestion that because it made a good-faith effort to comply, we should downwardly adjust the forfeiture. As discussed above, Indigo Wireless's overall efforts to comply with the rules were insufficient. Further, any good-faith effort to comply with the hearing-aid compatibility rules is expected and generally does not serve to mitigate a forfeiture.
Finally, Indigo Wireless's claim of "financial hardship" also does not support cancellation or reduction of the forfeiture. Any claim of inability to pay must specifically identify the basis for the claim by reference to financial documentation submitted. In general, an individual's or entity's "gross revenues are the best indicator of its ability to pay a forfeiture." Indigo Wireless, however, has not provided any financial or other documentation to support or corroborate its claim of financial hardship. We therefore deny the request for cancellation or reduction on this basis.
Based on the record before us and in light of the applicable statutory factors, we hereby affirm our conclusion in the NAL that Indigo Wireless willfully and repeatedly violated Section 20.19(c)(3)(ii) of the Rules by failing to offer the required number or percentage of digital wireless handset models that met or exceeded the radio frequency interference standards for hearing aid compatibility set forth in Section 20.19(b)(1) of the Rules. We also decline to cancel or reduce the $39,000 forfeiture proposed in the NAL.
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, Indigo Wireless, Inc. IS LIABLE FOR A MONETARY FORFEITURE in the amount of thirty-nine thousand dollars ($39,000) for willful and repeated violation of Section 20.19(c)(3)(ii) of the Commission's rules.
Payment of the forfeiture shall be made in the manner provided for in Section 1.80 of the Commission's rules within thirty (30) 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. Indigo Wireless, Inc. shall send electronic notification of payment to Jason A. Koslofsky at Jason.Koslofsky@fcc.gov, Pamera Hairston at Pamera.Hairston@fcc.gov, and Samantha Peoples at Sam.Peoples@fcc.gov on the date said payment is made.
The payment must be made by check or similar instrument, wire transfer, or credit card, and must include the NAL/Account Number and FRN referenced above. Indigo Wireless, Inc. 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 Indigo Wireless, Inc. 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 Indigo Wireless, Inc. 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.
IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be sent by first class mail and certified mail, return receipt requested, to Indigo Wireless, Inc., 18 Beechnut Terrace, Ithaca, NY 14850; and to James M. Smith, Davis Wright Tremaine LLP, counsel to Indigo Wireless, Inc., 1919 Pennsylvania Avenue N.W., Suite 800, Washington, DC 20006-3401.
FEDERAL COMMUNICATIONS COMMISSION
Travis LeBlanc
Acting Chief
Enforcement Bureau