Cheng-yi Liu, Esq.
Earlier this year, the Federal Communications Commission (“FCC”) released several Notices of Apparent Liability for Forfeiture (“NALs”) and citations to various wireless service providers and handset manufacturers that failed to comply with the FCC’s hearing aid compatibility (“HAC”) requirements. As these companies discovered, failure to comply with the FCC’s HAC requirements can lead to large fines and other enforcement actions. Since May 2007, the FCC has issued forfeitures and consent decrees amounting to over $665,000 for companies in violation of various HAC related compliance obligations.
In order to facilitate the availability of wireless technologies to people with hearing disabilities, the FCC developed HAC requirements for wireless service providers and handset manufacturers (collectively, “companies”). Companies are required by the FCC to offer a certain number or percentage of wireless handsets which are compatible with hearing aids by use of two possible radio frequencies; one for acoustic coupling between hearing aids and wireless handsets (the “M3” rating), and one for inductive coupling with hearing aids operating in telecoil mode (the “T3” rating). The FCC also established deadlines for reporting ongoing HAC compliance. Currently, the FCC requires service providers to submit annual reports by January 15th each year and requires manufacturers to submit reports by July 15th using FCC Form 655. In addition, companies must maintain on their publicly accessible websites a list of HAC compatible handsets, the technical ratings of the handsets, and an explanation of the rating system. The FCC exempts de minimis companies (providers or manufacturers offering two or fewer handsets) from the requirement to provide HAC compatible handsets, but these companies are still required to file the annual reports.
In addition to the NALs and citations, the FCC released an Enforcement Advisory explaining HAC rules and restating its commitment to strict enforcement of HAC requirements. The FCC also warned companies that failure to familiarize themselves with applicable law does not excuse non-compliance - a principle evidenced by the corresponding NALs. For example, a de minimis handset manufacturer was subject to a $12,000 forfeiture for not filing applicable reports, as the company mistakenly believed that its HAC de minimis status exempted it from the filings. Another manufacturer was subject to a total forfeiture of $18,000 for failure to file timely HAC reports and failure to post HAC information on its website, despite the manufacturer’s claim that the violations were simply due to a mistake in understanding the requirements.
To view the Enforcement Advisory issued by the FCC, please see http://bit.ly/dp4eXT.
7-Eleven: A Wireless Reseller
In November 2009 the FCC issued a Letter of Inquiry to 7-Eleven investigating the company’s HAC compliance. In its response, 7-Eleven argued that it was not a wireless service provider because it merely resold prepaid wireless cards and handsets that it obtained from its underlying carrier. However, since 7-Eleven resold the products under its own brand, “Speak Out”, the FCC found that 7-Eleven was operating as a wireless service reseller or Mobile Virtual Network Operator (“MVNO”). Under the FCC’s rules, even wireless resellers, or MVNOs, are subject to the HAC requirements, as well as other requirements applicable to wireless service providers. Consequently, the agency issued a citation to 7-Eleven for failure to comply with HAC obligations; specifically, 7-eleven failed to file its January 15, 2009 annual report and failed to display HAC information on its website. The FCC also warned 7-Eleven that future violations may subject the company to monetary forfeitures.
Rather than subjecting itself to the various requirements applicable to operating as an MVNO, it appears that 7-Eleven has simply stopped offering Speak Out products altogether. There is no information currently available on Speak Out products (http://bit.ly/8Ms7dv) on 7-Eleven’s website, whereas archived versions of the website (http://bit.ly/bStkf0) had advertised Speak Out products (of course, without HAC information). Notably, customers can still purchase and use Speak Out products in Canada, where wireless regulations differ from those in the U.S. (see http://speakout7eleven.ca/).
To view the citation issued by the FCC to 7-Eleven, please see http://bit.ly/901h8J.
This article is provided for informational purposes only, and is intended neither to provide nor to substitute for legal advice.
March 23, 2010
| This article was authored by the Law Offices of Thomas K. Crowe, P.C., a Washington D.C.-based specialty law firm serving the communications industry. Specialty services cover agreements with distributors and providers, FCC licenses, USF reporting and disputes, FCC Enforcement Bureau matters, CPNI, CALEA, state licensing, and more. Contact the firm by phone at 202-263-3640, by email at .(JavaScript must be enabled to view this email address), or via the firm’s website, www.tkcrowe.com. |