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In the Matter of Locus Telecommunications, Inc

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Released: December 29, 2011

Federal Communications Commission

DA 11-2078

Before the

Federal Communications Commission

Washington, D.C. 20554

)
In the Matter of
)
File No.: EB-11-SE-104
)
Locus Telecommunications, Inc.
)
NAL/Acct. No.: 201232100017
)
)

FRN: 0010729515

NOTICE OF APPARENT LIABILITY FOR FORFEITURE

AND ADMONISHMENT

Adopted: December 28, 2011

Released: December 29, 2011

By the Chief, Enforcement Bureau:

I.

INTRODUCTION

1.
In this Notice of Apparent Liability for Forfeiture and Admonishment, we propose a
forfeiture in the amount of twenty-five thousand five hundred dollars ($25,500) and issue an
admonishment against Locus Telecommunications, Inc. (“Locus”).1 As detailed herein, we find that
Locus apparently willfully and repeatedly violated sections 20.19(c)(3)(ii) and 20.19(d)(3)(ii) of the
Commission’s rules (“Rules”).2 We further find that some of this apparent misconduct continued for the
entire 2010 calendar year. Specifically, Locus apparently failed to offer to consumers the required
number or percentage of hearing aid-compatible digital wireless handset models that operate on the GSM
air interface as set forth in the Rules. These hearing aid compatibility requirements serve to ensure that
consumers with hearing loss have access to advanced telecommunications services.

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.3 The
Commission established technical standards that digital wireless handsets must meet to be considered


1 Locus is a Tier III carrier serving 70,000 locations. Tier III carriers are non-nationwide wireless radio service
providers with 500,000 or fewer subscribers as of the end of 2001. See Revision of the Commission’s Rules to
Ensure Compatibility with Enhanced 911 Emergency Calling Systems, Phase II Compliance Deadlines for Non-
Nationwide CMRS Carriers,
Order to Stay, 17 FCC Rcd 14841, 14847-48 ¶¶ 22-23 (2002).
2 47 C.F.R. § 20.19(c)(3)(ii), (d)(3)(ii).
3 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) (“Hearing Aid Compatibility Order”); Order on
Reconsideration and Further Notice of Proposed Rulemaking, 20 FCC Rcd 11221 (2005). The Commission adopted
these requirements for digital wireless telephones under the authority of the Hearing Aid Compatibility Act of 1988,
codified at section 710(b)(2)(B) of the Communications Act of 1934, as amended (the “Act”), 47 U.S.C. §
610(b)(2)(B).

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compatible with hearing aids operating in acoustic coupling and inductive coupling (telecoil) modes.4
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.5
3.
In the 2008 Hearing Aid Compatibility First Report and Order, the Commission
established several deadlines between 2008 and 2011 by which manufacturers and service providers must
offer specified numbers or percentages of digital wireless handset models that are rated as hearing aid-
compatible.6 The number or percentage of digital wireless handset models required to be offered to


4 See Hearing Aid Compatibility Order, 18 FCC Rcd at 16777 ¶ 56. See also 47 C.F.R. § 20.19(b)(1), (2). The
Hearing Aid Compatibility Order described the acoustic coupling and the inductive coupling (telecoil) modes as
follows:
In acoustic coupling mode, the microphone picks up surrounding sounds, desired and undesired,
and converts them into electrical signals. The electrical signals are amplified as needed and then
converted back into sound by the hearing aid speaker. In telecoil mode, with the microphone
turned off, the telecoil picks up the audio signal-based magnetic field generated by the voice coil
of a dynamic speaker in hearing aid-compatible telephones, audio loop systems, or powered neck
loops. The hearing aid converts the magnetic field into electrical signals, amplifies them as
needed, and converts them back into sound via the speaker. Using a telecoil avoids the feedback
that often results from putting a hearing aid up against a telephone earpiece, can help prevent
exposure to over amplification, and eliminates background noise, providing improved access to
the telephone.
Hearing Aid Compatibility Order, 18 FCC Rcd at 16763 ¶ 22.
5 As subsequently amended, section 20.19(b)(1) provides that, for the period beginning January 1, 2010, a wireless
handset is deemed hearing aid-compatible for radio frequency interference if, at a minimum, it meets the M3 rating
associated with the technical standard set forth in the standard document “American National Standard Methods of
Measurement of Compatibility between Wireless Communication Devices and Hearing Aids,” ANSI C63.19-2007
(June 8, 2007) (“ANSI C63.19-2007”), except that grants of certification issued before January 1, 2010 under earlier
versions of ANSI C63.19 remain valid for hearing aid compatibility purposes. 47 C.F.R. § 20.19(b)(1). Section
20.19(b)(2) provides that, for the period beginning January 1, 2010, a wireless handset is deemed hearing aid-
compatible for inductive coupling if, at minimum, it meets the T3 rating associated with the technical standard set
forth in ANSI C63.19-2007, except that grants of certification issued before January 1, 2010 under earlier versions
of ANSI C63.19 remain valid for hearing aid compatibility purposes. 47 C.F.R. § 20.19(b)(2).
6 These handset deployment requirements apply to each air interface over which the service providers offer service.
See Amendment of the Commission’s Rules Governing Hearing Aid-Compatible Mobile Handsets, First Report and
Order, 23 FCC Rcd 3406, 3419 ¶¶ 35-36 (2008) (stating that the hearing aid-compatible handset deployment
requirements apply on a per air interface basis) (“Hearing Aid Compatibility First Report and Order”), Order on
Reconsideration and Erratum, 23 FCC Rcd 7249 (2008). However, these handset deployment benchmarks do not
apply to service providers and manufacturers that meet the de minimis exception. See Amendment of the
Commission’s Rules Governing Hearing Aid-Compatible Mobile Handsets
, First Report and Order, 23 FCC Rcd
3406, 3413 ¶ 204 (2008) (“Hearing Aid Compatibility First Report and Order”), Order on Reconsideration and
Erratum, 23 FCC Rcd 7249 (2008); 47 C.F.R. § 20.19(e). The de minimis exception provides that manufacturers or
mobile service providers that offer two or fewer digital wireless handset models per air interface are exempt from
the hearing aid compatibility requirements, and manufacturers or service providers that offer three digital wireless
handset models per air interface must offer at least one compliant model. 47 C.F.R. § 20.19(e). Effective
September 10, 2012, the de minimis exception will not be available to manufacturers or mobile service providers
that do not meet the definition of a “small entity” beginning two years after their initial offerings. 47 C.F.R. §
20.19(e)(1)(ii); see also Amendment of the Commission’s Rules Governing Hearing Aid-Compatible Mobile
(continued….)
2

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consumers by each deadline depends on the applicable compatibility standard (“M” rating or “T” rating),
and the deployment schedule is tailored to the size of the service provider as measured by its number of
subscribers. Specifically, between May 15, 2009 and May 14, 2010, non-Tier I service providers were
required to ensure that at least nine handset models per digital air interface,7 or at least 50% of the models
offered per digital air interface, met or exceeded the M3 rating,8 and that at least five handset models per
digital air interface, or at least one-third of the models offered per digital air interface, met or exceeded
the T3 rating.9 Beginning May 15, 2010, non-Tier I service providers were required to offer to consumers
at least ten handset models per digital air interface, or at least 50% of the models offered per digital air
interface, that met or exceeded the M3 rating.10 Similarly, between May 15, 2010 and May 14, 2011,
non-Tier I service providers were required to offer at least seven handset models per digital air interface,
or at least one-third of the models offered per digital air interface, that met or exceeded the T3 rating.11
4.
On January 18, 2011, Locus submitted a hearing aid compatibility status report covering
January 1, 2010 to December 31, 2010.12 Locus identified each handset model offered to consumers in its
retail stores and on its website, www.h2owirelessnow.com, and specified the model’s FCC Identification
(“FCC ID”) as well as the hearing aid compatibility rating, if any. After a careful review of Locus’s
submission, the Wireless Telecommunications Bureau referred this matter to the Enforcement Bureau
(“Bureau”) for investigation. As part of its investigation, the Bureau consulted the FCC Office of
Engineering and Technology (“OET”) Equipment Authorization System to independently confirm the
hearing aid compatibility rating of each handset model as established in the grant of equipment
authorization issued by the Commission for that handset.13 Taking into account the manufacturer-
reported information in the OET database, including information that would be more favorable to Locus
than the information in its own submission,14 we conclude that Locus apparently failed to offer, for
(Continued from previous page)


Handsets, Policy Statement and Second Report and Order and Further Notice of Proposed Rulemaking, 25 FCC Rcd
11167, 11180-89 ¶¶ 35-59 (2010).
7 The term “air interface” refers to the technical protocol that ensures compatibility between mobile radio service
equipment, such as handsets, and the service provider’s base stations. Currently, the leading air interfaces include
CDMA, GSM, Wideband Code Division Multiple Access (“WCDMA”) a.k.a. Universal Mobile
Telecommunications System (“UMTS”), and Integrated Digital Enhanced Network (“iDEN”).
8 See Hearing Aid Compatibility First Report and Order, 23 FCC Rcd at 3419 ¶ 35; 47 C.F.R. § 20.19(c)(3)(ii).
9 See Hearing Aid Compatibility First Report and Order, 23 FCC Rcd at 3419 ¶ 36; 47 C.F.R. § 20.19(d)(3)(ii).
10 See supra note 8.
11 See supra note 9.
12 Locus Telecommunications, Inc. Hearing Aid Compatibility Status Report (filed Jan. 18, 2011), available at
http://wireless.fcc.gov/hac_documents/110210/5940483_195.PDF (“2010 Report”).
13 The FCC Office of Engineering and Technology Equipment Authorization System is the electronic database of all
equipment certified under FCC authority. This database identifies the hearing aid compatibility rating of each
device 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 modifications to such authorization. See
http://transition.fcc.gov/oet/ea/fccid/.
14 We note that our review revealed an apparent inconsistency between the hearing aid compatibility rating for one
model listed in the 2010 Report and the ratings specified in the Commission’s equipment authorization for this
model. Specifically, Locus’s 2010 Report indicated that the Motorola EM330 model (IHDP56JJ1) has a M3 rating
when in fact Commission records show that the handset model has a M3/T3 rating.
3

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DA 11-2078

extended periods during the 2010 calendar year, the required number or percentage of minimum M3 and
T3-rated handset models that operate on the GSM air interface.15

III.

DISCUSSION

A.

Failure to Comply with Hearing Aid-Compatible Handset Deployment
Requirements

5.
Acoustic Coupling (“M3” or higher rating). We find that Locus apparently failed to
offer to consumers the required number or percentage of hearing aid-compatible handset models with a
minimum M3 rating that operate on the GSM air interface. As noted above, the Commission has imposed
varying benchmarks for the deployment of hearing aid-compatible handsets. Between January 1, 2010
and May 31, 2010, Locus was required to offer at least two M3 or higher rated handset models.16 As set
forth in greater detail in Appendix A, Locus apparently failed to meet this standard, repeatedly falling
short by one handset model.17 During the latter part of the 2010 reporting period, Locus was required to
offer at least three M3 or higher rated handset models during the period June 1 through December 31,
2010.18 Locus also apparently failed to meet this standard, repeatedly falling short by one to two handset
models.19 Accordingly, we find that Locus apparently willfully20 and repeatedly21 violated section
20.19(c)(3)(ii) of the Rules by failing to offer to consumers the required number or percentage of digital


15 See supra notes 13 and 14 and accompanying text.
16 See Hearing Aid Compatibility First Report and Order, 23 FCC Rcd at 3419 ¶ 35; 47 C.F.R. § 20.19(c)(3)(ii)
(requiring non-Tier I digital wireless service providers to ensure that between May 15, 2009 and May 14, 2010,
either at least 50% of the handset models offered, or at least nine handset models, met or exceeded the M3 rating for
radio frequency interference, and that beginning May 15, 2010, at least 50% of the handset models offered, or at
least ten handset models, met or exceeded the M3 rating for radio frequency interference).
17 See Appendix A, Locus Telecommunications, Inc., Hearing Aid-Compatible Handset Model Offerings, GSM Air
Interface (M3 or higher rating) (indicating that between January 1, 2010 and May 31, 2010, Locus offered four
handset models, only one of which had a minimum M3 rating).
18 See 47 C.F.R. § 20.19(c)(3)(ii) (requiring non-Tier I digital wireless service providers to ensure that beginning
May 15, 2010, either at least 50% of the handset models offered, or at least ten handset models, met or exceeded the
M3 rating for radio frequency interference).
19 See Appendix A (indicating that between June 1, 2010 and December 31, 2010, Locus offered five or six handset
models, only one to two of which had a minimum M3 rating). Specifically, Locus fell short by two handset models
in June 2010 and by one handset model during the remainder of this period.
20 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. § 312(f)(1). The legislative history of section 312
clarifies that this definition of willful applies to both sections 312 and 503 of the Act, H.R. Conf. Rep. No. 97-765,
(1982), and the Commission has so interpreted the term in the section 503(b) context. See Southern California
Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 ¶ 5 (1991), recon. denied, 7 FCC Rcd
3454 (1992) (“Southern California”); see also Telrite Corporation, Notice of Apparent Liability for Forfeiture, 23
FCC Rcd 7231, 7237 ¶ 12 (2008); San Jose Navigation, Inc., Forfeiture Order, 22 FCC Rcd 1040, 1042 ¶ 9 (2007),
consent decree ordered, Order and Consent Decree, 25 FCC Rcd 1494 (2010).
21 Section 312(f)(2) of the Act, which also applies to forfeitures assessed pursuant to section 503(b) of the Act,
provides that “[t]he term ‘repeated’ … means the commission or omission of such act more than once or, if such
commission or omission is continuous, for more than one day.” 47 U.S.C. § 312(f)(2). See Callais Cablevision,
Inc.
, Notice of Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359, 1362 ¶ 9 (2001), forfeiture ordered,
Forfeiture Order, 17 FCC Rcd 22626 (2002) (forfeiture paid); Southern California, 6 FCC Rcd at 4388 ¶ 5.
4

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wireless handset models with a minimum M3 rating that operate on the GSM air interface. We also find
that this apparent misconduct continued for the entire 2010 calendar year.
6.
Inductive Coupling (“T3” or higher rating). We further find that Locus apparently failed
to offer to consumers the required number or percentage of hearing aid-compatible handset models that
met or exceeded the T3 rating that operate on the GSM air interface. Between January 1, 2010 and
December 31, 2010, Locus was required to offer at least two handset models rated T3 or higher.22 As set
forth in greater detail in Appendix B, Locus apparently failed to meet this standard between January 1,
2010 and June 30, 2010 by offering only one handset model with a minimum T3 rating.23 Accordingly,
we find that Locus apparently willfully and repeatedly violated section 20.19(d)(3)(ii) of the Rules by
failing to offer to consumers the required number or percentage of digital wireless handset models with a
minimum T3 rating that operate on the GSM air interface.

B.

Proposed Forfeiture

7.
Under section 503(b)(1)(B) of the 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.24 To impose
such a forfeiture penalty, the Commission must 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.25 The Commission will then issue a forfeiture if it finds by a
preponderance of the evidence that the person has violated the Act or a Commission rule.26 We conclude
under this standard that Locus is apparently liable for a forfeiture for its apparent willful and repeated
violations of section 20.19(c)(3)(ii) of the Rules.
8.
Section 503(b)(2)(B) of the Act authorizes a forfeiture assessment against a common
carrier up to $150,000 for each violation, or for each day of a continuing violation, up to a maximum of
$1,500,000 for a single act or failure to act.27 In exercising such authority, we are required to take into
account “the nature, circumstances, extent, and gravity of the violation and, with respect to the violator,


22 See Hearing Aid Compatibility First Report and Order, 23 FCC Rcd at 3419 ¶ 36; 47 C.F.R. § 20.19(d)(3)(ii)
(requiring non-Tier I digital wireless service providers to ensure that between May 15, 2009 and May 14, 2010,
either at least one-third of the handset models offered, or at least five handset models, met or exceeded the T3 rating
for inductive coupling, and that between May 15, 2010 and May 14, 2011, either at least one-third of the handset
models they offered, or at least seven handset models, met or exceeded the T3 rating for inductive coupling).
23 See Appendix B, Locus Telecommunications, Inc., Hearing Aid-Compatible Handset Model Offerings, GSM Air
Interface (T3 or higher rating) (indicating that between January 1, 2010 and June 30, 2010, Locus repeatedly fell
short of the hearing aid-compatible handset deployment requirements by one handset model).
24 47 U.S.C. § 503(b)(1)(B); 47 C.F.R. § 1.80(a)(1).
25 47 U.S.C. § 503(b)(4); 47 C.F.R. § 1.80(f).
26 See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589, 7591 ¶ 4 (2002).
27 47 U.S.C. § 503(b)(2)(B). The Commission has amended section 1.80(b)(2) of the Rules, 47 C.F.R. § 1.80(b)(2),
three times to increase the maximum forfeiture amounts, in accordance with the inflation adjustment requirements
contained in the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. § 2461 note, as amended by the
Debt Collection Improvement Act of 1996, 31 U.S.C. § 3701 note. The most recent inflation adjustment took effect
September 2, 2008 and applies to violations that occur after that date. See Amendment of Section 1.80(b) of the
Commission’s Rules, Adjustment of Forfeiture Maxima to Reflect Inflation
, Order, 23 FCC Rcd 9845, 9847 (2008)
(adjusting the maximum statutory amounts for common carriers from $130,000/$1,325,000 to
$150,000/$1,500,000); 73 Fed. Reg. 44663-5.
5

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the degree of culpability, any history of prior offenses, ability to pay, and such other matters as justice
may require.”28
9.
The Commission’s Forfeiture Policy Statement and section 1.80 of the Rules do not
establish a base forfeiture amount for violations of the hearing aid-compatible handset requirements set
forth in section 20.19 of the Rules.29 The fact that the Forfeiture Policy Statement does not specify a base
amount in no way suggests that a forfeiture should not be imposed. The Forfeiture Policy Statement
states that “any omission of a specific rule violation from the ... [forfeiture guidelines] ... should not signal
that the Commission considers any unlisted violation as nonexistent or unimportant.”30 The Commission
retains the discretion, moreover, to depart from the Forfeiture Policy Statement and issue forfeitures on a
case-by-case basis, under its general forfeiture authority contained in section 503 of the Act.31
10.
In determining the appropriate forfeiture amount for violation of the hearing aid-
compatible handset deployment requirements, we take into account 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, stressing that individuals with hearing loss should not be denied the public safety and
convenience benefits of digital wireless telephony.32 Moreover, as the Commission has noted, 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.33
11.
We have previously determined that violations of the hearing aid-compatible handset
deployment requirements are serious in nature because failure to make compatible handsets available to
consumers actually prevents hearing aid users from accessing digital wireless communications.34


28 47 U.S.C. § 503(b)(2)(E). See also 47 C.F.R. § 1.80(b)(5), Note to paragraph (b)(5): Section II. Adjustment
Criteria for Section 503 Forfeitures.
29 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 (1997), recon. denied, Memorandum Opinion and
Order, 15 FCC Rcd 303 (1999) (“Forfeiture Policy Statement”); 47 C.F.R. §§ 1.80, 20.19.
30 Forfeiture Policy Statement, 12 FCC Rcd at 17099 ¶ 22.
31 Id.
32 Hearing Aid Compatibility Order, 18 FCC Rcd at 16755 ¶ 4.
33 Id. at 16756 ¶ 5 (noting that approximately one in ten Americans, or 28 million Americans, have some level of
hearing loss, that the proportion increases with age, and that the number of those affected will likely grow as the
median age increases). See also Section 68.4(a) of the Commission’s Rules Governing Hearing Aid-Compatible
Telephones,
Report on the Status of Implementation of the Commission’s Hearing Aid Compatibility Requirements,
22 FCC Rcd 17709, 17719 ¶ 20 (2007) (noting, just four years later, that the number of individuals with hearing loss
in the United States was “at an all time high of 31 million people – with that number expected to reach
approximately 40 million people at the end of [2010]”).
34 See South Canaan Cellular Communications Company, L.P, Notice of Apparent Liability for Forfeiture, 23 FCC
Rcd 20, 24 ¶ 11(Enf. Bur., Spectrum Enf. Div. 2008) (forfeiture paid) (“South Canaan”) (finding that “a violation of
the labeling requirements, while serious because it deprives hearing aid users from making informed choices, is less
egregious than a violation of the handset requirements because failure to make compliant handsets available actually
deprives hearing aid users from accessing digital wireless communications.”). See also, e.g., NEP Cellcorp, Inc.,
Notice of Apparent Liability for Forfeiture, 24 FCC Rcd 8, 13 ¶ 11 (Enf. Bur., Spectrum Enf. Div. 2009) (forfeiture
paid) (“NEP Cellcorp”); Pinpoint Wireless, Inc., Notice of Apparent Liability for Forfeiture, 23 FCC Rcd 9290,
9295 ¶ 11 (Enf. Bur., Spectrum Enf. Div. 2008), consent decree ordered, Order and Consent Decree, 24 FCC Rcd
2951 (Enf. Bur., Spectrum Enf. Div. 2009) (“Pinpoint Wireless”); Smith Bagley, Inc., Notice of Apparent Liability
(continued….)
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Accordingly, we generally apply a base forfeiture amount of $15,000 to reflect the gravity of these
violations.35 We have applied the $15,000 base forfeiture on a per handset model basis (i.e., for each
handset model below the minimum number of hearing aid-compatible models required by the Rules).36
12.
For purposes of calculating the base forfeiture amount for Locus’s apparent M3-related
violations on the GSM air interface, we focus on the company’s failure to offer to consumers the requisite
number or percentage of handset models with a minimum M3 rating in December 2010, when Locus
missed the benchmark by one handset model.37 Accordingly, and consistent with section 503(b)(6) of the
Act, we start with a base forfeiture of $15,000 for Locus’s apparent failure to offer to consumers the
required number or percentage of handset models rated M3 or higher that operate on the GSM air
interface in willful and repeated violation of section 20.19(c)(3)(ii) of the Rules.
13.
This base forfeiture amount, however, is subject to adjustment. Given the totality of the
circumstances, and consistent with the Forfeiture Policy Statement, we conclude that an upward
adjustment of the $15,000 base forfeiture amount is warranted. In this regard, we take into account that
Locus was out of compliance with the hearing aid compatibility handset deployment requirements for the
entire 2010 calendar year.38 In addition, and as the Commission made clear in the Forfeiture Policy
Statement
, large or highly profitable entities, such as Locus, should expect forfeitures higher than those
reflected in the base amounts in order to ensure that the forfeiture serves as an effective deterrent against
future non-compliance.39 Therefore, based on all the factors and evidence, including the duration of the
(Continued from previous page)


for Forfeiture, 24 FCC Rcd 14113, 14118 ¶ 11 (Enf. Bur., Spectrum Enf. Div. 2009), response pending (“Smith
Bagley
”).
35 See, e.g., NEP Cellcorp, 24 FCC Rcd at 13 ¶ 11; Pinpoint Wireless, 23 FCC Rcd at 9295 ¶ 11; Smith Bagley, 24
FCC Rcd at 14118 ¶ 11; South Canaan, 23 FCC Rcd at 24 ¶ 11.
36 See supra note 35.
37 See supra para. 5.
38 See 47 C.F.R. § 1.80(b)(5), Note to Paragraph (b)(5): Section II. Adjustment Criteria for Section 503 Forfeitures
(establishing “repeated or continuous violation” as an upward adjustment factor). While section 503(b)(6) of the
Act bars the Commission from proposing a forfeiture for violations that occurred more than a year prior to the
issuance of a notice of apparent liability for forfeiture, we may consider the fact that Locus’s misconduct occurred
over an extended period to place “the violations in context, thus establishing the licensee’s degree of culpability and
the continuing nature of the violations.” See Roadrunner Transportation Inc., Forfeiture Order, 15 FCC Rcd 9669,
9671-72 ¶ 8 (2000); BASF Corporation, Notice of Apparent Liability for Forfeiture, 25 FCC Rcd 17300, 17302 n.24
(Enf. Bur., Spectrum Enf. Div. 2010); Call Mobile, Inc., Notice of Apparent Liability for Forfeiture, 26 FCC Rcd
74, 76 n.23 (Enf. Bur., Spectrum Enf. Div. 2011). The forfeiture amount we propose herein relates only to Locus’s
apparent violations that have occurred within the past year.
39 Specifically, the Commission stated:
[W]e recognize that for large or highly profitable communication 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 subsequent 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.
(continued….)
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violation, Locus’s ability to pay the proposed forfeiture,40 and the potentially significant impact on
consumers with hearing loss, we propose a forfeiture of $25,500 against Locus for apparently willfully
and repeatedly failing to comply with the hearing aid-compatible handset deployment requirements set
forth in section 20.19(c)(3)(ii) of the Rules.41

C.

Admonishment

14.
The record also establishes that Locus apparently failed to offer from January through
June 2010 the requisite number or percentage of handset models with a minimum T3 rating that operate
on the GSM interface, missing the benchmark by one handset model.42 Although we believe that a
separate, monetary forfeiture would be warranted for this violation, we note that the statute of limitations
for proposing a forfeiture is one year from the date of violation.43 Accordingly, based upon our review of
the facts and circumstances in this case, we admonish Locus for its failure to offer to consumers from
January through June 2010 the requisite number or percentage of handset models with a minimum T3
rating, in violation of section 20.19(d)(3)(ii) of the Rules.44

IV.

ORDERING CLAUSES

15.
Accordingly,

IT IS ORDERED

that, pursuant to section 503(b) of the Act, and sections
0.111, 0.311, and 1.80 of the Rules,45 Locus Telecommunications, Inc.

IS NOTIFIED

of its

APPARENT
LIABILITY FOR A FORFEITURE

in the amount of twenty-five thousand five hundred dollars
($25,500) for apparent willful and repeated violation of section 20.19(c)(3)(ii) of the Rules.46
16.

IT IS FURTHER ORDERED

that, pursuant to section 1.80 of the Rules,47 within thirty
(30) calendar days after the release date of this Notice of Apparent Liability for Forfeiture and
Admonishment
, Locus Telecommunications, Inc.,

SHALL PAY

the full amount of the proposed
forfeiture or

SHALL FILE

a written statement seeking reduction or cancellation of the proposed
forfeiture.
17.

IT IS FURTHER ORDERED

that Locus Telecommunications, Inc.

IS

ADMONISHED

for apparent willful and repeated violation of section 20.19(d)(3)(ii) of the Rules.48
18.
Payment of the forfeiture must be made by check or similar instrument, payable to the
order of the Federal Communications Commission. The payment must include the NAL/Account
Number and FRN referenced above. Payment by check or money order may be mailed to the Federal
(Continued from previous page)


Forfeiture Policy Statement, 12 FCC Rcd at 17099-100 ¶ 24.
40 See Locus 2011 FCC Form 499-A (Telecommunications Reporting Worksheet (Reporting Calendar 2010
Revenues)).
41 47 C.F.R. § 20.19(c)(3)(ii).
42 See supra para. 6.
43 See 47 U.S.C. § 503(b)(6)(B); 47 C.F.R. § 1.80(c)(3).
44 47 C.F.R. § 20.19(d)(3)(ii).
45 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80.
46 47 C.F.R. § 20.19(c)(3)(ii).
47 47 C.F.R. § 1.80.
48 47 C.F.R. § 20.19(d)(3)(ii).
8

Federal Communications Commission

DA 11-2078

Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000. Payment by overnight mail
may be sent to U.S. Bank – Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101. Payment by wire transfer may be made to ABA Number 021030004, receiving bank
TREAS/NYC, and Account Number 27000001. For payment by credit card, an FCC Form 159
(Remittance Advice) must be submitted. When completing the FCC Form 159, enter the NAL/Account
Number in block number 23A (call sign/other ID), and enter the letters “FORF” in block number 24A
(payment type code). Requests for full payment under an installment plan should be sent to: Chief
Financial Officer – Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington, D.C.
20554. Please contact the Financial Operations Group Help Desk at 1-877-480-3201 or email
ARINQUIRIES@fcc.gov with any questions regarding payment procedures. Locus Telecommunications,
Inc. must also send electronic notification to Nissa Laughner at Nissa.Laughner@fcc.gov, Pamera
Hairston at Pamera.Hairston@fcc.gov, and Samantha Peoples at Sam.Peoples@fcc.gov on the date said
payment is made.
19.
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 Rules.49 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. This statement also must be emailed to Nissa Laughner at
Nissa.Laughner@fcc.gov and Pamera Hairston at Pamera.Hairston@fcc.gov.
20.
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 (“GAAP”); 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 submitted.
21.

IT IS FURTHER ORDERED

that a copy of this Notice of Apparent Liability for
Forfeiture and Admonishment shall be sent by first class mail and certified mail return receipt requested
to Jason Chon, CEO; John Chough, Chairman; and Sam Lee, President, Locus Telecommunications, Inc.,
111 Sylvan Avenue, Englewood Cliffs, NJ 07632.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief
Enforcement Bureau


49 47 C.F.R. §§ 1.80(f)(3), 1.16.
9

Federal Communications Commission

DA 11-2078

APPENDIX A

Locus Telecommunications, Inc.

Hearing Aid-Compatible Handset Model Offerings

GSM Air Interface

(M3 or higher rating)

M3-rated

Total Handset

M3-rated Handset Models

M3

Period

Handset Models

Models Offered

Required

Compliance?

Offered

January 2010
4
1
No
February 2010
4
1
No

At least 50% of the total

number of handset models
March 2010
4
1
No
offered or
at least 9 handset models
(1/1/109-5/14/10)
April 2010
4
1
No
May 1-14, 2010
4
1
No
May 15-31, 2010
4
1
No
June 2010
5
1
No
July 2010
6
2
No
August 2010
6
2

At least 50% of the total

No
number of handset models
offered or
September 2010
6
2
at least 10 handset models
No
(5/15/10-12/31/10)
October 2010
6
2
No
November 2010
6
2
No
December 2010
6
2
No
10

Federal Communications Commission

DA 11-2078

APPENDIX B

Locus Telecommunications, Inc.

Hearing Aid-Compatible Handset Model Offerings

GSM Air Interface

(T3 or higher rating)

T3-rated

T3

Total Handset

T3-rated Handset Models

Period

Handset Models

Compliance?

Models Offered

Required

Offered

January 2010
4
1
No
February 2010
4
1
No

At least 1/3 of the total

number of handset models
March 2010
4
1
offered or
No
at least 5 handset models
(1/1/10-5/14/10)
April 2010
4
1
No
May 1-14, 2010
4
1
No
May 15-31, 2010
4
1
No
June 2010
5
1
No
July 2010
6
2
Yes
August 2010
6
2

At least 1/3 of the total

Yes
number of handset models
offered or
September 2010
6
2
at least 7 handset models
Yes
(5/15/10-12/31/10)
October 2010
6
2
Yes
November 2010
6
2
Yes
December 2010
6
2
Yes
11

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