6. 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.   To impose such a forfeiture penalty, the Commission must issue a notice of apparent liability 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 a Commission rule.   We conclude under this standard that Apple is apparently liable for forfeiture for its failure to timely file the required hearing aid compatibility status report in apparent willful violation of the requirements set forth in 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.   In exercising such discretion, we are required to 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."

8. In the American Samoa Telecommunications Authority NAL, 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 hold the digital wireless industry accountable to the increasing number of hearing-impaired individuals.   We noted that when setting an $8,000 base forfeiture for violations of the hearing aid-compatible handset labeling requirements, the Commission emphasized that individuals with hearing impairments 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 upwardly adjusted the base forfeiture 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 hearing aid compatibility reports.   Consistent with ASTCA, we will apply the same base forfeiture amount here. 

9. Apple’s failure to file the report on time had an adverse impact on the Commission’s ability to ensure the commercial availability of hearing aid-compatible digital wireless handsets.  We find, however, that downward adjustment to the $6,000 base forfeiture amount to $5,000 is warranted based on Apple’s demonstrated good faith effort.  Although Apple failed to timely file the January Status Report, it did file the report prior to the commencement of an investigation by the Commission.  Accordingly, we propose a forfeiture of $5,000 against Apple for apparently willfully failing to timely file its January 15, 2009 hearing aid compatibility status report in violation of Section 20.19(i)(1) of the Rules.  

Ordering Clauses

10.     Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Act, and Section 1.80 of the Rules, Apple, Inc. IS NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the amount of five thousand dollars ($5,000) for failing to file its hearing aid compatibility status report in apparent willful violation of the requirements set forth in Section 20.19(i)(1) of the Rules.  

11.     IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Rules, within thirty days of the release date of this Notice of Apparent Liability for Forfeiture, Apple, Inc. SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture.