Federal Register: December 23, 2005 (Volume 70, Number 246)
DOCID: FR Doc 05-24419
FEDERAL COMMUNICATIONS COMMISSION
Federal Communications Commission
CFR Citation: 47 CFR Part 64
Docket ID: [CG Docket No. 03-123; FCC 05-203]
NOTICE: RULES
ACTION: Common carrier services:
DOCUMENT ACTION: Final rule.
SUBJECT CATEGORY:
Telecommunications Relay Services and Speech-to-Speech Services for Individuals With Hearing and Speech Disabilities
DATES: Effective January 23, 2006, except for Sec. 47 CFR 64.605 (a)(2), (c)(2), (e)(2), (f)(2), and (g), which contains information collection requirements that have not been approved by the Office of Management and Budget (OMB). The Commission will publish a document in the Federal Register announcing the effective date. Written comments on the Paperwork Reduction Act (PRA) information collection requirements must be submitted by the general public, Office of Management and Budget (OMB), and other interested parties on or before January 23, 2006.
DOCUMENT SUMMARY:
In this document, the Commission concludes that its current rules regarding eligibility criteria for compensation from the Interstate Telecommunications Relay Services (TRS) Fund do not reflect advances in the way that TRS is offered, particularly with respect to the two Internetbased forms of TRS, Video Relay Service (VRS) and InternetProtocol (IP) Relay. Therefore, the Commission amends its rules to permit common carriers desiring to offer VRS and IP Relay service and receive compensation from the Interstate TRS Fund (Fund) to seek certification from the Commission. In doing so, the Commission largely adopts the proposal set forth in the Second Improved TRS Order's NPRM. Through this action, the certification procedure will permit common carriers desiring to offer only VRS and/or IP Relay, and not the other forms of TRS, to receive compensation from the Fund without having to meet one of the existing three eligibility criteria set forth in the Commission's rules. Also in this document, the Commission addresses a related issue raised in Hands On Video Relay Services, Inc.'s (Hands On) petition for reconsideration of the 2004 TRS Report and Order, which challenges the Commission's dismissal of Hands On application for certification as a VRS provider eligible for compensation from the Fund. Because the Commission adopts a new eligibility rule that permits Hands On to seek certification as a VRS provider eligible for compensation from the Fund without being part of a certified state TRS, the Commission concludes this issue is moot. Also, in this document, the Commission seeks approval from the Office of Management and Budget (OMB) for any Paperwork Reduction Act (PRA) burdens contained in this document that will modify OMB Control No. 30601047. The revised PRA burdens are related to new rules permitting common carriers seeking to offer VRS or IP Relay service, that are not part of a certified state program or have not contracted with an entity that is, to qualify for compensation from the Fund through a Commissionlevel certification process.
SUMMARY:
Individuals with hearing and speech disabilities; telecommunications relay services and speech-to-speech services,
SUPPLEMENTAL INFORMATION
This document contains modified information
collection requirements subject to the PRA of 1995, Public Law 10413.
These will be submitted to OMB for review under section 3507 of the
PRA. OMB, the general public, and other Federal agencies are invited to
comment on the modified information collection(s) contained in this
proceeding. This is a summary of the Commission's document FCC 05203,
adopted December 8, 2005, and released December 12, 2005, in CG Docket
03123. This Report and Order and Order on Reconsideration addresses
issues arising from the Notice of Proposed Rulemaking (NPRM) in the
Telecommunications Relay Services and SpeechtoSpeech Services for
Individuals with Hearing and Speech Disabilities, Second Report and
Order, Order on Reconsideration, and NPRM (Second Improved TRS Order),
CC Docket No. 9867, CG Docket No. 03123, FCC 03112; published at 68
FR 50973, August 25, 2003 and 68 FR 50993, August 25, 2003; and from the Further Notice of Proposed Rulemaking (FNPRM), in the
Telecommunications Relay Services and SpeechtoSpeech Services for
Individuals with Hearing and Speech Disabilities, Report and Order,
Order on Reconsideration, and FNPRM (2004 TRS Report and Order), CC
Docket Nos. 90571 and 9867, CG Docket No. 03123, FCC 04137;
published at 69 FR 53346, September 1, 2004 and 69 FR 53382, September
1, 2004. Also, this Report and Order and Order on Reconsideration
addresses issues raised in the Hands On October 1, 2004, petition for
reconsideration of the 2004 TRS Report and Order. The full text of
document FCC 05203 and copies of any subsequently filed documents in
this matter will be available for public inspection and copying during
regular business hours at the FCC Reference Information Center, Portals
II, 445 12th Street, SW., Room CYA257, Washington, DC 20554. The
Report and Order and Order on Reconsideration and copies of
subsequently filed documents in this matter may also be purchased from
the Commission's duplicating contractor at Portals II, 445 12th Street,
SW., Room CYB402, Washington, DC 20554. Customers may contact the
Commission's duplicating contractor at its Web site http://www.bcpiweb.com or by calling 18003783160. To request materials in
accessible formats for people with disabilities (Braille, large print,
electronic files, audio format), send an email to fcc504@fcc.gov or
call the Consumer & Governmental Affairs Bureau at (202) 4180530
(voice), (202) 4180432 (TTY). Document FCC 05203 can also be
downloaded in Word or Portable Document Format (PDF) at: http://www.fcc.gov/cgb/dro .
Paperwork Reduction Act
This document contains modified information collection requirements. The Commission, as required by the Paperwork Reduction Act of 1995 (PRA), Public Law 10413, and as part of its continuing effort to reduce paperwork burdens, invites the general public and other Federal agencies to comment on the information collection requirements contained in the Report and Order and Order on Reconsideration. Public and agency comments are due January 23, 2006. In addition, the Commission notes that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107198, see 44 U.S.C. 3506(c)(4), the Commission previously sought specific comment on how it might ``further reduce the information collection burden for small business concerns with fewer than 25 employees.'' In this document, the Commission has assessed the effects of a new TRS eligibility that will allow more entities to become VRS and IP Relay providers. The Commission finds that some entities that may seek to become providers eligible for compensation from the Fund may be business entities with fewer than 25 employees.
Synopsis
In this Report and Order, and Order on Reconsideration, the
Commission addresses the issue of the certification and oversight of
telecommunications relay service (TRS) providers seeking compensation
from the Fund, raised in the NPRM of the Second Improved TRS Order and
the FNPRM of the 2004 TRS Report and Order. TRS enables an individual
with a hearing or speech disability to communicate by telephone or
other device with a person without such a disability. This is
accomplished through TRS facilities that are staffed by specially
trained communications assistants (CAs) who relay conversations between
persons using various types of assistive communication devices and
persons who do not require such assistive devices. See generally 47
U.S.C. 225(a)(3). This document also addresses the related issue raised
in Hands On Video Relay Services, Inc.'s (Hands On) petition for
reconsideration of the 2004 TRS Report and Order, which dismissed Hands
On's application for certification as a VRS provider eligible for
compensation from the Fund. See Hands On, Petition for Partial
Reconsideration, CC Docket Nos. 90571 and 9867, CG Docket No. 03123
(October 1, 2004) (Hands On Petition). The Commission amends the TRS
regulations to permit common carriers seeking to offer VRS and IP Relay
and receive compensation from the Fund to apply to the Commission for
certification as an entity providing these services in compliance with
the TRS rules, and therefore eligible for compensation from the Fund.
See generally 47 CFR 64.601 et seq. (the TRS regulations). This
certification procedure will permit common carriers desiring to offer
VRS or IP Relay, and not the other forms of TRS, to do so without
having to meet one of the existing eligibility criteria set forth in
the rules. See 47 CFR 64.604(c)(5)(iii)(F) (setting forth three
eligibility categories for receiving compensation from the Fund).
Because the Commission adopts a new eligibility rule that permits Hands
On to seek certification as a VRS provider eligible for compensation
from the Fund without being part of a certified state TRS program, the
Commission concludes that the issue raised in Hands On's Petition is moot.
Background
Telecommunications Relay Service
Title IV of the Americans with Disabilities Act of 1990 (ADA),
Public Law Number 101336, section 401, 104 Statute 327, 33669 (1990),
adding Section 225 to the Communications Act of 1934 (Act), as amended,
47 U.S.C. 225; implementing regulations at 47 CFR 64.601 et seq.,
requires the Commission to ensure that TRS is available to persons in
the United States with hearing and speech disabilities. TRS enables a
person with a hearing or speech disability to communicate through the
telephone system. The statute requires that TRS offer persons with
hearing or speech disabilities telephone transmission services that are
``functionally equivalent'' to voice telephone services. 47 U.S.C.
225(a)(3). In adopting Title IV of the ADA, Congress recognized that
persons with hearing or speech disabilities have long experienced
barriers to their ability to access, utilize, and benefit from
telecommunications services. See generally 2004 TRS Report and Order,
19 FCC Rcd at 1247912480, paragraph 3 (discussing legislative history
of Title IV of the ADA). The intent of Title IV is to further the Act's
goal of universal service by ensuring that individuals with hearing or speech disabilities have
[[Page 76210]]
access to the nation's telephone system. See, e.g., 47 U.S.C.
225(a)(3). See also H.R. Report Number 485, Part 2, 101st Congress, 2nd Session at 129 (1990) (House Report).
Section 225 of the Communications Act requires certain common carriers to offer TRS throughout the areas in which they offer service. 47 U.S.C. 225(c). When TRS was implemented, TRS calls were placed using a TTY connected to the Public Switched Telephone Network (PSTN). In a ``traditional'' TTY textbased TRS call, the user dials the telephone number for a TRS provider using a TTY. This first step for the TRS user, the completion of the outbound call to the TRS provider, is equivalent to reaching a ``dial tone.'' The caller then types the number of the person he or she wishes to call. The CA, in turn, places an outbound voice call to the called party. The CA serves as the ``link'' in the conversation, converting all TTY messages typed by the caller into voice messages, and all voice messages from the called party into typed text messages for the TTY user. The process is performed in reverse when a voice telephone user initiates a traditional TRS call to a TTY user. See generally 2004 TRS Report and Order, 19 FCC Rcd at 12480, paragraph 3, note 18. States have primary jurisdiction over the provision of intrastate TRS through certified state TRS programs, see 47 CFR 64.605 (``State Certification''); see also 2004 TRS Report and Order, 19 FCC Rcd at 1251712518, paragraph 103, and are responsible for compensating the TRS providers for the costs of intrastate service. See 47 U.S.C. 225(c)(3)(B). When TRS providers handle interstate calls, those calls are billed to, and compensated by, the Fund. See also 47 CFR 64.604(c)(5)(iii)(E) and (F).
The Fund is funded by contributions from all common carriers providing interstate telecommunications services, and is administered by the TRS Fund administrator, currently the National Exchange Carrier Association, Inc. (NECA). The amount of each carrier's contribution is the product of the carrier's interstate enduser telecommunications revenue and a contribution factor determined annually by the Commission. See 47 CFR 64.604(c)(5)(iii)(A) and (B). The fund administrator uses these funds to compensate TRS providers for the costs of providing the various forms of TRS.
Under the TRS regulations, providers ``eligible for receiving payments from the [Interstate] TRS Fund,'' see 47 CFR
64.604(c)(5)(iii)(F), must fall under one of three categories: (1) TRS
facilities operated under contract with and/or by certified state TRS
programs, see 47 CFR 64.604(c)(5)(iii)(F)(1); (2) TRS facilities owned
by or operated under contract with a common carrier providing
interstate services, see 47 CFR 64.604(c)(5)(iii)(F)(2); or (3) interstate common carriers offering TRS, see 47 CFR
64.604(c)(5)(iii)(F)(3). These three categories reflect the statutory
regime that requires common carriers offering voice telephone service
to also provide TRS, see 47 U.S.C. 225(c). Common carriers may offer
TRS ``individually, through designees, through a competitively selected
vendor, or in concert with other carriers.'' Therefore, every common
carrier required to offer TRS need not necessarily do so individually.
See 2004 TRS Report and Order, 19 FCC Rcd at 12480, paragraph 3, note
19 (distinguishing between interstate and intrastate TRS, and giving
states the option to have ``certified'' state TRS programs). Currently
all 50 states, Puerto Rico, and the District of Columbia have certified
state programs. The legislative history of Section 225 makes clear that
Congress ``hope[d] and expect[ed] that all states would promptly adopt a certified state program.'' House Report at 130.
Fund payments are made at perminute compensation rates proposed each year by the fund administrator, and then approved or modified by the Commission in accordance with the Commission's rules. 47 CFR 64.604(c)(5)(iii). The regulations provide that ``TRS Fund payments shall be distributed to TRS providers based on formulas approved or modified by the Commission. * * * Such formulas shall be designed to compensate TRS providers for reasonable costs of providing interstate TRS, and shall be subject to Commission approval.'' 47 CFR 64.604(c)(5)(iii)(E). The perminute compensation rates are presently based on the projected average cost per minute for providing each service. See, e.g., Telecommunications Relay Services and Speechto Speech Services for Individuals with Hearing and Speech Disabilities, CC Docket No. 9867, CG Docket No. 03123, FCC 05135, Order; published at 70 FR 38134, July 1, 2005.
In March 2000, the Commission recognized VRS as a form of TRS. See Telecommunications Relay Services and SpeechtoSpeech Services for Individuals with Hearing and Speech Disabilities, CC Docket No. 9867, Report and Order and Further Notice of Proposed Rulemaking, 15 FCC Rcd 5140, at 51525154, paragraphs 2127 (March 6, 2000); published at 65 FR 38432, June 21, 2000 and 65 FR 38490, June 21, 2000, (Improved TRS Order and FNPRM); see also 47 CFR 64.601(17) (defining VRS). VRS requires the use of a broadband Internet connection between the VRS user and the CA, which allows the user to communicate in sign language via a video link. The CA, in turn, places an outbound telephone call to a hearing person. During the call, the CA communicates in American Sign Language (ASL) with the deaf person and by voice with the hearing person. As a result, the conversation between the two end users, deaf and hearing, flows in near real time. VRS therefore provides a degree of ``functional equivalency'' that is not attainable with textbased TRS, by allowing those persons whose primary language is ASL to communicate in ASL, just as a hearing person does with, e.g., spoken English. As a result, VRS has quickly become a very popular service.
In April 2002, the Commission recognized a second Internetbased form of TRSIP Relay. See Provision of Improved Telecommunications Relay Services and SpeechtoSpeech Services for Individuals with Hearing and Speech Disabilities, CC Docket No. 9867, Declaratory Ruling and Second Further Notice of Proposed Rulemaking, 17 FCC Rcd 7779 (April 22, 2002); published at 67 FR 39863, June 11, 2002 and 67 FR 39929, June 11, 2002, (IP Relay Declaratory Ruling and FNPRM). IP Relay calls are textbased calls, but the user connects to the TRS facility via a computer (or other similar device) and the Internet, rather than via a TTY and the PSTN. A user establishes a local connection to an Internet service provider using a computer, web phone, personal digital assistant, or other IPenabled device, selects the Internet address of an IP Relay provider, and is connected to a CA who handles the call in the same way that TTYbased calls are handled. IP Relay, like VRS, has become a popular service because the user can make a relay call with any computer (or similar device) connected to the Internet, rather than with a dedicated TTY. See Improved TRS Order and FNPRM, 15 FCC Rcd at 5149, paragraph 15 (VRS); IP Relay Declaratory Ruling and FNPRM, 17 FCC Rcd 7779, at 7786, paragraph 20 (IP Relay). The Provision of VRS and IP Relay and Eligibility for Compensation From the Interstate TRS Fund
Because the two Internet based forms of TRSVRS and IP Relayuse
the Internet for one leg of the call, it is currently not possible to
determine the geographic location of the party using the service, and
therefore to determine whether a particular call is interstate or intrastate. As a result, on an interim
[[Page 76211]]
basis, the costs of providing both intrastate and interstate VRS and IP
Relay are compensated from the Fund. In addition, because VRS and IP
Relay are services that are not tied to the PSTN or the provision of
voice telephony, it became possible for entities that are not
traditional voice telephone companies to offer these services. In
particular, some entities sought to provide only VRS service under the
third category of eligible TRS providers``Interstate common carriers
offering TRS''even though they were not traditional common carriers
(i.e., voice telephone companies) under the statute. Such entities
could provide VRS and receive compensation from the Fund either by
becoming part of a certified state program (first eligibility category)
or subcontracting with an entity offering TRS and eligible for compensation from the Fund (second eligibility category).
As a result, in the NPRM accompanying the June 2003 Second Improved TRS Order, the Commission sought comment on ``whether, and if so, how, the Commission should amend its rules to address the provision of TRS in circumstances not presently covered by the regulations, including a provider's eligibility for cost recovery for services currently reimbursed solely from the Fund.'' Second Improved TRS Order, 18 FCC Rcd at 12444, paragraph 136. The Commission noted the absence of a Commissionlevel certification process for TRS providers, leaving TRS providers not participating in a certified state program without a method for qualifying for compensation for interstate TRS. The Commission therefore sought comment on whether it should establish a federal certification process, either generally or specifically for IP Relay, VRS, and ``any other technology that does not fit easily into the traditional jurisdictional separation of intrastate and interstate.'' Second Improved TRS Order, 18 FCC Rcd at 12445, para. 139; see also, 18 FCC Rcd at 12444, paragraph 137.
The Commission tentatively concluded that under such a process TRS providers would apply to the Commission for certification as an interstate TRS provider, ``providing evidence that they are in compliance with the mandatory minimum standards found in 47 CFR 64.604 of its rules.'' Second Improved TRS Order, 18 FCC Rcd at 12444, paragraph 137. In addition, the Commission proposed requiring such TRS providers to keep a log of any complaints received and their disposition of those complaints, detailing compliance with the mandatory minimum standards and listing the resolution of each complaint filed against the provider. Second Improved TRS Order, 18 FCC Rcd at 12444, paragraph 137. The Commission included proposed rules of such a certification process, adding a fourth prong to the eligibility criteria for interstate TRS providers ``certified by the Commission'' pursuant to new certification rules. Second Improved TRS Order, 18 FCC Rcd at 1246712468, Appendix E (setting forth proposed rules).
The commenters generally agreed that a federal certification requirement is appropriate if a TRS provider does not participate in a state TRS program, is not a traditional common carrier, and is providing Internetbased TRS, such as IP Relay and VRS. In this regard, several providers asserted that a federal certification process should be an alternative to participating in a state TRS program, and not an additional regulatory requirement for new or existing TRS providers. All supporting commenters agreed that the Commissioncertified providers should also be required to submit annual complaint logs and waiver reports presently required of the existing VRS and IP Relay providers.
The 2004 TRS Report and Order
In the 2004 TRS Report and Order, the Commission deferred a decision on this issue but invited further comment in the accompanying FNPRM. 2004 TRS Report and Order, 19 FCC Rcd at 1251712518, paragraph 103. The Commission characterized the underlying issue as twofold: ``(1) How to define those entities providing TRS that are eligible for compensation from the Fund for providing eligible services; and (2) how to ensure that such entities are providing TRS in compliance with the TRS mandatory minimum standards.'' 2004 TRS Report and Order, 19 FCC Rcd at 1251712518, paragraph 103. The Commission sought additional comment on whether it should separately ``certify'' and/or oversee providers of IP Relay and VRS. 2004 TRS Report and Order, 19 FCC Rcd at 12570, paragraph 250. The Commission noted that ``because for both of these services there are presently only a handful of national providers, which consumers can access via computer without regard to geographic location, it may be either unnecessary or unworkable to have all 50 states oversee these providers.''
In response to the FNPRM, four TRS providers filed comments. Comments were filed by Hamilton (October 18, 2004), Hands On (October 15, 2004), Sorenson (October 18, 2004), and Sprint (October 18, 2004). Hands On, Hamilton, and Sorenson support a federal certification process as a way to promote competition and innovation while decreasing administrative costs by allowing providers actually providing the service to bill the Fund directly. Hamilton asserts that a certification system would assure provider compliance with minimum TRS standards.'' Sorenson asserts that the state certification process is slow and costly, and that most states will certify only one provider. Comments filed by the National Association for State Relay Administration (NASRA) noted that most states would opt for one VRS provider, which would eliminate the benefits of a competitive, multi vendor environment for VRS. Sorenson also asserts that to ensure the integrity of the Fund, new entrants should be required to file financial reports demonstrating financial stability, and that all certified providers should be required to file detailed complaint logs, annual waiver reports, and annual detailed call audit reports for all calls submitted for payment. Sorenson and Hands On also assert that existing providers should either be ``grandfathered'' into certification or presumed to meet the certification requirements. Sprint, however, opposes Commission certification of providers, stating that the Commission should make the provision of VRS and IP Relay mandatory and make the states responsible for compensating intrastate minutes, therefore also making the states responsible for ensuring compliance with the mandatory minimum standards. Sprint also asserts that the current complaint procedures are sufficient to keep the Commission informed about service problems, making the federal certification program an unnecessary use of Commission resources. Hands On's Application for ``Certification'' as a VRS Provider
On August 30, 2002, Hands On filed an application for
``certification'' as a VRS provider eligible for compensation from the
Fund. The application indicated that Hands On sought to provide only
VRS, and not any of the mandatory relay services traditional common
carriers are required to provide. Further, Hands On sought to provide
VRS neither as part of a certified state program nor as a service
operated in contract with a common carrier providing interstate TRS.
See 47 CFR 64.604(c)(5)(iii)(F). Hands On argued eligibility under the
third prong; i.e., as an Interstate common carrier offering TRS pursuant to 47 CFR 64.604.
[[Page 76212]]
See 47 CFR 64.604(c)(5)(iii)(F)(3). Hands On also acknowledged that the
regulations do not specify any requirement for ``certification'' of TRS
providers as eligible for compensation from the Fund. In the 2004 TRS
Report and Order, the Commission dismissed Hands On's application
without prejudice, based on the lack of a Commission certification
process. 2004 TRS Report and Order, 19 FCC Rcd at 12531, paragraph 148 (citing, in part, 47 CFR 64.605) (footnote omitted).
Hands On's Petition for Reconsideration
On October 1, 2004, Hands On filed a petition for reconsideration of, inter alia, the Commission's dismissal of its application for certification. See Communication Services for the Deaf, Inc., Hands On Video Relay Service, Inc., National Video Relay Service Coalition, and Hamilton Relay, Inc., File Petitions for Reconsideration of Telecommunications Relay Service Requirements from the Report and Order, and Order on Reconsideration, and Further Notice of Proposed Rulemaking, CC Docket Nos. 90571 and 9867, CG Docket No. 03123, DA 043266, Public Notice, 19 FCC Rcd 19929 (October 15, 2004); published at 69 FR 65401, November 12, 2004. Hands On seeks a ruling that it is entitled to receive compensation from the Fund without either providing its service as part of a certified state program or operating under contract with a common carrier providing interstate TRS and eligible for compensation from the Fund. Hands On asserts that it falls under the third eligibility prong of 47 CFR 64.604(c)(5)(iii)(F)(3) ``Interstate common carriers offering TRS pursuant to Sec. 64.604 of the Commission's rules''and that under that prong it is entitled to compensation for its service from the Fund upon giving notice, whether or not the Commission has a separate certification process. MCI, the only commenter responding to the Hands On Petition, asserts that only compliance with mandatory minimum standards is necessary for reimbursement, and no Commissionwide certification is needed. Discussion
The Commission concludes that the present eligibility criteria for
compensation from the Fund set forth in the Commission's rules do not
reflect advances in the way that TRS is offered, particularly with
respect to VRS and IP Relay. Therefore, the Commission amends its rules
to permit common carriers desiring to offer VRS and IP Relay and
receive compensation from the Fund to seek certification from the
Commission. In so doing, the Commission largely adopts the proposal set
forth in Second Improved TRS Order's NPRM. See Second Improved TRS Order, 18 FCC Rcd at 1244312445, paragraphs 134140. This
certification procedure will permit common carriers desiring to offer
only VRS and/or IP Relay, and not the other forms of TRS, to receive
compensation from the Fund without having to meet one of the existing three eligibility criteria set forth in the rules.
The present three categories for eligibility for compensation from
the Fund were adopted at a time when all TRS calls were carried over
telephone lines, and therefore all calls could be categorized as either
interstate or intrastate. See Telecommunications Relay Services, and
the Americans With Disabilities Act of 1990, CC Docket No. 90571, FCC
93357, Third Report and Order, 8 FCC Rcd 5300 (July 20, 1993),
published at 58 FR 39671, July 26, 1993, (adopting TRS cost recovery
rules). As a result, the states were given the primary role of
regulating, and compensating, the provision of intrastate TRS through
the state certification process. See generally 2004 TRS Report and
Order, 19 FCC Rcd at 1248012483, paragraphs 48; see also House Report
at 131. The third eligibility category``Interstate common carriers
offering TRS pursuant to Sec. 64.604 of the Commission's rules''has
been the means by which some entities that are not voice telephone service providers have sought to offer VRS. 47 CFR
64.604(c)(5)(iii)(F)(3). The Commission previously construed the third
eligibility prong, however, as applying to common carriers obligated to
provide TRS in a state that does not have a certified program. In the
2004 TRS Report and Order, the Commission noted that, as a general
matter, the Commission has construed the eligibility requirements to
require eligible providers to be either part of a state program or to
provide service under contract with another provider obligated to
provide TRS services. 2004 TRS Report and Order, 19 FCC Rcd at 12517
12518, paragraph 103, note 304. The Commission noted that the three
eligibility categories were modeled upon the ways in which common
carriers may be deemed to be in compliance with their underlying
obligation under sections 225(c)(1)(2) of the Communications Act. It
also noted that presently every state has a certified state TRS
program, although they are not required to do so. See generally 2004
TRS Report and Order, 19 FCC Rcd at 12481, paragraph 6, note 25. The
Commission now adopts a fourth eligibility criterion, which will allow
common carriers seeking to offer VRS or IP Relay and receive
compensation to do so without being part of a certified state program
or contracting with an entity that is. Therefore, the Commission need
not revisit its prior construction of the third eligibility category.
Moreover, in the event that in the future a state either declines to
seek recertification or fails to qualify for recertification, common
carriers in that state may need to rely on the third eligibility
category to receive compensation from the Fund for eligible TRS services.
In the Report and Order and Order on Reconsideration, the
Commission specifically allows common carriers seeking to offer VRS or
IP Relay, that are not part of a certified state program or have not
contracted with an entity that is, to qualify for compensation from the
Fund through a Commissionlevel certification process. The Commission
recognizes that, with the advent of Internetbased forms of TRS, and
particularly with the required expertise of sign language interpreters
necessary for the provision of VRS, entities that have not offered
voice telephony service or traditional TRS may desire to offer VRS or
IP Relay. The Commission further recognizes that requiring such
entities to either contract with a state or with another provider
opportunities over which, as a practical matter, a new provider has
little controlboth elevates form over substance and artificially
precludes new providers from offering service, thereby depriving
consumers of additional choices. The record reflects that many states
have been reluctant to accept VRS providers into their certified state
programs. Presently, three VRS providers qualify for compensation from
the Fund because they are part of a certified state program: Hands On
(Washington); Sorenson (Utah); and Communication Access Center (CAC)
(Michigan). The record reflects that other entities that desire to
offer VRS have been unable to join a certified state program. See,
e.g., Ex Parte Submission of Daryl Crouse, President, Snap
Telecommunications, Inc. (Snap) (July 1, 2005) (submitted by counsel)
(Snap Ex Parte) (asserting that Snap, which desires to offer VRS and
receive compensation from the Fund, sought state certification but no
state expressed an interest); see also NASRA Comments at 34 (noting
that most states would opt for one VRS provider). States have little
incentive to assume oversight responsibility for these services, which are offered on a
[[Page 76213]]
nationwide basis, particularly because states are not currently paying
for the services. In addition, contracting with a provider that already
offers TRS as part of a state program has made it uneconomical for some
new providers to offer service. As Hands On has asserted, a ``direct
certification by the Commission of VRS providers is likely to decrease
the cost of service by allowing providers actually delivering the
service to bill the Fund directly, rather than contracting with a state
agency or existing telephone carrier (that would demand a substantial
share of the compensation).'' The Commission concludes that common
carriers seeking to provide VRS or IP Relay, and only those services,
should not be precluded from doing so simply because they cannot
contract with a State or another eligible TRS provider. According to
Snap, the first eligibility category ``is no longer a viable option for
new entrants because states are either completely uninformed about TRS
Fund eligibility for VRS providers (since VRS is a nonmandatory
service under the FCC's rules), or they are reluctant to certify and
vouch for a new VRS provider due to the additional costs and burdens
that might entail in terms of the state's oversight and audit responsibilities.''
Moreover, as Hamilton, Sorenson, and the TDI Coalition have suggested, a federal certification program for VRS and IP Relay will allow the Commission to ensure that consumers receive high quality service without unduly burdening IP Relay and VRS providers. Sorenson, for example, states that ``a federal certification processif properly administeredwill encourage additional TRS providers to enter the market, ensuring the widespread availability of TRS services.''
Permitting common carriers to provide VRS and IP Relay and receive compensation from the Fund through certification by the Commission furthers the goals of section 225 of the Communications Act. First, Commission certification will allow providers to offer service without contracting with a State or another TRS provider, possibly reducing the cost of providing service. Second, this Report and Order and Order on Reconsideration will enhance competition in the provision of VRS and IP Relay by permitting new entities to offer service, thereby giving consumers greater choice. In addition, the Commission anticipates that new providers will bring innovation to the provision of VRS and IP Relay, both with new equipment and new service features. Finally, and more broadly, because VRS requires broadband Internet service, new VRS providers may stimulate greater broadband deployment. See 2004 TRS Report and Order, 19 FCC Rcd at 12568, paragraph 243.
As a result, the Commission concludes that common carriers seeking to offer VRS or IP Relay and receive compensation from the Fund independent of a certified state program or a common carrier offering TRS, may seek certification from the Commission to do so by providing documentation to the Commission as outlined below (and in amended 47 CFR 64.605). See Rule Changes at the end of this document. This documentation shall include, in narrative form: (1) A description of the forms of TRS to be provided; (2) a description of how the provider will meet all nonwaived mandatory minimum standards applicable to each form of TRS offered, see generally 2004 TRS Report and Order, 19 FCC Rcd at 12594, Appendix E (summarizing waivers of TRS mandatory minimum standards for VRS and IP Relay); (3) a description of the provider's procedures for ensuring ongoing compliance with all applicable TRS rules; (4) a description of the provider's complaint procedures; (5) a narrative describing any areas in which the provider's service will differ from the applicable mandatory minimum standards; (6) a narrative establishing that services that differ from the mandatory minimum standards do not violate applicable mandatory minimum standards; (7) demonstration of status as common carrier; and (8) a statement that the provider will file annual compliance reports demonstrating continued compliance with these rules. Noncommon carriers seeking to offer VRS or IP Relay may continue to do so by joining a certified state program or subcontracting with an entity offering TRS and eligible for compensation from the Fund. However, the Commission requires providers to be common carriers under the Commission certification procedure adopted in this Report and Order and Order on Reconsideration, because section 225 of the Communications Act is expressly directed at common carriers providing TRS. See 47 U.S.C. 225(c); see also 47 U.S.C. 225(a)(1) (defining ``common carrier'' for purposes of Section 225 of the Communications Act). These procedures largely mirror those proposed in the NPRM in the Second Improved TRS Order. See Second Improved TRS Order, 18 FCC Rcd at 1244312445, paragraphs 134140.
After review of this documentation, the Commission shall certify that the provider is eligible for compensation from the Fund if the Commission finds that: (1) The provision of VRS or IP Relay will meet or exceed all nonwaived operational, technical, and functional mandatory minimum standards; (2) the VRS or IP Relay provider makes available adequate procedures and remedies for ensuring ongoing compliance with the Commission's rules, including that it makes available for TRS users informational materials on complaint procedures sufficient for users to know the proper procedures for filing complaints; and (3) where the VRS or IP Relay provider's service differs from the mandatory minimum standards, the TRS provider establishes that its service does not violate applicable mandatory minimum standards. The Commission will issue a Public Notice certifying that a VRS or IP Relay provider is eligible for compensation from the Fund under this new provision. A provider seeking eligibility must also comply with all applicable TRS regulations, including 47 CFR 64.604(c)(5)(iii)(C), (D), (E), and (G). After a VRS or IP Relay provider obtains certification under the fourth eligibility prong, the provider need only submit a letter of intent to the fund administrator in order to become eligible to receive compensation. See 47 CFR 64.604(c)(5)(iii)(G) (requiring an eligible provider to notify the TRS Fund administrator of its intent to participate in the Fund at least 30 days prior to seeking compensation from the Fund).
The Commission further amends 47 CFR 64.605 to provide that the
certification granted under new 47 CFR 64.604(c)(5)(iii)(F)(4) shall
remain in effect for five years, and that a certified provider must
file for renewal at least 90 days prior to the expiration of
certification by filing the documentation required for certification.
Although the Commission proposed a one year certification period, the record reflects that a five year period is preferable for
administrative reasons and for consistency with the certification of
state programs. See 47 CFR 64.605(c). In addition, the Commission
amends 47 CFR 64.605 to provide that it may suspend or revoke
certification if the Commission determines that certification is no
longer warranted, and may require certified VRS or IP Relay providers
to submit documentation demonstrating ongoing compliance with
Commission rules and all applicable TRS mandatory minimum standards.
These provisions largely mirror the existing certification requirements for state TRS programs.
The Commission also amends 47 CFR 64.605 to require VRS or IP Relay
TRS providers certified under the fourth prong to notify the Commission of
[[Page 76214]]
substantive changes in their TRS programs, services, and features
within 60 days of when such changes may occur, and to certify that they
continue to meet federal mandatory minimum standards after implementing
the substantive change. Finally, the Commission amends 47 CFR 64.605 to
require these certified VRS or IP Relay providers to file with the
Commission, on an annual basis, a detailed report providing evidence of
ongoing compliance with all applicable TRS mandatory minimum standards.
Among other TRS mandatory minimum standards, the Commission notes that
certified VRS or IP Relay providers must comply with 47 CFR
64.604(c)(1), addressing consumer complaint logs and the filing of
complaint log summaries with the Commission. Certified VRS and IP Relay
providers must also file any annual reports required by the
Commission's waiver of applicable mandatory minimum standards. See
generally 2004 TRS Report and Order, 19 FCC Rcd at 1252012521,
paragraph 111. The Commission believes that these requirements, taken
together, will be sufficient to ensure that providers certified under
this new provision will offer service in compliance with its rules, and
will also provide a means by which the Commission can monitor
compliance and service quality. The Commission therefore declines to
require the filing of financial statements indicating financial
stability. The Commission believes that a provider meeting the
requirements adopted herein will be sufficiently qualified to offer VRS or IP Relay without a showing of its financial standing.
In sum, the Commission has adopted a new eligibility category for VRS and IP Relay providers seeking compensation from the Fund to reflect the present reality that the provision of TRS is migrating to these Internetbased services, and that VRS and IP Relay are presently operated as national services without regard to the provision of traditional PSTNbased telephony or the physical location of the users and the relay facilities. Persons with hearing and speech disabilities, entitled by section 225 of the Communications Act to functionally equivalent telephone services, will benefit by having a greater choice of VRS and IP Relay providers. The Commission anticipates that the addition of new providers will not only enhance competition, but advance technological development, increase quality of service, and reduce costs. In this way, the Commission further fulfills two statutory mandates under section 225 of the Communications Act: ensuring that TRS is available ``to the extent possible and in the most efficient manner'' to persons with hearing and speech disabilities, 47 U.S.C. 225(b)(1), and ``encourage[ing] * * * the use of existing technology and * * * not discourage[ing] or impair[ing] the development of improved technology.'' 47 U.S.C. 225(d)(2).
Order on Reconsideration
Hands On seeks reconsideration of the Commission's dismissal in the 2004 TRS Report and Order of its application for certification as a VRS provider eligible for compensation from the Fund. 2004 TRS Report and Order, 19 FCC Rcd at 12531, paragraphs 147148. Because the Commission adopts a new eligibility rule that permits Hands On to seek certification as a VRS provider eligible for compensation from the Fund without being part of a certified state TRS program, the Commission concludes that this issue is moot.
Final Regulatory Flexibility Certification
The Regulatory Flexibility Act of 1980, as amended (RFA) requires that a regulatory flexibility analysis be prepared for rulemaking proceedings, unless the agency certifies that ``the rule will not have a significant economic impact on a substantial number of small entities.'' 5 U.S.C. 605(b). The RFA generally defines ``small entity'' as having the same meaning as the terms ``small business,'' ``small organization,'' and ``small governmental jurisdiction.'' 5 U.S.C. 605(b). In addition, the term ``small business'' has the same meaning as the term ``small business concern'' under the Small Business Act. 5 U.S.C. 601(3). Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies ``unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register.''
This Report and Order and Order on Reconsideration addresses a petition for reconsideration of the Commission's prior conclusion not to certify common carriers providing TRS as eligible to receive compensation from the Fund. The Report and Order and Order on Reconsideration reverses the Commission's prior determination in this regard and concludes that the Commission will certify common carriers desiring to offer Video Relay Service (VRS) as TRS service providers eligible for compensation from the Fund. The Commission concludes that the public interest is best served by Commission certification of common carriers providing VRS and IP Relay service as eligible for Interstate TRS funding. The Commission finds that by so certifying common carriers providing VRS and IP Relay services, it will enhance competition in the provision of VRS and IP Relay by permitting new entities to offer service, thereby giving consumers greater choice. In addition, the Commission anticipates that new providers will bring innovation to the provision of VRS and IP Relay, both with new equipment and new features. Moreover, the Commission does not believe that the certification of additional VRS or IP Relay service providers will have an appreciable impact on the required size of the Fund. Indeed, the Commission expects that Federal certification is likely to reduce the costs of entry of new service providers (by eliminating the need to seek State certification or contracting with a State or another TRS provider), and that additional competition will help to lower the cost of VRS and IP Relay services. Therefore, given the lack of a significant economic impact, the Commission certifies that the requirements of the Report and Order and Order on Reconsideration will not have a significant economic impact on a substantial number of small entities.
The Commission also notes that, arguably, there are not a
substantial number of small entities that will be affected by our
action. The SBA has developed a small business size standard for Wired
Telecommunications Carriers, which consists of all such firms having
1,500 or fewer employees. 13 CFR 121.201, NAICS code 517110 (changed
from 513310 in October 2002). According to Census Bureau data for 1997,
there were 2,225 firms in this category which operated for the entire
year. U.S. Census Bureau, 1997 Economic Census, Subject Series:
Information, ``Establishment and Firm Size (Including Legal Form of
Organization),'' Table 5, NAICS code 513310 (issued October 2000). Of
this total, 2,201 firms had employment of 999 or fewer employees, and
an additional 24 firms had employment of 1,000 employees or more. Thus,
under this size standard, the majority of firms can be considered
small. (The census data do not provide a more precise estimate of the
number of firms that have employment of 1,500 or fewer employees; the
largest category provided is ``Firms with 1,000 employees or more.'') Currently, only
[[Page 76215]]
eight providers are providing VRS and being compensated from the Fund:
AT&T, Communication Access Center for the Deaf and Hard of Hearing,
Hamilton, Hands On, MCI, Nordia, Sorenson, and Sprint. The Commission
expects that only one of the providers noted above is a small entity
under the SBA's small business size standard. In addition, the
Interstate Fund Administrator is the only entity that will be required
to pay to eligible providers of VRS and IP Relay services the costs of
providing interstate service. The Commission will send a copy of this
Report and Order and Order on Reconsideration, including a copy of this
Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the SBA. 5 U.S.C. 605(b).
Congressional Review Act
The Commission will send a copy of this Report and Order and Order on Reconsideration in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).
Ordering Clauses
Pursuant to the authority contained in sections 1, 2, and 225 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, and 225, this Report and Order, and Order on Reconsideration Is hereby Adopted.
The Petition for Partial Reconsideration filed by Hands On Is moot, as provided herein, to the extent it addresses Hands On's application for certification as a VRS provider.
This Report and Order, and Order on Reconsideration and the amendments to Sec. Sec. 64.604 and 64.605 of the Commission's rules in the Rule Changes shall be effective January 23, 2006, except for Sec. Sec. 64.605(a)(2), (c)(2), (e)(2), (f)(2), and (g), which contains information collection requirements that have not been approved by the Office of Management and Budget. The Commission will publish a document in the Federal Register announcing the effective date.
The Commission's Consumer & Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Report and Order, and Order on Reconsideration, including the Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the U.S. Small Business Administration.
List of Subjects in 47 CFR Part 64
Individuals with disabilities, Telecommunications. Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Rule Changes
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 64 as follows:
PART 64MISCELLANEOUS RULES RELATING TO COMMON CARRIERS
1. The authority citation for part 64 continues to read as follows:
Authority: 47 U.S.C. 154, 254(k); secs. 403(b)(2)(B), (c),
Public Law 104104, 110 Stat. 56. Interpret or apply 47 U.S.C. 201,
218, 222, 225, 226, 228, and 254(k) unless otherwise noted.
2. Section 64.604 is amended by removing the period at the end of
paragraph (c)(5)(iii)(F)(3) and adding ``;or'' in its place, and by adding paragraph (c)(5)(iii)(F)(4) to read as follows:
Sec. 64.604 Mandatory minimum standards.
* * * * *
(c) * * *
(5) * * *
(iii) * * *
(F) * * *
(4) Video Relay Service (VRS) and Internet Protocol (IP) Relay
providers certified by the Commission pursuant to Sec. 64.605. * * * * *
3. Section 64.605 is revised to read as follows:
Sec. 64.605 VRS and IP Relay Provider and TRS program certification.
(a) Documentation. (1) Certified state program. Any state, through
its office of the governor or other delegated executive office
empowered to provide TRS, desiring to establish a state program under
this section shall submit, not later than October 1, 1992,
documentation to the Commission addressed to the Federal Communications
Commission, Chief, Consumer & Governmental Affairs Bureau, TRS
Certification Program, Washington, DC 20554, and captioned ``TRS State
Certification Application.'' All documentation shall be submitted in
narrative form, shall clearly describe the state program for
implementing intrastate TRS, and the procedures and remedies for
enforcing any requirements imposed by the state program. The Commission
shall give public notice of states filing for certification including notification in the Federal Register.
(2) VRS and IP Relay provider. Any entity desiring to provide VRS
or IP Relay services, independent from any certified state TRS program
or any TRS provider otherwise eligible for compensation from the
Interstate TRS Fund, and to receive compensation from the Interstate
TRS Fund, shall submit documentation to the Commission addressed to the
Federal Communications Commission, Chief, Consumer & Governmental
Affairs Bureau, TRS Certification Program, Washington, DC 20554, and
captioned ``VRS and IP Relay Certification Application.'' The documentation shall include, in narrative form:
(i) A description of the forms of TRS to be provided (i.e., VRS and/or IP Relay);
(ii) A description of how the provider will meet all nonwaived
mandatory minimum standards applicable to each form of TRS offered;
(iii) A description of the provider's procedures for ensuring compliance with all applicable TRS rules;
(iv) A description of the provider's complaint procedures;
(v) A narrative describing any areas in which the provider's
service will differ from the applicable mandatory minimum standards;
(vi) A narrative establishing that services that differ from the
mandatory minimum standards do not violate applicable mandatory minimum standards;
(vii) Demonstration of status as a common carrier; and
(viii) A statement that the provider will file annual compliance
reports demonstrating continued compliance with these rules.
(b) (1) Requirements for state certification. After review of state
documentation, the Commission shall certify, by letter, or order, the
state program if the Commission determines that the state certification documentation:
(i) Establishes that the state program meets or exceeds all
operational, technical, and functional minimum standards contained in Sec. 64.604;
(ii) Establishes that the state program makes available adequate
procedures and remedies for enforcing the requirements of the state
program, including that it makes available to TRS users informational
materials on state and Commission complaint procedures sufficient for
users to know the proper procedures for filing complaints; and
(iii) Where a state program exceeds the mandatory minimum standards
contained in Sec. 64.604, the state establishes that its program in no way conflicts with federal law.
(2) Requirements for VRS and IP Relay Provider FCC Certification. After review of certification documentation,
[[Page 76216]]
the Commission shall certify, by Public Notice, that the VRS or IP
Relay provider is eligible for compensation from the Interstate TRS
Fund if the Commission determines that the certification documentation:
(i) Establishes that the provision of VRS and/or IP Relay will meet
or exceed all nonwaived operational, technical, and functional minimum standards contained in Sec. 64.604;
(ii) Establishes that the VRS and/or IP Relay provider makes
available adequate procedures and remedies for ensuring compliance with
the requirements of this section and the mandatory minimum standards
contained in Sec. 64.604, including that it makes available for TRS
users informational materials on complaint procedures sufficient for
users to know the proper procedures for filing complaints; and
(iii) Where the TRS service differs from the mandatory minimum
standards contained in Sec. 64.604, the VRS and/or IP Relay provider
establishes that its service does not violate applicable mandatory minimum standards.
(c)(1) State certification period. State certification shall remain in effect for five years. One year prior to expiration of
certification, a state may apply for renewal of its certification by
filing documentation as prescribed by paragraphs (a) and (b) of this section.
(2) VRS and IP Relay Provider FCC certification period.
Certification granted under this section shall remain in effect for
five years. A VRS or IP Relay provider may apply for renewal of its
certification by filing documentation with the Commission, at least 90
days prior to expiration of certification, containing the information described in paragraph (a)(2) of this section.
(d) Method of funding. Except as provided in Sec. 64.604, the
Commission shall not refuse to certify a state program based solely on
the method such state will implement for funding intrastate TRS, but
funding mechanisms, if labeled, shall be labeled in a manner that
promote national understanding of TRS and do not offend the public.
(e)(1) Suspension or revocation of state certification. The
Commission may suspend or revoke such certification if, after notice
and opportunity for hearing, the Commission determines that such
certification is no longer warranted. In a state whose program has been
suspended or revoked, the Commission shall take such steps as may be
necessary, consistent with this subpart, to ensure continuity of TRS.
The Commission may, on its own motion, require a certified state
program to submit documentation demonstrating ongoing compliance with
the Commission's minimum standards if, for example, the Commission
receives evidence that a state program may not be in compliance with the minimum standards.
(2) Suspension or revocation of VRS and IP Relay Provider FCC
certification. The Commission may suspend or revoke the certification
of a VRS or IP Relay provider if, after notice and opportunity for
hearing, the Commission determines that such certification is no longer
warranted. The Commission may, on its own motion, require a certified
VRS or IP Relay provider to submit documentation demonstrating ongoing
compliance with the Commission's minimum standards if, for example, the
Commission receives evidence that a certified VRS or IP Relay provider may not be in compliance with the minimum standards.
(f) Notification of substantive change. (1) States must notify the
Commission of substantive changes in their TRS programs within 60 days
of when they occur, and must certify that the state TRS program
continues to meet federal minimum standards after implementing the substantive change.
(2) VRS and IP Relay providers certified under this section must
notify the Commission of substantive changes in their TRS programs,
services, and features within 60 days of when such changes occur, and
must certify that the interstate TRS provider continues to meet federal
minimum standards after implementing the substantive change.
(g) VRS and IP Relay providers certified under this section shall
file with the Commission, on an annual basis, a report providing evidence that they are in compliance with Sec. 64.604.
[FR Doc. 0524419 Filed 122205; 8:45 am]
BILLING CODE 671201P
FOR FURTHER INFORMATION CONTACT
Thomas Chandler, Consumer &
Governmental Affairs Bureau, Disability Rights Office at (202) 4181475
(voice), (202) 4180597 (TTY), or email at Thomas.Chandler@fcc.gov.
For additional information concerning the PRA information collection
requirements contained in the document, contact Leslie Smith at (202)
4180217, or via the Internet at Leslie.Smith@fcc.gov. If you would
like to obtain or view a copy of this revised information collection, you may do so
[[Page 76209]]
by visiting the FCC PRA Web page at: http://www.fcc.gov/omd/pra.