[Federal Register Volume 67, Number 19 (Tuesday, January 29, 2002)]
[Proposed Rules]
[Pages 4227-4231]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-1981]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CC Docket No. 98-67; FCC 01-371]


Telecommunications Services for Individuals With Hearing and 
Speech Disabilities; Recommended Telecommunications Relay Services Cost 
Recovery Guidelines; Request by Hamilton Telephone Company for 
Clarification and Temporary Waivers

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this Further Notice of Proposed Rulemaking (Further NPRM) 
the Federal Communications Commission (FCC or Commission) solicits 
additional comment on the recommendations submitted by the Interstate 
Telecommunications Relay Services (TRS) Advisory Council and the TRS 
Fund Administrator (Advisory Council and Fund Administrator, 
respectively) relating to the appropriate cost recovery mechanism for 
video relay services (VRS) as proposed in comments

[[Page 4228]]

to the recommendations. VRS allows individuals with hearing and speech 
disabilities who use sign language to communicate with voice 
telephones.

DATES: Comments due February 28, 2002. Reply comments due March 15, 
2002.. Written comments by the public on the proposed information 
collections are due February 28, 2002. Written comments must be 
submitted by the Office of Management and Budget (OMB) on the proposed 
information collection(s) on or before April 1, 2002.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW., 
Room TW-B204F, Washington, DC 20554. In addition to filing comments 
with the Secretary, a copy of any comments on the information 
collections contained herein should be submitted to Judy Boley, Federal 
Communications Commission, Room 1-C804, 445 12th Street, SW., 
Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Pam Slipakoff, 202/418-7705, Fax 202/
418-2345, TTY 202/418-0484, [email protected], Network Services 
Division, Common Carrier Bureau.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Further Notice of Proposed Rulemaking, CC Docket No. 98-67, FCC 01-371 
(Further NRPM), adopted December 17, 2001 and released December 21, 
2001. The full text of the Further NRPM is available for inspection and 
copying during the weekday hours of 9 a.m. to 4:30 p.m. in the FCC 
Reference Center, Room CY-A257, 445 12th Street, SW., Washington, DC 
20554, or copies may be purchased from the Commission's copy 
contractor, Qualex International, 445 12th Street, SW., Suite CY-B402, 
Washington, DC 20554, phone (202) 863-2893.
    This Further NPRM contains proposed information collection(s) 
subject to the Paperwork Reduction Act of 1995 (PRA). It has been 
submitted to the Office of Management and Budget (OMB) for review under 
the PRA. OMB, the general public, and other Federal agencies are 
invited to comment on the proposed information collections contained in 
this proceeding.

Paperwork Reduction Act Analysis

    This Further NPRM contains a proposed information collection. The 
Commission, as part of its continuing effort to reduce paperwork 
burdens, invites the general public and the Office of Management and 
Budget (OMB) to comment on the information collection(s) contained in 
this Further NPRM, as required by the Paperwork Reduction Act of 1995, 
Public Law 104-13. Public and agency comments are due at the same time 
as other comments on this Further NPRM; OMB notification of action is 
due 60 days from date of publication of this Further NPRM in the 
Federal Register. Comments should address: (a) Whether the proposed 
collection of information is necessary for the proper performance of 
the functions of the Commission, including whether the information 
shall have practical utility; (b) the accuracy of the Commission's 
burden estimates; (c) ways to enhance the quality, utility, and clarity 
of the information collected; and (d) ways to minimize the burden of 
the collection of information on the respondents, including the use of 
automated collection techniques or other forms of information 
technology.
    OMB Control Number: 3060-0463.
    Title: Telecommunications Services for Individuals with Hearing and 
Speech Disabilities and the Americans with Disabilities Act of 1990, 47 
CFR part 64 (Sections 64.601-64.605).
    Form No.: N/A.
    Type of Review: Proposed Revision of Existing Collection.
    Respondents: Business or other for-profit institutions.
    Title: Report of interstate TRS minutes of use.
    No. of respondents: 10.
    Hours per response: 6.
    Total annual burden: 60.
    Total Annual Burden: 6 hours per respondent, 60 hours for all 
respondents. Estimate reflects burden for TRS reporting only.
    Cost to Respondents: $0.
    Needs and Uses: The Commission solicits public comment on, among 
other things, the data needed to be collected from the VRS service 
providers. The proposed data collections will be used to develop an 
effective and efficient cost recovery methodology for VRS.

Synopsis of the Further Notice of Proposed Rulemaking CC Docket No. 
98-67

    1. Title IV of the Americans with Disabilities Act of 1990 (ADA) 
requires Commission to ensure that TRS is available to the extent 
possible and in the most efficient manner to persons with hearing or 
speech disabilities in the United States. The Commission first ordered 
all carriers to provide TRS services nationwide on July 26, 1991. The 
rules for cost recovery were established in the TRS Third Report and 
Order, 58 FR 39671 (July 26, 1993). The Commission's rules require TRS 
providers to submit annually to the TRS Fund Administrator the data 
necessary to compute the TRS Fund requirements and payments. The 
administrator uses these data to develop formulas that are filed 
annually with the Commission. Payments to relay service providers are 
distributed based on the approved formulas. The compensation formulas 
are based on conversation minutes of use for completed interstate TRS 
calls.
    2. On March 6, 2000, the Commission released the Improved TRS 
Order, 65 FR 38490 (June 21, 2000), which amended the rules governing 
the delivery of TRS by expanding the kinds of relay services available 
to consumers and by improving the quality of relay services. The 
Improved TRS Order permitted the recovery of VRS costs through the 
interstate TRS funding mechanism and directed the Advisory Council and 
the Fund Administrator to develop recommendations on how the 
compensation formula for each service should be structured. On November 
9, 2000, the Advisory Council and the Fund Administrator submitted 
recommended guidelines outlining proposed cost recovery procedures for 
traditional TRS, STS, and VRS.
    3. VRS allows a TRS user with a hearing and/or speech disability 
who uses sign language to communicate with a voice telephone user 
through video equipment installed at either the premises of the person 
with the disability or another appropriate location and at the relay 
center. The Commission's rules require that VRS CAs be qualified 
interpreters, defined as being able to interpret effectively, 
accurately, and impartially, both receptively and expressively, using 
any necessary specialized vocabulary. VRS is generally subject to the 
same mandatory minimum standards as TRS.
    4. The Advisory Council and the Fund Administrator made the 
following recommendations for VRS cost recovery: (1) The TRS Center 
Data Request should be expanded to include specific VRS sections to 
capture the costs and minutes separately; (2) due to its unique 
characteristics, a separate reimbursement rate based on VRS cost and 
demand should be calculated; (3) providers should be reimbursed based 
on completed conversation minutes of use at a national average 
reimbursement rate; and (4) the same methodology for rate development 
in place today for traditional TRS interstate cost recovery could be 
used to develop the VRS reimbursement rate.
    5. In the Memorandum Opinion and Order accompanying this Further 
NPRM, the Commission adopts the Advisory Council and the Fund 
Administrator's recommendations that the TRS Center Data Request should 
be expanded to include specific sections to

[[Page 4229]]

capture the costs and minutes for VRS separately and that a separate 
reimbursement rate based on VRS cost and demand should be calculated. 
The Commission declines to adopt the Advisory Council and the Fund 
Administrator's recommendations to use, on a permanent basis, the same 
methodology for rate development in place today for traditional TRS 
interstate cost recovery to develop a VRS reimbursement rate, and the 
recommendation to reimburse providers (based on completed conversation 
minutes of use) at a national average reimbursement rate. The 
Commission nevertheless directs the TRS administrator to ensure that 
providers are able to recover their fair costs related to providing VRS 
by establishing an interim VRS cost recovery rate using the average per 
minute compensation methodology used for traditional TRS. The 
Commission now seeks further comment on what VRS cost recovery 
mechanism should be established on a permanent basis.
    6. In this Further NPRM, the Commission solicits additional comment 
on the appropriate cost recovery mechanism for VRS. Because the 
commenters' proposals are not sufficiently detailed for the Commission 
to act, the Commission seeks additional comment on these proposals, and 
any other proposals relating to VRS cost recovery. Specifically, the 
Commission requests comment on the proposal that VRS compensation be a 
monthly flat charge based on a fixed number of conversation minutes 
investment in VRS. The Commission also seeks comment on whether it 
would be feasible to combine flat-rate and usage-based methodologies to 
obtain the benefits of both. Parties are also encouraged to propose 
other compensation plans.

Initial Regulatory Flexibility Analysis

    7. As required by the Regulatory Flexibility Act (RFA), the 
Commission has prepared this present Initial Regulatory Flexibility 
Analysis (IRFA) of the possible significant economic impact on small 
entities by the policies and rules proposed in Further NPRM. 5 U.S.C. 
603. Written public comments are requested on this IRFA. Comments must 
be identified as responses to the IRFA and must be filed by the 
deadlines for comments on the Further NPRM. The Commission will send a 
copy of the Further NPRM, including this IRFA, to the Chief Counsel for 
Advocacy of the Small Business Administration (SBA). 5 U.S.C. 603(a).

Need for, and Objectives of, the Proposed Rules

    8. The Commission is issuing this document to seek further comment 
on the recommended cost recovery guidelines for VRS filed by the 
Advisory Council and the Fund Administrator on November 9, 2000. The 
Advisory Council and the Fund Administrator made the following four 
recommendations with respect to VRS cost recovery: (1) The same 
methodology for rate development in place today for traditional TRS 
interstate cost recovery could be used to develop the VRS reimbursement 
rate; (2) providers should be reimbursed based on completed 
conversation minutes at a national average reimbursement rate; (3) the 
TRS Center Data Request should be expanded to include specific VRS 
sections to capture VRS costs and demand separately; and (4) due to its 
unique characteristics, a separate reimbursement rate based on VRS 
costs and demand should be calculated.

Legal Basis

    9. The proposed action is authorized under Secs. 64.603, and 64.604 
of the Commission's Rules, 47 CFR 64.603, 64.604, and sections 1, 2, 4, 
225, 255, and 303(r) of the Communications Act of 1934, as amended, 47 
U.S.C. 151, 152, 154, 225, 255, 303(r).

Description and Estimate of the Number of Small Entities To Which 
the Proposed Rules Will Apply

    10. The RFA directs agencies to provide a description of and, where 
feasible, an estimate of the number of small entities that may be 
affected by the proposed rules, if adopted. 5 U.S.C. 603(a)(3). The RFA 
defines the term ``small entity'' as having the same meaning as the 
terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' 5 U.S.C. 601(6). 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 
the RFA, the statutory definition of a small business applies ``unless 
an agency, after consultation with the Office of Advocacy of the SBA 
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.'' 5 
U.S.C. 601(3). A small business concern is one which: (1) Is 
independently owned and operated; (2) is not dominant in its field of 
operation; and (3) satisfies any additional criteria established by the 
SBA. 15 U.S.C. 632. The Commission notes that any small entities 
affected by any action proposed herein, should not be adversely 
affected. Furthermore, like all other entities affected, this action 
will aid small businesses by allowing them to recover costs for 
providing relay services. Below, the Commission further describes and 
estimates the number of small entity licensees and regulatees that may 
be affected by these proposals.
    11. The most reliable source of information regarding the total 
numbers of certain common carrier and related providers nationwide, as 
well as the numbers of commercial wireless entities, appears to be data 
the Commission publishes annually in its Telecommunications Industry 
Revenue report, regarding TRS.
    12. TRS Providers. Neither the Commission nor the SBA has developed 
a definition of ``small entity'' specifically applicable to providers 
of telecommunications relay services (TRS). The closest applicable 
definition under the SBA rules is for telephone communications 
companies other than radiotelephone (wireless) companies. The SBA 
defines such establishments to be small businesses when they have no 
more than 1,500 employees. According to the FCC's most recent data, 
there are approximately 12 interstate TRS providers, which consist of 
interexchange carriers, local exchange carriers, state-managed 
entities, and non-profit organizations. Approximately five or fewer of 
these entities are small businesses according to the National 
Association for State Relay Administration (NASRA). These numbers are 
estimates because of recent and pending mergers and partnerships in the 
telecommunications industry. The FCC notes that these providers include 
several large interexchange carriers and incumbent local exchange 
carriers. Some of these large carriers may only provide TRS service in 
a small area but they nevertheless are not small business entities. 
MCI, for example, provides relay service in approximately only 3 states 
but is not a small business. Consequently, the FCC estimates that there 
are fewer than 5 small TRS providers that may be affected by the 
proposed rules, if adopted.
    13. Wireline Carriers and Service Providers. The SBA has developed 
a definition of small entities for telephone communications companies 
except radiotelephone (wireless) companies. The Census Bureau reports 
that there were 2,321 such telephone companies in operation for at 
least one year at the end of 1992. According to the SBA's definition, a 
small business telephone company other than a radiotelephone

[[Page 4230]]

company is one employing no more than 1,500 persons. All but 26 of the 
2,321 non-radiotelephone companies listed by the Census Bureau were 
reported to have fewer than 1,000 employees. Thus, even if all 26 of 
those companies had more than 1,500 employees, there would still be 
2,295 non-radiotelephone companies that might qualify as small entities 
or small incumbent local exchange carriers (LECs). The FCC does not 
have data specifying the number of these carriers that are not 
independently owned and operated, and thus are unable at this time to 
estimate with greater precision the number of wireline carriers and 
service providers that would qualify as small business concerns under 
the SBA's definition. Consequently, the FCC estimates that fewer than 
2,295 small telephone communications companies other than 
radiotelephone companies are small entities or small incumbent LECs.
    14. The Commission has included small incumbent LECs in this 
present RFA analysis. As noted above, a ``small business'' under the 
RFA is one that, inter alia, meets the pertinent small business size 
standard, and ``is not dominant in its field of operation.'' 15 U.S.C. 
632. The SBA's Office of Advocacy contends that, for RFA purposes, 
small incumbent LECs are not dominant in their field of operation 
because any such dominance is not ``national'' in scope. The Commission 
has therefore included small incumbent LECs in this RFA analysis, 
although the Commission emphasizes that this RFA action has no effect 
on FCC analyses and determinations in other, non-RFA contexts.

Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    15. The proposed cost recovery measures may require additional 
recordkeeping requirements imposed for VRS. These costs, however, 
should be minimal because the tracking procedures are similar to those 
already in place for traditional TRS. In addition, these recordkeeping 
measures will promote more efficient service and allow the TRS 
providers to be reimbursed more accurately for their costs, thus 
negating any minimal costs imposed by these requirements. In addition, 
the Commission does not expect these costs to burden small entities any 
more than large entities because the costs are part of the 
reimbursement process and will allow all providers to be accurately 
reimbursed and develop effective methods of providing VRS. Furthermore, 
the FCC tentatively concludes that the proposals in this document would 
impose minimum burdens on small entities. The FCC seeks comment on 
these tentative conclusions.

Steps Taken To Minimize Significant Impact on Small Entities, and 
Significant Alternatives Considered

    16. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include the following four alternatives: (1) The 
establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(3) the use of performance, rather than design, standards; and (4) an 
exemption from coverage of the rule, or any part thereof, for small 
entities. 5 U.S.C. 603(c). The Commission has tentatively concluded 
that the proposed guidelines will have minimal, if any, adverse 
economic impact on small entities because they are designed to allow 
all providers to be accurately reimbursed.
    17. The Commission is issuing this Further NPRM to seek additional 
comment on the cost recovery methodology for VRS, which is a relatively 
new service offering. Commenters believe that VRS will require a 
substantially higher initial capital expenditure than traditional TRS 
and that a per minute reimbursement rate may not allow them to recover 
that expenditure. Commenters propose that, for the present time, VRS 
compensation be based on a flat monthly payment for an assumed number 
of minutes rather than the completed conversation minutes of use at a 
national average reimbursement rate. Once VRS generates sufficient 
monthly use, however, the flat monthly payment could be abandoned for 
the completed conversation minutes methodology suggested by the 
Advisory Council and the Fund Administrator. These proposals, however, 
are not sufficiently detailed for the Commission implement a cost 
recovery scheme. Thus, the Commission now seeks further comment on what 
VRS cost recovery mechanism should be established on a permanent basis.
    18. The Commission has set forth the proposed rule primarily for 
the purpose of generating comment. At this time, the Commission has not 
tentatively concluded that any of the proposals provided should be 
adopted. To the contrary, the purpose of this Further NPRM is to seek 
comments and proposals to develop the most effective method of cost 
recovery for VRS. Thus, the Commission is receptive of comments 
proposing alternatives to the ones provided by the Advisory Council and 
Fund Administrator and commenters. If comments received indicate that 
smaller entities may be impacted differently or adversely affected by 
the proposed rules or any alternative proposals, the Commission will 
seek alternatives that will prevent such an impact.

Federal Rules That May Duplicate, or Conflict With the Proposed 
Rules

    19. None.

Report to Congress

    20. The Commission will send a copy of this Further NPRM, including 
a copy of this IRFA, in a report to Congress pursuant to the Small 
Business Regulatory Enforcement Fairness Act of 1996. In addition, the 
Further NPRM and this IRFA will be sent to the Chief Counsel for 
Advocacy of the Small Business Administration, and will be published in 
the Federal Register.

Ordering Clauses

    21. Pursuant to the authority contained in Sec. 64.604 of the 
Commission's Rules, 47 CFR 64.604, and in sections 1, 2, 4, 225, 255 
and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 
151, 152, 154, 225, 255, 303(r) that this Further Notice of Proposed 
Rulemaking is hereby Adopted.
    22. In addition to filing comments with the Secretary, a copy of 
any comments on the information collections contained herein should be 
submitted to Judy Boley, Federal Communications Commission, Room     1-
C804, 445 12th Street, SW., Washington, DC 20554, or via the Internet 
to [email protected], and to Edward C. Springer, OMB Desk Officer, 10236 
NEOB, 725-17th Street, NW., Washington, DC 20503 or via the Internet to 
[email protected]. For additional information concerning the 
information collection(s) contained in this document, contact Judy 
Boley at 202-418-0214, or via the Internet at [email protected]. 
    23. The Commission's Consumer Information Bureau, Reference 
Information Center, shall send a copy of this Further Notice of 
Proposed Rulemaking, including the Initial Regulatory Flexibility 
Analysis, to the Chief Counsel for Advocacy of Small Business 
Administration.


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Federal Communications Commission.
William F. Caton,
Deputy Secretary.
[FR Doc. 02-1981 Filed 1-28-02; 8:45 am]
BILLING CODE 6712-01-P