[Federal Register Volume 67, Number 112 (Tuesday, June 11, 2002)]
[Proposed Rules]
[Pages 39929-39932]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-14678]



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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CC Docket No. 98-67; FCC 02-121]


Provision of Improved Telecommunications Relay Services and 
Speech-to-Speech Services for Individuals With Hearing and Speech 
Disabilities

AGENCY: Federal Communications Commission.

ACTION: Proposed rules.

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SUMMARY: This document inquires into whether providers of Internet 
protocol relay services (IP Relay) should be permitted to recover their 
costs from the Interstate Telecommunications Relay Services (TRS) Fund 
on a permanent basis, or whether and how a methodology can be devised 
to allocate cost recovery between the Interstate TRS Fund and the 
states. The Commission solicits comment on cost recovery for IP Relay, 
including potential methods for allocating costs between the Interstate 
TRS Fund and the states.

DATES: Comments are due on or before July 11, 2002 and reply comments 
are due on or before July 26, 2002.

ADDRESSES: Federal Communications Commission, 445 12th St. SW., 
Washington, DC 20554. For more information on filing comments, see 
Supplementary Information.

FOR FURTHER INFORMATION CONTACT: Sean O'More, of the Consumer and 
Government Affairs Bureau at (202) 418-2453 (voice), (202) 418-7870 
(TTY) or e-mail [email protected].

SUPPLEMENTARY INFORMATION: The requirement for collection of 
information contained in this proposed rule has been submitted to the 
Office of Management and Budget for review under section 3504(h) of the 
Paperwork Reduction Act (44 U.S.C. 3504(H). Persons wishing to comment 
on this collection of information should direct their comments to Judy 
Boley, Office of the Managing Director, Federal Communications 
Commission, The Portals, Room 1C-804, 445 12th Street, SW., Washington, 
DC 20554, tel. 202-418-0214, e-mail [email protected]. This is a summary 
of the Commission's Second Further Notice of Proposed Rule Making, 
adopted April 18, 2002, and released April 22, 2002. Comments may be 
filed using the Commission's Electronic Comment Filing System (ECFS) or 
by filing paper copies. See Electronic Filing of Documents in 
Rulemaking Proceedings, 63 FR 24121, 1998. Comments filed through the 
ECFS can be sent as an electronic file via the Internet to http://www.fcc.gov/e-file/ecfs.html. Generally, only one copy of an electronic 
submission must be filed. If multiple docket or rulemaking numbers 
appear in the caption of this proceeding, however, commenters must 
transmit one electronic copy of the comments to each docket or 
rulemaking number referenced in the caption. In completing the 
transmittal screen, commenters should include their full name, Postal 
Service mailing address, and the applicable docket or rulemaking 
number. Parties may also submit an electronic comment by Internet e-
mail. To get filing instructions for e-mail comments, commenters should 
send an e-mail to [email protected], and should include the following words 
in the body of the message, ``get form .'' A sample form and directions will be sent in 
reply. Parties who choose to file by paper must file an original and 
four copies of each filing. If more than one docket or rulemaking 
number appears in the caption of this proceeding, commenters must 
submit two additional copies for each additional docket or rulemaking 
number. Filings can be sent by hand or messenger delivery, by 
commercial overnight courier, or by first-class or overnight U.S. 
Postal Services mail (although we continue to experience delays in 
receiving U.S. Postal Service mail). The Commission's contractor, 
Vistronix, Inc., will receive hand-delivered or messenger-delivered 
paper filings for the Commission's Secretary at 236 Massachusetts 
Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this 
location are 8 a.m. to 7 p.m. All hand deliveries must be held together 
with rubber bands or fasteners. Any envelopes must be disposed of 
before entering the building. Commercial overnight mail (other than 
U.S. Postal Service Express Mail and Priority Mail) must be sent to 
9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service 
first-class mail, Express Mail, and Priority Mail should be addressed 
to 445 12th Street, SW., Washington, DC 20554. All filings must be 
addressed to the Commission's Secretary, Marlene H. Dortch, Office of 
the Secretary, Federal Communications Commission, 445 12th Street, SW., 
Room TW-A325 Washington, DC 20554. Parties who choose to file by paper 
should also submit their comments on diskette. These diskettes should 
be submitted to: Dana Jackson, Federal Communications Commission, 445 
12th Street, SW., Room 5-A741, Washington DC 20554. Such a submission 
should be on a 3.5 inch diskette formatted in an IBM compatible format 
using Word 97 or compatible software. The diskette should be 
accompanied by a cover letter and should be submitted in ``read only'' 
mode. The diskette should be clearly labeled with the commenter's name, 
proceeding (including the lead docket number in this case, CC Docket 
No. 98-67, type of pleading (comment or reply comment), date of 
submission, and the name of the electronic file on the diskette. The 
label should also include the following phrase ``Disk Copy--Not an 
Original.'' Each diskette should contain only one party's pleadings, 
preferably in a single electronic file. In addition, commenters must 
send diskette copies to the Commission's copy contractor, Qualex 
International, Portals II, 445 12th Street, SW., Room CY-B402, 
Washington, DC 20554. 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 CY-A257, Washington, DC 20554. The 
complete text of this decision may be purchased from the Commission's 
duplication contractor, Qualex International, Portals II, 445 12th 
Street, SW., Room CY-B402, Washington, DC 20554. Copies of this 
document in other alternative formats (computer diskette, large print 
and Braille) are available to persons with disabilities by contacting 
Brian Millin, of the Consumer and Governmental Affairs Bureau at (202) 
418-7426 (voice), (202) 418-7365 (TTY), or e-mail [email protected]. This 
Second Further Notice of Proposed Rule Making can also be downloaded in 
Text and ASCII formats at: http://www.fcc.gov/cgb/dro.

Synopsis

    In this Second Further Notice of Proposed Rule Making, the 
Commission notes that there is no automatic means of determining the 
origination of IP Relay calls. In the absence of this information, TRS 
providers cannot determine, or report to the TRS Fund Administrator, 
whether a call is interstate or intrastate. We request comment on 
whether we should attempt to devise a method for allocating calls as 
intrastate or interstate, and if so, suggestions for how we may 
accomplish this goal. We seek comment on whether section 225 of the 
Communications Act requires us to develop a cost allocation methodology 
for IP relay calls, or whether the statute gives us the discretion to 
conclude that all costs for IP relay shall be reimbursable from the 
Interstate TRS Fund. To the extent that commenters believe that costs 
must be

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allocated between the interstate and intrastate jurisdictions for 
purposes of recovery from the Interstate TRS Fund, we request that they 
consider what methods may exist, or could be developed, to determine 
the location of a caller using IP Relay. Further, we ask commenters to 
consider whether the use of a fixed allocator would satisfy the 
statutory requirement that costs caused by interstate relay services be 
recovered from all subscribers for every interstate service, and if so, 
how such a fixed allocator could best be derived. We also ask 
commenters to address whether the Commission should be responsible for 
devising a fixed allocator for dividing the reimbursement for IP Relay 
costs between the Interstate TRS Fund and the states, or whether we 
should charge some other party with this responsibility.

Initial Regulatory Flexibility Analysis

    As required by the Regulatory Flexibility Act of 1980, as amended 
(RFA) the Federal Communications Commission (Commission) has prepared 
this present Initial Regulatory Flexibility Analysis (IRFA) of the 
possible significant economic impact on a substantial number of small 
entities by the policies and rules proposed in this Second Further 
Notice of Proposed Rulemaking. See 5 U.S.C. 603. The RFA, see 5 U.S.C. 
601-612, has been amended by the Small Business Regulatory Enforcement 
Fairness Act of 1996 (SBREFA), Public Law No. 104-121, Title II, 110 
Stat. 857 (1996). We expect that we could have complied with the RFA by 
completing an Initial Regulatory Flexibility Certification on this 
issue; however, we have chosen instead to complete this Initial 
Regulatory Analysis for more complete record. 5 U.S.C. 605(b). 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 Second Further Notice of Proposed Rulemaking provided 
in paragraph 51 of the item. The Commission will send a copy of the 
Second Further Notice of Proposed Rulemaking, including this IRFA, to 
the Chief Counsel for Advocacy of the Small Business Administration 
(SBA). See 5 U.S.C. 603(a). In addition, the Second Further Notice of 
Proposed Rulemaking and IRFA (or summaries thereof) will be published 
in the Federal Register. See 5 U.S.C. 603(a).

A. Need for, and Objectives of, the Proposed Rules

    Telecommunications Relay Service (TRS), which is provided through 
the public switched telephone network (PSTN), enables persons with 
hearing and speech disabilities to communicate by telephone with 
persons who may or may not have such disabilities. 47 CFR 64.601(5)(7). 
TRS facilities have special equipment and are staffed by communications 
assistants (CAs) who relay conversations between people who use text 
telecommunications devices and people who communicate by voice. 
WorldCom, Inc. (WorldCom) indicates that its Internet Protocol (IP) 
Relay service is used in a manner similar to the PSTN-based TRS system. 
The user establishes a local connection to an Internet Service Provider 
using a computer, web phone, personal digital assistant, or any other 
IP-capable device. The user clicks on the relay operator icon, and when 
the call reaches the Internet platform a connection is automatically 
established, via an 800 number, to the WorldCom relay center. The call 
is then routed to a CA and a regular relay session is initiated. 
WorldCom, Petition for Clarification, CC Docket No. 90-571, 
Telecommunications Services for Individuals with Hearing and Speech 
Disabilities, Dec. 22, 2000, at 2.
    WorldCom's Petition for Clarification (Petition) asked the 
Commission to clarify (1) that IP Relay falls within the definition of 
TRS and (2) that it is entitled to recover its operating costs under 
section 225 of the Communications Act. WorldCom, Petition for 
Clarification, CC Docket No. 90-571, Telecommunications Services for 
Individuals with Hearing and Speech Disabilities, Dec. 22, 2000. 47 
U.S.C. 225. WorldCom further requested that the Commission allow it to 
recover all of the costs of its IP Relay service from the Interstate 
TRS Fund. Calls come to IP relay via the Internet, and there is 
currently no automatic method by which the IP Relay center can tell 
whether a given call is intrastate or interstate, given that Internet 
addresses have no geographic correlates. This is in contrast to PSTN-
based TRS, in which the TRS center uses the caller's Automatic 
Numbering Identification (ANI) to identify the location of the caller.
    The Commission briefly addressed the potential impact of the 
Internet on TRS earlier in this proceeding when the Commission 
requested comment on the provision of improved TRS and on WorldCom's 
Petition. We solicited comment on the use of the World Wide Web for TRS 
voice communications in the Improved Service Report and Order and 
Further Notice of Proposed Rulemaking. ``We also seek comment on 
improved transmission speed, wireless messaging services, use of the 
World Wide Web for voice communications, Internet telephony, and any 
other technologies or changes to technology that may improve relay 
services or should be available via TRS.'' See Improved Service Report 
and Order and Further Notice of Proposed Rulemaking, Report and Order 
and Further Notice of Proposed Rulemaking, 65 FR 38490, Jun. 21, 2000, 
15 FCC Rcd 5140, 5197 (2000) (Improved Service Report and Order and 
Further Notice of Proposed Rulemaking). Consumer Information Bureau 
Seeks Additional Comment on the Provision of Improved 
Telecommunications Relay Service, DA 01-1555, Public Notice, 16 FCC Rcd 
13100, Jun. 29, 2001; published at 66 FR 37631, Jul. 19, 2001. The 
Public Notice asked for public comment on the benefits of IP Relay, the 
appropriate means for allowing WorldCom to recover the costs of 
providing IP Relay, the minimum standards that should apply to IP 
Relay, and the security of IP Relay calls. See Public Notice, 16 FCC 
Rcd 13103. The Public Notice also sought comment on IP capabilities and 
outreach regarding TRS. While we do not reach these issues in our 
consideration of WorldCom's Petition, we will consider these comments 
along with the other comments received in response to our Improved 
Service Report and Order and Further Notice of Proposed Rulemaking. The 
Commission received 12 comments and five reply comments from carriers, 
organizations representing the deaf community, and public officials, 
along with hundreds of e-mail comments and letters from individuals who 
use IP Relay. Comments were filed by AT&T, Inc. (AT&T), the California 
Public Utilities Commission (California), Katherine Keller, Dana 
Mulvany, the National Association for the Deaf (NAD), Self Help for 
Hard of Hearing People (SHHH), Sprint Corporation (Sprint), Charles 
Sterling, Telecommunications for the Deaf, Inc. (TDI), The United 
States Telecommunications Association (USTA), Ronald Vickery, and 
WorldCom. Additionally, individuals sent over a hundred e-mails. 
California, Dana Mulvany, TDI, USTA, and WorldCom filed reply comments. 
In the Second Notice of Proposed Rule Making aspect of this item, we 
request comment on whether recovery of costs from the Interstate TRS 
Fund for IP Relay should be a temporary or a permanent measure. If this 
should be a temporary measure, we seek comment from the public on how 
IP Relay TRS providers can develop the capability to determine whether 
a call is intrastate or interstate. If a permanent measure, we seek

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comment on the bases for such proposed action. Finally, we seek comment 
on the mechanisms for applying the process of reimbursement for all 
affected IP TRS Relay providers, including any small entities providing 
TRS.

B. Legal Basis

    The proposed action is authorized under sections 1, 2, and 225 of 
the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, and 
225.

C. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rule Will Apply

    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(b)(3). The RFA 
generally 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) (incorporating 
by reference the definition of ``small-business concern'' in the Small 
Business Act, 15 U.S.C. 632). 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 definition of such term which are appropriate to the 
activities of the agency and publishes such definition(s) in the 
Federal Register.'' 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 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 the TRS. FCC, Common Carrier Bureau, Industry 
Analysis Division, Trends in Telephone Service (Aug. 2001). TRS 
Providers. Neither the Commission nor the SBA has developed a 
definition of small entity specifically applicable to TRS providers. 
The closest applicable definitions under the SBA rules are for wired 
telecommunications carriers and telecommunications resellers. 13 CFR 
120.201, North American Industry Classification System (NAICS) Code 
513310 and 513330. The SBA defines such establishments to be small 
businesses when they have no more than 1,500 employees. See 13 CFR 
121.201, NAICS Code 513310 and 513330. According to our most recent 
data, there are 11 interstate TRS providers, which consist of entities 
whose core businesses are as interexchange carriers, local exchange 
carriers, state-managed entities, and non-profit organizations. This is 
recent data from National Exchange Carriers Association, which 
administers the Interstate TRS Fund. We note that currently there are 
no wireless IP Relay TRS providers. However, we welcome comments on the 
proposals in our Second Notice of Proposed Rulemaking from wireless 
service providers. We do not have data specifying the number of these 
providers that are either dominant in their field of operations, are 
not independently owned and operated, or have more than 1,500 
employees, and we are thus unable at this time to estimate with greater 
precision the number of TRS providers that would qualify as small 
business concerns under the SBA's definition. We note, however, that 
these providers include large interexchange carriers and incumbent 
local exchange carriers. Consequently, we estimate that there are fewer 
than 11 small TRS providers that may be affected by the proposed 
changes. We seek comment generally on our analysis identifying TRS 
providers, and specifically on whether we should conclude, for RFA 
purposes, that any TRS providers are small entities. There is currently 
one provider of IP Relay TRS, WorldCom, Inc. WorldCom, Inc. is not a 
small entity. AT&T Corp. and Sprint, Inc. have indicated their 
intention to provide IP Relay TRS. These two corporations are not small 
entities. Therefore they are outside the statutory mandated scope of 
this IRFA.

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities

    If rules establishing a reimbursement system for IP Relay providers 
are promulgated pursuant to this proceeding, all providers of IP Relay, 
including small entities, will be required to report to the TRS 
Administrator data needed to calculate their reimbursement amount. This 
data would be provided on an existing Interstate TRS Fund 
Administrator's form. This form is straightforward and simple to 
complete. In addition, the form represents data that is already 
collected by TRS providers.

E. Steps Taken To Minimize the Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    The RFA requires an agency to describe any significant, 
specifically small business, alternatives that it has considered in 
reaching its proposed approach, which may include the following four 
alternatives (among others): ``(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 and 
reporting requirements under the rule for such 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 such small 
entities.'' 5 U.S.C. 603(c)(1)-(c)(4).
    The proposals in the Second Further Notice of Proposed Rulemaking, 
and the comments the Commission seeks regarding them, are part of the 
Commission's analysis of its role with respect to the implementation 
and operation of nationwide TRS for persons with hearing and speech 
disabilities. The guiding principle shaping these proposals is 
Congress' direction to the Commission to ensure that TRS keeps pace 
with advancing technology and that the Commission's rules do not 
discourage the implementation of technological advances or 
improvements. See 47 U.S.C. 225(d)(2). Easily the majority of TRS 
service is provided by large interexchange carriers and incumbent local 
exchange carriers. The majority of IP Relay TRS is likely to be 
provided by these same carriers. Currently, WorldCom, which is a large 
entity, is the only provider of IP Relay. We believe that the number of 
small entities impacted by these proposals, apparently 11, would be 
potentially very small. With respect to proposals in the Second Further 
Notice of Proposed Rulemaking, common carriers providing voice 
transmission services that are subject to the TRS rules, including 
small entities, may comply with their obligations individually, through 
designees, through competitively selected vendors, or in concert with 
other carriers. See 47 U.S.C. 225(c). Because of the array of options 
available to TRS providers when complying with these requirements, the 
Commission expects that the proposals contained in the Second Further 
Notice of Proposed Rulemaking will have minimal impact on small 
entities. We tentatively conclude that our proposals in the Second 
Further Notice of Proposed

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Rulemaking would impose minimum burdens on small entities. We seek 
comment on our tentative conclusion.
    At this time, there is no mechanism available that would allow 
differentiation between intra- and inter-state calls made through the 
Internet. The Second Further Notice of Proposed Rulemaking identifies 
and requests comment on establishing a mechanism for reimbursing IP 
Relay providers based on the use of a fixed allocator. If an allocator 
were to be established, all TRS providers, including small entities, 
would be able to determine the appropriate amount for reimbursement. 
Such an approach would satisfy the statutory requirement that costs 
caused by interstate relay service be recovered from all subscribers 
for every interstate service. An alternative the Commission is 
considering is making the interim arrangement of cost recovery from the 
Interstate TRS Fund for all calls permanent. We recognize that this 
alternative may benefit small TRS providers, by simplifying reporting 
requirements and clarifying reimbursement amounts. We seek comment on 
the statutory basis for such a decision.

F. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules

    None.

Ordering Clauses

    It is further ordered that, pursuant to the authority contained in 
sections 1, 2, 4(i), 4(j), 225, 303(r), and 403 of the Communications 
Act of 1934, as amended, 47 U.S.C 151, 154(i), 154(j), 225, 303(r), and 
403, the Notice of proposed rulemaking is adopted. Comments regarding 
the Notice of proposed rulemaking are requested as described.
    It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Second Further Notice of Proposed Rulemaking, including 
the Initial Regulatory Flexibility Analysis, to the Chief Counsel for 
Advocacy of the Small Business Administration.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 02-14678 Filed 6-10-02; 8:45 am]
BILLING CODE 6712-01-P