[Federal Register Volume 68, Number 26 (Friday, February 7, 2003)]
[Rules and Regulations]
[Pages 6352-6355]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-3069]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CC Docket No. 90-571; FCC 02-269]


Telecommunications Relay Services and the Americans With 
Disabilities Act of 1990

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: This document eliminates the requirement that common carriers 
provide coin sent-paid telecommunications relay service (TRS) from 
payphones on the grounds that it is currently technologically 
infeasible to provide coin sent-paid relay service through payphones. 
This document requires common carriers to provide local payphone calls 
made through TRS centers to TRS users on a cost-free basis. This 
document requires TRS providers to accept credit and calling cards and 
third party collect billing for toll calls from payphones. This 
document, also, encourages specific outreach and education programs to 
inform TRS users of their options when placing calls from payphones.

DATES: Effective March 10, 2003 except Sec.  64.604(c)(3) of the 
Commission's rules which contain information collection(s) requirements 
shall become effective following approval by the Office of Management 
and Budget. The Federal Communications Commission will publish a 
document in the Federal Register announcing the effective date.

FOR FURTHER INFORMATION CONTACT: Janet Sievert, of the Consumer & 
Governmental Affairs Bureau at (202) 418-1362 (voice), (202) 418-1398 
(TTY), or e-mail [email protected]. For additional information 
concerning the information collections contained in this Fifth Report 
and Order, contact Judy Boley at (202) 418-0214, or via the Internet at 
[email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Fifth 
Report and Order on coin sent-paid TRS, adopted September 17, 2002, and 
released October 25, 2002. 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 also may be purchased from the 
Commission's duplicating contractor, Qualex International, Portals II, 
445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 
(202) 863-2893, facsimile (202) 863-2898, or via e-mail 
[email protected]. 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 & 
Governmental Affairs Bureau at (202) 418-7426 (voice), (202) 418-7365 
(TTY), or e-mail [email protected]. This Fifth Report and Order can also 
be downloaded in Text and ASCII formats at: http://www.fcc.gov/cgb/dro.

[[Page 6353]]

Synopsis

    In this Fifth Report and Order, the Commission eliminates the 
requirement that common carriers provide coin sent-paid toll TRS calls 
from payphones. The Americans with Disabilities Act (ADA) requires the 
Commission to establish functional requirements, guidelines, and 
operational procedures for TRS, and to establish minimum standards for 
carriers' provisioning of TRS. To achieve functional equivalence to 
telephone services available to voice users, Congress directed, among 
other things, that the Commission prohibit TRS providers from ``failing 
to fulfill the obligations of common carriers by refusing calls'' 47 
U.S.C. 225(d)(1)(E). In the First Report and Order on TRS, 56 FR 36729, 
August 1, 1991, the Commission interpreted this mandate to require TRS 
providers to handle ``any type of call normally provided by common 
carriers,'' and placed the burden of proving the infeasibility of 
handling a particular type of call on the carriers, 6 FCC Rcd 4657 
(1991). The Commission interpreted ``any type of call'' to include coin 
sent-paid calls, which are calls made by depositing coins in a coin-
operated public payphone, 6 FCC Rcd at 4661 n.18. Subsequent concerns 
about the technical difficulties associated with handling coin sent-
paid calls through TRS centers, however, resulted in multiple 
suspensions of the mandate for TRS providers to handle these types of 
calls. The Commission issued the first of these suspensions in 1993; 
the current suspension remains in effect until publication of the final 
rules adopted in this Fifth Report and Order. Because no current 
technological solution to the coin sent-paid toll TRS issue appears 
feasible, this Fifth Report and Order eliminates the coin-sent paid 
toll TRS requirement affirms that credit and calling cards may be used 
to bill toll TRS calls made from a payphone, and encourages specific 
outreach and education programs to inform TRS users of their options 
when placing calls from payphones. Because we conclude that it is 
infeasible to provide coin sent-paid toll relay service through 
payphones at this time, and the coin sent-paid functionality is not 
necessary to achieve functional equivalence, carriers need not provide 
coin sent-paid toll TRS calls from payphones. As proposed in the Coin 
Sent-Paid Further Notice, this Fifth Report and Order mandates that 
local payphone calls made to and through TRS centers be provided by 
common carriers on a cost-free basis. This Fifth Report and Order also 
encourages specific outreach and education programs to inform TRS users 
of their options when placing TRS calls from payphones. Finally, the 
Fifth Report and Order mandates carriers via the Industry Team to 
submit a report on these outreach and education efforts to the 
Commission twelve months after publication of this Fifth Report and 
Order in the Federal Register. The report will facilitate the 
Commission's efforts to ensure that TRS consumers have the information 
they need to complete local as well as toll TRS calls from payphones.

Final Regulatory Flexibility Analysis

    As required by the Regulatory Flexibility Act of 1980, as amended 
(RFA), see 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 et. Seq., has been 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996, (SBREFA) Pub. L. 104-121, Title II, 110 Stat. 847 (1996), an 
Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the 
Telecommunications Relay Service and the Americans with Disabilities 
Act of 1990, Second Further Notice of Proposed Rulemaking. 
Telecommunications Relay Services and the Americans with Disabilities 
Act of 1990, Second Further Notice of Proposed Rulemaking, 16 FCC Rcd 
5803 (2001), 66 FR 18059, April 5, 2001, including comment on the IRFA. 
The Commission sought written public comment on the proposals in the 
Second Further Notice of Proposed Rulemaking, including comment on the 
IRFA. The comments received discussed only the general recommendations, 
not the IRFA. This Final Regulatory Flexibility Analysis (FRFA) 
conforms to the RFA. See 5 U.S.C. 604.

1. Need for, and Objective of This Fifth Report and Order

    This proceeding was generally initiated to address the requirement 
that telecommunications relay services (TRS) users have access to 
telephone services using payphones that are functionally equivalent to 
those available to persons without hearing or speech disabilities. Our 
specific concern was to address the inability to make coin sent-paid 
local and toll TRS calls from payphones. Because no technological 
solution to the coin sent-paid issue appeared imminent, the Commission 
issued the Second Further Notice of Proposed Rulemaking to further 
develop the record with the goal of determining the best plan to make 
the full range of payphone services available to TRS users. This Fifth 
Report and Order addresses the means by which persons with hearing and 
speech disabilities will be able to make calls from payphones and 
eliminates the requirement that carriers be capable of providing coin 
sent-paid toll TRS calls.

2. Summary of Significant Issues Raised by Public Comments in Response 
to the IRFA

    No comments were filed in response to the IRFA in this proceeding. 
No comments on the NPRM were received concerning the small business 
issues. The Commission has nonetheless considered any potential 
significant economic impact of the rules on small entities, and as 
discussed in Section 5, Infra, has concluded that the rules adopted 
impose no significant economic burden on small businesses.

3. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Will Apply

    The RFA directs agencies to provide a description of and, where 
feasible, and estimate of the number of small entities that may be 
affected by the rules adopted herein. 5 U.S.C. 604(2)(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) (incorporating 
by reference the definition of ``small business concern'' in 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, established one or more definitions of such term 
which are appropriated to the activities of the agency and published 
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 Small Business Administration (SBA). 15 
U.S.C. 632.
    Below, we further describe and estimate the number of small entity 
licensees and regulatees that may be affected by these rules. The most 
reliable source of information available at this time regarding the 
total numbers of certain common carrier and related providers 
nationwide, as well as the numbers of commercial wireless entities, is 
data the Commission publishes annually in its Telecommunications 
Provider Locator Report, regarding FCC Form 499-A.

[[Page 6354]]

FCC, Common Carrier Bureau, Industry Analysis Division, 
Telecommunications Provider Locator, Tables 1-2 (November 2001) 
(Provider Locator).
    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 10 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. See National Association for State 
Relay Administration (NASRA) Statistics. The FCC notes that these 
providers include several large interexchange carriers and incumbent 
local exchange carriers. North American Industry Classification System 
(NAICS) code 513310. 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.
    Payphone Providers. Neither the Commission nor SBA has developed a 
definition of small entities specifically applicable to pay telephone 
operators. The closest applicable definition under SBA rules is for 
telephone communications companies other than radiotelephone (wireless) 
companies. The most reliable source of information regarding the number 
of pay telephone operators nationwide of which we are aware appears to 
be the data that we collect annually in connection with the 
Telecommunications Provider Locator Report. According to our most 
recent data, 936 companies reported that they were engaged in the 
provision of pay telephone services. Provider Locator at Table 1. 
Although it seems certain that some of these carriers are not 
independently owned and operated, or have more than 1,500 employees, we 
are unable at this time to estimate with greater precision the number 
of pay telephone operators that would qualify as small business 
concerns under SBA's definition. Consequently, we estimate that there 
are fewer than 936 small entity pay telephone operators that may be 
affected by this Fifth Report and Order.
    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. 1992 Census. According to the SBA's 
definition, a small business telephone company other than a 
radiotelephone 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. 
NAICS code 513310.
    We have 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 (e.g., a 
telephone communications business having 1,500 or fewer employees), 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. Letter from Jere W. Glover, 
Chief Counsel for Advocacy, SBA, to William E. Kennard, Chairman, FCC 
(May 27, 1999). The Small Business Act contains a definition of ``small 
business concerns,'' which the RFA incorporates into its own definition 
of ``small business.'' See 15 U.S.C. 632(a) (Small Business Act); 5 
U.S.C. 601(3) (RFA). SBA regulations interpret ``small business 
concern'' to include the concept of dominance on a national basis. 13 
CFR 121.102(b). Since 1996, out of an abundance of caution, the 
Commission has included small incumbent LECs in its regulatory 
flexibility analyses. See, e.g., Implementation of the Local 
Competition Provisions of the Telecommunications Act of 1996, CC 
Docket, 96-98, First Report and Order, 11 FCC Rcd 15499, 16144-45 
(1996). We have therefore included small incumbent LECs in this RFA 
analysis, although we emphasize that this RFA action has no effect on 
FCC analyses and determination in other, non-RFA contexts. NAICS code 
513310.

4. Description of Project Reporting, Recordkeeping and Other Compliance 
Requirements

    The rules require carriers to submit a one-time report, twelve 
months after publication of this Fifth Report and Order in the Federal 
Register, detailing the steps they have taken to comply with the 
consumer requirements contained herein. Any additional costs incurred 
as a result of this proceeding should be nominal because the entities 
affected, including any small businesses, have been in compliance with 
the Alternative Plan Order, and because the reporting requirements is a 
one-time requirement.

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

    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 (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 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)(1) through (c)(4).
    For the following reasons, no steps need to be taken to minimize 
the economic impact on small businesses or to consider alternatives to 
minimize the economic impact on small businesses. First, the 
requirements in this Fifth Report and Order will have minimal impact on 
small entities because they require actions already being undertaken 
under the Alternative Plan. In this sense, the requirements merely 
formalize such actions. These actions are as follows: (1) Providing 
free local calling to a TRS provider from payphones; and (2) submitting 
a one-time report, to the Commission, 12 months after final rules are 
adopted in this proceeding regarding the steps that

[[Page 6355]]

have been taken to comply with the consumer education recommendations 
contained in the Report and Order.
    Second, although this Fifth Report and Order recommends an 
extensive consumer outreach program, the program is only recommended, 
not required. Therefore, we conclude that the action taken herein 
should not adversely affect any small entities. Furthermore, this 
action aids all affected entities, including small businesses, as 
states and carriers consider such costs when entering into their 
contracts and determining their general overhead expenses.

6. Report to Congress

    The Commission will send a copy of the Fifth Report and Order, 
including this FRFA, in a report to be sent to Congress pursuant to the 
Congressional Review Act. See 5 U.S.C. 801(a)(1)(A). In addition, the 
Commission will send a copy of the Fifth Report and Order including 
FRFA, to the Chief Counsel for Advocacy of the Small Business 
Administration. A copy of the Fifth Report and Order and FRFA (or 
summaries thereof) will also be published in the Federal Register. See 
5 U.S.C. 604(b).

Paperwork Reduction Act of 1995 Analysis

    This Fifth Report and Order contains new or modified information 
collection(s) subject to the Paperwork Reduction Act of 1995 (PRA) Pub. 
L. 104-13. It will be submitted to the Office of Management and Budget 
(OMB) for review under section 3507(d) of the PRA. OMB, the general 
public and other Federal agencies are invited to comment on the new or 
modified information collections(s) contained in this proceeding.

Ordering Clauses

    Accordingly, it is ordered that, pursuant to the authority 
contained in sections 4(i), 225 and 303 of the Communications Act of 
1934, as amended, 47 U.S.C. 4(i), 225 and 303, this Report and Order is 
adopted, and part 64 of the Commission's rules is amended and shall be 
effective March 10, 2003.
    It is further ordered that the information collection(s) contained 
in the Report and Order shall become effective following approval by 
the Office of Management and Budget in the Federal Register announcing 
the effective date for those sections.
    It is further ordered that the Commission's Consumer & Governmental 
Affairs Bureau, Reference Information Center, shall send a copy of this 
Fifth Report and Order, including the Final Regulatory Flexibility 
Analysis, to the Chief Counsel for Advocacy of the Small Business 
Administration.

List of Subjects in 47 CFR Part 64

    Reporting and recordkeeping requirements, Telecommunications.
Federal Communications Commission.

Marlene H. Dortch,
Secretary.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR Part 64 as follows:

PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS

    1. The authority citation for Part 64 is amended to read as 
follows:

    Authority:  47 U.S.C. 154, 254(k); secs. 403(b)(2)(B), (c), 
Public Law 104-104, 110 Stat. 56. Interpret or apply 47 U.S.C. 201, 
218, 225, 226, 228, and 254(k) unless otherwise noted.


    2. Section 64.604 is amended by revising paragraph (a)(3) to read 
as follows:


Sec.  64.604  Mandatory Minimum Standards.

* * * * *
    (a) * * *
    (3) Types of Calls--Consistent with the obligations of 
telecommunications carrier operators, CAs are prohibited from refusing 
single or sequential calls or limiting the length of calls utilizing 
relay services. Relay services shall be capable of handling any type of 
call normally provided by telecommunications carriers unless the 
Commission determines that it is not technically feasible to do so. 
Relay service providers have the burden of proving the infeasibility of 
handling any type of call. Relay service providers are permitted to 
decline to complete a call because credit authorization is denied.
* * * * *

[FR Doc. 03-3069 Filed 2-6-03; 8:45 am]
BILLING CODE 6712-01-P