[Federal Register Volume 69, Number 169 (Wednesday, September 1, 2004)]
[Proposed Rules]
[Pages 53382-53385]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-18551]



FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CG Docket No. 03-123; FCC 04-137]


Telecommunication Relay Services and Speech-to-Speech Services 
for Individuals With Hearing and Speech Disabilities

AGENCY: Federal Communications Commission.

ACTION: Proposed rules.

-----------------------------------------------------------------------

SUMMARY: This document seeks public comment on various matters 
concerning Internet Protocol (IP) Relay and Video Relay Service (VRS), 
including the appropriate cost recovery methodology for VRS, possible 
mechanisms to determine which IP Relay and VRS calls are intrastate and 
which are interstate for purposes of reimbursement, whether IP Rely and 
VRS should become mandatory TRS services, whether IP Relay and VRS 
should be required to be offered 7 days a week, 24 hours a day, and 
whether, when, and how we should apply the speed of answer rule to the 
provision of VRS. We also seek comment on redefining the composition, 
functions, and responsibilities of TRS Advisory Council, and on issues 
relating to the abuse of CAs by persons using TRS.

DATES: Comments are due on or before October 18, 2004 and reply 
comments are due on or before November 15, 2004.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW., 
Washington, DC 20054.

FOR FURTHER INFORMATION CONTACT: Cheryl King, of the Consumer & 
Government Affairs Bureau at (202) 418-2284 (voice), (202) 418-0416 
(TTY) or e-mail [email protected].

SUPPLEMENTARY INFORMATION: This Further Notice of Proposed Rulemaking 
(FNPRM), Telecommunications Relay Services and Speech-to-Speech 
Services for Individuals with Hearing and Speech Disabilities, CG 
Docket No. 03-123, FCC 04-134, does not contain proposed information 
collection requirement subject to the Paperwork Reduction Act (PRA) of 
1995, Public Law 104-13. This is a summary of the Commission's FNPRM, 
adopted June 10, 2004, and released June 30, 2004. Pursuant to 
Sec. Sec.  1.415 and 1.419 of the Commission's rules, 47 CFR 1.415 and 
1.419, interested parties may file comments on or before 45 days after 
Federal Register publication, and reply comments on or before 75 days 
after Federal Register publication. 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, May 1, 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 
electronic media, 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, Natek, Inc. will receive hand-delivered or messenger-
delivered paper filings or electronic media 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 
and electronic media sent by 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-B204, Washington, DC 20554. Parties who choose to file by paper 
should also

[[Page 53383]]

submit their comments on diskette. These diskettes should be submitted 
to: Dana Jackson, Federal Communications Commission, 445 12th Street, 
SW., Room 6-C410, 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, CG Docket No. 03-123, 
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, Best Copy and Printing 
(BCPI), Inc., 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 FNPRM may be purchased from the Commission's 
duplication contractor, BCPI, Inc., Portals II, 445 12th Street, SW., 
Room CY-B402, Washington, DC 20554. Customer may contact BCPI, Inc. at 
their Web site: www.bcpiweb.com. To request materials in accessible 
formats for people with disabilities (Braille, large print, electronic 
files, audio format), send an e-mail to [email protected] or call the 
Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 
418-0432 (TTY). This FNPRM can also be downloaded in Word and Portable 
Document Format (PDF) at: http://www.fcc.gov/cgb/dro.

Initial Paperwork Reduction Act of 1995 Analysis

    This FNPRM does not contain proposed information collection 
requirements subject to the Paperwork Reduction Act of 1995, Public Law 
104-13. In addition, therefore, it does not contain any proposed 
information collection burden ``for small business concerns with fewer 
than 25 employees,'' pursuant to the Small Business Paperwork Relief 
Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4) .

Synopsis

    In this FNPRM, the Commission addresses a number of outstanding 
issues with respect to VRS IP Relay including: (1) The appropriate cost 
recovery methodology for VRS; (2) what type of mechanism the Commission 
might adopt to determine which IP Relay and VRS calls are interstate 
and which are intrastate; (3) whether IP Relay and/or VRS should become 
mandatory forms of TRS; (4) whether IP Relay and/or VRS should be 
required to be offered 7 days a week, 24 hours a day; and (5) whether 
the Commission should adopt a speed of answer requirement for VRS, and 
if so, what should it be and how should it be phased-in. The Commission 
also raises the issues of whether there should be separate compensation 
rates for traditional TRS and IP Relay, and whether the compensation 
payments for VRS should be established for a two-year period instead of 
a one-year period. Further, the Commission seeks additional comment on 
issues concerning the certification and oversight of OP Relay and VRS 
providers. The Commission also seeks comment on the TRS Advisory 
Council, including its composition and the role it plays in advising 
the TRS Fund Administrator on TRS issues. Finally, the Commission 
raises issues with regard to recurring problems with the abuse of CAs 
by callers who seek to either harass the CA, or harass a called party, 
behind the apparent anonymity of IP Relay call. As in the past, the 
Commission goal is to continue to ensure that functionally equivalent 
TRS services are available to consumers, and to ensure the ongoing 
integrity of the Interstate TRS Fund.

Initial Regulatory Flexibility Analysis (CG Docket No. 03-123)

    As required by the Regulatory Flexibility Act (RFA), (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 104-121, Title II, 110 Statute 857 (1996)), the Commission has 
prepared this present Initial Regulatory Flexibility Analysis (IFRA) of 
the possible significant economic impact on small entities by the 
policies and rules proposed in this FNPRM. See 5 U.S.C. 603. We also 
expect that we could certify this action under 5 U.S.C. 605, because it 
appears that only one TRS provider is likely a small entity (because it 
is a non-profit organization). Therefore, there are not a substantial 
number of small entities that may be affected by our action. Written 
public comments are requested on this IFRA. Comments must be identified 
as responses to the IFRA and must be filed by the deadlines for 
comments on the FNPRM. The Commission will send a copy of the FNPRM, 
including this IFRA, to the Chief Counsel for Advocacy of the Small 
Business Administration. See 5 U.S.C. 603 (a). In addition, the FNPRM 
and IFRA (or summaries thereof) will be published in the Federal 
Register.

Need for, and Objectives of, the FNPRM

    The Commission is issuing this FNPRM to seek comment on cost 
recovery methodology for VRS, what type of mechanism the Commission 
might adopt to determine which IP Relay and VRS calls are interstate 
and which are intrastate, whether IP Relay and VRS should become 
mandatory forms of TRS and offered 24/7; the appropriate composition 
and role of the TRS Advisory Council; certification and oversight of IP 
Relay and VRS providers; and the issue of abuse and harassment of TRS 
CAs. In doing so, the Commission hopes to enhance the quality of TRS, 
and broaden the potential universe of TRS users in a manner that will 
be consistent with Congress' mandate under 47 U.S.C. 225(d)(2) that TRS 
regulations encourage the use of existing technology and not discourage 
or impair the development of improved technology.
    Specifically, the FNPRM seeks comment on several IP Relay related 
issues, including: (1) What type of mechanism the Commission may adopt 
to determine whether IP Relay calls are intrastate or interstate (so 
that States would be required to pay for intrastate IP Relay calls and 
the Interstate TRS Fund would continue to reimburse interstate IP Relay 
calls); (2) whether IP Relay should be a mandatory service and be 
offered 24/7; and (3) whether there should be separate compensation 
rates for traditional TRS and IP Relay. The Commission also seeks 
comment on several VRS related issues including: (1) The appropriate 
cost recovery methodology for VRS; (2) what type of mechanism the 
Commission might adopt to determine which VRS calls are interstate and 
which are intrastate, (3) whether VRS should be a mandatory form of TRS 
and be offered 24/7; (4) whether a speed of answer rule specific to VRS 
should be adopted, and (5) whether the data reporting period for VRS 
should be different from the present one-year period. Additionally, the 
FNPRM seeks comment on certification and oversight of IP Relay and VRS 
providers. The Commission also seeks comment on whether the

[[Page 53384]]

composition of the TRS Advisory Council should be changed or expanded 
to include parties that represent the Interstate TRS Fund or any 
relevant interests not currently represented by the Council. Finally, 
the FNPRM seeks comment on whether the Commission should adopt TRS 
rules to curb abusive calls directed at the CA or the called party.

Legal Basis

    The authority for actions proposed in this FNPRM may be found in 
sections 1, 4 (i) and (j), 201-205, 218 and 225 of the Communications 
Act of 1934, as amended, 47 U.S.C. 151, 154 (i), 154 (j), 201-205, 218 
and 225.

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 rules adopted herein. 5 U.S.C. 604(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) (incorporating by 
reference the definition of ``small business concern'' in 15 U.S.C. 
632). Pursuant to the 5 U.S.C. 601(3), the statutory definition of 
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.'' 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. A small organization is generally ``any not-for-
profit enterprise which is independently owned and operated and is not 
dominant in its field. 5 U.S.C. 601(4).
    Below, we further describe and estimate the number of small entity 
licensees and regulates that, in theory, may be affected by these 
rules. For some categories, the most reliable source of information 
available at this time is data the Commission publishes in its Trends 
in Telephone Service Report. FCC, Wireline Competition Bureau, Industry 
Analysis and Technology Division, ``Trends in Telephone Service'' at 
Table 5.3, Page 5-5 (August 2003) (Trends in Telephone Service). This 
source uses data that are current as of December 31, 2001.
    Incumbent Local Exchange Carriers: Neither the Commission nor the 
SBA has developed a small business size standard specifically directed 
toward providers of incumbent local exchange service. The closest 
applicable size standard under the SBA rules is for Wired 
Telecommunications Carriers. 13 CFR 121.201, NAICS Code 517110. This 
provides that such a carrier is small entity if it employs no more than 
1,500 employees. Commission data from 2001 indicate that there are 
1,337 incumbent local exchange carriers, total, with approximately 
1,032 having 1,500 or fewer employees. Trends in Telephone Service at 
Table 5.3. The small carrier number is an estimate and might include 
some carriers that are not independently owned and operated; we are 
therefore unable at this time to estimate with greater precision the 
number of these carriers that would qualify as small businesses under 
SBA's size standard. Consequently, we estimate that there are no more 
than 1,032 ILECS that are small businesses possibly affected by our 
action.
    Small Incumbent Local Exchange Carriers: We have included small 
incumbent local exchange carriers 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 
local exchange carriers 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 concern,'' 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). We have therefore included small 
incumbent local exchange carriers in this RFA analysis, although we 
emphasize that this RFA action has no effect on Commission analyses and 
determinations in other, non-RFA contexts.
    Interexchange Carriers: Neither the Commission nor the SBA has 
developed a small business size standard specifically directed toward 
providers of interexchange service. The closest applicable size 
standard under the SBA rules is for Wired Telecommunications Carriers. 
13 CFR 121.201, NAICS Code 517110. This provides that such a carrier is 
small entity if it employs no more than 1,500 employees. Commission 
data from 2001 indicate that there are 261 interexchange carriers, 
total, with approximately 223 having 1,500 or fewer employees. Trends 
in Telephone Service at Table 5.3. The small carrier number is an 
estimate and might include some carriers that are not independently 
owned and operated; we are therefore unable at this time to estimate 
with greater precision the number of these carriers that would qualify 
as small businesses under SBA's size standard. Consequently, we 
estimate that there are no more that 223 interexchange carriers that 
are small businesses possibly affected by our action.
    TRS Providers: Neither the Commission nor the SBA has developed a 
definition of ``small entity'' specifically directed toward providers 
of telecommunications relay services (TRS). Again, the closest 
applicable size standard under the SBA rules is for Wired 
Telecommunications Carriers. 13 CFR 121.201, NAICS Code 517110. 
Currently, there are 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. 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. The 
FCC estimates that there is at least one TRS provider that is a small 
entity that may be affected by our action.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    This FNPRM seeks comment on the adoption of a cost recovery 
methodology for VRS, and the possible means for determining which IP 
Relay and VRS calls are interstate and which are intrastate. The 
adoption of a cost

[[Page 53385]]

recovery methodology for VRS other than the current per minute 
compensation methodology may require VRS providers to maintain 
different records, although there would be no new reporting 
requirements. The adoption of a mechanism to determine which IP Relay 
and VRS calls are interstate and which are intrastate would require 
providers to keep records of interstate and intrastate calls; it may 
also change the type of reports and recordkeeping that IP Relay and VRS 
providers maintain, depending upon how IP Relay and VRS providers are 
currently maintaining their records. Presently, IP Relay and VRS 
providers report their costs for all calls and their record of minutes 
provided to the Interstate TRS Fund Administrator. If a mechanism were 
adopted to determine which IP Relay and VRS calls were interstate and 
which were intrastate, IP Relay and VRS providers would need a database 
to keep a record of calls and minutes of use that differentiate between 
interstate and intrastate calls.

Steps Taken To Minimize the 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: (1) The establishment of 
differing compliance or reporting requirements or timetables that take 
(among others) 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 such small 
entities. 5 U.S.C. 603.
    The proposals in the FNPRM, and the comments the Commission seeks 
regarding them, results from the Commission's role with respect to the 
implementation and operation of nationwide TRS for persons with hearing 
and speech disabilities. See, e.g., 47 U.S.C. 225. The guiding 
principle shaping these proposals is Congress's requirement that TRS 
keep pace with advancing technology and that the Commission's rules 
should not discourage the implementation of technological advances or 
improvements, as well as the mandate that TRS services be functionally 
equivalent to voice telephone services. The majority of TRS service is 
provided by large interexchange carriers and incumbent local exchange 
carriers. Because we believe that the number of small entities would be 
impacted by these proposals, and that the impact, if any, would be 
minor, it is premature to propose specific alternative that would 
minimize significant economic impact on small businesses. Further, 
since we believe the essence of the rules we may adopt pursuant to this 
proceeding will confer the benefits of a more streamlined approach to 
administering TRS on all entities, including small entities, we are 
further persuaded that it would be premature to consider alternative to 
the conferral of such benefits. However, we invite comment on specific 
alternative that may minimize the economic impact of the proposed rules 
on small businesses.

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

    None.

Ordering Clauses

    Pursuant to the authority contained in sections 1, 2, 4(i), 4(j), 
201-205, 218, and 225 of the Communications Act of 1934, as amended, 47 
U.S.C 151, 152, 154(i), 154(j), 201-205, 218, and 225, this further 
notice of proposed rulemaking is adopted.
    The Commission's Consumer & Governmental Affairs 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 the Small Business 
Administration.

List of Subjects in 47 CFR Part 64

    Individuals with disabilities, Telecommunications.

Federal Communications Commission.
William F. Caton,
Deputy Secretary.
[FR Doc. 04-18551 Filed 8-31-04; 8:45 am]
BILLING CODE 6712-01-P