[Federal Register Volume 70, Number 37 (Friday, February 25, 2005)]
[Rules and Regulations]
[Pages 9239-9242]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-3703]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CC Docket 98-67 and CG Docket No. 03-123; DA 05-140]


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

AGENCY: Federal Communications Commission.

ACTION: Interpretation.

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[[Page 9240]]

SUMMARY: In this document, the Commission addresses a Petition for 
Declaratory Ruling filed by Petitioner Hands On Video Relay Services, 
Inc. (Hands On) on December 29, 2004. Hands On requests a Declaratory 
Ruling that is ``Brown Bag Rewards Program,'' offered in connection 
with its provision of video relay service (VRS), a form of 
telecommunications relay service (TRS), does not violate any section of 
the Communications Act or any Commission rule. The Commission concludes 
that any program that involves the use of any type of financial 
incentives to encourage or reward a consumer for placing a TRS call, 
including the ``Brown Bag Rewards Program,'' is inconsistent with 
section 225 of the Communications Act of 1934 and the TRS regulations.

DATES: The Declaratory Ruling is effective January 26, 2005. Effective 
March 1, 2005, TRS providers offering such incentives or rewards for 
the use of any of the forms of TRS will be ineligible for compensation 
from the Interstate TRS Fund.

FOR FURTHER INFORMATION CONTACT: Thomas Chandler, Consumer & 
Governmental Affairs Bureau, (202) 418-1475 (voice), (202) 418-0597 
(TTY), or e-mail [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
document DA 05-140, adopted January 24, 2005, released January 26, 
2005, in CC Docket No. 98-67 and CG Docket No. 03-123. This document 
does not contain new or modified information collections requirements 
subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-
13. In addition, it does not contain any new or modified ``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). 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. They may also be purchased from the 
Commission's duplicating contractor, Best Copy and Printing, Inc. 
(BCPI), Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 
20554. Customers may contact BCPI, Inc. at their Web site: http://www.bcpiweb.com or call 1-800-378-3160. 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) or (202) 418-0432 (TTY). This document can also be downloaded 
in Word and Portable Document Format (PDF) at http://www.fcc.gov/cgb.dro.

Synopsis

    Hands On requests a Declaratory Ruling that its ``Brown Bag Rewards 
Program,'' offered in connection with its provision of VRS, a form of 
TRS, does not violate any section of the Communications Act or any 
Commission rule. Hands On explains its ``Brown Bag Rewards Program'' is 
a customer loyalty program that offers Hands On's [VRS] customers the 
opportunity to have their DSL or cable modem bill reimbursed by Hands 
On. Under the program, [c]ustomers receive five points for every minute 
of video relay calls placed through Hands On, and the customers may 
redeem points by sending in their DSL or cable bills to Hands On. Hands 
On then reimburses those customers five cents per point up to the 
amount of the DSL or cable modem bill; no other cash payments are made 
and the ``program is strictly limited to reimbursement for access costs 
to high speed Internet service. Hands On asserts that its program is 
intended to eliminate an existing barrier that is discriminatory to 
deaf, hard of hearing and speech disabled persons who need higher 
bandwidth to communicate in their natural visual language, American 
Sign Language. Finally, Hands On notes that [n]o one is forced to use 
the ``Brown Bag Program,'' there is no minimum usage requirement, and 
the points accumulate until they are used. Therefore, Hands On 
believes, the program is not an incentive to use VRS merely to obtain a 
reward. Hands on also states that the program does not encourage 
fraudulent VRS calls, and that it is unaware of any VRS calls that were 
made solely to generate Brown Bag points.
    Hands On's central argument is that this program is permissible 
because there is nothing in section 225, the Commission's TRS rules, or 
any other provisions of the Communications Act that prohibit such a 
program. Hands On further asserts that it is in the public interest to 
offer this program because persons with hearing or speech disabilities 
using VRS bear DSL or cable modem subscription costs that are greater 
than the costs for conventional telephone service used by hearing 
persons. In addition, Hands On asserts that its program is not the same 
as supplying equipment to customers conditioned on the use of a minimum 
number of TRS minutes, which it suggests would be improper. Finally, 
Hands On notes that there have apparently been no consumer complaints 
concerning the ``Brown Bag program,'' and that the Commission should 
not be protecting other providers from competition.
    We conclude that the ``Brown Bag Rewards Program'' and any program 
that offers any kind of financial incentive or reward for a consumer to 
place a TRS call, including minimum usage arrangements or programs 
(whether or not tied to the acceptance of equipment), violates section 
225 of the Communications Act. TRS, mandated by Title IV of the 
Americans with Disabilities Act (ADA) of 1990, enables an individual 
with a hearing or speech disability to communicate by telephone with a 
person with such a disability. This is accomplished through TRS 
facilities that are staffed by specially trained communications 
assistants (CAs) who relay conversations between persons using various 
types of assistive communication devices and persons using a standard 
telephone.
    First, we do not believe that Hands On accurately describes the 
nature and effect of its rewards program in view of the intent of 
Congress in enacting the TRS program and the TRS cost recovery regime. 
Section 225 requires common carriers offering telephone voice 
transmission services to also provide TRS throughout the area in which 
they offer telephone transmission service to ensure that persons with 
hearing and speech disabilities have access to the telephone system. As 
we have explained, the provision of TRS is an accommodation for persons 
with certain disabilities--Congress, in enacting Title IV of the ADA, 
place[d] the obligation on carriers providing voice telephone services 
to also offer TRS to, in effect, remedy the discriminatory effects of a 
telephone system inaccessible to persons with disabilities. In other 
words, the provision of TRS is an accommodation that is required of 
telecommunications providers, just as other accommodations for persons 
with disabilities are required by the ADA of businesses and local and 
state governments. To this end, section 225 is intended to ensure that 
individuals with hearing or speech disabilities have access to 
telephone services that are ``functionally equivalent'' to those 
available to individuals without such disabilities. Because the 
provision of TRS is an accommodation for persons with certain 
disabilities, the cost of the TRS service is not paid by the TRS user. 
The statute and regulations provide that eligible TRS providers 
offering interstate

[[Page 9241]]

services and certain intrastate services will be compensated for their 
just and ``reasonable'' costs of doing so from the Interstate TRS Fund, 
currently administered by NECA.
    Congress chose to adopt a mechanism for compensation of TRS 
providers that allows them to be paid by all subscribers for interstate 
services through contributions paid into the Fund. Under this 
mechanism, TRS providers that provide TRS services that are eligible 
for compensation from the Interstate TRS Fund submit to NECA on a 
monthly basis the number of minutes of service they provided of the 
various forms of TRS, and NECA compensates them based on per-minute 
compensation rates calculated on an annual basis. See, e.g., 
Telecommunications Relay Services and Speech-to-Speech Services for 
Individuals with Hearing and Speech Disabilities, Order, CC Docket No. 
98-67, DA 04-1999, 19 FCC Rcd 12224 (June 30, 2004) (order setting 
initial 2004-2005 TRS compensation rates and describing process). In 
addition, VRS consumers presently do not pay any long distance charges 
in connection with a VRS call. See Telecommunications Relay Services 
and Speech-to-Speech Services for Individuals with Hearing and Speech 
Disabilities, Report and Order, Order on Reconsideration, and Further 
Notice of Proposed Rulemaking, CC Docket Nos. 90-571 & 98-67, CG Docket 
No. 03-123, FCC 04-137, 69 FR 53346, September 1, 2004; 19 FCC Rcd 
124755 at paragraphs 127-129 & n.364 (June 30, 2004) (2004 TRS Report & 
Order). VRS providers cannot bill the user for any long distance 
charges if they do not offer carrier of choice; conversely, waiver of 
the carrier of choice requirement is conditioned on providers offering 
free long distance calls to consumers. Therefore, there is no cost of 
any kind to the consumer for placing a VRS call.
    In this light, we do not believe that it is accurate to compare, as 
Hands On does, its ``Brown Bag Rewards Program,'' or any other TRS 
incentive or rewards program, to reward programs offered by airlines or 
telephone long distance companies. Nor do we believe that it is correct 
to say that there is no incentive to make VRS calls merely to acquire a 
reward. With airline tickets and long distance calls, for example, the 
consumer who buys the ticket or makes the call has to pay for the 
ticket or the call; therefore, any financial ``reward'' for doing so is 
really a discount or a refund on monies the consumer is obligated to 
pay because the consumer elected to use that particular service. By 
contrast, with TRS, the consumer does not pay for the cost of the TRS 
call and has no involvement with the provider billing and receiving 
payment from NECA; the TRS provider bills NECA directly for the call 
based on the length of the call. Therefore, the TRS consumer does not 
have to pay anything to obtain a financial reward; the consumer merely 
needs to use a service (i.e., place a call) that someone else will pay 
for, and the more calls that are made, the greater the financial reward 
(again, at no cost to the consumer). In this circumstance, any 
financial reward that inures to the consumer because the consumer 
placed a TRS call is in fact an incentive for the consumer to place TRS 
calls, including calls the consumer might not otherwise make but for 
the opportunity to earn a reward. As a practical matter, the TRS 
provider is enticing the consumer to make TRS calls that will 
artificially raise costs to the Interstate TRS Fund, and the provider 
is doing so by in effect ``paying'' the consumer to make more calls. 
See generally 2004 TRS Report & Order at paragraph 97 (noting our duty 
to ``safeguard the integrity of the fund'').
    The fact that any TRS reward or incentive program has the effect of 
enticing TRS consumers to make TRS calls that they would not otherwise 
make, which allows the provider to receive additional payments from the 
Fund, and results in ``payments'' to consumers for using the service, 
puts such programs in violation of section 225. More particularly, such 
marketing practices `` e.g., usage-based reward or incentive programs, 
or programs that tie the receipt of equipment to minimum usage 
requirements ``violate the functional equivalency requirement. See 47 
U.S.C. 225 (a)(3) & (c). As we have noted, the purpose of TRS is to 
allow persons with certain disabilities to use the telephone system. 
Therefore, the obligation placed on TRS providers is to be available to 
handle calls consumers choose to make, when they choose to make them. 
As we have frequently noted, for example, when a TRS user places an 
outbound call and reaches a CA, that is the equivalent to receiving a 
``dial tone.'' See, e.g., 2004 TRS Report & Order at paragraph 3 n.18. 
It follows that TRS providers cannot be encouraging TRS calls with 
financial incentives or rewards. Because the Fund, and not the 
consumer, pays for the cost of the TRS call, such financial incentives 
are tantamount to enticing consumers to make calls that they might not 
ordinarily make. In addition, in these circumstances TRS is no longer 
simply an accommodation for persons with certain disabilities, but an 
opportunity for their financial gain. In other words, offering 
financial incentives or rewards to TRS users also violates the 
functional equivalency mandate because it gives TRS consumers more than 
free access to TRS, and therefore to the telephone system; it gives 
them an additional financial reward for using a service that is 
provided as an accommodation under the ADA.
    Hands On's assertions that no one is forced to use its program, 
that it is in the public interest to offer reward programs because of 
the cost of high speed Internet service, and that there have been no 
complaints about its program are beside the point. The mere fact that a 
financial incentive or reward program is offered has the effect of 
enticing consumers to make calls they would not otherwise make, 
regardless of whether participation in the program is mandatory. 
Further, as we frequently note, Title IV of the ADA requires that 
certain entities offer TRS as an accommodation for persons with certain 
disabilities; it does not address associated issues such as the cost of 
bringing high speed Internet service to the home (or elsewhere) or the 
cost of the equipment necessary to make the various types of TRS calls. 
Finally, it is not surprising that no consumer may have complained 
about Hands On's program, since it obviously would not be in any 
consumer's financial interest to do so.
    In sum, in view of the intent and nature of section 225, and the 
obligation placed on entities providing voice telephone services to 
also offer TRS as an accommodation to persons who, because of a 
disability, cannot meaningfully use the voice telephone system, we 
interpret section 225 and the implementing regulations to prohibit a 
TRS provider's use of any kind of financial incentives or rewards, 
including arrangements tying the receipt of equipment to minimum TRS 
usage, directed at a consumer's use of their TRS service. As a result, 
we will instruct the Interstate TRS Fund administrator (NECA) that, 
effective March 1, 2005, any TRS provider offering such incentives for 
the use of any of the forms of TRS will be ineligible for compensation 
from the Interstate TRS Fund. Nothing in this Declaratory Ruling is 
intended to affect the obligation of TRS providers to engage in 
outreach efforts, consistent with this Declaratory Ruling, to ensure 
that the public is aware of the availability and use of all forms of 
TRS. See, e.g., 47 CFR 64.604(c)(3).

[[Page 9242]]

Report to Congress

    The Commission will not send a copy of the Declaratory Ruling 
pursuant to the Congressional Review Act, see 5 U.S.C. 801 (a)(1)(A) 
because the adopted rules are rules of particular applicability.

Ordering Clauses

    Accordingly, pursuant to the authority contained in section 225 of 
the Communications Act of 1934, as amended, 47 U.S.C. 225, and 
Sec. Sec.  0.141, 0.361, and 1.3 of the Commission's rules, 47 CFR 
0.1.41, 0.361, 1.3 this Declaratory Ruling is adopted.
    Hands On's Petition for Declaratory Ruling is denied.
    TRS provider offering any kind of financial incentives or rewards, 
including arrangements tying the receipt of equipment to minimum TRS 
usage, shall, effective March 1, 2005, be ineligible for compensation 
from the Interstate TRS Fund.

Federal Communications Commission.
William F. Caton,
Deputy Secretary.
[FR Doc. 05-3703 Filed 2-24-05; 8:45 am]
BILLING CODE 6712-01-P