[Federal Register Volume 70, Number 249 (Thursday, December 29, 2005)]
[Rules and Regulations]
[Pages 77052-77054]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-24620]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CG Docket No. 03-123; DA 05-3138]


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

AGENCY: Federal Communications Commission.

ACTION: Final rule; approval of allocation factor.

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SUMMARY: In this document, the Commission adopts the Interstate 
Telecommunications Relay Services (TRS) Fund administrator's (the 
National Exchange Carrier Association, Inc. (NECA)), proposed 
interstate allocation factor of 11 percent for determining the number 
of inbound two-line captioned telephone minutes compensable from the 
Interstate TRS Fund. Also, in this document, the Commission concludes 
that NECA correctly calculated the factor as directed by the Two-Line 
Captioned Telephone Order. Therefore, the Commission directs NECA to 
compensate providers of inbound two-line captioned telephone calls from 
the Interstate TRS Fund pursuant to the 11 percent interstate 
allocation factor retroactively to the effective date of the Two-Line 
Captioned Telephone Order.

DATES: Effective December 2, 2005.

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

SUPPLEMENTARY INFORMATION: On July 19, 2005, the Commission released 
Telecommunications Relay Services and Speech-to-Speech Services for 
Individuals with Hearing and Speech Disabilities, Order (Two-Line 
Captioned Telephone Order), CG Docket No. 03-123, FCC 05-141, which was 
published in the Federal Register on September 14, 2005 (70 FR 54294), 
concluding that two-line captioned telephone service is a type of TRS 
eligible for compensation from the Interstate TRS Fund, effective 
October 14, 2005. On August 2, 2005, NECA submitted a proposed 
interstate allocation factor of 11 percent for inbound two-line 
captioned telephone minutes. This is a summary of the Commission's 
Order, DA 05-3138, adopted December 1, 2005, released December 2, 2005 
in CG Docket 03-123, adopting NECA's proposed interstate allocation 
factor of 11 percent and directing NECA to compensate providers of 
inbound two-line captioned telephone calls from the Interstate TRS Fund 
pursuant to the 11 percent interstate allocation factor retroactively 
for the period October 14, 2005 through June 30, 2006. The Order 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). The full text of 
the Order and 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 Order and 
copies of subsequently filed documents in this matter may also be 
purchased from the Commission's duplicating contractor at Portals II, 
445 12th Street, SW., Room CY-B402, Washington, DC 20554. Customers may 
contact the Commission duplicating contractor 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), (202) 418-0432 (TTY). The Order can also be downloaded in Word 
or Portable Document Format (PDF) at: http://www.fcc.gov/cgb/dro.

Synopsis

    In the Two-line Captioned Telephone Order, the Commission concluded 
that two-line captioned telephone service is a form of TRS eligible for 
compensation from the Fund. Two-line Captioned Telephone Order, 20 FCC 
Rcd at 13199, paragraph 10. See generally Telecommunications Relay 
Services, and Speech-to-Speech Services for Individuals with Hearing 
and Speech Disabilities, CC Docket No. 98-67, Declaratory Ruling, 18 
FCC Rcd 16121

[[Page 77053]]

(August 1, 2003), published at 68 FR 55898, September 29, 2003 
(recognizing captioned telephone service as a form of TRS). The 
Commission also adopted NECA's proposed methodology for determining the 
number of inbound two-line captioned telephone call minutes compensable 
from the Fund. The Commission noted that for such calls there is 
currently no way for a provider to determine if a particular call is 
interstate or intrastate. As a result, the Commission instructed NECA 
to calculate an allocation factor for such calls that is based on the 
relationship between interstate and international traditional TRS calls 
and all intrastate, interstate, and international traditional TRS 
calls.
    On August 2, 2005, NECA proposed an interstate allocation factor of 
11 percent for inbound two-line captioned telephone minutes. NECA 
Letter at 2. The remaining 89 percent of such calls would be allocated 
to the intrastate jurisdiction. As NECA explains, it calculated the 
factor based on the providers' projections of traditional TRS minutes 
for 2005 and 2006. Interstate and international minutes for both years 
totaled 24,459,907; local, intrastate, interstate and international 
minutes totaled 213,957,866. Dividing interstate and international 
minutes by total minutes results in a proposed interstate factor of 11 
percent for interstate inbound two-line captioned telephone minutes. On 
August 24, 2005, the Commission released a Public Notice requesting 
comment on NECA's proposed allocation factor. National Exchange Carrier 
Association (NECA) Submits Proposed Allocation Factor for Inbound Two-
Line Captioned Telephone Calls for Compensation from the Interstate 
Telecommunications Relay Services (TRS) Fund for July 2005 though June 
2006, CG Docket No. 03-123, Public Notice, DA 05-2346 (August 24, 2005) 
(NECA Proposed Factor PN); published at 70 FR 53191, September 7, 2005.
    Three comments were filed. Comments were filed by Hamilton Relay, 
Inc. (Hamilton) (September 22, 2005); Ultratec, Inc. (Ultratec) 
(September 13, 2005), and New Jersey Protection and Advocacy, Inc. 
(NJP&A) (September 22, 2005). Hamilton and Ultratec support NECA's 
proposed 11 percent allocation factor as consistent with the 
Commission's methodology for allocating 800 and 900 number call 
minutes. Hamilton Comments at 2-3; Ultratec Comments at 2; see also 
Two-line Captioned Telephone Order, 20 FCC Rcd at 13200, paragraph 12 
(discussing allocation methodology used for 800 and 900 number call 
minutes). Ultratec also seeks clarification of the effective date of 
the allocation factor. Ultratec Comments at 2-3. NJP&A, however, 
recommends that the Commission set allocation rates on a statewide 
basis because in some states a significantly greater percentage of TRS 
calls are interstate. NJP&A Comments at 2. NJP&A asserts that because 
New Jersey is located between the two large urban centers of New York 
and Philadelphia, New Jersey residents are more likely to make 
interstate calls, and therefore the proposed 11 percent factor would 
shortchange New Jersey and similar states.

Discussion

    The Commission adopts NECA's proposed allocation factor of 11 
percent for determining the number of inbound two-line captioned 
telephone minutes compensable from the Interstate TRS Fund. The 
remaining 89 percent of such minutes shall be compensated by the 
intrastate jurisdictions. Upon reviewing NECA's filing, the Commission 
concludes that it correctly calculated the factor as directed by the 
Two-line Captioned Telephone Order.
    NJP&A's assertion--that allocation rates be set on a statewide, 
rather than nationwide, basis--is not directed to NECA's proposed 
allocation factor, but rather to the allocation methodology itself. 
Therefore, this is not the appropriate proceeding in which to 
reconsider the allocation methodology, which the Commission adopted in 
the Two-line Captioned Telephone Order. Two-line Captioned Telephone 
Order, 20 FCC Rcd at 13200, paragraph 12. A party dissatisfied with the 
allocation methodology could have challenged that order by filing a 
petition for reconsideration or a petition for review. Nonetheless, the 
Commission notes that the allocation factor adopted in this Order will 
benefit the states because presently the states are compensating 
providers of inbound two-line captioned telephone calls for all such 
calls. See The National Exchange Carrier Association, Inc., CC Docket 
No. 98-67, CG Docket No. 03-123, Petition for Declaratory Ruling at 2 
(filed December 10, 2004); Two-line Captioned Telephone Order, 20 FCC 
Rcd at 13195, paragraph 1, note 3. Further, the Commission notes that 
this methodology is the same methodology used for the jurisdictional 
allocation 800 and 900 number call minutes. Two-line Captioned 
Telephone Order, 20 FCC Rcd at 13198-13199, paragraph 9.
    The Two-line Captioned Telephone Order became effective October 14, 
2005. Two-line Captioned Telephone Order, 20 FCC Rcd at 13198-13199, 
paragraph 23 (order is effective 30 days after publication in the 
Federal Register, which was September 14. 2005). Accordingly, the 
allocation factor adopted in this Order shall apply to the provision of 
inbound two-line captioned telephone calls for the period of October 
14, 2005 through June 30, 2006. Under the Commission's rules, the TRS 
Fund year runs from July 1 to June 30. 47 CFR 64.604(c)(5)(iii)(H). A 
new allocation factor will be adopted each year at the same time the 
TRS compensation rates are adopted. The Commission recognizes that the 
NECA Proposed Factor PN sought comment on the proposed allocation 
factor for the annual period of July 1, 2005 through June 30, 2006. 
NECA Proposed Factor PN at 1. Because, however, the effective date of 
the Two-line Captioned Telephone Order's conclusion that two-line 
captioned telephone service is a form of TRS compensation from the 
Interstate TRS Fund was October 14, 1005, no two-line captioned 
telephone calls could be compensated from the Fund prior to that date. 
Therefore, the allocation factor for inbound two-line captioned 
telephone calls cannot be applicable prior to that date.
    The Commission therefore directs NECA to compensate providers of 
inbound two-line captioned telephone calls from the Interstate TRS Fund 
pursuant to the 11 percent interstate allocation factor retroactively 
to October 14, 2005.

Final Regulatory Flexibility Certification

    The Regulatory Flexibility Act of 1980, as amended (RFA), requires 
that an initial regulatory flexibility analysis be prepared for notice-
and-comment rule making proceedings, unless the agency certifies that 
``the rule will not, if promulgated, have a significant economic impact 
on a substantial number of small entities.'' 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 Number 104-121, 
Title II, 110 Statute 857 (1996). 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

[[Page 77054]]

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. Nationwide, there are approximately 1.6 million small 
organizations. Independent Sector, The New Nonprofit Almanac & Desk 
Reference (2002).
    The Order adopts the interstate allocation factor for inbound two-
line captioned telephone calls. As noted above, in August 2003 the 
Commission concluded that captioned telephone service is a form of TRS, 
and that eligible providers of such services are eligible to recover 
their costs in accordance with section 225 of the Communications Act. 
See paragraph 2, supra; see also Captioned Telephone Declaratory 
Ruling, 18 FCC Rcd at 16121, paragraph 1. In the July 2005 Two-line 
Captioned Telephone Order, the Commission concluded that two-line 
captioned telephone service is also a form of TRS eligible for 
compensation from the Fund. That order also recognized that there is no 
way to determine if a particular inbound two-line captioned telephone 
call is interstate or intrastate, and therefore adopted an allocation 
methodology and directed the Interstate TRS Fund administrator to 
propose an interstate allocation factor. The Order adopts the TRS Fund 
administrator's proposed allocation factor.
    The Commission does not believe that the adoption of the interstate 
allocation factor will have a significant economic impact; however, in 
the event that it does, it also notes that there are not a substantial 
number of small entities that will be affected by our action. The SBA 
has developed a small business size standard for Wired 
Telecommunications Carriers, which consists of all such firms having 
1,500 or fewer employees. 13 CFR 121.201, NAICS code 517110 (changed 
from 513310 in October 2002). According to Census Bureau data for 1997, 
there were 2,225 firms in this category which operated for the entire 
year. U.S. Census Bureau, 1997 Economic Census, Subject Series: 
Information, ``Establishment and Firm Size (Including Legal Form of 
Organization),'' Table 5, NAICS code 513310 (issued Oct. 2000). Of this 
total, 2,201 firms had employment of 999 or fewer employees, and an 
additional 24 firms had employment of 1,000 employees or more. Thus, 
under this size standard, the majority of firms can be considered 
small. (The census data do not provide a more precise estimate of the 
number of firms that have employment of 1,500 or fewer employees; the 
largest category provided is ``Firms with 1,000 employees or more.''). 
Currently, only three providers are providing captioned telephone 
service and being compensated from the Interstate TRS Fund: CapTel, 
Inc., Hamilton and Sprint. The Commission expects that only one of 
these providers may be a small entity under the SBA's small business 
size standard. In addition, the Interstate Fund Administrator is the 
only entity that will be required to pay to eligible providers of two-
line captioned telephone service the costs of providing interstate 
service.
    The Commission will send a copy of the Order, including a copy of 
this Regulatory Flexibility Certification, to the Chief Counsel for 
Advocacy of the SBA. 5 U.S.C. 605(b).

Federal Communications Commission.
Jay Keithley,
Deputy Bureau Chief, Consumer & Governmental Affairs Bureau.
[FR Doc. 05-24620 Filed 12-28-05; 8:45 am]
BILLING CODE 6712-01-P