[Federal Register Volume 71, Number 104 (Wednesday, May 31, 2006)]
[Rules and Regulations]
[Pages 30818-30824]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-8376]


=======================================================================
-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CG Docket No. 03-123; FCC 06-57]


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

AGENCY: Federal Communications Commission.

ACTION: Clarification.

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

SUMMARY: In this document, the Commission addresses a petition 
(Petition) requesting clarification that a Video Relay Service (VRS) 
provider may not receive compensation from the Interstate 
telecommunications relay service (TRS) Fund (Fund) if it blocks calls 
to competing VRS providers from equipment it gives to consumers.

DATES: Effective July 31, 2006.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW., 
Washington, DC 20554.

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: This document does not contain new or 
modified information collection requirements subject to the PRA of 
1995, 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). This is a summary of the Commission's document FCC 06-57, 
Telecommunications Relay Services and Speech-to-Speech Services for 
Individuals with Hearing and Speech Disabilities, Declaratory Ruling, 
CG Docket No. 03-123, adopted May 3, 2006, released May 9, 2006 
addressing issues raised in the California Coalition of Agencies 
Serving the Deaf and Hard of Hearing (CCASDHH or Petitioner) Petition 
for Declaratory Ruling: Petition for Declaratory Ruling on 
Interoperability, CC Docket No. 98-67, CG Docket No. 03-123, filed 
February 15, 2005.
    The full text of document FCC 06-57 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.,

[[Page 30819]]

Room CY-A257, Washington, DC 20554. Document FCC 06-57 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's duplicating contractor at its Web site http://www.bcpiweb.com or by calling 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). 
Document FCC 06-xxx can also be downloaded in Word or Portable Document 
Format (PDF) at: http://www.fcc.gov/cgb/dro.

Synopsis

    CCASDHH filed a Petition for Declaratory Ruling on Interoperability 
on February 15, 2005, requesting the Commission to declare that a VRS 
provider may not receive compensation from the Interstate TRS Fund 
(Fund) if it blocks calls to competing VRS providers from equipment it 
distributes to consumers. CCASDHH is a coalition of eight community-
based nonprofit agencies providing various social services to deaf and 
hard-of-hearing consumers in California. See Petition at 1, note 1. The 
Commission agrees, and concludes that the practice of restricting the 
use of VRS equipment to a particular provider--sometimes termed ``call 
blocking''--is inconsistent with the TRS regime as intended by 
Congress, and raises serious public safety concerns.

Traditional TRS and VRS

    When Congress enacted section 225 of the Communications Act, and 
the Commission implemented the TRS, relay calls were placed using a 
text telephone device (TTY) connected to the Public Switched Telephone 
Network (PSTN). In such a ``traditional'' TRS call, a person with a 
hearing (or speech) disability dials a telephone number for a TRS 
facility using a TTY. In this context, the first step for the TRS user, 
the completion of the outbound call to the TRS facility, is 
functionally equivalent to receiving a ``dial tone.'' See, e.g., 47 CFR 
64.601(1).
    VRS allows persons using American Sign Language (ASL) to access the 
telephone system through a broadband Internet video connection between 
the VRS user and the communications assistant (CA). A VRS user may 
initiate a VRS call either via a VRS provider's Web site or directly 
through VRS equipment connected to the Internet. With VRS, the dial 
tone equivalent is when the VRS user establishes a video connection 
with the CA, who then places an outbound telephone call to a hearing 
person. During the call, the CA communicates in ASL with the VRS user 
and by voice with the hearing person. As a result, the conversation 
between the two end users flows in near real time and in a faster 
manner than with a TTY or a text-based TRS call. VRS therefore provides 
a degree of ``functional equivalency'' that is not attainable with 
text-based TRS by allowing those persons whose primary language is ASL 
to communicate in sign language, just as a hearing person communicates 
in, e.g., spoken English.

VRS Equipment and Provider Marketing Practices

    VRS usage has grown rapidly. VRS first began in January 2002, with 
approximately 7,200 monthly minutes of use. By January 2004, there were 
nearly a half million monthly minutes of use. Most recently, in 
December 2005, the number of VRS minutes surpassed three million. See 
TRS Fund Performance Status Reports maintained by National Exchange 
Carrier Association (NECA), http://www.neca.org (under Resources, then 
TRS Fund). Further, there are now eight VRS providers, and more are 
expected.
    VRS consumers can use a variety of equipment to communicate with 
the VRS CA in the video-to-video leg of a VRS call. Consumers generally 
use either a small camera that connects to a personal computer 
(generally called a ``webcam'') or a videophone that directly attaches 
to a television. Both must have a broadband Internet connection. Most 
commonly, VRS consumers use a videophone device that attaches to a 
television. These devices are popular because they do not require a 
computer and are easy to use. The D-link (also called ``i2eye'') 
videophone and the VP-100 videophone, both developed by Sorenson, are 
the most widely used videophone devices. Petition at 4, note 4. The D-
Link i2eye is available for purchase on the retail market for 
approximately $200 and also is offered for free by some VRS providers. 
The D-Link is essentially a more basic model than the VP 100, with 
fewer user interface features and a slightly lower quality of video 
image. Both use the same proprietary video compression technology that 
enables these devices to work effectively with TVs. The VP-100 
videophone has additional features that distinguish it from the D-Link 
and other videophones. Also, the VP-100 videophone is available only 
from Sorenson, with the restrictions Sorenson has placed on the use of 
device, as discussed below.
    The popularity of VRS and the competition between the VRS providers 
to increase their share of the VRS market has resulted in the providers 
using a variety of marketing practices to gain new customers and a 
larger market share. These include the practice of distributing and 
installing VRS equipment at consumers' premises at no charge to the 
consumer. The Commission has made clear that the costs of consumer 
equipment that a provider may give to a consumer are not compensable 
from the Fund. See NECA, Interstate Telecommunications Relay Services 
Fund Payment Formula and Fund Size Estimate, CC Docket No. 98-67 at 
Appendix A (Relay Service Data Request Instructions), p. 4 (filed April 
25, 2005) (stating that ``[t]he cost of equipment given to, sold to, 
and/or used by relay callers, and call incentives, are not to be 
reported as expenses'' (emphasis in original)); VRS Marketing Practices 
Declaratory Ruling, 20 FCC Rcd 1469, paragraph 8, note 30; published at 
70 FR 9239 (February 25, 2005).
    Sorenson distributes VP-100s to its customers free of charge, but 
presently Sorenson does not permit its customers to use a VP-100 to 
make an outgoing VRS call through any VRS provider's service except its 
own. See Sorenson Ex Parte (January 6, 2006) at 12 (``Sorenson has 
decided to offer users a VP-100 only in conjunction with access to its 
interpreters'').
    Presently, a consumer who desires to obtain and use the Sorenson 
VP-100 can only make VRS calls through Sorenson's relay service, unless 
the consumer has a second piece of equipment and the ability to use his 
or her broadband Internet connection with either piece of equipment. 
See Sorenson Reply Comments at 4; http://www.sorensonvrs.com/apply/index.php. Sorenson allows customers to make peer-to-peer calls--i.e., 
direct videophone-to-videophone calls--to other individuals free of 
charge even if the other party is not using a VP-100. These calls are 
not TRS calls and therefore are not regulated or compensated under 
section 225 of the Communications Act. Sorenson states that these calls 
constitute more than 80 percent of all Sorenson calls. Sorenson Ex 
Parte (January 6, 2006) at 10-11.
    The Commission notes that on February 20, 2006, Sorenson issued a 
press release announcing plans to allow, by July 1, 2006, users of its 
videophones to use the services of other VRS providers. See http://

[[Page 30820]]

www.sorensonvrs.com. That announcement, addressing Sorenson's future 
marketing plans, does not preclude us from ruling on the Petition.
    Another provider, Hands On, has engaged in a similar marketing 
practice that involves the distribution and installation of a free pre-
configured router and videophone that restricts its customers to using 
its VRS service. The customers agreeing to this arrangement receive 
reimbursement from Hands On for their broadband access charge. See 
Sorenson Ex Parte (January 6, 2006) at 12-13 n.33; CSD Ex Parte Letter 
(November 7, 2005). Hands On asserts that it adopted the practice of 
blocking access to competitors over the broadband service it provides 
``out of competitive necessity to prevent loss of market share.'' Hands 
On Ex Parte (November 11, 2005) at 13 (attachment). Hands On further 
asserts, however, that it does not block videophones supplied by 
competitors, and that in any event it ``believes all blocking of 
consumer access to competitors should be prohibited'' because otherwise 
other providers will do the same and ``balkanize the VRS market.''

The Petition

    Petitioner requests a Declaratory Ruling that VRS providers 
receiving compensation from the Fund are prohibited from restricting 
VRS equipment from accessing other VRS providers, because that this 
practice violates the principle of functional equivalency. Petition at 
iii-iv, 8-10; see 47 U.S.C. 225(a)(3). Petitioner focuses in particular 
on Sorenson's practice of giving its VP-100 videophone to consumers for 
free but restricting its use to Sorenson's VRS service and blocking 
customers from contacting any other VRS provider. Petitioner asserts 
that this practice violates functional equivalency because Sorenson's 
customers are unable to use the services of other VRS provider for any 
incoming or outgoing calls. Petition at iii. Petitioner asserts that 
although consumers could access multiple providers by having two sets 
of equipment, ``having two sets of devices creates a considerable 
burden for consumers,'' who must, for example, ``keep separate lists of 
contacts, unique names and passwords, and learn how to operate two 
systems.'' Petition at iv. Petitioner states that ``just as hearing 
people are not expected to have two separate devices to make or receive 
calls * * * neither should VRS users be expected to have dual 
equipment.'' Petition at iv. The Petition also emphasizes that because 
it is not always possible to promptly reach an available CA, if VRS 
equipment is restricted consumers have no choice but to wait for an 
available CA; they cannot, instead, try to place a call through another 
provider. Petition at iv at 5. Petitioner also argues that a consumer's 
consent cannot justify compensating a provider from the Interstate TRS 
Fund, if that provider is restricting the use of its equipment. 
Petition at iv at 5. Petitioner also asserts that deaf VRS consumers 
accepting Sorenson's equipment often do not have a full understanding 
of restrictions placed on their use of the equipment. Petition at 10. 
Petitioner states that as ``the final arbiter of the [Interstate TRS] 
Fund, the [Commission] has a duty to ensure that all providers of VRS 
act in a manner that does not frustrate the purposes of section 225 of 
the Communications Act, or interfere with the other objectives of the 
Communications Act.'' Petition at 24.
    Petitioner also asserts that requiring interoperability is in the 
public's interest. Petitioner emphasizes that blocking access to other 
VRS providers creates a serious danger for VRS consumers attempting to 
place a VRS call in the event of an emergency. Petition at 19-22. 
Petitioner notes that many videophone users have abandoned their TTYs 
and choose to use VRS exclusively for calls to hearing individuals. 
Petition at 19-20. As a result, in the event of an emergency, if a 
consumer cannot promptly reach a CA through the only VRS provider they 
are allowed to use with their equipment, they will not be able to call 
emergency services at all. Petition at 20. Petitioner contends that a 
``practice that prohibits customers from accessing another VRS provider 
[during an emergency] conflicts with our nation's homeland security 
polices, which are designed to facilitate, not restrict, access to 
emergency support--especially when an emergency strikes a sizeable 
area.'' Petitioner also notes that there may be times when a provider's 
service is shut down or overwhelmed by an influx of calls, and that in 
such cases it is imperative that consumers have access to all VRS 
providers, as well as all available interpreters. Petition at 22.
    Finally, Petitioner asserts that restricting the use of VRS 
equipment to a single provider is at odds with the Commission's 
emphasis on open and integrated telecommunications networks, including 
the Internet, and interconnection principles. Petitioner maintains that 
this practice is ``contrary to the Commission's overall efforts to 
achieve a seamless and integrated network of communications services, 
and inconsistent with national policies promoting competition, 
nondiscriminatory practices, and dialing parity.'' Petition at iii. 
Petitioner states that ``Congress and the Commission have consistently 
renewed their commitment to policies that promote the interconnection 
of services and equipment, in the interest of both furthering 
competition and facilitating use of the nation's public 
telecommunications networks by the broadest number of consumers.'' 
Petition at 8. Petitioner emphasizes that the requirement in the TRS 
rules that providers offer consumers their long distance carrier of 
choice ``is a form of interoperability designed to foster competition 
for relay calls made over long distance.'' Petition at 8. Relatedly, 
Petitioner asserts that requiring interoperability would level the 
playing field and foster competition by encouraging new providers to 
offer service. Petition at 22-23.

The Comments

    On March 1, 2005, the Petition was placed on Public Notice. See 
Petition for Declaratory Ruling filed by the California Coalition of 
Agencies Serving the Deaf and Hard of Hearing (CCASDHH) concerning 
Video Relay Service (VRS) Interoperability), CC Docket No. 98-67, CG 
Docket No. 03-123, Public Notice, 20 FCC Rcd 4162 (March 1, 2005); 
published at 70 FR 12884 (March 16, 2005) (Interoperability PN). Six 
TRS providers and six organizations filed comments and reply comments. 
Of these commenters, only Sorenson opposes the Petition. Numerous 
individuals also filed comments and reply comments, most of which 
generally support the Petition. Many ex parte meetings and paper 
filings also occurred.
    The Comments. Supporting commenters generally make the same 
arguments as Petitioner. They assert that because equipment 
restrictions limit the ability of the consumers to use their VRS 
provider of choice, the practice violates the functional equivalency 
mandate. The commenters argue that consumers should not be locked into 
using one provider's relay service simply because the provider gave the 
consumer free VRS equipment. Commenters further assert that this 
practice compels consumers who desire to have access to multiple 
providers to have more than one videophone device, which is burdensome 
and costly. Commenters state that it is inconsistent with functional 
equivalency to require consumers using VRS to use two or more separate 
video devices to ensure that they can promptly reach a VRS CA (the 
equivalent of reaching a dial tone when hearing people can use a single

[[Page 30821]]

conventional voice phone). Commenters also emphasize that restricting 
the use of VRS equipment can thwart a consumer's ability to contact 
promptly emergency services. If the consumer cannot promptly reach a CA 
(e.g., because of long wait times), the inability to place a call 
through another VRS provider puts their safety at risk. Most individual 
commenters also express the desire to be able to call any of the VRS 
providers in an emergency.
    Sorenson's Response. Sorenson opposes the Petition. Sorenson 
acknowledges that it presently does not permit a consumer to use its 
VP-100 device to place a VRS call through any other VRS provider's 
service. But Sorenson asserts that consumers using the VP-100 still 
remain free to use any providers' VRS service with any other equipment 
they may have.
    Sorenson characterizes its VRS service as a ``total service 
platform,'' which it states it has developed at considerable expense. 
According to Sorenson, this platform includes provision of the VP-100 
with its ``high-quality video imagery,'' access to highly trained 
interpreters, maintenance and repair of all elements of its service 
(including the VP-100), and unlimited point-to-point calling. Sorenson 
asserts that each provider ``should be free to offer whatever service 
packages it thinks will be most attractive to consumers.'' Sorenson 
also describes its total service platform approach as consistent with 
the approach used by most consumer communications today, such as 
wireless providers. Sorenson argues that if it were forced to 
``unbundled its platform,'' i.e., permit consumers to use its VP-100 
with other VRS providers, the VP-100 would no longer be part of 
Sorenson's service and therefore, e.g., Sorenson would not be 
responsible for maintaining and repairing the equipment.
    Sorenson further asserts that if it is required to permit consumers 
to use its VP-100 to make calls through other providers' VRS service, 
``much of the incentive to develop innovations will disappear because 
any new technology will be shared with all other VRS providers, thus 
precluding the inventor from recovering or profiting on any investment 
made.'' Sorenson Reply Comments at 11; Sorenson Ex Parte (January 6, 
2006) at 17. Sorenson contends that under section 225 of the 
Communications Act, the Commission has the obligation to ensure that 
the TRS regulations encourage, not impair, the development of new 
technology and that it has a duty to make TRS available to all 
Americans in an expeditious manner as possible. Sorenson therefore 
argues that allowing a competitive VRS market without regulatory 
intervention--such as an interoperability requirement--will ``encourage 
providers to invest in advanced technology for VRS products and 
services, which will, in-turn, benefit the deaf and hard-of-hearing 
communities.''
    Sorenson also maintains that its proposed solution for handling 
emergency calls made via their VRS service--identifying emergency calls 
that are in queue and routing them to a CA trained in facilitating the 
VRS caller in reaching an appropriate PSAP--negates the argument that 
providing access to emergency service requires interoperability. 
Sorenson Ex Parte (January 6, 2006) at 18-20. Sorenson asserts that 
they are implementing a process whereby incoming VRS customers calling 
9-1-1 will automatically be moved to the front of the queue and that 
those incoming calls will be routed to CAs who are specially trained 
regarding proper handling of 9-1-1 calls. Sorenson explains that it 
``plans to integrate software that automatically moves the caller, in 
an emergency situation, to the front of the queue for the next 
available operator.''

Discussion

    The Commission concludes that a provider's practice of restricting 
the use of VRS as described herein--including by blocking calls to 
other providers or providing degraded service quality for connections 
to the service of other VRS providers--is inconsistent with the 
functional equivalency mandate, the public interest, and the TRS regime 
as intended by Congress. The Commission further concludes that all VRS 
consumers must be able to place a VRS call through any of the VRS 
providers' service, and all VRS providers must be able to receive calls 
from, and make calls to, any VRS consumer. As a result, effective July 
31, 2006, any VRS provider restricting the use of its service so that a 
consumer cannot use it to place or receive a call through any of the 
VRS providers' relay service will be ineligible for compensation from 
the Interstate TRS Fund. See paragraph 43, infra addressing effective 
date.
    Functional Equivalency. The Commission concludes that restricting 
access to competing VRS providers is inconsistent with section 225 of 
the Communications Act's functional equivalency mandate. 47 U.S.C. 
225(a)(3). Voice telephone users reach a dial tone almost 
instantaneously every time they pick up the telephone. For TRS users, 
the Commission has recognized that reaching a CA ready to handle the 
call is essentially the same as reaching a dial tone. See, e.g., 2004 
TRS Report and Order, 19 FCC Rcd 12480, paragraph 3, note 18. 
Therefore, ``the ability of a TRS user to reach a CA prepared to place 
his or her call * * * is fundamental to the concept of `functional 
equivalency.' '' Call Handling Practices PN, 20 FCC Rcd 1474; published 
at 70 FR 8034 (February 17, 2005) (internal quotation marks omitted). 
For this reason, the TRS regulations include a speed of answer 
requirement so that a TRS user does not have to wait to reach a CA. See 
2005 VRS Speed of Answer Order, 20 FCC Rcd 13168, paragraph 6; 
published at 70 FR 51649 (August 1, 2005). For text-based TRS services, 
the speed of answer requires that 85 percent of all calls be answered 
within 10 seconds. 47 CFR 64.604(b)(2) of the Commission's rules. 
Presently, for VRS, the speed of answer rule requires 80 percent of all 
calls to be answered within three minutes. See 2005 VRS Speed of Answer 
Order, 20 FCC Rcd 13165, paragraph 1 (although this requirement had 
been waived for VRS, effective January 1, 2006, 80 percent of all VRS 
calls must be answered within 3 minutes). This longer speed of answer 
period for VRS reflects concerns over the shortage of qualified 
interpreters available to handle VRS calls. 2005 VRS Speed of Answer 
Order 13174-13175, paragraph 18.
    If a consumer is limited to using only one provider's service, the 
consumer is dependent solely on that provider to reach a CA available 
to place a call. If there is a long wait time, or the call is urgent, 
the consumer cannot attempt to contact a CA of another provider's 
service because such calls are blocked. Therefore, at any particular 
moment in time, a VRS user is at a disadvantage compared to voice 
callers because a CA may not be available to handle the VRS user's 
call, and the VRS user cannot promptly reach a ``dial tone.'' As CAC 
states, ``[w]hen a hearing person picks up the telephone to make a 
call, that individual can immediately access anyone, anytime, 
regardless of the telephone carrier to which that person or the called 
party subscribes. This same capacity is not being made available to 
those VRS users who are restricted to one service provider. These 
consumers are presently unable to switch to another provider to make 
their calls, even when their primary provider has no dial tone i.e., no 
interpreter available to place the call.'' CAC Comments at 3. Although 
the VRS speed of answer requirement was adopted to address this issue, 
because compliance with the rule is measured on a monthly basis, and 
the

[[Page 30822]]

compliance rate is presently 80 percent of all calls, even if the 
standard is met a VRS user may have to wait a significant amount of 
time to reach a CA. Therefore, in these circumstances, speed of answer 
does not necessarily ensure functional equivalency for any particular 
call.
    The Commission also believes that it is inconsistent with 
functional equivalency to require VRS users to have two sets of 
equipment to ensure that they can promptly reach a CA, and impractical 
in an urgent situation to expect users to have to switch out equipment 
if one provider is not available quickly enough. For many consumers, 
particularly those that are not technologically sophisticated, 
switching relay equipment that is attached to the consumer's broadband 
Internet connection is not a simple matter. For example, at a minimum 
the consumer must ensure that: (1) He or she has selected the right 
piece of equipment for the particular provider; (2) the equipment is 
turned on and plugged into the Internet connection; (3) the other piece 
of equipment is turned off and disconnected from the Internet 
connection; and (4) the piece of equipment is properly configured to 
read the correct IP address of the VRS provider. Voice telephone users 
are not required to have multiple sets of equipment to obtain a dial 
tone and access the telephone network. In addition, this is burdensome 
and costly. Further, requiring consumers to have two sets of equipment 
to access multiple providers adversely affects a VRS user's ability to 
receive incoming calls. If, for example, only one device is turned on, 
the router may nevertheless direct the incoming call to the device that 
is turned off, and as a result the VRS user will miss the call. Voice 
telephone users do not similarly risk missing incoming calls because of 
the necessity of having multiple equipment to ensure access to a dial 
tone.
    Further, call blocking adversely affects the ability of hearing 
person to successfully initiate a VRS call. If a hearing person is 
limited to calling a deaf person through one provider's service, the 
choices of the hearing person are constrained by an arrangement to 
which he or she is not a party and likely does not even know about. The 
hearing person may attempt to place a VRS call through several 
providers before reaching the one provider that can place a call to the 
VRS user. This not only discourages VRS calls initiated by hearing 
persons, but again is inconsistent with TRS as a service that must be 
available to give persons with hearing and speech disabilities access 
to the telephone system, regardless whether the person with a 
disability or the voice telephone user initiates the call. In sum, 
consistent with functional equivalency, all VRS consumers must be able 
to place a VRS call through any of the VRS providers' service, and all 
VRS providers must be able to receive calls from, and make calls to, 
any VRS consumer. Therefore, a provider may not block calls so that VRS 
equipment cannot be used with other providers' service. In addition, a 
provider may not take other steps that restrict a consumer's unfettered 
access to other providers' service. This includes the practice of 
providing degraded service quality to consumers using VRS equipment or 
service with another provider's service. Finally, new providers seeking 
to offer service have the burden of ensuring that their service is 
interoperable with existing providers' service.
    The Public Interest and Access to Emergency Services. The 
Commission has repeatedly emphasized the public interest importance of 
ensuring that consumers have access to emergency services. Because a 
VRS user, like all consumers, must be able to contact promptly 
emergency services, the Commission also concludes that restricting 
consumers to contacting a single VRS provider is inconsistent with the 
public interest.
    As noted above, many individuals with hearing and speech 
disabilities use TRS to contact emergency services. If a VRS user is 
restricted to placing a call with one provider, and that provider's 
wait time prevents the user from promptly reaching a CA in the event of 
an emergency, the consumer may suffer serious harm. Even assuming a VRS 
provider is able to develop a means of promptly handling emergency 
calls, this does not negate the broader public interest in ensuring 
full VRS access to all providers. In the event of an emergency, or an 
event that might temporarily affect a particular provider's ability to 
offer service, consumers must be able to call any CA to reach emergency 
services. Particularly in the aftermath of September 11, 2001, and 
recent hurricanes in the Gulf Coast, the Commission finds that it is 
essential to ensure that VRS consumers are not dependent on services of 
a single provider in the event of an emergency.
    Call Blocking Cannot be Justified as Part of a ``Total Platform 
Service. Sorenson contends that it may receive compensation from the 
Fund regardless of how it provisions relay service with equipment and 
other services. Sorenson's argument is premised on at least four 
points: (1) The provision of TRS is no different from the provision of 
other communication services to the public, including wireless 
telephone calls, traditional wireline telephone calls, and satellite 
television; (2) TRS providers therefore may offer whatever ``service 
package'' they like, which may include bundling equipment, the relaying 
of calls, maintenance and repair of the equipment, and additional 
features; (3) bundling equipment with service is essential to ensuring 
that the provider recovers the cost of developing the equipment (i.e., 
a return on investment) and therefore can continue to innovate; and (4) 
bundling equipment with service permits deaf consumers to use the 
equipment to make free peer-to-peer calls, which furthers the goal of 
improving communication for deaf people. As summarized below, 
Sorenson's points cannot support the use of the Interstate TRS Fund to 
compensate call blocking practices.
    First, TRS is fundamentally different from the provision of 
wireless telephone, satellite television, or similar services that may 
bundle equipment and services in that these services are market-based 
and, unlike TRS, are paid for by any consumer wishing to subscribe. By 
contrast, TRS is an accommodation for persons with disabilities 
required of voice telephone providers as mandated by Congress. TRS is 
fully compensated by the states and the Federal Interstate TRS Fund; it 
is not paid for by the consumer. Moreover, section 225 of the 
Communications Act focuses on the provision of relay service. Indeed, 
this is apparent from the plain language of section 225 of the 
Communications Act, which is directed at ``services'' that carriers 
must offer in their service areas that enable communication between 
persons who use a TTY or other nonvoice terminal device and an 
individual who does not use such device. 47 U.S.C. 225(a)(3) and (c); 
see also CSD and Hamilton Ex Parte (January 25, 2006) at 5 (attachment) 
(``the FCC has always interpreted the ADA's TRS mandates to require the 
provision of relay services, not the manufacture and distribution of 
equipment uses with those services''). Section 225 of the 
Communications Act requires carriers to make relay service available to 
handle calls that consumers choose to make, and provides a mechanism 
whereby they will be compensated for their reasonable costs of 
operating relay facilities and relaying calls. For this reason, relay 
users have traditionally purchased their own devices (e.g., TTYs) or 
received them from state programs. Although more

[[Page 30823]]

recently some providers have distributed free TRS equipment to 
consumers, consistent with the purpose of section 225 of the 
Communications Act, the Commission has made clear that the costs of 
consumer equipment are not compensable from the Fund.
    Second, and for the same reason, not all ``service packages'' 
marketed by TRS providers are compensable from the Fund under section 
225 of the Communications Act. TRS is a service that certain common 
carriers are required to offer (and that some non-common carriers such 
as Sorenson have voluntarily chosen to offer) that is defined by 
section 225 of the Communications Act and the TRS mandatory minimum 
standards. If a provider offers service in compliance with these rules, 
it may be compensated from the Fund. But an entity cannot determine for 
itself that it is going to provide something different than or beyond 
the Commission's rules, and still expect compensation from the Fund. 
For example, Video Remote Interpreting (VRI) is a commercial service 
similar to VRS for which consumers must pay a fee. See generally Call 
Handling Practices PN, 20 FCC Rcd 1475 (distinguishing VRI and VRS). 
Sorenson make the related argument that call blocking is necessary to 
allow it to recover the cost of developing its equipment. See, e.g., 
Sorenson Comments at 29. As noted above, entities that develop customer 
equipment are, of course, free to sell their equipment to consumers to 
recover their investment in the equipment.
    Sorenson's final argument, that its ``bundled'' approach permits 
deaf consumers to make free peer-to-peer calls, is irrelevant to the 
fundamental point that to receive compensation from the Fund a company 
must allow full unrestricted access to this nation's communications 
network. In related contexts, the Commission has repeatedly adhered to 
policies favoring open access to networks and interoperability of 
terminal equipment. For example, in the context of connecting terminal 
equipment to the telephone network, the Commission has promulgated a 
series of rules to ensure open access and interoperability. See 47 CFR 
68.1 et seq. Moreover, policies of open access and interconnection were 
fundamental to the Telecommunications Act of 1996. For example, section 
251 of the Communications Act provides a duty of telecommunications 
carriers to interconnect with other carriers and ``not to install 
network features, functions, or capabilities that do not comply with 
the guidelines and standards established pursuant to section 255 of the 
Communications Act (Access by Persons with Disabilities).'' 47 U.S.C. 
251(a)(1) & (2).
    Research and Development. Some commenters assert that in connection 
with requiring interoperability the Commission should permit recovery 
of some costs for research and development relating to the improvement 
of VRS service. The Commission has previously emphasized that, as a 
general matter, engineering and other expenses for research and 
development to meet waived mandatory minimum standards, or to provide 
enhancements beyond applicable non-waived mandatory minimum standards, 
are not compensable from the Fund. See, e.g., 2004 TRS Report and 
Order, 19 FCC Rcd 12547-12548, paragraphs 188-189. The Commission 
clarifies, however, that to the extent providers engage in research and 
development directed at the provision of service to the consumer as 
required by the rules, e.g., the routing and handling of calls at the 
relay center, such costs may be compensable subject to the 
``reasonableness'' standard. Such costs do not include those directed 
at issues inherent in Internet-based services generally or the 
provision of Voice over IP (VoIP).
    Notification. The Commission requires any VRS provider that has 
restricted the use of TRS equipment to notify their customers by July 
1, 2006, that, upon the effective date of this Declaratory Ruling, they 
may make or receive a VRS call through any of the providers. Further, 
as of that date, it will be an impermissible marketing practice for any 
provider to tell or suggest to any consumer that the consumer may not 
be used to make a relay call through another provider's service. Cf. 
Call Handling Practices PN, (addressing improper TRS marketing 
practices).
    Effective Date. The Commission recognizes that because the 
provision of VRS is now subject to a speed of answer requirement, and 
as a result of this order some providers may experience an increase in 
call volume, all providers may need a period of time to adjust their 
operations to take into account the possible effect of this order. See, 
e.g., Sorenson Ex Parte (January 24, 2006) at 1 (requesting if the 
Commission requires interoperability a reasonable amount of time ``to 
implement software, hardware, and other modifications necessary to 
comply'' with the new rule); Hands On Ex Parte (January 27, 2006) 
(noting that elimination of call blocking may result in a ``temporary 
dislocation of the market'' as consumers will be free to choose any 
provider to make a VRS call, and therefore requesting a 90 day waiver 
of the speed of answer requirement). For these reasons, this 
Declaratory Ruling shall be effective July 31, 2006. Beginning on that 
date, any VRS provider restricting its service as described above will 
be ineligible for compensation from the Fund.

Final Regulatory Flexibility Certification

    The Regulatory Flexibility Act of 1980, as amended (RFA) requires 
that a regulatory flexibility analysis be prepared for rulemaking 
proceedings, unless the agency certifies that ``the rule will not have 
a significant economic impact on a substantial number of small 
entities.'' The RFA, see 5 U.S.C. 601-612, has been amended by the 
Contract with America Advancement Act of 1996, Public Law 104-121, 110 
Statute 847 (1996) (CWAAA). Title II of the CWAAA is the Small Business 
Regulatory Enforcement Act of 1996 (SBREFA). The RFA generally defines 
``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' 5 U.S.C. 605(b). 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, 5 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 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.
    This Declaratory Ruling addresses a petition requesting the 
Commission to declare that a VRS provider may not receive compensation 
from the Interstate TRS Fund if it blocks calls to competing VRS 
providers. See CCASDHH Petition, note 1, supra. The Commission 
concludes that the practice of restricting the use of VRS to a 
particular provider is inconsistent with the TRS regime as intended by 
Congress, and raises serious public safety concerns. See 47 U.S.C. 
225(a)(3), note 2, supra. The Commission further concludes that all VRS 
consumers must be able to place a VRS call through any

[[Page 30824]]

of the VRS providers' service, and all VRS providers must be able to 
receive calls from, and make calls to, any VRS consumer. As consumers 
increasingly rely on VRS as their preferred means of using TRS to 
access the telephone system, the Commission finds that it is in the 
public interest that all VRS consumers can place and receive calls 
through any VRS providers' service in the event of emergency and 
urgency. Therefore, this Declaratory Ruling concludes that providers 
must ensure that all VRS consumers can place and receive calls through 
any of the VRS providers' service in order to receive compensation from 
the Interstate TRS Fund. The Interstate TRS Fund administrator 
distributes the VRS providers for reasonable costs of providing VRS. 
Each year, the Interstate TRS Fund administrator, the National Exchange 
Carrier Association, Inc. (NECA), proposes the compensation rates for 
the various forms of TRS, including VRS, to the Commission. NECA 
collects and reviews projected cost and minutes of use data submitted 
by TRS providers to determine the annual TRS compensation rates. 
Reasonable compliance cost is included in the projected cost submitted 
by TRS providers. See paragraphs 8-9, supra. See also, TRS Fund 
Performance Status Reports maintained by National Exchange Carrier 
Association (NECA) as of October 31, 2005, http://www.neca.org (under 
Resources, then TRS Fund). In order to be compensated for the costs of 
providing VRS, the providers are required to meet the applicable TRS 
mandatory minimum standards as required in Sec.  64.604. See generally 
47 CFR 64.604(c)(5)(iii)(E) of the Commission's rules. Reasonable costs 
of compliance with this Declaratory Ruling are compensable from the 
Fund. Because the providers will be recouped for the costs of 
compliance within a reasonable period, the Commission asserts that the 
providers will not be detrimentally burdened. Therefore, the Commission 
certifies that the requirements of the Declaratory Ruling will not have 
a significant economic impact on a substantial number of small 
entities.
    The Commission also notes that, arguably, 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 of the Commission's rules, 
NAICS code 517110. 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 
eight providers are providing VRS and being compensated from the 
Interstate TRS Fund: AT&T Corp.; Communication Access Center for the 
Deaf and Hard of Hearing, Inc.; Hamilton Relay, Inc.; Hands On; MCI; 
Nordia Inc.; Sorenson; and Sprint. The Commission notes that two of the 
providers noted above are small entities under the SBA's small business 
size standard. Because two of the affected providers will be promptly 
compensated within a reasonable period for complying with this 
Declaratory Ruling, the Commission concludes that the number of small 
entities affected by our decision in this Order is not substantial. 
Therefore, the Commission certifies that the requirements of this 
Declaratory Ruling will not have a significant economic impact on a 
substantial number of small entities. The Commission will send a copy 
of this Final Regulatory Flexibility Certification, in a report to 
Congress pursuant to the Congressional Review Act. See 5 U.S.C. 
801(a)(1)(A). In addition, the Declaratory Ruling and this final 
certification will be sent to the Chief Counsel for Advocacy of the 
SBA. See 5 U.S.C. 605(b).

Congressional Review Act

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

Ordering Clauses

    Pursuant to the authority contained in sections 1.2 and 225 of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 152 and 225, the 
Declaratory Ruling is adopted. CCASDHH's Petition is granted to the 
extent indicated herein. The Declaratory Ruling shall become effective 
July 31, 2006.
    The Commission will send a copy of the Declaratory Ruling, 
including a copy of this Regulatory Flexibility Certification, to the 
Chief Counsel for Advocacy of the SBA.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. E6-8376 Filed 5-30-06; 8:45 am]
BILLING CODE 6712-01-P