[Federal Register Volume 73, Number 79 (Wednesday, April 23, 2008)]
[Rules and Regulations]
[Pages 21843-21844]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-8793]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CG Docket No. 03-123; DA 08-312]


Telecommunications Relay Services and Speech-to-Speech Services 
for Individuals with Hearing and Speech Disabilities; Request for Stay 
Pending Judicial Review

AGENCY: Federal Communications Commission.

ACTION: Final rule; stay of effectiveness.

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SUMMARY: In this document, the Consumer and Governmental Affairs Bureau 
(Bureau) grants a request to stay the effectiveness of paragraphs 95 
and 96 of the 2007 TRS Cost Recovery Declaratory Ruling, which restrict 
telecommunications relay service (TRS) providers from using consumer or 
call databases to contact TRS users. Because these paragraphs have been 
challenged in the Court of Appeals, a stay is appropriate pending 
review of the argument that these paragraphs violate the First 
Amendment rights of providers.

DATES: Paragraphs 95 and 96 of the 2007 TRS Cost Recovery Declaratory 
Ruling, as summarized in paragraph 24, published at 73 FR 3197, January 
17, 2008, are stayed for 90 days, starting February 7, 2008.

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

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

SUPPLEMENTARY INFORMATION: This is a summary of the Bureau's Order, DA 
08-312, Telecommunications Relay Services and Speech-to-Speech Services 
for Individuals with Hearing and Speech Disabilities; Request for Stay 
Pending Judicial Review, CG Docket No. 03-123, Order, 23 FCC Rcd 1705 
(CGB 2008), adopted and released February 7, 2008. The full text of DA 
08-312 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. DA 08-312 and 
copies of subsequently filed documents in this matter also may 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 
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 and Governmental 
Affairs Bureau at (202) 418-0530 (voice) or (202) 418-0432 (TTY). DA 
08-312 also can be downloaded in Word or Portable Document Format (PDF) 
at: http://www.fcc.gov/cgb/dro/trs.html#orders.

Synopsis

    1. On November 19, 2007, the Commission released Telecommunications 
Relay Services and Speech-to-Speech Services for Individuals with 
Hearing and Speech Disabilities, CG Docket No. 03-123, Report and Order 
and Declaratory Ruling, 22 FCC Rcd 20140 (2007) (2007 TRS Cost Recovery 
Declaratory Ruling), published at 73 FR 3197, January 17, 2008, which, 
among other things, prohibits providers from using a consumer or call 
database to contact TRS users ``for lobbying or any other purpose,'' 
and prohibits providers from using a consumer or call database to 
``contact TRS users or to in any way attempt to affect or influence, 
directly or indirectly, their use of relay service.'' 2007 TRS Cost 
Recovery Declaratory Ruling, 22 FCC Rcd at 20176, paras. 95-96. On 
January 16, 2008, Sorenson Communications, Inc. (Sorenson) filed a 
Petition for Review in the United States

[[Page 21844]]

Court of Appeals for the Tenth Circuit asserting, in part, that the 
above-quoted language violates the First Amendment rights of TRS 
providers. On January 28, 2008, Sorenson filed with the Commission a 
request for a stay of paragraphs 95 and 96 pending judicial review. 
Sorenson Communications, Inc., Request for Stay Pending Judicial 
Review, CG Docket No. 03-123 (filed Jan. 28, 2008) (Stay Request).
    2. In its Stay Request, Sorenson contends that it has a substantial 
likelihood of prevailing on the merits of the judicial review 
proceeding in the Tenth Circuit because paragraphs 95 and 96 of the 
2007 TRS Cost Recovery Declaratory Ruling violate Sorenson's First 
Amendment rights by ``limiting [its] ability to engage in core 
political speech and to petition the government for redress of 
grievances'' and by ``restrict[ing] [its] ability to engage in 
protected commercial speech.''
    Although Sorenson does not dispute that the Commission has a 
substantial interest in preventing providers from using customer call 
data to offer TRS users financial incentives to make unnecessary TRS 
calls, it contends that the Commission has no substantial interest in 
preventing providers from contacting users for other reasons, including 
to assist them with service issues, to educate them about new service 
features, or to inform them of potential misuse of the service by third 
parties. Sorenson also asserts that, absent a stay, it will suffer 
irreparable harm through the loss of its First Amendment rights and 
harm to its business as a result of its inability to warn its users of 
scams and abusive relay practices. Sorenson further asserts that a stay 
will not injure other parties, as it will simply preserve the status 
quo. Finally, Sorenson asserts that a stay is in the public interest 
because the challenged restrictions run afoul of the First Amendment 
and impair the ability of TRS users to learn about developments in the 
provision of relay service.
    3. In considering requests for stay, the Commission generally 
considers the four criteria set forth in Virginia Petroleum Jobbers 
Association v. Federal Power Commission, 259 F.2d 921, 925 (DC Cir. 
1958). These criteria are: (1) A likelihood of success on the merits; 
(2) the threat of irreparable harm absent the grant of preliminary 
relief; (3) the degree of injury to other parties if relief is granted; 
and (4) the issuance of the order will further the public interest. As 
the Commission has explained, the relative importance of the four 
criteria will vary depending upon the circumstances of the case. If 
there is a particularly overwhelming showing in at least one of the 
factors, the Commission may find that a stay is warranted 
notwithstanding the absence of another one of the factors.
    4. The Bureau agrees that a temporary stay of paragraphs 95 and 96 
of the 2007 TRS Cost Recovery Declaratory Ruling is appropriate under 
the circumstances presented. Specifically, the Bureau concludes that a 
stay will further the public interest. The Bureau notes that Sorenson 
and other providers have raised several concerns, including their 
asserted inability to contact users for emergency or consumer 
protection-related purposes, that, if borne out by further Commission 
examination, may cause the Commission to reconsider the language of 
paragraphs 95 and 96 of the 2007 TRS Cost Recovery Declaratory Ruling. 
In order to provide the Commission with sufficient time to consider the 
arguments presented by Sorenson and others, the Bureau finds that a 
temporary stay of those paragraphs is warranted. The Bureau therefore 
finds that it is in the public interest to grant the requested stay for 
a period of 90 days, starting February 7, 2008.

Ordering Clause

    Pursuant to section 4(i) of the Communications Act of 1934, as 
amended, 47 U.S.C. 154(i), and the authority delegated under Sec. Sec.  
0.141 and 0.361 of the Commission's rules, 47 CFR 0.141, 0.361, the 
Request for Stay filed by Sorenson Communications, Inc. on January 28, 
2008, is granted, and will remain in effect for a period of 90 days, 
starting February 7, 2008.

Federal Communications Commission.
Nicole McGinnis,
Deputy Chief, Consumer and Governmental Affairs Bureau.
 [FR Doc. E8-8793 Filed 4-22-08; 8:45 am]
BILLING CODE 6712-01-P