[Federal Register Volume 73, Number 131 (Tuesday, July 8, 2008)]
[Rules and Regulations]
[Pages 38928-38931]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-15446]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CG Docket No. 03-123; FCC 08-138]


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

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Commission clarifies its restrictions on 
the use of consumer or call database information by telecommunications 
relay service (TRS) providers to contact consumers of interstate TRS. 
The Commission concludes that TRS providers may use information derived 
from a consumer or call database to contact TRS users for purposes 
related to the handling of relay calls, as well as to comply with a 
federal statute, Commission rule or order, a court order, or other 
lawful authority.

DATES: Effective May 28, 2008.

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

FOR FURTHER INFORMATION CONTACT: Lisa Boehley, Consumer and 
Governmental Affairs Bureau, Consumer Policy Division at (202) 418-7395 
(voice), or e-mail at [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Telecommunications Relay Services and Speech-to-Speech Services for 
Individuals with Hearing and Speech Disabilities, Declaratory Ruling 
(Consumer Contacts Declaratory Ruling), FCC 08-138, adopted and 
released May 28, 2008, in CG Docket No. 03-123. FCC 08-138 addresses 
issues arising from the Commission's Telecommunications Relay Services 
and Speech-to-Speech Services for Individuals with Hearing and Speech 
Disabilities, Report and Order and

[[Page 38929]]

Declaratory Ruling (2007 TRS Cost Recovery Declaratory Ruling), CG 
Docket No. 03-123, FCC 07-186, published at 73 FR 3197, January 17, 
2008. The full text of FCC 08-138 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. FCC 08-138 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 http://www.bcpiweb.com or by calling 1-800-378-3160. To request a copy of FCC 
08-138 in an accessible format 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), (202) 418-0432 (TTY). FCC 08-138 can also be 
downloaded in Word or Portable Document Format (PDF) at: http://www.fcc.gov/cgb/dro/trs.html.

Paperwork Reduction Act of 1995 Analysis

    FCC 08-138 does not contain new or modified information collection 
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 106-198, see 44 U.S.C. 3506(c)(4).

Synopsis

Background

    1. In the 2007 TRS Cost Recovery Declaratory Ruling, the Commission 
reiterated that providers seeking compensation from the Interstate TRS 
Fund ``may not offer consumers financial or other tangible incentives, 
either directly or indirectly, to make relay calls.'' 2007 TRS Cost 
Recovery Declaratory Ruling at paragraph 92. The Commission also 
specified in greater detail the nature and types of incentive programs 
that are impermissible, clarified that ``a financial incentive program 
is not permissible even in circumstances where the benefit goes to a 
third party,'' and stated that providers cannot condition the ongoing 
use or possession of TRS equipment (or the receipt of upgraded 
equipment) on a consumer's call volume. 2007 TRS Cost Recovery 
Declaratory Ruling at paragraphs 92 to 94. In addition, the 2007 TRS 
Cost Recovery Declaratory Ruling addressed in greater detail providers' 
use of consumer or call databases to contact consumers for lobbying or 
to attempt to influence their use of relay. 2007 TRS Cost Recovery 
Declaratory Ruling at paragraphs 95 and 96. In particular, it 
prohibited providers from using a consumer or call database to contact 
TRS users ``for lobbying or any other purpose,'' and prohibited 
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 at paragraphs 95 and 96.
    2. Following release of the 2007 TRS Cost Recovery Declaratory 
Ruling, several TRS providers, in filings with the Commission, asserted 
that the restrictions contained in paragraphs 95 and 96 of that ruling 
violate the First Amendment rights of TRS providers. In January 2008, 
Sorenson Communications, Inc. (Sorenson), filed a Petition for Review 
with the United States Court of Appeals for the Tenth Circuit seeking 
judicial review of this language, and sought a stay from the Commission 
pending resolution of its Petition for Review. Sorenson Communications 
v. FCC, Petition for Review, Nos. 08-9503 and 08-9507 (10th Circuit 
January 16, 2008 (08-9503) and January 23, 2008 (08-9507)); Sorenson 
Communications, Inc., Request for Stay Pending Judicial Review, CG 
Docket No. 03-123 (January 28, 2008) (Stay Request). Among other 
things, Sorenson contended that the restrictions contained in 
paragraphs 95 and 96 are unconstitutionally vague, violate the First 
Amendment rights of TRS providers, and are procedurally deficient under 
the Administrative Procedure Act.
    3. In order to give the Commission sufficient time to consider the 
arguments presented by Sorenson and others, the Commission's Consumer 
and Governmental Affairs Bureau (CGB) issued an order on February 7, 
2008, granting a 90-day stay of paragraphs 95 and 96. 
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 Feb. 7, 2008), published at 73 FR 21843, April 23, 2008. The stay 
granted by that order was subsequently extended until May 28, 2008. 
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, DA 08-1079 (CGB 
May 6, 2008).

Discussion

    4. In FCC 08-138, the Commission states that reasonable 
restrictions on the use of consumer information are necessary to 
prevent improper marketing practices and to ensure that interstate TRS 
funds are used for their intended purpose. However, to address concerns 
that the restrictions set forth in paragraphs 95 and 96 of the 2007 TRS 
Cost Recovery Declaratory Ruling may be overly broad and may have the 
unintended effect of preventing TRS providers from communicating 
important information, including critical public safety information, to 
TRS users relating to the handling of relay calls, the Commission 
clarifies the restrictions in those paragraphs. The Commission also 
provides examples of the circumstances in which providers may use 
consumer or call databases to contact relay users.
    5. First, the Commission clarifies that the language in paragraphs 
95 and 96 restricting the use of consumer information ``for any * * * 
purpose,'' does not prohibit contacts by TRS providers with TRS users 
that are directly related to the handling of TRS calls. Consistent with 
the Commission's TRS rules and orders, providers may use information 
derived from a consumer or call database established in conjunction 
with Section 225 of the Communications Act of 1934, as amended, 47 
U.S.C. 225, to contact users as long as it is for purposes related to 
the handling of relay calls. Therefore, for example, a provider 
reasonably could directly contact relay users (using such customer 
information) in order to inform users of a service outage, respond to a 
consumer's call for emergency services, assist in the delivery of 
emergency services, and provide technical support for TRS products or 
services used by the consumer. Providers also may use customer data, 
for example, to comply with a federal statute, a Commission rule or 
order, a court order, or other lawful authority. The Commission 
emphasizes that any such direct contacts with relay users must be 
informational in nature and must relate to the provision of, or the 
consumer's use of, TRS.
    6. On the other hand, providers may not contact consumers and offer 
financial or other incentives to generate additional or longer calls 
that can be billed to the Fund because such contacts are not directly 
related to the purpose of handling relay calls. The Commission may 
revisit these determinations if

[[Page 38930]]

specific facts are brought to its attention suggesting an abuse of this 
proviso.
    7. The Commission declines to address the request that it 
explicitly allow the disclosure of user-specific information to third 
parties designated by the user and information to protect TRS users 
from fraudulent, abusive or unlawful use of TRS. The Commission 
believes this issue would be better addressed in the context of its 
consideration of whether, and if so, how to extend customer proprietary 
network information (CPNI) requirements to TRS providers. See 
Telecommunications Relay Services And Speech-To-Speech Services For 
Individuals With Hearing And Speech Disabilities, E911 Requirements For 
IP-Enabled Service Providers, CG 03-123, WC 05-196, Report and Order, 
23 FCC Rcd 5255 (Mar. 19, 2008) (Interim Emergency Call Handling 
Order), published at 73 FR 21252, April 21, 2008; Consumer and 
Governmental Affairs Bureau Seeks to Refresh Record on Assigning 
Internet Protocol (IP)-Based Telecommunications Relay Service (TRS) 
Users Ten-Digit Telephone Numbers Linked to North American Numbering 
Plan (NANP) and Related Issues, CG Docket No. 03-123, Public Notice, 23 
FCC Rcd 4727 (Mar. 19, 2008) (IP-Based Relay Numbering PN), published 
at 73 FR 16304, March 27, 2008, (seeking to refresh the record on the 
proposed establishment of a global database of proxy telephone numbers 
for Internet-based TRS users and on consumer protection issues related 
to numbering, including the application of CPNI requirements). Although 
consumer advocates have asked the Commission to ensure that consumers 
be asked by providers to opt-in to receiving marketing and promotional 
materials before receiving such information directly from providers, 
the Commission defers this issue for consideration in the context of 
whether, and if so, how to extend CPNI requirements to TRS providers. 
See Interim Emergency Call Handling Order; IP-Based Relay Numbering PN.
    8. Second, the Commission clarifies that providers may not use 
customer information obtained through the provision of federally-funded 
relay services, or use funds obtained from the Interstate TRS Fund, to 
engage in lobbying or advocacy activities directed at relay users. 
Evidence in the record shows that at least one service provider has 
bombarded deaf persons with material seeking to persuade them to 
support the provider's position on matters pending before the FCC. See, 
e.g., Ex parte letter from Jon Ziev, consumer, to Kevin Martin, FCC 
(dated Feb. 4, 2008) (complaining that deaf persons are being subjected 
to a ``virtual bombardment of lobbying material''). The Commission 
finds that using revenue from the Interstate TRS Fund, or information 
obtained from end users in the provision of services supported by the 
Interstate TRS Fund, to engage in that kind of advocacy is inconsistent 
with the purpose of the fund.
    9. The Commission finds that these restrictions do not run afoul of 
the First Amendment. In the context of a federally subsidized program, 
like the Interstate TRS Fund, the government ``may certainly insist 
that these `public funds be spent for the purposes for which they were 
authorized.' '' United States v. American Library Ass'n, 539 U.S. 194, 
212 (2003) (quoting Rust v. Sullivan, 500 U.S. 173, 196 (1991)). The 
Interstate TRS Fund is designed to ensure that persons with hearing and 
speech disabilities have access to the telephone system. It was not 
intended to finance lobbying by TRS providers directed at end users. 
The Commission is under no obligation ``to fund such activities out of 
the public fisc.'' Rust, 500 U.S. at 198. For the same reasons, it is 
reasonable to restrict the use of customer information acquired in the 
provision of federally subsidized TRS services. A consumer or call 
database that a service provider develops and maintains through 
participation in the TRS program is inextricably tied to that federally 
funded program. Consequently, it is permissible to prohibit the use of 
that database for purposes unrelated to the handling of relay calls, 
such as lobbying end users to support a service provider's position 
before the Commission.
    10. Nothing the Commission does in this document would prevent a 
provider from using information and funds from other sources to engage 
in lawful lobbying or advocacy activities. Thus, this is not an 
``unconstitutional conditions'' case in which the government 
``effectively prohibit[ed] the recipient from engaging in the protected 
conduct outside the scope of the federally funded program.'' Rust, 500 
U.S. at 197; see also Regan v. Taxation With Representation of 
Washington, 461 U.S. 540, 544-46 (1983) (holding that tax exemption for 
non-profit groups that do not engage in lobbying did not violate First 
Amendment; and noting that a group could qualify for the tax exemption 
by adopting a ``dual structure,'' with one arm for non-lobbying 
activities and another for lobbying); DKT Int'l, Inc. v. United States 
Agency for Int'l Development, 477 F.3d 758 (D.C. Cir. 2007) (rejecting 
First Amendment challenge to requirement that recipients of funds from 
AIDS/HIV education program adopt policy of opposition to prostitution 
and sexual trafficking, and noting that recipients could remain neutral 
by setting up a subsidiary that would receive the funds and adopt the 
policy). TRS providers are free to use those resources outside the 
scope of the TRS program to support their positions before the 
Commission.
    11. Finally, the Commission reiterates that a relay provider may 
not use TRS consumer or call data, or similar, privately obtained 
information, to contact a relay user in an attempt to increase, 
directly or indirectly, the number or length of relay calls the user 
otherwise may choose to make via that provider. In this instance, 
because the practice itself (i.e., offering users financial or similar 
incentives to generate additional or longer calls that can be billed to 
the Fund) is prohibited by the Commission, communications with relay 
users in furtherance of this practice are likewise prohibited, no 
matter the source of the consumer or call data. Because the obligation 
placed on relay providers is to be available to handle calls consumers 
choose to make, when they choose to make them, i.e., to be the ``dial 
tone'' for a consumer that uses relay to call a voice telephone user, 
and because consumers do not pay for this service but rather providers 
are compensated pursuant to Title IV of the Americans with Disabilities 
Act, the Commission finds that these restrictions are necessary to 
prevent providers from improperly urging consumers to make unnecessary 
relay calls, and therefore to ensuring that interstate TRS funds are 
used for their intended purpose. By highlighting examples of both 
permissible and prohibited uses of consumer or call database 
information above, the Commission seeks to ensure that Interstate TRS 
funds are not used for activities that are outside the scope of, or 
incompatible with the purposes of, the Interstate TRS Fund, as defined 
by Congress.
    12. The restrictions on provider-consumer contacts, as clarified in 
this document, apply to relay providers in connection with their 
offering of interstate relay services, including all Internet-based 
relay calls and any other relay calls that are compensated by the 
Interstate TRS Fund. As noted above, however, if, in the future, 
evidence comes to the Commission's attention of the misuse of consumer 
or call database information by traditional TRS providers, in 
connection with their offering of intrastate relay services, the 
Commission may revisit this issue and

[[Page 38931]]

consider the adoption of additional restrictions at that time.

Congressional Review Act

    The Commission will not send a copy of FCC 08-138 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

    Pursuant to sections 1, 2, and 225 of the Communications Act of 
1934, as amended, 47 U.S.C. 151, 152, and 225, FCC 08-138 is adopted 
and became effective on May 28, 2008.

Federal Communications Commission.
William F. Caton,
Deputy Secretary.
[FR Doc. E8-15446 Filed 7-7-08; 8:45 am]
BILLING CODE 6712-01-P