[Federal Register Volume 76, Number 151 (Friday, August 5, 2011)]
[Rules and Regulations]
[Pages 47469-47476]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-19795]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

CG Docket No. 10-51; FCC 11-118]


Structure and Practices of the Video Relay Service Program

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Commission adopts modifications to its 
certification process for all Internet-based telecommunications relay 
service (iTRS) providers to ensure that all entities seeking 
certification in the future--or currently certified entities seeking 
re-certification--are fully qualified to provide iTRS in compliance 
with its rules and requirements, to reduce waste, fraud and abuse, and 
to improve the Commission's oversight of these providers once they have 
been certified.

DATES: Effective September 6, 2011, except 47 CFR 64.606(a) (2), (g), 
(h) (2) and (3) which contains information collection requirements that 
have not been approved by the Office of Management and Budget (OMB). 
The Federal Communications Commission will publish a document in the 
Federal Register announcing the effective date. Written comments on the 
Paperwork Reduction Act (PRA) modified information collection 
requirements must be submitted by the public, OMB and other interested 
parties on or before September 6, 2011.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW., 
Washington, DC 20554. Comments on the information collection 
requirements contained herein should be submitted to Cathy Williams, 
Federal Communications Commission, via e-mail at [email protected] and 
[email protected].

FOR FURTHER INFORMATION CONTACT: Gregory Hlibok, Consumer and 
Governmental Affairs Bureau at (202) 559-5158 (VP), or e-mail: 
[email protected]. For additional information concerning the 
information collection requirements contained in this document, contact 
Cathy Williams at (202) 418-2918, or e-mail: [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Structure and Practices of the Video Relay Service Program, Second 
Report and Order (Second Report and Order), document FCC 11-118 adopted 
July 28, 2011, and released July 28, 2011, in CG Docket No. 10-51, 
adopting modifications to its certification process for all iTRS 
providers. The full text of FCC 11-118 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. FCC 11-118 and copies of subsequently filed 
documents in this matter may also be purchased from the Commission's 
duplicating contractor, Best Copying and Printing, Inc. (BCPI), at 
Portals II, 445 12th Street, SW, Room CY-B402, Washington, DC 20554. 
Customers may contact BCPI at its Web site, http://www.bcpiweb.com, or 
by calling 202-488-5300. FCC 11-118 can also be downloaded in Word or 
Portable Document Format (PDF) at: http://www.fcc.gov/cgb/dro/trs.html#orders.
    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), (202) 418-0432 (TTY).

Final Paperwork Reduction Act of 1995 Analysis

    Document FCC 11-118 contains modified information collection 
requirements subject to the PRA. It will be submitted to OMB for review 
under section 3507(d) of the PRA. OMB, the general public, and other 
Federal agencies are invited to comment on the modified information 
collection requirements contained in this proceeding. In addition, the 
Commission notes that pursuant to the Small Business Paperwork Relief 
Act of 2002, Public Law 107-198, the Commission previously sought 
specific comment on how it might further reduce the information 
collection burden on small business concerns with fewer than 25 
employees.
    In document FCC 11-118, the Commission has assessed the effects of 
imposing various requirements on iTRS providers to obtain certification 
from the Commission in order to be eligible for compensation from the 
Interstate TRS Fund (Fund). The Commission has determined that any 
additional data filing requirements imposed by document FCC 11-118 on 
iTRS providers are reasonable and necessary in order to ensure 
compliance with the Commission's rules. The Commission has taken steps 
to address the concerns of commenters stating that some of the 
Commission's proposed rules were overly burdensome. For example, the 
Commission initially proposed to require that a provider file a deed or 
lease for every service center operated. The Commission has modified 
this requirement in its final rule to allow for providers with more 
than five centers to submit a representative sampling of deeds and 
leases. In addition, the Commission has declined to adopt its proposed 
requirement for providers to submit documentation of all financing 
arrangements pertaining to the provision of iTRS. The Commission has 
also declined to adopt the requirement that providers submit copies of 
all subcontracting agreements for services not directly essential for 
the provision of iTRS. The Commission concludes that it has taken steps 
to further reduce the burdens on affected entities to apply for 
certification to receive compensation from the Fund for the provision 
of iTRS, and that the remaining filing requirements are not overly 
burdensome.

Congressional Review Act

    The Commission will send a copy of document FCC 11-118 in a report 
to be sent to Congress and the Government Accountability Office 
pursuant to the Congressional Review Act. See 5 U.S.C. 801(a)(1)(A).

Synopsis

    1. In document FCC 11-118, the Commission modifies its process for 
certifying iTRS providers as eligible for payment from the Fund for 
their provision of iTRS, as proposed in the Commission's Structure and 
Practices of the Video Relay Service Program, Report and Order and 
Further Notice of Proposed Rulemaking (VRS Practices Report and Order 
and Certification FNPRM), document FCC 11-54, published at 76 FR 24393, 
May 2, 2011 and 76 FR 24437, May 2, 2011. In the Certification FNPRM, 
the Commission sought comment on ways to modify the current 
certification process to ensure that iTRS providers receiving 
certification are qualified to provide iTRS in compliance with the 
Commission's rules, and to eliminate waste, fraud and abuse through 
improved oversight of such providers.

Eligibility for Compensation From the TRS Fund

    2. Under the Commission's current rules, an iTRS provider is 
eligible to provide relay services and receive compensation from the 
Fund if it is: (1)

[[Page 47470]]

Operated under contract with and/or by a certified state TRS program; 
(2) owned or operated under contract with an interstate common carrier; 
(3) an interstate common carrier offering TRS under the Commission's 
rules; or (4) certified by the Commission pursuant to Sec.  64.606 of 
the Commission's rules.
    3. The Commission now adopts a requirement for all iTRS providers 
to receive certification from the Commission to be eligible to receive 
compensation from the Fund. As the Commission stated in the 
Certification FNPRM, the current alternative eligibility methods have 
failed to ensure that all providers are qualified to provide service 
that complies with the Commission's rules, or to facilitate Commission 
oversight of all entities eligible under these criteria. Because the 
Commission bears the responsibility for managing the Fund and ensuring 
the integrity of its iTRS programs, it should have the exclusive 
authority to ensure that iTRS is provided by qualified providers and to 
exercise effective oversight over the operations of these providers. 
The Commission finds that requiring all iTRS providers to become 
Commission-certified is a reasonable and appropriate way to achieve 
these objectives and further the Commission's goals of promoting 
effective, efficient, and sustainable iTRS services, and reducing fraud 
and abuse in the VRS program. The Commission further finds that 
applying this requirement to all iTRS will help to ensure that the 
difficulties the Commission has encountered in the VRS program will 
less likely be repeated for other iTRS programs.
    4. Accordingly, an iTRS provider will no longer be permitted to 
receive compensation from the Fund unless it is certified by the 
Commission. The requirement for Commission certification will apply to 
new applicants, and to existing providers who have been eligible to 
provide iTRS under one of the previous alternative methods for 
eligibility. It likewise will apply to all forms of iTRS, and to all 
iTRS providers seeking recertification after their certifications 
expire, including those providers currently eligible under an existing 
Commission certification.

Requirements to Operate Call Center and Employ Communications 
Assistants (CAs)

    5. The Commission will require that entities wishing to be eligible 
for compensation from the Fund for the provision of VRS be certified by 
the Commission, operate the core facilities necessary to provide VRS 
service and employ their own communications assistants (CAs). The 
requirements adopted in the VRS Practices Report and Order, including 
those requiring VRS providers to lease, license or acquire and operate 
their own facilities and employ their own CAs, emanated from the 
Commission's goals of establishing better oversight of the VRS program, 
in order to ensure compliance with the Commission's rules and reduce 
fraud. Requiring VRS providers to operate their own call centers and to 
employ their own CAs will ensure that certified providers exercise 
necessary oversight of their own operations and compliance with 
Commission rules, and enable the Commission to better oversee the core 
operations of these providers.
    6. ACD Platforms. By the term ``ACD platform,'' the Commission 
means the hardware and/or software that comprise the essential call 
center function of call distribution, and that are a necessary core 
component of iTRS. The Commission will require that any VRS provider 
that is leasing an automatic call distribution (ACD) platform from an 
eligible provider or from a third-party non-provider must have a 
written lease for such ACD platform and must include a copy of such 
written lease with its application for certification. The terms of the 
lease may not include (i) Compensation of the lessor by the lessee 
related to minutes of use or (ii) revenue sharing agreements between 
the lessor and the lessee. All references to leasing, leases, lessors, 
and lessees in this discussion of ACD platforms shall be construed to 
refer correspondingly to licensing, licenses, licensors, and licensees.
    7. In addition, a VRS provider leasing an ACD platform from an 
eligible provider must locate the ACD platform on its own premises and 
must use its own employees to manage the ACD platform. In other words, 
an eligible VRS provider may lease the ACD platform from an eligible 
provider on a stand-alone basis, but may not lease capacity on another 
provider's ACD. The Commission will deny any application for 
certification that does not comply with the ACD platform requirements. 
In addition, if the Commission later discovers that a certified VRS 
provider is leasing from an eligible provider an ACD platform subject 
to an arrangement (whether in writing or verbal) that does not comply 
with the ACD platform requirements, the Fund Administrator shall 
immediately suspend all payments to both the lessor and the lessee.
    8. The Commission finds that ACD leases with eligible providers 
calling for revenue sharing, compensation related to minutes of use, 
sharing of the ACD platform, or sharing the management of the ACD 
platform may give providers an increased incentive and ability to 
generate illegitimate minutes to bill to the Fund, and thus could 
result in continuation of the types of unlawful activities that the 
Commission has already seen on the part of many white label providers, 
undermining the Commission's efforts to reduce waste, fraud and abuse. 
In order to prevent fraud and ensure that only providers certified by 
the Commission provide the core components of VRS and exercise 
oversight of, and are accountable for, their own operations, the 
Commission prohibits these practices.
    9. For VRS providers that lease their ACD platforms from 
manufacturers or equipment distributors not affiliated with VRS 
providers, the Commission requires a written lease for such ACD 
platform that conforms to the same restrictions on lease terms 
discussed above (i.e., no compensation related to minutes of use and no 
revenue sharing between lessor and lessee), and that the applicant 
include a copy with its application for certification. The ban on 
revenue sharing and compensation based upon minutes of use should 
remove any incentive on the part of the non-provider lessor to 
facilitate any scheme by a provider to generate illegitimate minutes.
    10. IP Relay and IP CTS Providers. In the VRS Practices Report and 
Order, the Commission adopted requirements that VRS providers own and 
operate their own facilities and employ their own CAs as part of a 
package of rules designed to reduce fraud, establish better oversight 
of the VRS program, and address the unauthorized revenue sharing 
arrangements that have escalated in the VRS program. Though IP Relay 
and IP CTS providers frequently use subcontractors to operate call 
centers, to date there has been no public record of significant waste, 
fraud and abuse in those programs from the use of subcontractors as 
there is in the VRS program, where there have been dozens of 
indictments related to fraud. The Commission therefore finds that to 
apply these requirements to IP Relay and IP CTS providers at this time 
could force such providers to expend significant sums to restructure 
their businesses to own and operate their own facilities, and thereby 
result in disproportionate industry disruption as compared to 
regulatory benefit. Nevertheless, the Commission will monitor the 
provision of IP Relay and IP CTS services and revisit this issue should 
the need arise.

[[Page 47471]]

Evidentiary Documentation for Submission for Certification Application

    11. The Commission has modified some of the documentation 
requirements originally proposed in the Certification FNPRM to minimize 
the burden on applicants to the extent consistent with the Commission's 
responsibility to ensure that only qualified providers are certified 
and that the Commission is able to exercise adequate oversight of 
providers. All of the requirements adopted in document FCC 11-118 are 
adopted pursuant to one or more of the Commission's objectives to 
ensure that iTRS providers receiving certification are qualified to 
provide iTRS in compliance with the Commission's rules, and to 
eliminate waste, fraud and abuse through improved oversight of such 
providers.
    12. Deeds or Leases for Call Centers. The Commission modifies its 
proposal that a certification applicant file a copy of ``each'' deed or 
lease for ``each'' of its call centers. Instead, the Commisison will 
require VRS providers that maintain five or fewer domestic call centers 
to submit the deeds or leases for all of those call centers, while 
requiring providers with more than five domestic call centers to submit 
a representative sampling of the deeds or leases for five of their 
centers, together with a list of all other call centers that they 
operate. The Commission notes that the VRS Practices Report and Order 
already requires that providers, twice per year, submit a list to the 
Commission and the TRS Fund administrator of the locations of all of 
their call centers that handle VRS calls. Specifically, the list must 
contain the street address of each call center, the number of 
individual CAs and CA managers employed at each call center, and the 
name and contact information (phone number and e-mail address) for the 
managers at each call center. The Commission directs that the list we 
require here contain the same information. In addition, all providers 
must submit copies of deeds or leases for all international call 
centers that they operate, regardless of the number of such centers; 
these supplement the five (or fewer, if applicable) domestic deeds or 
leases. Because the Commission does not require at this juncture that 
IP Relay or IP CTS providers actually own or operate call centers, the 
Commission does not apply this documentation requirement to them.
    13. Entities with Financial Interest in Applicant. The Commission 
requires that all iTRS applicants for certification or renewal submit a 
list of individuals or entities that hold at least a 10 percent equity 
interest in the provider, have the power to vote 10 percent or more of 
the securities of the provider, or exercise de jure or de facto control 
over the provider. In addition, the Commission requires applicants to 
submit a description of its organizational structure, and the names of 
its executives, officers, general partners (if the applicant is 
structured as a partnership), and members of its board of directors. 
The Commission declines to adopt its proposal in the Certification 
FNPRM that certification applicants submit a list of all financing 
arrangements pertaining to the provision of iTRS, including 
documentation on loans for equipment, inventory, property, promissory 
notes, and liens.
    14. List of Employees and Copies of Employment Agreements. The 
Commission adopts substantially modified versions of its proposals in 
the Certification FNPRM that certification applicants provide a list of 
names of all their employees, and that applicants furnish copies of 
employment agreements for all of their executives and CAs. With respect 
to employee lists, the Commission requires only that providers submit a 
list of numbers of full-time and part-time employees involved in TRS 
operations, that includes, divided by the following positions: the 
executives and officers; video phone installers; CAs; and persons 
involved in marketing and sponsorship activities. In response to 
several comments objecting to the scope of the Commission's original 
proposal, Commission is not requiring the submission of information on 
employees, such as janitorial staff, who do not have any direct 
involvement with relay services. Nevertheless, the Commission will 
require applicants to retain the more comprehensive documentation that 
the Commission originally asked for regarding employees, including 
names and copies of employment agreements--to the extent they are 
involved in TRS operations--and to furnish it to the Commission upon 
the Commission's request. Likewise, instead of submitting agreements 
for all of its executives and CAs, iTRS certification applicants must 
retain employment agreements for its executives responsible for the 
provision of iTRS, including senior operations and marketing personnel, 
and copies of CA employment contracts. Consistent with record retention 
requirements that the Commission adopted in the VRS Practices Report 
and Order, the Commission likewise adopts a five-year duration period 
for the employment agreements and other employee records that it 
requires providers to retain in this Second Report and Order.
    15. Proofs of Purchase or Lease for Use of All Equipment and/or 
Technologies. The Commission adopts a slightly modified version of the 
Commission's proposal to require applicants for certification to submit 
proofs of purchase or license agreements for all equipment and/or 
technologies, including hardware and software, used for the applicant's 
VRS call center functions. The Commission will require applicants, in 
their submissions, to describe the technology and equipment used to 
support their call center functions--including, but not limited to, 
ACD, routing, call setup, mapping, call features, billing for 
compensation from the TRS Fund, and registration--and for each core 
call center function, state whether it is owned or leased (and from 
whom if leased or licensed), and provide proofs of purchase, license 
agreements, or leases. This requirement's scope is limited to equipment 
and/or technologies to be used by the applicant for its call center 
functions, i.e., to provide the core components (other than CAs) of 
VRS. Because the Commission does not require at this juncture that IP 
Relay or IP CTS providers actually own or operate their own facilities, 
the Commission does not apply this documentation requirement to them.
    16. List of Sponsorship Arrangements. The Commission adopts a 
slightly modified version of its proposal to require that applicants 
submit a list of all sponsorship or marketing arrangements and 
associated agreements. Now the Commission requires only those related 
to iTRS.
    17. Copies of Subcontracting Agreements for Non-Essential Services. 
The Commission now believes that the scope of such documentation would 
be overly broad and only marginally useful, and declines to adopt this 
requirement.
    18. Copies of All Other Agreements Related to Provision of iTRS. In 
the Certification FNPRM, the Commission proposed to require applicants 
for certification to submit copies of ``all other agreements'' 
associated with the provision of iTRS. Although the Commission declines 
to adopt a requirement that applicants submit copies of all other such 
agreements that are not included in any of the above categories, the 
Commission may seek additional relevant information from individual 
applicants that the Commission deems to be directly relevant to the 
applicant's ability to

[[Page 47472]]

comply with the Commission's rules, on an as-needed basis.
    19. Common Carrier Status. The Commission will eliminate the 
requirement that iTRS providers demonstrate their status as common 
carriers in order to receive certification. The Commission notes, 
however, that all providers, regardless of whether they are common 
carriers, are required to provide service in a manner that is both 
compliant with the Communications Act of 1934, as amended 
(Communications Act) and the Commission's rules and orders, and 
consistent with the Commission's policies and goals to prevent fraud 
and abusive practices. To that end, the Commission will seek comment in 
a forthcoming Notice of Proposed Rulemaking on whether it is necessary 
to adopt a rule to make non-common carrier iTRS providers subject to 
the same prohibitions against unjust or unreasonable practices that 
common carriers are subject to under the Communications Act. See 47 
U.S.C. 201(b), 202(a).

On-Site Visits

    20. The Commission finds that on-site visits may uncover 
deficiencies in an application or noncompliance in a provider's 
operations, which will decrease opportunities for and may, in turn, 
prevent, waste, fraud and abuse. Accordingly, the Commission reserves 
the right to include, as part of the iTRS certification process, an on-
site visit to the applicant's headquarters, offices or call centers. 
The Commission also reserves the right to make subsequent, unannounced 
on-site visits of iTRS providers once they receive certification, for 
the purpose of ensuring continued compliance with certification 
requirements.
    21. In order to avoid an interruption of service by those VRS 
providers who are already providing service via subcontracting, but who 
seek to become eligible providers through Commission certification, the 
Commission reserves the right to conditionally grant certification, 
subject to a subsequent optional on-site visit of any applicant where 
the Commission, upon initial review of the application, determines that 
the application facially meets the certification requirements, but that 
the Commission needs to verify some of the information contained in the 
application. Such grant of conditional certification will be without 
prejudice to the Commission's final determination of the applicant's 
qualifications, and will be dependent on the Commission verifying the 
information provided in the application for certification. Ultimate 
conversion to a full certification will occur when the Commission 
finds, based on review of the application, that the conditional grantee 
is in compliance with the Commission's rules and is qualified to 
receive compensation from the Fund for the provision of iTRS services. 
In other words, the Commission will complete its review of the 
applicant's qualifications subsequent to the on-site visit, and if the 
Commission finds the applicant to be qualified based on the complete 
review, then the Commission will issue full certification. If the 
Commission finds the applicant not to be qualified based on the 
complete review, the application will be denied and the conditional 
certification will automatically terminate 35 days after the denial. In 
such a case, the provider must give at least 30 days notice to its 
customers that the provider will no longer provide service.

Annual Reports and Certification Renewals

    22. Due to the evolving nature of the technologies and market for 
iTRS services, it is essential for the Commission to be informed on an 
annual basis of any updates to the information provided in the 
certification application. Therefore, the Commission will now require 
certified iTRS providers to append to their annual reports any 
documentary evidence required for certification that has changed since 
the date that certification was granted, and that has not been included 
in annual reports filed since the date of certification, and to provide 
a summary of such changes. If all documents that a provider supplied to 
the Commission at the time of its certification application and with 
subsequent annual reports remain accurate and current, a provider is 
instead required to append to its annual report an attestation that it 
has no updates to its certification documentation and subsequent annual 
reports. The Commission also declines to eliminate the current rule 
requiring iTRS providers to apply for recertification every five years.

Notification of Substantive Change

    23. In order to ensure that the Commission has complete and up-to-
date information about the types of technologies and equipment used by 
VRS and IP Relay providers, the Commission amends its rules to require 
that each provider notify the Commission within 60 days of its launch 
of any new equipment or technology, including hardware and software, 
that it offers to consumers to the extent that such equipment or 
technology changes the way in which consumers access the provider's VRS 
or IP Relay services or has a bearing on the provider's compliance with 
the Commission's mandatory minimum standards.
    24. The Commission determines that providing services from a new 
facility not previously identified to the Commission or the Fund 
administrator and discontinuation of service from any facility are 
types of substantive changes warranting notification to the Commission. 
In order to ensure that all VRS and IP Relay providers comply with the 
Commission's rules, the Commission must have in its records the 
existence and location of all VRS and IP Relay facilities established 
by the providers. Without such information, it will be more difficult 
to monitor compliance with the Commission's rules and to reduce waste, 
fraud and abuse.
    25. The Commission takes this opportunity to reiterate that if a 
Commission-certified provider purchases, acquires, or merges with 
another iTRS provider, such transaction constitutes a substantive 
change under Sec.  64.606(f)(2) of the Commission's rules, and 
therefore requires notice to the Commission within 60 days of its 
consummation. The Commission further notes that a Commission 
certification is not transferable to an entity not already certified by 
the Commission as eligible for compensation from the Fund.
    26. The Commission finds that this 60-day notification requirement 
should be limited to those changes that likely impact a provider's 
ability to provide service in compliance with the Commission's rules. 
At this time, the Commission does not find it necessary to apply this 
60-day notification requirement to changes in a provider's management, 
name branding of its product, or marketing and outreach activities to 
ensure compliance with the Commission's rules, but will revisit the 
issue if the need arises. Moreover, the rule changes the Commission 
adopts, including the substance of the annual reporting requirements, 
will enable the Commission to better monitor compliance with its rules 
and help reduce waste, fraud and abuse.

Temporary Cessation of Service

    27. The Commission will adopt its proposal to require Commission 
approval in advance of planned service outages by VRS providers and to 
require notification to consumers in advance of such outages. Because 
Commission requirements that service be provided 24 hours a day, seven 
days a week,

[[Page 47473]]

currently apply to VRS but not to IP Relay and IP CTS, the Commission 
adopts these requirements for VRS and not for the other iTRS services. 
As proposed in the Certification FNPRM, applications for temporary 
cessation of service must be filed at least 60 days in advance of such 
planned outage, and the Commission will act on any such application at 
least 35 days in advance of the planned service interruption date to 
afford providers a sufficient opportunity to notify consumers.
    28. The Commission adopts a de minimis exception to its initial 
proposal to require prior Commission consent for all planned service 
outages. Planned outages of less than 30 minutes will not require prior 
consent of the Commission or prior notification to consumers, but the 
Commission must be notified of such outages within two business days 
after the outage. The Commission clarifies that it will not construe 
load-shifting among call centers as an interruption in service if 
service is not affected by such load shifting.
    29. The Commission will require that unforeseen service 
interruptions of any iTRS service beyond the control of the provider be 
reported to the Consumer and Governmental Affairs Bureau (CGB) within 
two business days of the start of such service interruption. The 
Commission also requires that notification of service outages be 
provided to consumers on an accessible Web site, and that the Web site 
also include timely updates of service status.

Timeframe for Existing Providers To Apply for New Certification

    30. In order to ensure the seamless delivery of iTRS during the 
transition period following Commission establishment of the new 
eligibility requirements and certification procedures, any provider 
currently eligible to receive compensation from the TRS Fund via a 
means other than Commission certification is required to apply for 
certification within 30 days after publication in the Federal Register 
of notice of OMB approval of the rules in document FCC 11-118 
containing information collections, if it wishes to continue receiving 
compensation from the Fund without interruption pending review of its 
certification application. The Commission hereby grants interim 
eligibility to any iTRS provider currently eligible to receive 
compensation directly from the TRS Fund to continue to be eligible to 
receive compensation from the Fund. Such interim eligibility shall 
expire (1) 35 days after this application deadline, in the event no 
application is timely filed; (2) 35 days after Commission dismissal or 
denial of the application for certification in the event of Commission 
dismissal or denial; or (3) upon Commission grant of the application 
for certification in the event of Commission grant. Where interim 
eligibility expires under (1) or (2), the Commission requires the 
provider to give its customers at least 30 days notice that the 
provider will no longer provide service.
    31. For those providers with Commission certifications that would 
have expired before the new certification requirements adopted in 
document FCC 11-118 go into effect had they not been extended to 
November 4, 2011, the Commission requires that they submit applications 
for recertification under the new requirements adopted in document FCC 
11-118 after the requirements become effective but at least 30 days 
prior to the expiration of their currently extended certifications--
that is, no later than October 5, 2011, provided that the rules are 
effective by that date.
    32. The current stay of the Commission's rule which prohibits 
revenue sharing arrangements expires on October 1, 2011. For those iTRS 
providers who are not currently eligible to receive compensation 
directly from the TRS Fund but are currently providing service under a 
revenue sharing arrangement, and are interested in seeking a seamless 
transition to certified iTRS provider, the Commission urges that they 
file their certification applications on, or as soon as possible after, 
the day the rules adopted in this Second Report and Order become 
effective, so that review of their applications can commence as soon as 
possible.

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, if 
promulgated, have a significant economic impact on a substantial number 
of small entities.'' The RFA generally defines ``small entity'' as 
having the same meaning as the terms ``small business,'' ``small 
organization,'' and ``small governmental jurisdiction.'' See 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. 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). Small Business Act, 15 U.S.C. 632.
    In document FCC 11-118, the Commission amends its process for 
certifying iTRS providers as eligible for payment from the Fund for 
their provision of iTRS, as proposed in the Commission's Certification 
FNPRM. In the Certification FNPRM, the Commission sought comment on 
ways to revise the current certification process to ensure that iTRS 
providers receiving certification are qualified to provide iTRS in 
compliance with the Commission's rules, and to eliminate waste, fraud 
and abuse through improved oversight of such providers. Specifically, 
in document FCC 11-118, the Commission requires all iTRS providers to 
obtain certification from the Commission in order to be eligible to 
receive compensation from the Fund; requires all VRS applicants for 
Commission certification to lease, license or own, as well as operate, 
essential facilities associated with TRS call centers and to employ 
interpreters to staff those centers at the date of the application; and 
requires each iTRS applicant for certification to submit specific types 
of documentary evidence of its ability to comply with all of the 
Commission's rules, including those adopted in the VRS Practices Report 
and Order. In addition, the Commission adopts rules governing on-site 
visits by Commission staff to the premises of applicants for 
certification, as well as to iTRS providers' premises after they are 
certified. The Commission also revises its rules governing annual 
compliance reports filed by certified providers, and substantive TRS 
program changes that must be reported to the Commission. Finally, the 
Commission requires prior approval for planned cessations of VRS 
service of 30 minutes or longer.
    The Commission has assessed the effects of imposing various 
requirements on iTRS providers to obtain certification from the 
Commission in order to be eligible for compensation from the TRS Fund. 
The Commission has determined that any additional data filing 
requirements imposed by document FCC 11-118 on iTRS providers are 
reasonable and necessary in order to ensure compliance with the 
Commission's rules, particularly in light of the widespread fraud 
currently being investigated in the VRS industry. VRS is a form of 
iTRS. The Commission has taken steps to address the concerns of 
commenters stating that some of the Commission's proposed rules were 
overly burdensome. For example, the Commission initially proposed to 
require that a provider file a deed or

[[Page 47474]]

lease for every service center operated. The Commission has modified 
this requirement in its final rule to allow for providers with more 
than five centers to submit a representative sampling of deeds and 
leases. In addition, the Commission has declined to adopt its proposed 
requirement for providers to submit documentation of all financing 
arrangements pertaining to the provision of iTRS. The Commission has 
also declined to adopt the proposed requirement that providers submit 
copies of all subcontracting agreements for services not directly 
essential for the provision of iTRS. The Commission concludes that it 
has taken steps to further reduce the burdens on affected entities to 
apply for certification to receive compensation from the TRS Fund for 
the provision of iTRS services, and that the remaining filing 
requirements are not overly economically burdensome.
    In order to be compensated, TRS providers are already required to 
comply with all of the Commission's rules governing the provision of 
TRS. All reasonable costs of providing service in compliance with 
document FCC 11-118 are compensable from the Fund. Thus, because 
certified providers will recoup the costs of compliance within a 
reasonable period, the Commission asserts that such providers will not 
be detrimentally burdened. This applies to currently eligible iTRS 
providers, as well as potential future applicants to provide iTRS.
    Applications to become a certified iTRS provider are voluntarily 
submitted. Therefore, the Commission is not imposing an expense on a 
potential applicant that it cannot avoid by either declining to apply 
for certification, or by complying with the Commission's rules. If a 
small entity, as defined by the SBA, makes the latter business decision 
and applies for certification by showing that it can comply with all of 
the Commission's rules, its expenses will be indirectly reimbursed from 
the Fund once it becomes a certified provider. Therefore, for the small 
business entities receiving certification there is no adverse economic 
impact, and the question of whether there is a negative impact on a 
significant number of small entities is moot.
    Therefore, the Commission certifies that the requirements of 
document FCC 11-118 will not have a significant economic impact on a 
substantial number of small entities.
    The Commission will send a copy of document FCC 11-118, including 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).

Ordering Clauses

    Pursuant to sections 1, 4(i), (j) and (o), 225, and 303(r), of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), (j) and 
(o), 225, and 303(r), document FCC 11-118 is adopted.
    Pursuant to Sec.  1.427(a) of the Commission's rules, 47 CFR 
1.427(a), document FCC 11-118 and the rules adopted herein shall be 
effective September 6, 2011, except 47 CFR 64.606(a)(2), (g), (h)(2), 
and (h)(3) of the Commission's rules, which require approval by OMB 
under the PRA and which shall become effective after the Commission 
publishes a notice in the Federal Register announcing such approval and 
the relevant effective date.
    The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, shall send a copy of document FCC 11-118 
including the Final Regulatory Flexibility Certification, to the Chief 
Counsel for Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Part 64

    Individuals with disabilities, Reporting and recordkeeping 
requirements, Telecommunications.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 64 as follows:

PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS

0
1. The authority citation for part 64 continues to read as follows:

    Authority: 47 U.S.C. 154, 254(k); secs. 403(b)(2)(B), (c), Pub. 
L. 104-104, 110 Stat. 56. Interpret or apply 47 U.S.C. 201, 218, 
225, 226, 228, 254(k), and 620, unless otherwise noted.

SUBPART F--TELECOMMUNICATIONS RELAY SERVICES AND RELATED CUSTOMER 
PREMISES EQUIPMENT FOR PERSONS WITH DISABILITIES

0
2. Section 64.604 is amended by adding new paragraph (b)(4)(iv) and by 
revising paragraph (c)(5)(iii)(F) to read as follows:


Sec.  64.604  Mandatory minimum standards.

* * * * *
    (b) * * *
    (4) * * *
    (iv) A VRS provider leasing or licensing an automatic call 
distribution (ACD) platform must have a written lease or license 
agreement. Such lease or license agreement may not include any revenue 
sharing agreement or compensation based upon minutes of use. In 
addition, if any such lease is between two eligible VRS providers, the 
lessee or licensee must locate the ACD platform on its own premises and 
must utilize its own employees to manage the ACD platform.
* * * * *
    (c) * * *
    (5) * * *
    (iii) * * *
    (F) Eligibility for payment from the TRS Fund. (1) TRS providers, 
except Internet-based TRS providers, eligible for receiving payments 
from the TRS Fund must be:
    (i) TRS facilities operated under contract with and/or by certified 
state TRS programs pursuant to Sec.  64.606; or
    (ii) TRS facilities owned or operated under contract with a common 
carrier providing interstate services operated pursuant to this 
section; or
    (iii) Interstate common carriers offering TRS pursuant to this 
section.
    (2) Internet-based TRS providers eligible for receiving payments 
from the TRS fund must be certified by the Commission pursuant to Sec.  
64.606.
* * * * *


0
3. Section 64.606 is amended by revising the section heading and 
paragraph (a)(2), by adding new paragraph (a)(3), by revising 
paragraphs (b)(2), (c)(2), (e)(2), (f)(2) and (g), and by adding new 
paragraph (h) to read as follows:


Sec.  64.606  Internet-based TRS provider and TRS program 
certification.

    (a) * * *
    (2) Internet-based TRS provider. Any entity desiring to provide 
Internet-based TRS and to receive compensation from the Interstate TRS 
Fund, shall submit documentation to the Commission addressed to the 
Federal Communications Commission, Chief, Consumer and Governmental 
Affairs Bureau, TRS Certification Program, Washington, DC 20554, and 
captioned ``Internet-based TRS Certification Application.'' The 
documentation shall include, in narrative form:
    (i) A description of the forms of Internet-based TRS to be provided 
(i.e., VRS, IP Relay, and/or IP captioned telephone relay service);
    (ii) A detailed description of how the applicant will meet all non-
waived mandatory minimum standards applicable to each form of TRS 
offered,

[[Page 47475]]

including documentary and other evidence, and in the case of VRS, such 
documentary and other evidence shall demonstrate that the applicant 
leases, licenses or has acquired its own facilities and operates such 
facilities associated with TRS call centers and employs communications 
assistants, on a full or part-time basis, to staff such call centers at 
the date of the application. Such evidence shall include, but not be 
limited to:
    (A) In the case of VRS applicants or providers,
    (1) Operating five or fewer call centers within the United States, 
a copy of each deed or lease for each call center operated by the 
applicant within the United States;
    (2) Operating more than five call centers within the United States, 
a copy of each deed or lease for a representative sampling (taking into 
account size (by number of communications assistants) and location) of 
five call centers operated by the applicant within the United States, 
together with a list of all other call centers that they operate that 
includes the information required under Sec.  64.604(c)(5)(iii)(N)(2);
    (3) Operating call centers outside of the United States, a copy of 
each deed or lease for each call center operated by the applicant 
outside of the United States;
    (4) A description of the technology and equipment used to support 
their call center functions--including, but not limited to, automatic 
call distribution, routing, call setup, mapping, call features, billing 
for compensation from the TRS Fund, and registration--and for each core 
call center function, a statement whether such technology and equipment 
is owned, leased or licensed (and from whom if leased or licensed); and
    (5) Proofs of purchase, leases or license agreements for all 
technology and equipment used to support their call center functions, 
including a complete copy of any lease or license agreement for 
automatic call distribution.
    (B) For all applicants, a list of individuals or entities that hold 
at least a 10 percent equity interest in the applicant, have the power 
to vote 10 percent or more of the securities of the applicant, or 
exercise de jure or de facto control over the applicant, a description 
of the applicant's organizational structure, and the names of its 
executives, officers, members of its board of directors, general 
partners (in the case of a partnership), and managing members (in the 
case of a limited liability company);
    (C) For all applicants, a list of the number of applicant's full-
time and part-time employees involved in TRS operations, including and 
divided by the following positions: executives and officers; video 
phone installers (in the case of VRS), communications assistants, and 
persons involved in marketing and sponsorship activities;
    (D) For all applicants, copies of employment agreements for all of 
the provider's employees directly involved in TRS operations, 
executives, and communications assistants, and a list of names of 
employees directly involved in TRS operations, need not be submitted 
with the application, but must be retained by the applicant for five 
years from the date of application, and submitted to the Commission 
upon request; and
    (E) For all applicants, a list of all sponsorship arrangements 
relating to Internet-based TRS, including any associated written 
agreements;
    (iii) A description of the provider's complaint procedures; and
    (iv) A statement that the provider will file annual compliance 
reports demonstrating continued compliance with these rules.
    (3) Assessment of Internet-based TRS Provider Certification 
Application. In order to assess the merits of a certification 
application submitted by an Internet-based TRS provider, the Commission 
may conduct one or more on-site visits of the applicant's premises, to 
which the applicant must consent.
    (b) * * *
    (2) Requirements for Internet-based TRS Provider FCC certification. 
After review of certification documentation, the Commission shall 
certify, by Public Notice, that the Internet-based TRS provider is 
eligible for compensation from the Interstate TRS Fund if the 
Commission determines that the certification documentation:
    (i) Establishes that the provision of Internet-based TRS will meet 
or exceed all non-waived operational, technical, and functional minimum 
standards contained in Sec.  64.604;
    (ii) Establishes that the Internet-based TRS provider makes 
available adequate procedures and remedies for ensuring compliance with 
the requirements of this section and the mandatory minimum standards 
contained in Sec.  64.604, including that it makes available for TRS 
users informational materials on complaint procedures sufficient for 
users to know the proper procedures for filing complaints.
    (c) * * *
    (2) Internet-based TRS Provider FCC certification period. 
Certification granted under this section shall remain in effect for 
five years. An Internet-based TRS provider applying for renewal of its 
certification must file documentation with the Commission containing 
the information described in paragraph (a)(2) of this section at least 
90 days prior to expiration of its certification.
* * * * *
    (e) * * *
    (2) Suspension or revocation of Internet-based TRS Provider FCC 
certification. The Commission may suspend or revoke the certification 
of an Internet-based TRS provider if, after notice and opportunity for 
hearing, the Commission determines that such certification is no longer 
warranted. The Commission may, on its own motion, require a certified 
Internet-based TRS provider to submit documentation demonstrating 
ongoing compliance with the Commission's minimum standards if, for 
example, the Commission receives evidence that a certified Internet-
based TRS provider may not be in compliance with the minimum standards.
    (f) * * *
    (2) VRS and IP Relay providers certified under this section must 
notify the Commission of substantive changes in their TRS programs, 
services, and features within 60 days of when such changes occur, and 
must certify that the interstate TRS provider continues to meet Federal 
minimum standards after implementing the substantive change. 
Substantive changes shall include, but not be limited to:
    (i) The use of new equipment or technologies to facilitate the 
manner in which relay services are provided;
    (ii) Providing services from a new facility not previously 
identified to the Commission or the Fund administrator; and
    (iii) Discontinuation of service from any facility.
    (g) Internet-based TRS providers certified under this section shall 
file with the Commission, on an annual basis, a report demonstrating 
that they are in compliance with Sec.  64.604. Such reports must update 
the information required in paragraph (a)(2) of this section and 
include updated documentation and a summary of the updates, or certify 
that there are no changes to the information and documentation 
submitted with the application for certification, application for 
renewal of certification, or the most recent annual report, as 
applicable.
    (h) Unauthorized service interruptions. (1) Each certified VRS 
provider must provide Internet-based TRS without unauthorized voluntary 
service interruptions.

[[Page 47476]]

    (2) A VRS provider seeking to voluntarily interrupt service for a 
period of 30 minutes or more in duration must first obtain Commission 
authorization by submitting a written request to the Commission's 
Consumer and Governmental Affairs Bureau (CGB) at least 60 days prior 
to any planned service interruption, with detailed information of:
    (i) Its justification for such interruption;
    (ii) Its plan to notify customers about the impending interruption; 
and
    (iii) Its plans for resuming service, so as to minimize the impact 
of such disruption on consumers through a smooth transition of 
temporary service to another provider, and restoration of its service 
at the completion of such interruption. CGB will grant or deny such a 
request and provide a response to the provider at least 35 days prior 
to the proposed interruption, in order to afford an adequate period of 
notification to consumers. In evaluating such a request, CGB will 
consider such factors as the length of time of the proposed 
interruption, the reason for such interruption, the frequency with 
which such requests have been made by the provider in the past, the 
potential impact of the interruption on consumers, and the provider's 
plans for a smooth service restoration.
    (3) In the event of an unforeseen service interruption due to 
circumstances beyond an Internet-based TRS service provider's control, 
or in the event of a VRS provider's voluntary service interruption of 
less than 30 minutes in duration, the provider must submit a written 
notification to CGB within two business days of the commencement of the 
service interruption, with an explanation of when and how the provider 
has restored service or the provider's plan to do so imminently. In the 
event the provider has not restored service at the time such report is 
filed, the provider must submit a second report within two business 
days of the restoration of service with an explanation of when and how 
the provider has restored service. The provider also must provide 
notification of service outages covered by this paragraph to consumers 
on an accessible Web site, and that notification of service status must 
be updated in a timely manner.
    (4) A VRS provider that fails to obtain prior Commission 
authorization for a voluntary service interruption or fails to provide 
written notification after a voluntary service interruption of less 
than 30 minutes in duration, or an Internet-based TRS provider that 
fails to provide written notification after the commencement of an 
unforeseen service interruption due to circumstances beyond the 
provider's control in accordance with this subsection, may be subject 
to revocation of certification, suspension of payment from the TRS 
Fund, or other enforcement action by the Commission, as appropriate.

[FR Doc. 2011-19795 Filed 8-4-11; 8:45 am]
BILLING CODE 6712-01-P