[Federal Register Volume 76, Number 210 (Monday, October 31, 2011)]
[Proposed Rules]
[Pages 67118-67121]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-28069]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CG Docket No. 10-51; FCC 11-155]


Structure and Practices of the Video Relay Service Program

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Commission proposes to modify its rules 
to provide that a certified provider may subcontract with another 
certified provider for, or otherwise authorize the provision by another 
certified provider of, communications assistants (CA) services or call 
center functions only in the event of an unexpected and temporary surge 
in call traffic due to exigent circumstances, and seeks comment on this 
proposal. The purpose of this rule change is to provide clarity as to 
the circumstances under which the Commission will deem subcontracting 
of call handling functions acceptable.

DATES: Comments are due on or before November 30, 2011. Reply comments 
are due on or before December 30, 2011.

ADDRESSES: Interested parties may submit comments identified by [CG 
Docket No. 10-51], by any of the following methods:
     Federal Communications Commission's Web site: Follow the 
instructions for submitting comments.
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: [email protected] or phone: (202) 
418-0530 or TTY: (202) 418-0432.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Gregory Hlibok, Consumer and 
Governmental Affairs Bureau, Disability Rights Office at (202) 559-5158 
(VP) or email at [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Structure and Practices of the Video Relay Service Program, Further 
Notice of Proposed Rulemaking (FNPRM), document FCC 11-155, adopted 
October 17, 2011, and released October 17, 2011 in CG Docket number 10-
51.
    The full text of document FCC 11-155 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. Document FCC 11-155 and copies of subsequently 
filed documents in this matter may also be purchased from the 
Commission's duplicating contractor, BCPI, Inc., Portals II, 445 12th 
Street, SW., Room CY-B402, Washington, DC 20554. Customers may contact 
BCPI, Inc. via its Web site http://www.bcpiweb.com or by calling (202) 
488-5300. To request materials in accessible formats for people with 
disabilities (Braille, large print, electronic files, audio format), 
send an email to [email protected] or call the Consumer and Governmental 
Affairs Bureau at (202) 418-0530 (voice) or (202) 418-0432 (TTY). 
Document FCC 11-155 can also be downloaded in Word or Portable Document 
Format (PDF) at: http://www.fcc.gov/cgb/dro/trs.html#orders.
    Pursuant to Sec. Sec.  1.415 and 1.419 of the Commission's rules, 
47 CFR 1.415 and 1.419, interested parties may file comments and reply 
comments on or before the dates indicated in the DATES section of this 
document. Comments may be filed using: (1) The Commission's Electronic 
Comment Filing System (ECFS); or (2) by filing paper copies. All 
filings should reference the docket number of this proceeding, CG 
Docket No. 10-51.
     Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/. Filers should follow the instructions provided on the Web site 
for submitting comments. In completing the transmittal screen, ECFS 
filers should include their full name, U.S. Postal Service mailing 
address, and CG Docket No. 10-51.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing. Filings can be sent by 
hand or messenger delivery, by commercial overnight courier, or by 
first class or overnight U.S. Postal Service mail. All filings must be 
addressed to the Commission's Secretary, Office of the Secretary, 
Federal Communications Commission.
     All hand-delivered or messenger-delivered paper filings 
for the Commission's Secretary must be delivered to FCC Headquarters at 
445 12th Street, SW., Room TW-A325, Washington, DC 20554. The filing 
hours are 8 a.m. to 7 p.m. All hand deliveries must be held together 
with rubber bands or fasteners. Any envelopes or boxes must be disposed 
of before entering the building.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743.
    Pursuant to 47 CFR 1.1200 et seq., this matter shall be treated as 
a ``permit-but-disclose'' proceeding in accordance with the 
Commission's ex parte rules. Persons making ex parte presentations must 
file a copy of any written presentation or a memorandum summarizing any 
oral presentation within two business days after the presentation 
(unless a different deadline applicable to the Sunshine period 
applies). Persons making oral ex parte presentations are reminded that 
memoranda summarizing the presentation must: (1) List all persons 
attending or otherwise participating in the meeting at which the ex 
parte presentation was made; and (2) summarize all data presented and 
arguments made during the presentation. If the presentation consisted 
in whole or in part of the presentation of data or arguments already 
reflected in the presenter's written comments, memoranda or other 
filings in the proceeding, the presenter may provide citations to such 
data or arguments in his or her prior comments, memoranda, or other 
filings (specifying the relevant page and/or paragraph numbers where 
such data or arguments can be found) in lieu of summarizing them in the 
memorandum. Documents shown or given to Commission staff during ex 
parte meetings are deemed to be written ex parte presentations and must 
be filed consistent with Sec.  1.1206(b) of the Commission's rules. In 
proceedings governed by Sec.  1.49(f) of the Commission's rules or for 
which the Commission has made available a method of electronic filing, 
written ex parte presentations and memoranda summarizing oral ex parte 
presentations, and all attachments thereto, must be filed through the 
electronic comment filing system available for that proceeding, and 
must be filed in their native format (e.g., .doc, .xml, .ppt, 
searchable .pdf). Participants in this proceeding should familiarize 
themselves with the Commission's ex parte rules.

[[Page 67119]]

Synopsis

    In document FCC 11-155, the Commission clarifies that certified VRS 
providers may roll-over VRS traffic to another eligible provider only 
when unable to handle an unexpected and temporary surge in call traffic 
due to exigent circumstances, such as in the event of a natural 
disaster or other comparable emergency that is outside the provider's 
control. Specifically, the Commission proposes to modify Sec.  
64.604(c)(5)(iii)(N)(1)(iii) of its rules to provide that a certified 
provider may subcontract with another certified provider for, or 
otherwise authorize the provision by another certified provider of, 
communications assistants (CA) services or call center functions only 
in the event of an unexpected and temporary surge in call traffic due 
to exigent circumstances, and seeks comment on this proposal. The 
purpose of this rule change is to better ensure that the integrity of 
VRS by requiring that it be provided by qualified, stand-alone 
providers who operate their own call centers and employ their own CAs. 
In all other circumstances, certified providers must provide the core 
components of VRS using their owned facilities and their full- or part-
time employees. The Commission finds this proposed modification to be 
consistent with its stated VRS program goals. The Commission further 
finds this proposed modification to be reasonable and in the public 
interest, as it will facilitate redundancy, and thus reliability, of 
VRS services.
    The Commission seeks comment on the specific types of exigent 
circumstances that would warrant subcontracting or similar arrangements 
between eligible providers. Transfer of call traffic between eligible 
providers should not routinely occur, but rather should be the rare 
exception that occurs only in exigent circumstances.
    The Commission tentatively concludes that, when a provider seeks to 
be reimbursed from the Fund for minutes transferred to another eligible 
VRS provider as a result of exigent circumstances, it should submit 
such minutes in its monthly submission to the Fund administrator for 
reimbursement in the normal course, but must identify any such minutes 
as having been handled by another provider and identify the other 
provider. The Commission also tentatively concludes that the Fund 
administrator shall determine whether exigent circumstances exist as 
part of its normal processes for verifying monthly submissions, and may 
request additional information to determine whether, in fact, exigent 
circumstances existed and whether reimbursement is warranted. The Fund 
administrator may withhold reimbursements for minutes where it finds 
that no exigent circumstances existed, or otherwise finds that the 
request for reimbursement is not sufficiently substantiated. The Fund 
administrator shall reimburse the transferring eligible provider for 
compensable minutes resulting from transferred call traffic. The 
Commission seeks comment on these tentative conclusions. The Commission 
also seeks comment on whether there are any other types of 
documentation that providers should be required to furnish to the TRS 
Fund administrator, with their monthly submissions of data to support 
reimbursement from the Fund, in order to demonstrate that exigent 
circumstances necessitated the transfer of call traffic, and on the 
specific information they should be required to provide regarding the 
minutes handled under such circumstances.
    The Commission seeks comment on how the transferring eligible 
provider may compensate the transferee for handling such call traffic 
without violating its rule against VRS revenue-sharing agreements. The 
Commission tentatively concludes that such compensation may not be 
based on per-minute revenue sharing, and seeks comment on this 
tentative conclusion. The Commission also seeks comment on whether, in 
the event the Fund administrator or the Commission determines that no 
exigent circumstances existed, the Fund administrator should withhold 
payment for the transferred traffic, or the Fund administrator should 
be authorized to directly pay the eligible provider that handled the 
traffic; and whether, in the latter scenario, directly paying the 
eligible provider that handled the traffic might provide incentives for 
eligible providers to engage in unauthorized revenue sharing 
arrangements. Finally, the Commission seeks comment on whether there 
are any other amendments that should be made to its rules to facilitate 
the transfer of call traffic between eligible providers in exigent 
circumstances. Furthermore, the Commission seeks comment on whether 
there are any other limited exemptions it should recognize to its 
general prohibition on an eligible provider contracting with or 
otherwise authorizing any third party from providing interpretation 
services or call center functions on its behalf, in light of its 
intention to promote qualified, stand-alone providers operating their 
own call centers and employing their own CAs.

Initial Paperwork Reduction Act Analysis of 1995

    Document FCC 11-155 seeks comment on a potential revised 
information collection requirement and may result in a revised 
information collection. If the Commission adopts the revised 
information collection requirement, the Commission will publish a 
separate notice in the Federal Register inviting the public to comment 
on the requirement, as mandated by the Paperwork Reduction Act of 1995. 
See Public Law 104-13, 44 U.S.C. 3501 et seq. In addition, pursuant to 
the Small Business Paperwork Relief Act of 2002, the Commission seeks 
specific comment from the public on how it might ``further reduce the 
information collection burden for small business concerns with fewer 
than 25 employees.'' See Public Law 107-198, 47 U.S.C. 3506(c)(4).

Initial Regulatory Flexibility Certification

    As required by the Regulatory Flexibility Act (RFA), the Commission 
has prepared this present Initial Regulatory Flexibility Analysis 
(IRFA) of the possible significant economic impact on small entities by 
the policies and rules proposed in this Further Notice of Proposed Rule 
Making (FNPRM). See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 et seq., 
has been amended by the Contract With America Advancement Act of 1996, 
Public Law 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA 
is the Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA). Written public comments are requested on this IRFA. Comments 
must be identified as responses to the IRFA and must be filed by the 
deadlines for comments to document FCC 11-155. The Commission will send 
a copy of document FCC 11-155, including this IRFA, to the Chief 
Counsel for Advocacy of the Small Business Administration (SBA). See 5 
U.S.C. 603(a).

A. Need for, and Objectives of, the Proposed Rules

    The Commission proposes to modify its rules to provide that a 
certified VRS provider may subcontract with another certified VRS 
provider for, or otherwise authorize the provision by another certified 
provider of, CA services or call center functions only in the event of 
an unexpected and temporary surge in call traffic due to exigent 
circumstances, and seeks comment on this proposal. To better ensure the 
provision of VRS by qualified, stand-alone providers operating their 
own call centers and

[[Page 67120]]

employing their own CAs, the Commission tentatively concludes that it 
should modify Sec.  64.604(c)(5)(iii)(N)(1)(iii) of its rules to allow 
an eligible VRS provider to contract with or otherwise authorize 
another eligible provider to provide CA services or call center 
functions on its behalf only when necessitated by an unexpected and 
temporary surge in call traffic due to exigent circumstances, such as 
in the event of a natural disaster or other comparable emergency that 
is outside the provider's control. In all other circumstances, 
certified providers must provide the core components of VRS using their 
owned facilities and their full- or part-time employees. The Commission 
finds this proposed modification to be consistent with its stated VRS 
program goals, and finds this proposed modification to be reasonable 
and in the public interest, as it will facilitate redundancy, and thus 
reliability, of VRS services.

B. Legal Basis

    The legal basis for any action that may be taken pursuant to 
document FCC 11-155 is contained in 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), and Sec.  1.429 of the 
Commission's rules, 47 CFR 1.429.

C. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules May Apply

    Wired Telecommunications Carriers. The Census Bureau defines this 
category as follows: ``This industry comprises establishments primarily 
engaged in operating and/or providing access to transmission facilities 
and infrastructure that they own and/or lease for the transmission of 
voice, data, text, sound, and video using wired telecommunications 
networks. Transmission facilities may be based on a single technology 
or a combination of technologies. Establishments in this industry use 
the wired telecommunications network facilities that they operate to 
provide a variety of services, such as wired telephony services, 
including VoIP services; wired (cable) audio and video programming 
distribution; and wired broadband Internet services. By exception, 
establishments providing satellite television distribution services 
using facilities and infrastructure that they operate are included in 
this industry.''
    In this category, the SBA deems a wired telecommunications carrier 
to be small if it has 1,500 or fewer employees. Census data for 2007 
shows 3,188 firms in this category. Of these 3,188 firms, only 44 had 
1,000 or more employees. While the Commission could not find precise 
Census data on the number of firms within the group with 1,500 or fewer 
employees, it is clear that at least 3,144 firms with fewer than 1,000 
employees would be in that group. On this basis, the Commission 
estimates that a substantial majority of the wired telecommunications 
carriers are small.
    All Other Telecommunications. Under the 2007 U.S. Census definition 
of firms included in the category ``All Other Telecommunications (NAICS 
Code 517919)''comprises ``establishments primarily engaged in providing 
specialized telecommunications services, such as satellite tracking, 
communications telemetry, and radar station operation. This industry 
also includes establishments primarily engaged in providing satellite 
terminal stations and associated facilities connected with one or more 
terrestrial systems and capable of transmitting telecommunications to, 
and receiving telecommunications from, satellite systems. 
Establishments providing Internet services or voice over Internet 
protocol (VoIP) services via client-supplied telecommunications 
connections are also included in this industry.''
    In this category, the SBA deems a provider of ``all other 
telecommunications'' services to be small if it has $25 million or less 
in average annual receipts. For this category of service providers, 
Census data for 2007 shows that there were 2,383 such firms that 
operated that year. Of those 2,383 firms, 2,346 (approximately 98%) had 
$25 million or less in average annual receipts and, thus, would be 
deemed small under the applicable SBA size standard. On this basis, 
Commission estimates that approximately 98% or more of the providers in 
this category are small.
    Wireless Telecommunications Carriers (except Satellite). Since 
2007, the Census Bureau has placed wireless firms within this new, 
broad, economic census category. Prior to that time, such firms were 
within the now-superseded categories of ``Paging'' and ``Cellular and 
Other Wireless Telecommunications.'' Under the present and prior 
categories, the SBA has deemed a wireless business to be small if it 
has 1,500 or fewer employees. For the category of Wireless 
Telecommunications Carriers (except Satellite), Census data for 2007 
shows that there were 1,383 firms that operated that year. Of those 
1,383, 1,368 had fewer than 100 employees, and 15 firms had more than 
100 employees. Thus under this category and the associated small 
business size standard, the majority of firms can be considered small. 
Similarly, according to Commission data, 413 carriers reported that 
they were engaged in the provision of wireless telephony, including 
cellular service, Personal Communications Service (``PCS''), and 
Specialized Mobile Radio (``SMR'') Telephony services. Of these, an 
estimated 261 have 1,500 or fewer employees and 152 have more than 
1,500 employees. Consequently, the Commission estimates that 
approximately half or more of these firms can be considered small. 
Thus, using available data, the Commission estimates that the majority 
of wireless firms can be considered small.
    The Commission notes that under the standards listed above some 
current VRS providers and potential future VRS providers would be 
considered small businesses. There are currently ten eligible VRS 
providers, five of which may be considered small businesses. In 
addition, there are several pending applications from entities seeking 
to become certified to provide VRS that may be considered small 
businesses.

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    There are no new record keeping or reporting requirements proposed 
in the FNPRM in document FCC 11-155.

E. Steps Taken To Minimize Significant Economic Impact on Small 
Entities and Significant Alternatives Considered

    The RFA requires an agency to describe any significant alternatives 
that it has considered in developing its approach, which may include 
the following four alternatives (among others): ``(1) The establishment 
of differing compliance or reporting requirements or timetables that 
take into account the resources available to small entities; (2) the 
clarification, consolidation, or simplification of compliance and 
reporting requirements under the rule for such small entities; (3) the 
use of performance rather than design standards; and (4) an exemption 
from coverage of the rule, or any part thereof, for such small 
entities.'' 5 U.S.C. 603(c)(1)-(4).
    In order to minimize the adverse economic impact on small entities, 
the Commission seeks comment on the alternative types of exigent 
circumstances that would warrant subcontracting or similar arrangements 
between eligible providers. The Commission's goal, in order to prevent 
small entities from sustaining unwarranted and unjustifiable costs, is 
to ensure that this proposed rule

[[Page 67121]]

modification does not open a window for the routine transfer of call 
traffic between eligible VRS providers, for example, in order to avoid 
violation of its VRS speed of answer rule.
    Also, in order to minimize the adverse economic impact on small 
entities, the Commission seeks comment on various ways to implement and 
compensate for the proposed rule modification. Specifically, the 
Commission seeks comment on three alternatives: (1) Whether, in the 
event the Fund administrator or the Commission determines that no 
exigent circumstances existed, the Fund administrator should withhold 
payment for the transferred traffic; or (2) the Commission should 
directly pay the eligible provider that handled the traffic; and (3) 
whether, in the latter scenario, directly paying the eligible provider 
that handled the traffic might provide incentives for eligible 
providers to engage in unauthorized revenue sharing arrangements.
    In conclusion, the Commission seeks comment on the alternatives 
discussed above for such transfer of traffic. The Commission also seeks 
comment on whether any specific reimbursement policy would minimize the 
adverse impact on a substantial number of small entities if any small 
entities would in fact be impacted by this rule modification.

F. Federal Rules That May Duplicate, Overlap, or Conflict With Proposed 
Rules

    None.

Ordering Clauses

    Pursuant to the authority contained in 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), and Sec.  1.429 of 
the Commission's rules, 47 CFR 1.429, the FNPRM in document FCC 11-155 
Is Adopted. The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, Shall Send a copy of the FNPRM in 
document FCC 11-155, including the Initial 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.

Proposed Rules

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

PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS

    1. The authority citation for part 64 is revised to read as 
follows:

    Authority:  47 U.S.C. 154, 254 (k), 227; secs. 403(b)(2)(B), 
(c), Pub. L. 104-104, 100 Stat. 56. Interpret or apply 47 U.S.C. 
201, 218, 225, 226, 207, 228, 254(k), 616 and 620, unless otherwise 
noted.

Subpart F--Telecommunications Relay Services and Related Customer 
Premises Equipment for Persons With Disabilities

    2. The authority citation for subpart F is revised to read as 
follows:

    Authority:  47 U.S.C. 151-154; 225, 255, 303(r), 616, and 620.

    3. In Sec.  64.604, revise paragraph (c)(5)(iii)(N)(1)(iii) to read 
as follows:


Sec.  64.604  Mandatory minimum standards.

* * * * *
    (c) * * *
    (5) * * *
    (iii) * * *
    (N) * * *
    (1) * * *
    (iii) An eligible VRS provider may not contract with or otherwise 
authorize any third party to provide interpretation services or call 
center functions (including call distribution, call routing, call 
setup, mapping, call features, billing, and registration) on its 
behalf, unless necessitated by an unexpected and temporary surge in 
call traffic due to exigent circumstances and the authorized third 
party also is an eligible provider. Exigent circumstances shall be 
deemed to include a natural disaster or other comparable emergency that 
is not reasonably foreseeable and is outside the provider's control, 
but shall not include events that in the ordinary course of business 
could reasonably have been anticipated, such as a surge in traffic 
occurring during a holiday period. When a provider seeks to be 
reimbursed from the Fund for minutes transferred to another eligible 
VRS provider as a result of exigent circumstances, it should submit 
such minutes in its monthly submission to the Fund administrator for 
reimbursement in the normal course, but must identify any such minutes 
as having been handled by another provider and identify the other 
provider. The Fund administrator shall determine whether exigent 
circumstances exist as part of its normal processes for verifying 
monthly submissions, and may request additional information regarding 
the specifics of the exigent circumstances for purposes of determining 
whether, in fact, exigent circumstances existed and whether 
reimbursement is warranted. The Fund administrator may withhold 
reimbursements for minutes where it finds that no exigent circumstances 
existed, or otherwise finds that the request for reimbursement is not 
sufficiently substantiated. The Fund administrator shall reimburse the 
transferring eligible provider for compensable minutes resulting from 
transferred call traffic, and the transferring eligible provider may 
compensate the transferee for handling such call traffic so long as 
such compensation is not on a per-minute basis.
* * * * *
[FR Doc. 2011-28069 Filed 10-28-11; 8:45 am]
BILLING CODE 6712-01-P