[Federal Register Volume 76, Number 210 (Monday, October 31, 2011)]
[Rules and Regulations]
[Pages 67070-67073]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-28135]


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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: Final rule; clarification.

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SUMMARY: In this document, the Commission addresses three petitions for 
clarification or reconsideration of a previous order, and amends and 
clarifies the Commission's rules regarding Internet-based 
Telecommunications Relay Services (iTRS) applicants for certification.

DATES: Effective October 31, 2011, except for 47 CFR 
64.606(a)(2)(ii)(A)(4) through (8) and (a)(2)(ii)(E) contains new or 
modified information collection requirements that require approval by 
the Office of Management and Budget (OMB). The Federal Communications 
Commission will publish a document in the Federal Register announcing 
the effective date.

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

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

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Structure and Practices of the Video Relay Service Program, Memorandum 
and Opinion and Order (MO&O) and Order (Order), 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 e-mail 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.

Synopsis

    In the MO&O in document FCC 11-155, the Commission addresses three 
petitions:

A. Sprint Nextel Corporation, Expedited Petition for Clarification, CG 
Docket No. 10-51 (Filed September 6, 2011) (Sprint Petition)

1. Definition of Employees
    Sprint requests that the Commission clarify that communications 
assistants (CAs) who are trained by the provider, who are stationed at 
the facilities of the provider and who are directly under the 
provider's supervision should be deemed to be employees of the 
provider, in satisfaction of the requirement that video relay service 
(VRS) providers employ their own CAs, regardless of whether or not they 
are hired directly by the provider. The Commission denies Sprint's 
requested clarification. The Commission has consistently distinguished 
``employees'' from ``subcontractors'' and ``contractors'' in adopting 
rules and requirements governing the provision of VRS, and the 
Commission finds that Sprint's proposed clarification would render

[[Page 67071]]

those recognized distinctions meaningless. An entity seeking 
certification or already certified by the Commission must ensure that 
each of its VRS CAs who relays calls for which the entity will seek 
reimbursement from the Interstate TRS Fund (Fund) is a full or part-
time employee of that entity. A CA cannot be an independent contractor 
or a temporary worker assigned by an agency, on a non-employment basis, 
to handle VRS calls. The Commission also clarifies that this 
restriction should not preclude a provider from hiring a CA to handle 
VRS calls on a temporary or part-time basis so long as the CA is an 
actual, demonstrable employee, not a contractor or other temporary, 
non-employed worker, of the provider.
2. Roll-Over VRS Traffic
    Sprint further requests that the Commission clarify that certified 
VRS providers will be able to send traffic to other certified VRS 
providers ``when they are unable to immediately handle that traffic due 
to factors outside of their control, e.g., a sudden surge in traffic 
due to an earthquake,'' and still be able to bill and receive 
compensation from the Fund for such traffic under Sec.  
64.604(c)(5)(iii)(F)(1-4) of the Commission's rules.
    The Commission grants Sprint's request for clarification that 
certified VRS providers may roll-over VRS traffic to another eligible 
provider when unable to handle an unexpected and temporary surge in 
call traffic, and finds this request generally to be consistent with 
the goals and policies of the Commission's VRS rules. The Commission 
clarifies that a certified provider may seek reimbursement from the 
Fund for minutes of use that it routes to another certified VRS 
provider where exigent circumstances warrant such routing to handle an 
unexpected and temporary increase in the certified provider's incoming 
traffic. Exigent circumstances do not include events that result in 
increases in traffic that, in the ordinary course of business, could 
reasonably have been anticipated, such as a surge in traffic occurring 
during a holiday period.
    The Commission also reiterates that Sec.  
64.604(c)(5)(iii)(N)(1)(iii) of its rules only allows an eligible 
provider to subcontract for CA services or call center functions with, 
or otherwise authorize the provision of such services or functions 
from, another eligible provider. The Commission therefore clarifies 
that this rule does not apply to non-certified applicants for 
certification; as such, non-certified applicants for certification may 
not rely on the ability to subcontract for or otherwise authorize the 
provision of CA services or call center functions on their behalf after 
they are certified, to demonstrate their eligibility for certification.
3. ACD Platform Leasing From Third-Party Non-Provider
    Sprint's final request is that the Commission clarify that a VRS 
provider leasing an automatic call distribution (ACD) platform from a 
vendor not affiliated with any VRS provider need not locate such ACD on 
its premises or use its own employees to manage such platform. The 
Commission grants Sprint's request insofar as it confirms that a VRS 
provider leasing an ACD platform from a vendor not affiliated with any 
VRS provider need not locate such ACD on its premises or use its own 
employees to manage such a platform. However, regardless of the 
location of the ACD, each provider is responsible for the oversight of 
all the core operations associated with such ACD platform, and shall be 
held accountable for compliance with all pertinent Commission rules and 
policies.

B. Sorenson Communications, Inc., Petition for Reconsideration of Two 
Aspects of the Certification Order, CG Docket No. 10-51 (Filed 
September 6, 2011) (Sorenson Petition)

    In its petition for reconsideration, Sorenson maintains that the 
Commission did not adequately justify the burdensomeness of 
requirements that VRS providers submit, as part of their certification 
applications and, as applicable, in annual reports regarding their 
compliance with the TRS rules: (1) ``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''; and 
(2) all written sponsorship agreements relating to iTRS. The Commission 
grants Sorenson's petition to the extent discussed below.
    The Commission modifies the documentation requirements for proofs 
of purchase, leases, or license agreements for technology and equipment 
used to support call center functions, to apply only to the 
technologies and equipment for a representative sampling of five of a 
provider's domestic call centers, where the provider has more than five 
such centers. However, the Commission requires applicants to retain 
proofs of purchase for all technology and equipment used to support 
call center functions for all of their call centers, and to furnish 
such documentation to the Commission upon the Commission's request. In 
addition, the Commission continues to require providers to submit 
documentation for all technology and equipment used to support call 
center functions for VRS providers that maintain five or fewer domestic 
call centers, and for all international call centers regardless of the 
provider's size. Furthermore, the Commission continues to require all 
VRS applicants, regardless of size, to describe in their submissions 
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. However, in response to Sorenson's stated concerns, the 
Commission modifies the requirement that the applicant state whether 
the technology and equipment for each call center function is owned or 
leased to pertain only to the maximum of five call centers for which, 
as described above, the applicant must provide proofs of purchase, 
license agreements, or leases. Finally, in light of the particular 
documentation requirements applicable to leased ACD platforms, the 
Commission will continue to require that VRS applicants provide a 
complete copy of all ACD leases or license agreements. The Commission 
also clarifies that applicants need only to submit a list of all 
sponsorship arrangements, and to describe on that list any associated 
written agreements relating to iTRS--applicants need not furnish the 
actual copies of the arrangements and associated agreements, but must 
retain copies of all such arrangements and agreements for a period of 
three years from the date of the application and submit them to the 
Commission upon request.

C. AT&T Services, Inc., Petition for Reconsideration of AT&T, CG Docket 
No. 10-51 (Filed September 6, 2011) (AT&T Petition)

    In its petition for reconsideration, AT&T generally seeks 
reconsideration of the requirements that applicants for certification 
operate their own call centers and employ their own CAs. In addition, 
AT&T seeks reconsideration of the prohibition against VRS providers 
subcontracting these core VRS functions to another certified VRS 
provider. The Commission denies the AT&T Petition, and finds that there 
is ample evidence in the record that allowing VRS providers that 
operate without their own facilities to seek reimbursement from the 
Fund has contributed to the serious fraud that has plagued the VRS 
program.

[[Page 67072]]

D. Sua Sponte Order

    In the Order, the Commission clarifies, on its own motion, its 
policies and rules regarding on-site visits to the premises of iTRS 
certification applicants and certified iTRS providers. The Commission 
clarifies that such visits to both applicants for certification and 
certified providers may be announced or unannounced. Applicants for 
certification and certified providers must comply with a request by an 
authorized representative of the Commission to conduct either announced 
or unannounced on-site visits. In the case of applicants, the failure 
to allow complete access to inspect areas of the premises and documents 
related to the provision of iTRS, and to observe live iTRS calls, at 
the time of an authorized on-site visit will be cause for application 
denial. In the case of certified providers subject to an on-site visit 
to ensure continued compliance with the Commission's rules and 
requirements, such failure will result in the suspension of payments 
from the Fund until such access to iTRS-related areas, documents and 
activities is allowed. In addition, a certified provider's failure to 
cooperate with an announced or unannounced on-site visit will be deemed 
a violation of the Commission's rules governing provider audits and 
thus, may also lead to a Commission proceeding imposing appropriate 
sanctions, including the suspension or revocation of the provider's 
certification or forfeiture proceedings.

Paperwork Reduction Act Analysis of 1995

    This document contains new and modified information collection 
requirements. 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 the Commission might 
``further reduce the information collection burden for small business 
concerns with fewer than 25 employees.'' In this present document, the 
Commission has assessed the effects of the modified rules for 
certification by the Commission of eligibility for payments from the 
Fund and finds that the modified information collection requirements 
will not have a significant impact on small business concerns with 
fewer than 25 employees. The Commission received comments on the 
information collection requirements contained in the iTRS Certification 
Order, under OMB Control No. 3060-1150. See, Structure and Practices of 
the Video Relay Service Program, CG Docket No. 10-51, Second Report and 
Order, published at 76 FR 47469, August 5, 2011 (iTRS Certification 
Order). See also, Paperwork Reduction Act Comments of Sorenson 
Communications, Inc. (filed September 6, 2011). By the MO&O, the 
Commission addresses OMB's and Sorenson's concerns by revising the 
language in the rules to require that providers that operate five or 
more domestic call centers only submit copies of proofs of purchase, 
leases or license agreements for technology and equipment used to 
support their call center functions for a representative sampling of 
five call centers, rather than requiring copies for all call centers. 
Further, the Commission clarifies that the rule requiring submission of 
a list of all sponsorship arrangements relating to iTRS only requires 
that a certification applicant describe on the list associated written 
agreements relating to iTRS, and does not require the applicant to 
provide copies of all written agreements. The Commission believes that 
these two rule modifications significantly alleviate the burdens 
associated with the subject information collections requirements, and 
address the concerns Sorenson raised in its PRA comments filed with 
OMB. Both the Administrative Procedures Act and the Commission's rules 
require notice of substantive rules issued by the Commission, with 
limited exceptions, to be made not less than 30 days before such rules 
goes into effect, absent good cause shown and published with the rule. 
In this case, the Commission finds good cause to make these rule 
modifications effective upon publication in the Federal Register of 
notice of the approval of the modified rule by OMB under the PRA.

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.'' See 5 U.S.C. 605(b). The RFA generally defines 
``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' 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). In the MO&O, in response to a VRS provider's 
petition, the Commission amends its rules to modify the documentation 
requirements for eligible iTRS providers for proofs of purchase, 
leases, or license agreements for technology and equipment used to 
support call center functions, to apply only to the technologies and 
equipment for a representative sampling of five of a provider's 
domestic call centers, where the provider has more than five such 
centers. In addition, the Commission amends its rules to clarify that 
applicants need only to submit a list of all sponsorship arrangements, 
and to describe on that list any associated written agreements relating 
to iTRS--applicants need not furnish the actual copies of the 
arrangements and associated agreements. The Commission will revise 
Sec.  64.606(a)(2)(ii)(E) of its rules accordingly.
    These amendments result in a significant reduction in costs and 
other burdens on any iTRS provider, large or small, to comply with 
these rules. Thus, the discussion of whether there is a significant 
economic impact on a substantial number of small entities is moot.
    Therefore, the Commission certifies that the requirements of the 
MO&O will not have a significant adverse economic impact on a 
substantial number of small entities, because there will be no adverse 
impact on any entities, large or small.
    The Commission will send a copy of the MO&O, including the Final 
Regulatory Flexibility Certification, to the Chief Counsel for Advocacy 
of the Small Business Administration, and in a report to Congress 
pursuant to the Congressional Review Act.

Congressional Review Act

    The Commission will send a copy of document FCC 11-155 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).

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, document FCC 11-155 is adopted.
    Sprint's Expedited Petition for Clarification is granted in part 
and denied in part, to the extent provided in FCC 11-155.

[[Page 67073]]

    Sorenson's Petition for Reconsideration is granted, to the extent 
provided in FCC 11-155. AT&T's Petition for Reconsideration is denied.
    Part 64 of the Commission's rules is amended.
    The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, SHALL SEND a copy of document FCC 11-155, 
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 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, 222, 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

0
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.


0
3. Section 64.606 is amended by revising paragraphs (a)(2)(ii)(A)(4) 
and (5), by adding paragraphs (a)(2)(ii)(A)(6) through (8), and by 
revising paragraph (a)(2)(ii)(E) to read as follows:


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

    (a) * * *
    (2) * * *
    (ii) * * *
    (A) * * *
    (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 
function of each call center for which the applicant must provide a 
copy of technology and equipment proofs of purchase, leases or license 
agreements in accordance with paragraphs (a)(2)(ii)(A)(5) through (7) 
of this section, a statement whether such technology and equipment is 
owned, leased or licensed (and from whom if leased or licensed);
    (5) Operating five or fewer call centers within the United States, 
a copy of each proof of purchase, lease or license agreement for all 
technology and equipment used to support their call center functions 
for each call center operated by the applicant within the United 
States;
    (6) Operating more than five call centers within the United States, 
a copy of each proof of purchase, lease or license agreement for 
technology and equipment used to support their call center functions 
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; a copy of each proof of 
purchase, lease or license agreement for technology and equipment used 
to support their call center functions for all call centers operated by 
the applicant within the United States must be retained by the 
applicant for three years from the date of the application, and 
submitted to the Commission upon request;
    (7) Operating call centers outside of the United States, a copy of 
each proof of purchase, lease or license agreement for all technology 
and equipment used to support their call center functions for each call 
center operated by the applicant outside of the United States; and
    (8) A complete copy of each lease or license agreement for 
automatic call distribution.
* * * * *
    (E) For all applicants, a list of all sponsorship arrangements 
relating to Internet-based TRS, including on that list a description of 
any associated written agreements; copies of all such arrangements and 
agreements must be retained by the applicant for three years from the 
date of the application, and submitted to the Commission upon request;
* * * * *

[FR Doc. 2011-28135 Filed 10-28-11; 8:45 am]
BILLING CODE 6712-01-P