[Federal Register Volume 78, Number 24 (Tuesday, February 5, 2013)]
[Proposed Rules]
[Pages 8090-8096]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-02370]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 64
[CG Docket Nos. 13-24 and 03-123; FCC 13-13]
Misuse of Internet Protocol (IP) Captioned Telephone Service;
Telecommunications Relay Services and Speech-to-Speech Services for
Individuals With Hearing and Speech Disabilities
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Commission seeks comment on whether to
make permanent, revise or eliminate its interim rules that: prohibit
all referrals for rewards programs (as described in the synopsis below)
and any other form of direct or indirect inducements, financial or
otherwise, to subscribe to or use, or encourage subscription to or use
of, Internet Protocol Captioned Telephone Service (IP CTS); require
each IP CTS provider, in order to be eligible for compensation from the
Interstate Telecommunications Relay Service (TRS) Fund (Fund or TRS
Fund) for providing service to new IP CTS users, to register each new
IP CTS user, and as part of the registration process, to obtain from
the user a certification that the user has a hearing loss that
necessitates IP CTS to communicate in a manner that is functionally
equivalent to communication by conventional voice telephone users; and
require IP CTS providers to ensure that equipment and software used in
conjunction with their service have a default setting of captions off
at the beginning of each call. The Commission also seeks comment on the
following additional matters: the likely reasons that IP CTS has been
experiencing unprecedented and unusually rapid growth; whether to
prohibit all provider programs that give away or loan equipment to
potential or existing IP CTS users at no cost or below some specified
cost level; whether to require each IP CTS provider, as a condition of
continuing to offer service to existing IP CTS users, to obtain
registration and certification information from each such user; and
whether to adopt any requirements for IP CTS equipment to have labels
informing consumers that IP CTS may be used only by persons with
hearing disabilities. The proposed rules are intended to address
certain practices related to the provision and marketing of IP CTS that
appear to be contributing to a recent and dramatic spike in
reimbursement requests to the TRS Fund of sufficient magnitude to
constitute a serious threat to the Fund if not promptly and decisively
addressed.
DATES: Comments are due on or before February 26, 2013, and reply
comments on or before March 12, 2013.
ADDRESSES: You may submit comments, identified by CG Docket No. 13-24,
by any of the following methods:
Electronic Filers: Comments may be filed electronically using the
Internet by accessing the Commission's Electronic Comment Filing System
(ECFS), through the Commission's Web site http://fjallfoss.fcc.gov/ecfs2/. Filers should follow the instructions provided on the Web site
for submitting comments. For ECFS filers, in completing the transmittal
screen, filers should include their full name, U.S. Postal service
mailing address, and CG Docket No. 13-24.
Paper filers: Parties who choose to file by paper must
file an original and four copies 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 (although the
Commission continues to experience delays in receiving U.S. Postal
Service mail). All
[[Page 8091]]
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 St. SW., Room TW-A325, Washington, DC 20554. All hand
deliveries must be held together with rubber bands or fasteners. Any
envelopes must be disposed of before entering the building.
Commercial Mail sent by 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.
U.S. Postal Service first-class, Express, and Priority
mail should be addressed to 445 12th Street SW., Washington, DC 20554.
[ssquf] In addition, parties must serve one copy of each pleading
with the Commission's duplicating contractor, Best Copy and Printing,
Inc., 445 12th Street SW., Room CY-B402, Washington, DC 20554, or via
email to [email protected]. 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: Eliot Greenwald, Consumer and
Governmental Affairs Bureau, Disability Rights Office, at (202) 418-
2235 or email [email protected].
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Misuse
of Internet Protocol (IP) Captioned Telephone Service;
Telecommunications Relay Services and Speech-to-Speech Services for
Individuals with Hearing and Speech Disabilities, Notice of Proposed
Rulemaking (NPRM), document FCC 13-13, adopted on January 24, 2013 and
released on January 25, 2013, in CG Docket Nos. 13-24 and 03-123. In
document FCC 13-13, the Commission also adopted an Interim Rule and a
Final Rule, each of which is summarized in a separate Federal Register
Publication. The full text of document FCC 13-13 will be available for
public inspection and copying via ECFS, and during regular business
hours at the FCC Reference Information Center, Portals II, 445 12th
Street SW., Room CY-A257, Washington, DC 20554. It also may be
purchased from the Commission's duplicating contractor, Best Copy and
Printing, Inc., Portals II, 445 12th Street SW., Room CY-B402,
Washington, DC 20554, telephone: (800) 378-3160, fax: (202) 488-5563,
or Internet: www.bcpiweb.com. Document FCC 13-13 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 email to [email protected] or call the Consumer and
Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432
(TTY).
Initial Paperwork Reduction Act of 1995 Analysis
Document FCC 13-13 seeks comment on potential new or revised
information collection requirements or may result in new or revised
information collection requirements. If the Commission adopts any new
or revised information collection requirement, the Commission will
publish another notice in the Federal Register inviting the public to
comment on the requirements, as required by the Paperwork Reduction Act
of 1995, Public Law 104-13 (44 U.S.C. 3501-3520). In addition, pursuant
to the Small Business Paperwork Relief Act of 2002, the Commission
seeks comment on how it might ``further reduce the information
collection burden for small business concerns with fewer than 25
employees.''
Synopsis
1. In the accompanying order, which is part of document FCC 13-13,
the Commission adopts an emergency interim rule prohibiting all
referrals for rewards programs or other financial inducements to
subscribe to IP CTS. Specifically, the Commission prohibits any program
initiated, sponsored or operated by IP CTS providers that offer
financial or similar incentives or rewards to third parties for the
referral of customers who sign up to use the provider's IP CTS
offering, or who have a device or software installed that is needed for
use with the provider's IP CTS offering, and any other form of direct
or indirect inducements, financial or otherwise, to subscribe to or
use, or encourage subscription to or use of, IP CTS. The Commission
seeks comment on whether it should adopt this rule permanently, as well
as any alternatives. The Commission asks commenters to weigh the
potential benefits of the proposed rule against the potential costs.
The Commission also seeks comment on whether it should address any
other activities related to referrals for rewards programs or other
financial inducements to subscribe to or use IP CTS, and if so, what
the appropriate scope and nature of those requirements should be.
Again, the Commission asks commenters offering additional proposals to
weigh the potential benefits of such proposals against the potential
costs.
2. In recent months, some providers have initiated programs to give
away or to loan, at no charge, end user IP CTS equipment to IP CTS
users who subscribe to their services. Just as the Commission is
concerned about the potential for certain marketing programs to incent
improper use of IP CTS, it is similarly concerned that the recent spike
in IP CTS usage may be the direct result of these equipment giveaway or
loan programs. Specifically, by giving away devices at no cost, these
programs may be encouraging consumers to obtain and use the free
equipment whether or not they actually need the service to communicate
in a manner that is functionally equivalent to communication by
conventional voice telephone users. Many such phone devices are modern
and attractive--and often provide enhanced sound amplification--
features that are likely to entice consumers with or without hearing
loss to seek their acquisition. Because of the ease and convenience of
using such devices, which function much the same as a conventional
telephone but for the addition of captions, once the device is in a
consumer's possession, the consumer may begin to routinely use the
device--as might others in the consumer's household--even if they do
not need the service to communicate in a manner that is functionally
equivalent to communication by conventional voice telephone users. In
fact, the unobtrusive nature of IP CTS is such that, when using the
phone, consumers may not even be aware that captions are turned on or
that they have the ability to turn them off. In this manner, the free
distribution or loan of such devices may be contributing to heightened
IP CTS usage by persons who do not have a sufficient degree of hearing
loss to require this service to understand conversation over the phone,
and may be contributing to the recent acceleration in usage of this
service. As holds true for the rewards programs discussed above, the
more customers that sign up to acquire free devices to use the
provider's IP CTS, the more compensation the provider may seek to
collect from the Fund, at no cost to the customer. Offering such free
equipment, thus, may have the effect of enlisting customers who might
not otherwise have a reason to use the service, an effect that is
inconsistent with the
[[Page 8092]]
purpose of the TRS program to provide communication services to persons
who have difficulty using conventional telephone services. See, e.g.,
Telecommunications Relay Services and Speech-to-Speech Services for
Individuals with Hearing and Speech Disabilities, CC Docket No. 98-67,
Report and Order and Further Notice of Proposed Rulemaking; published
at 65 FR 38432, June 21, 2000, and at 65 FR 38490, June 21, 2000). By
contrast, when a consumer is required to pay some amount of money for
an IP CTS phone, that individual has the incentive to first consider
whether he or she needs the service, i.e., to evaluate whether the
benefit from the service is worth the cost of the specialized phone.
3. For these reasons, the Commission proposes to prohibit all
provider programs that give away or loan equipment to potential or
existing IP CTS users at no cost or at de minimis cost and seeks
comment on this proposal. The Commission proposes to define ``de
minimis cost'' for the purposes of this rule as a cost that is small
enough so as to generally not be a factor in the consumer's decision to
acquire the IP CTS equipment or software. Cf. Implementation of
Sections 716 and 717 of the Communications Act of 1934, as Enacted by
the Twenty-First Century Communications and Video Accessibility Act of
2010; Amendments of the Commission's Rules Implementing Sections 255
and 251(a)(2) of the Communications Act of 1934, as Enacted by the
Telecommunications Act of 1996; In the Matter of Accessible Mobile
Phone Options for People who are Blind, Deaf-Blind, or Have Low Vision,
CG Docket No. 10-213, WT Docket No. 96-198, CG Docket No. 10-145,
Report and Order and Further Notice of Proposed Rulemaking; published
at 76 FR 82354, December 30, 2011, and at 76 FR 82240, December 30,
2011 (ACS Report and Order). The Commission tentatively concludes that
the distribution of equipment for a de minimis cost will have the same
effect as giving such equipment away for free. The Commission believes
that only if the cost of such equipment is more than de minimis, even
if discounted from its full production cost, will consumers have
sufficient incentive to determine whether the benefits of purchasing
the equipment outweighs its costs. The Commission seeks comment on
these proposals, including its definition of de minimis cost, whether
any rule should be based on a higher price point, and the impact that
free or de minimis cost equipment can have on a consumer's acquisition
of IP CTS equipment and use of IP CTS. In addition, the Commission
seeks comment on the extent to which governmental programs are able to
provide IP CTS equipment to people with limited incomes, making the
free distribution of equipment by providers unnecessary. Commenters are
also invited to offer alternative definitions of de minimis cost for
the Commission's consideration. In addition, the Commission seeks
comment on whether it should adopt any prohibitions with regard to the
free or de minimis cost distribution of software that facilitates the
use of IP CTS. Finally, the Commission seeks comment on whether it
should address any other aspects of IP CTS equipment and software, and
if so, what the appropriate scope and nature of those requirements
should be. The Commission asks commenters to weigh the potential
benefits of such proposed rules against the potential costs.
4. In the accompanying Order which is part of document FCC 13-13,
the Commission adopts interim rules requiring each IP CTS provider, in
order to be eligible for compensation from the TRS Fund for providing
service to new IP CTS users, (1) To register each new IP CTS user for
service, (2) as part of the registration process, to obtain from each
user a self-certification that the user has a hearing loss that
necessitates IP CTS to communicate in a manner that is functionally
equivalent to communication by conventional voice telephone users, and
(3) where the consumer accepts IP CTS equipment for less than $75 from
any source other than a governmental program, to obtain from the user a
certification from an independent, third party professional attesting
to the same. The Commission seeks comment on whether to make these
interim requirements permanent for new IP CTS users. The Commission
also seeks comment on whether it should include existing users within
these requirements. In other words, the Commission also seeks comment
on whether it should require each IP CTS provider, as a precondition to
continuing to be eligible for compensation from the TRS Fund for
providing service to existing IP CTS users, (1) To register each
existing IP CTS user and as part of the registration process, (2) to
obtain from each existing user a self-certification that the user has a
hearing loss that necessitates IP CTS to communicate in a manner that
is functionally equivalent to communication by conventional voice
telephone users, and (3) where the existing user accepts (or has
accepted) IP CTS equipment for less than $75 from any source other than
a governmental program, to also obtain a certification from an
independent, third party professional attesting to the same. As would
be the case for a new user, an existing user who has obtained equipment
from a governmental program would be able to present documentation to
the provider demonstrating that the equipment was obtained through one
of these programs instead of presenting a third-party certification.
The Commission seeks comment on whether these or other certification
requirements would be necessary if the Commission bars the provision of
equipment for free or at de minimis cost. In addition, the Commission
seeks comment on whether, where certification from independent, third
party professionals is required, such certification should be made
under penalty of perjury as an added layer of assurance that the
individual's disability satisfies the Commission's eligibility
requirements. The Commission also seeks comment on whether such
requirements will effectively fulfill Congress's directive to the
Commission, in section 225 of the Communications Act, to ensure that
TRS is available, ``to the extent possible and in the most efficient
manner,'' to persons with hearing and speech disabilities. 47 U.S.C.
225(b)(1). Will the proposed requirements be effective in covering the
population intended for IP CTS, while excluding those who otherwise are
able to communicate effectively by phone? Commenters who do not believe
these are the appropriate requirements should offer alternative
requirements that can be used to ensure that only eligible individuals
who are intended to benefit from this service (i.e., to receive
functionally equivalent telephone service) are permitted to use it. The
Commission also asks commenters to weigh the potential benefits of the
proposed rules against the potential costs.
5. The Commission seeks comment as well on whether to adopt the
same specifications as in the interim rules for the form and content of
any self-certifications, or different specifications. Specifically, the
Commission seeks comment on whether to require the self-certification
to state that (1) The user has a hearing loss that necessitates IP CTS
to communicate in a manner that is functionally equivalent to
communication by conventional voice telephone users; (2) the user
understands that the captioning service is provided by a live
communications assistant (CA); and (3) the user
[[Page 8093]]
understands that the cost of IP CTS calls is funded by the federal TRS
Fund. The Commission further seeks comment on whether the self-
certification must be made on a form separate from any other user
agreement (such as on a separate page), and require a separate
signature specific to the self-certification. Finally, the Commission
seeks comment on whether such self-certification should be made under
penalty of perjury.
6. The Commission also seeks comment on whether to adopt any
quantitative threshold hearing loss requirements to be eligible to use
IP CTS. By way of background, the severity of an individual's hearing
loss is often determined by the additional loudness above a nominal
threshold to which a sound must be amplified before an individual can
detect it. In this manner, levels of hearing loss are frequently
classified in the following categories, defined in terms of the level
of amplification, in decibels of gain (abbreviated as dB HL), necessary
for the individual to detect the sound:
Mild--between 26 and 40 dB HL
Moderate--between 41 and 54 dB HL
Moderately severe--between 55 and 70 dB HL
Severe--between 71 and 90 dB HL
Profound--91+ dB HL
Totally Deaf--no hearing at all
7. Some states have established eligibility threshold requirements
for programs distributing adaptive telecommunications equipment,
including equipment specifically designed for use with CTS and/or IP
CTS service, free of charge, to qualifying residents. Hearing loss
thresholds used for these programs may be relevant because they are
established for purposes of determining whether adaptive equipment is
necessary to enable a person to communicate effectively by telephone.
Most state equipment programs do not use quantified hearing loss
criteria for determining eligibility to receive assistive devices.
Instead, they usually require a general certification from an
audiologist or other professional that the applicant has a disability
preventing effective use of the telephone without the requested device
and frequently, they also require an audiogram to accompany the
certification. At least three states--North Dakota, Washington, and
Wisconsin--however, do set mandatory or recommended criteria requiring
that an individual's hearing loss be severe to profound in order to
receive a CTS device.
8. In commenting on whether the Commission should adopt any
quantitative eligibility requirements, and if so, what those
requirements ought to be, the Commission asks commenters to address the
criteria used by states, and also to address whether an eligibility
threshold for using IP CTS should be based on a moderate hearing loss
of 40 dB in the better ear or whether any other level of hearing loss
would provide a more appropriate threshold. If the Commission were to
adopt objective, quantitative eligibility criteria, should there also
be an alternative means of establishing eligibility, for example a
standard that qualifies an individual to use CTS if, in the reasonable
opinion of a hearing professional, the individual is not capable of
using the telephone in a manner that is functionally equivalent to
communication by conventional telephone users? In addition, the
Commission asks commenters who oppose quantitative requirements to
propose alternative eligibility requirements. The Commission also asks
commenters to weigh the potential benefits of establishing quantitative
and other threshold eligibility criteria against the potential costs.
Finally, the Commission seeks feedback on whether it should similarly
allow states to use their own eligibility thresholds for IP CTS calls
made by their residents to the extent that these exceed our federal
standards, so long as such state requirements do not conflict with
federal law.
9. The Commission also proposes to make permanent its interim rule
requiring each IP CTS provider to maintain the confidentiality of any
registration and certification information obtained by the provider,
and to not disclose such registration and certification information or
the content of such information except as required by law.
10. The Commission seeks comment on these proposals and any
alternatives, including other eligibility criteria that should be
required to become registered to use IP CTS. If the Commission adopts
permanent rules requiring third party certification of the user's need
for IP CTS, the Commission also seeks comment on which professionals
should qualify as resources for providing such certification. The
Commission also asks commenters to weigh the potential benefits of the
proposed rules against the potential costs.
11. The Commission further proposes that providers be allowed a 90-
day grace period to obtain registration and certification from their
existing users, and that IP CTS providers that fail to register
existing users within this grace period be required to cease providing
service to any unregistered users or to any users who fail to provide
the required certification immediately upon expiration of this grace
period. The Commission seeks feedback on how to best implement a
transition period for these requirements, if adopted, and asks
commenters that do not believe that 90 days is the appropriate length
of time for a transition period for registration of existing users to
offer alternative proposals and include the reasons for such proposals.
The Commission notes that in the Commission's reform of the Lifeline
program, the Commission required carriers to recertify the eligibility
of all existing Lifeline subscribers by December 31, 2012, which was
seven months after the effective date of the certification requirement.
Lifeline & Link Up Reform and Modernization, WC Docket No. 11-42,
Report and Order and Further Notice of Proposed Rulemaking, published
at 77 FR 12784, March 2, 2012, and at 77 FR 12952, March 2, 2012. While
so long a grace period may not be necessary here because the number of
IP CTS subscribers is much smaller than the number of Lifeline
subscribers, are there other reasons, such as the need to obtain
certification from a professional, that would make a period longer than
90 days appropriate? Finally, the Commission asks commenters to weigh
the potential benefits of the rules proposed above against the
potential costs.
12. The Commission further proposes to require applicants seeking
certification as IP CTS providers, including any applicants with
pending applications for certification to whom certification has not
been granted as of the effective date of this proposed rule, to submit
to the Commission a description of how they will ensure that they do
not request or collect payment from the TRS Fund for service to users
who do not satisfy the eligibility criteria contained in the rules
proposed herein, and an explanation of how those measures provide such
assurance. Applicants whose submissions do not adequately establish
that they have adequate measures and procedures in place to ensure that
they will serve only eligible users will be denied IP CTS
certification. The Commission seeks comment on this proposal.
13. In the accompanying Order, the Commission raises the concern
that individuals who do not need CTS to communicate in a functionally
equivalent manner and who are either living in the household or
visiting the house or office of an eligible IP CTS user are likely to
use the IP CTS equipment and service, resulting in improper billing of
the TRS Fund. The Commission therefore adopts interim
[[Page 8094]]
rules requiring IP CTS providers to ensure that equipment and software
used in conjunction with their service have captions turned off as the
default setting at the beginning of each call, so that the consumer
must take an affirmative step to turn on the captions each time the
consumer wishes to use IP CTS. The Commission seeks comment on whether
it should make this interim rule permanent, and if so, whether it
should be changed in any way. The Commission asks commenters to weigh
the cost of a requirement for a default setting of captions off against
the benefits of such a requirement. The Commission asks commenters to
address whether a requirement to have captions turned off as the
default setting results in functionally equivalent IP CTS. The
Commission also asks commenters to provide specific data comparing CTS
usage in states with a required captions default off setting to CTS
usage in states without such a requirement. In particular, the
Commission asks commenters to address variations in the data that may
not be related to the default setting--variations such as overall
telephone usage and whether individuals with hearing loss living in
households that include individuals with little or no hearing loss make
less use of the telephone than individuals with hearing loss living in
households where all occupants in the household experience hearing
loss.
14. The Commission's speed of answer rules require that 85% of all
calls be answered within 10 seconds, measured daily. 47 CFR
64.604(b)(2) of the Commission's rules. The Commission seeks comment on
whether the current speed of answer rules are appropriate for IP CTS or
whether such rules should be amended with respect to IP CTS. The
Commission asks commenters to weigh the cost of any amended speed of
answer rules against the benefits of such amended rules.
15. The Commission also seeks comment on whether it should adopt
rules providing for an exception for devices located in a consumer or
work environment where the devices are not accessible to non-eligible
persons and the user certifies that he or she will not permit non-
qualified users to utilize the captioning services provided on the
device. The Commission asks commenters to weigh the cost of adopting
the requirement for a default of captions off without the proposed
exception against the benefits of not including the exception.
16. To further prevent casual or inadvertent use of IP CTS, the
Commission seeks comment on whether it should require that each piece
of new IP CTS equipment have a label on its face in a conspicuous
location specifying that FCC regulations require that captions may be
used only by people with hearing loss who require captions to fully
understand telephone conversations. The Commission also seeks comment
on whether it should require, for equipment that is already in the
possession of users, that IP CTS providers send such labels to their
registered users of this service, with specific instructions directing
users to affix such labels on the front of their IP CTS equipment in a
conspicuous location. In addition, the Commission seeks comment on
whether it should require that the same information be provided on the
caption screen when the equipment is turned on and is in captions-off
mode, as well as during the time period after the user pushes the
``captions on'' button (or takes some other similar action to initiate
captioning) and before captioning commences. The Commission asks
commenters to weigh the costs of these labeling and display
requirements against the benefits of such requirements.
Initial Regulatory Flexibility Analysis
17. The Regulatory Flexibility Act (RFA), 5 U.S.C. 603, requires
that an agency prepare a regulatory flexibility analysis for notice-
and-comment 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.'' 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.'' 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. 5 U.S.C 601(3). 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). 15 U.S.C. 632.
18. In document FCC 13-13, the Commission seeks comment on its
proposal to adopt permanently its interim rule prohibiting all
referrals for rewards programs and any other form of direct or indirect
inducements, financial or otherwise, to subscribe or use, or encourage
subscription to or use of, Internet Protocol captioned telephone
service (IP CTS). The Commission also seeks comment on its proposal to
adopt a rule prohibiting IP CTS providers from providing to consumers,
directly or indirectly, equipment at no cost or at nominal cost,
whether through giveaway, sale, loan or otherwise. In addition, the
Commission seeks comment on whether to adopt permanently its interim
rule requiring each IP CTS provider, in order to be eligible for
compensation from the TRS Fund for providing service to new IP CTS
users, (1) To register each new IP CTS user for service, and as part of
the registration process, (2) to obtain from each user a self-
certification that (i) the user has a hearing loss that necessitates IP
CTS to communicate in a manner that is functionally equivalent to
communication by conventional voice telephone users, (ii) the user
understands that the captioning service is provided by a live
communications assistant (CA); and (iii) the user understands that the
cost of IP CTS calls is funded by the federal TRS Fund; and (3) where
the consumer accepts IP CTS equipment at a price below $75 from any
source other than a governmental program, to also obtain from the user
a certification from an independent, third party professional attesting
to the user's need for IP CTS. In addition, the Commission seeks
comment on whether to require each IP CTS provider, as a condition of
continuing to offer service to existing IP CTS users who have not yet
registered for service, (1) to register each such user with the IP CTS
provider and as part of the registration process, to (2) obtain from
each user certification that the user has a hearing loss that
necessitates IP CTS to communicate in a manner that is functionally
equivalent to communication by conventional voice telephone users.
Lastly, the Commission seeks comment on its proposals to adopt
permanently its interim rule requiring IP CTS equipment to have a
default setting of captions off, so that the consumer must
affirmatively turn on the captions each time the consumer wishes to use
IP CTS, and on whether to require IP CTS equipment to have labels
informing consumers that IP CTS may be used only by persons with
hearing disabilities.
19. In recent months, IP CTS has been experiencing unusually rapid
growth. The Commission is concerned that usage of this service by
people who may not need the assistance of IP CTS, along with improper
incentives for referrals to use this service are contributing
substantially to this sudden, rapid increase in IP CTS minutes of use.
20. With regard to the criterion of the economic impact of document
FCC 13-13, the Commission concludes that IP CTS providers fit within
the business
[[Page 8095]]
classification of Wired Telecommunications Carriers. See NAICS Code
517110 (2007). The closest applicable size standard under the SBA rules
is for Wired Telecommunications Carriers, for which the small business
size standard is all such firms having 1,500 or fewer employees. 13 CFR
121.201, NAICS Code 517110 (2007). Collectively, there are four IP CTS
providers that are authorized by the Commission to offer these
services. Only one of these entities is a small business under the SBA
size standard. Therefore, document FCC 13-13, if adopted, would not
have a significant economic impact on a substantial number of small
entities.
21. The Commission therefore certifies, pursuant to the RFA, that
the proposals in document FCC 13-13, if adopted, will not have a
significant economic impact on a substantial number of small entities.
If commenters believe that the proposals discussed in document FCC 13-
13 require additional RFA analysis, they should include a discussion of
these issues in their comments and additionally label them as RFA
comments. The Commission will send a copy of the Notice, including a
copy of this initial certification, to the Chief Counsel for Advocacy
of the SBA.
Ordering Clauses
22. Pursuant to sections 1, 2, 4(i) and (j) and 225 of the
Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i) and
(j) and 225, document FCC 13-13 is hereby adopted.
List of subjects in 47 CFR Part 64
Individuals with disabilities, Reporting and recordkeeping
requirements, Telecommunications.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Proposed Rule Changes
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
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1. The authority citation to part 64 continues to read as follows:
Authority: 47 U.S.C. 154, 254(k); 403(b)(2)(B), (c), Pub. L.
104-104, 110 Stat. 56. Interpret or apply 47 U.S.C. 201, 218, 222,
225, 226, 227, 228, 254(k), 616, 620, and the Middle Class Tax
Relief and Job Creation Act of 2012, Pub. L. 112-96, unless
otherwise noted.
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2. Amend Sec. 64.604 by revising paragraph (c)(8), and paragraphs
(c)(9), added elsewhere in this issue of the Federal Register,
effective upon OMB approval, and (10), added elsewhere in this issue of
the Federal Register, effective March 7, 2013, and by adding paragraph
(c)(11) to read as follows:
Sec. 64.604 Mandatory minimum standards.
* * * * *
(c) * * *
(8) Inducements for use of IP CTS. An IP CTS provider shall not
provide to any person or entity any form of direct or indirect
inducements, financial or otherwise, to subscribe to or use or
encourage subscription to or use of IP CTS. IP CTS providers offering
or providing such inducements shall be ineligible for any compensation
for IP CTS from the TRS Fund.
(9) IP CTS registration and certification requirements. (i) IP CTS
providers, in order to be eligible to receive compensation from the TRS
Fund for providing IP CTS, must first register the consumer by
obtaining the following registration information: the applicant's name,
address and telephone number.
(ii) IP CTS providers, in order to be eligible to receive
compensation from the TRS Fund for providing IP CTS, also must first
obtain a written certification attesting that the consumer needs IP CTS
to communicate in a manner that is functionally equivalent to the
ability of a hearing individual to communicate using voice
communications services.
(iii) The certification required by paragraph (c)(9)(ii) of this
section must include the consumer's certification that
(A) The consumer has a hearing loss that necessitates IP CTS to
communicate in a manner that is functionally equivalent to
communication by conventional voice telephone users;
(B) The consumer understands that the captioning service is
provided by a live communications assistant; and
(C) The consumer understands that the cost of the IP CTS calls is
funded by the TRS Fund.
(iv) The certification required by paragraph (c)(9)(ii) of this
section must be made on a form separate from any other agreement or
form, and must include a separate consumer signature specific to the
certification. For purposes of this rule, an electronic signature,
defined by the Electronic Signatures in Global and National Commerce
Act, 15 U.S.C. 7001 et seq., as an electronic sound, symbol, or
process, attached to or logically associated with a contract or other
record and executed or adopted by a person with the intent to sign the
record, has the same legal effect as a written signature.
(v) In instances where IP CTS equipment is or has been obtained by
a consumer for less than $75, the IP CTS provider must also, in order
to be eligible to receive compensation from the TRS Fund, obtain
written certification provided and signed by an independent third-party
professional, except as provided in paragraph (c)(9)(v)(D) of this
section.
(A) In instances where certification from an independent third-
party professional is required, such professionals must be qualified to
evaluate an individual's hearing loss in accordance with applicable
professional standards, and may include, but are not limited to,
community-based social service providers, hearing related
professionals, vocational rehabilitation counselors, occupational
therapists, social workers, educators, audiologists, speech
pathologists, hearing instrument specialists, and doctors, nurses and
other medical or health professionals.
(B) In instances where certification from an independent third-
party professional is required, such third-party professional must
certify in writing that the IP CTS consumer is an individual with
hearing loss who needs IP CTS to communicate in a manner that is
functionally equivalent to telephone service experienced by individuals
without hearing disabilities.
(C) In instances where certification from an independent third-
party professional is required, such third-party professional must
provide his or her name, title, and contact information, including
address, telephone number, and email address.
(D) In instances where the consumer has obtained equipment from a
governmental program, the consumer may present documentation to the IP
CTS provider demonstrating that the equipment was obtained through one
of these programs, in lieu of providing an independent, third-party
certification.
(vi) Each IP CTS provider shall maintain the confidentiality of any
registration and certification information obtained by the provider,
and may not disclose such registration and certification information or
the content of such registration and certification information except
as required by law or regulation.
(vii) IP CTS providers may continue to provide IP CTS to existing
IP CTS subscribers without obtaining registration information and
certification of the existing subscriber's hearing loss for a period of
90 days following the effective date of this paragraph (c)(9) of this
section.
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(10) IP CTS default settings. (i) IP CTS providers must ensure that
their equipment and software used in conjunction with their service
have a default setting of captions off, so that all new and existing IP
CTS users must affirmatively turn on captioning for each telephone call
initiated or received before captioning is provided.
(ii) When IP CTS equipment is in operation with captions off, and
during the time period after the user of IP CTS takes action to
initiate captioning and before any such captioning commences, the IP
CTS provider must display on the screen of the user's IP CTS equipment
the following message: ``FCC regulations permit the use of captions
only by people with hearing loss who require captions to communicate
effectively using the telephone.''
(11) IP CTS equipment. (i) An IP CTS provider shall not provide to
consumers, directly or indirectly, equipment at no cost or at de
minimis cost, whether through giveaway, sale, loan, or otherwise. For
the cost to be above de minimis cost, the cost must be large enough
such that the consumer is likely to consider such cost in determining
whether the benefit received from the IP CTS service is worth the cost
of the specialized equipment or software. IP CTS providers providing
such equipment or software at no cost or for a de minimis cost shall be
ineligible to receive compensation for minutes of IP CTS use generated
by consumers receiving, directly or indirectly, equipment or software
at no cost or at de minimis cost.
(ii) IP CTS providers shall ensure that any equipment newly
distributed for use with IP CTS has a label on its face in a
conspicuous location specifying that FCC regulations permit the use of
captions only by people with hearing loss who require captions to
communicate effectively using the telephone. For IP CTS equipment
already distributed to users by any IP CTS provider as of the effective
date of this paragraph, such provider shall distribute to users
equipment labels specifying that FCC regulations permit the use of
captions only by people with hearing loss who require captions to
communicate effectively using the telephone, along with specific
instructions directing the users to place such labels on the face of
their IP CTS equipment in a conspicuous location.
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2. Amend Sec. 64.606 by adding paragraph (a)(2)(ii)(F) to read as
follows:
Sec. 64.606 Internet-based TRS provider and TRS program
certification.
(a) * * *
(2) * * *
(ii) * * *
(F) In the case of applicants to provide IP CTS or IP CTS
providers, a description of measures taken by such applicants or
providers to ensure that they do not and will not request or collect
payment from the TRS Fund for service to consumers who do not satisfy
the registration and certification requirements in Sec. 64.604(c)(9),
and an explanation of how these measures provide such assurance.
* * * * *
[FR Doc. 2013-02370 Filed 2-1-13; 4:15 pm]
BILLING CODE 6712-01-P