MEMORANDUM

TO: Judy Harkins
Gregg Vanderheiden
RERC on Telecommunications Access
Karen Peltz Strauss
KPS Consulting
Re: Summary of FCC Declaratory Ruling and Second Further Notice of

Proposed Rulemaking, In the Matter of Provision of Improved

Telecommunications Relay Services and Speech-to-Speech Services for

Individuals with Hearing and Speech Disabilities, Petition for

Clarification of WorldCom, Inc., CC Dkt. No. 98-67 (released April 22,

2002)

Comments due July 11, 2002

Reply Comments due July 26, 2002

DATE: May 15, 2002

I. Declaratory Ruling

In this proceeding, the Federal Communications Commission (FCC or Commission) responds to a Petition for Clarification filed by WorldCom, Inc. on December 22, 2000. That petition had requested the FCC to clarify that IP Relay would be eligible for reimbursement from the Interstate Telecommunications Relay Service (TRS) Fund. In its Declaratory Ruling, the Commission finds that IP Relay falls within the statutory definition of TRS and that, on an interim basis, such services are eligible for cost recovery entirely from the Interstate TRS Fund.

A. Benefits of IP Relay

The Commission begins with a summary of the many benefits of IP Relay:

• Ubiquity of IP Relay. IP relay is available to anyone who has access to the Internet via a computer, personal digital assistant (PDA), Web-capable telephone, or other device. TTYs are not needed.

• Convenience. Being able to make calls through computers provides convenience, as one does not need to go to a separate TTY or log off the Internet to use a TTY telephone line. In addition, a computer screen and keyboard are easier to use than a TTY.

• Multiple Calls. Because calls are made via computer, IP Relay users can initiate multiple calls simultaneously, make conference calls, or browse the Internet while making a call.

• Quality. Consumers report that the qualityof transmission is better via IP Relay.

• Multivendoring. IP Relay users can choose among relay providers and not be limited to their states' selected relay providers.

• VCO Easier. IP Relay makes 2-line VCO easier. no second telephone line is needed; nor is 3-way calling.

• Protocol Conversion. IP Relay can permit text protocol conversion.

B. Legal Analysis of TRS Statutory Definition

The FCC has determined that IP relay provides access that is functionally equivalent to the voice telephone network, and as such, falls within the definition of telecommunications relay services under Title IV of the Americans with Disabilities Act. To reach this conclusion, the Commission explains that, in defining TRS, "Congress used the broad phrase "telephone transmission services," that was constrained only by the requirement that such service provide a specific functionality." This "functionality" is that TRS provide the ability for a person with a hearing or speech disability to engage in communication by wire or radio with a hearing individual in a manner that is functionally equivalent to the ability of an individual without a disability to communicate using voice communications services. The Commission states that it must give the phrase "telephone transmission service" a broad interpretation in this context, "to include any transmission service involving [telephonic equipment or devices] to the extent that such transmission provides the particular functionality that the definition specifies." (bracketed words in original text).

The Commission goes on to say that Title IV (also known as Section 225 of the Communications Act, not to be confused with section 255) directs the Commission to ensure the availability of TRS to the extent possible, and to provide regulations that encourage the use of existing technology without discouraging the development of improved technology. Its definition of TRS, the Commission concludes, is technology neutral and thus should not impair the use of existing technology or discourage the development of new technology. Rather, the Commission states that its interpretation of the TRS definition "encompasses all transmission using telephonic equipment or devices, whether over the public network, cable, satellite, or any other means, so long as the requisite functionality is provided." (emphasis added). Because IP relay enables people with hearing or speech disabilities to communicate with people who do not have disabilities, and enables two-way communication between people who use a nonvoice terminal device and people who do not use such devices, IP relay meets the "functionality requirements of Section 225" and is a telecommunications relay service under the Act. The Commission refuses, in this Ruling, to decide whether TRS is a telecommunications or information service, saying that it is not relevant to whether IP Relay providers can recover their costs.

C. Cost Recovery

Cost recovery for relay calls made over the public switched network are generally reimbursed by state programs if they are in-state calls, and by the Interstate TRS Fund, if they cross state lines. Currently, there is no way to automatically determine the location of callers who initiate relay calls through IP relay. This is because there is no automatic number identification (ANI) when calls are made to the Internet, and because Internet addresses do not have geographic correlates. Thus, there is no way to determine whether these calls are local or long distance.

In the interest of moving quickly to encourage the development of IP Relay, the Commission has decided to permit IP relay providers to receive reimbursement from the Interstate TRS Fund on an interim basis. The Commission bases this conclusion on language in Title IV that gives it flexibility to determine the jurisdictions from which costs are recovered (the Commission used the same reasoning to allow Interstate reimbursement of all costs associated with video relay.) Effective with the release of the Declaratory Ruling, NECA is directed to use the same funding formula as it uses for relay calls made over the public switched network. At the same time, NECA is directed to develop cost recovery guidelines for IP Relay over the next six months. States, too, are free to provide their own cost recovery for IP Relay from state funds, should they wish to do so.

The Commission does note that there may be two ways to allocate IP relay costs between state relay funds and the Interstate TRS Fund. The first would be to identify the origination of an IP relay call. i.e., users would establish profiles that would identify their state. For the present time, the FCC has rejected this approach for fear that it would raise issues of caller privacy, and might discourage use of IP Relay. The second would be through a cost allocation formula based on the approximate mix of intrastate versus interstate calls. This, too, was rejected for the present time because it would require "substantial research into IP Relay calling patterns." Although the Commission rejected each of these approaches for this first year to encourage the deployment of IP relay, it does seek comment on these methods in the Second Further Notice of Proposed Rulemaking attached to its Declaratory Ruling (discussed below).

D. Minimum Standards

The Commission addressed requests for waivers from certain of its minimum relay standards. This section discusses the Commission's responses to each of these waiver requests. Where waivers are granted, they apply to all IP relay providers.

Speed of Answer. TRS rules require 85% of all calls to be answered within 10 seconds. WorldCom requested a waiver of this standard for one year. The FCC rejected this request, and explained that speed of answer for IP relay calls will be calculated from the time that the IP relay center's equipment accepts the call from the Internet.

Emergency Call Handling. The FCC granted a one year waiver of its rule requiring relay providers to provide location information to public safety answering points (PSAPs). The waiver was granted because IP relay providers cannot identify an IP relay caller's location. The Commission encourages and expects that providers will develop ways to obtain location information from callers and pass this along to emergency services by the end of the waiver period. One proposed way would be to provide software to callers by which they could send a preset emergency message with the press of one or two keys.

Equal Access to Interexchange Carriers. The Commission granted a permanent waiver of its rule requiring relay providers to offer relay users their carriers of choice for long distance calls. Because IP relay does not charge for long distance services, and because consumers will be able to use the IP relay provider of their choice, the Commission found this minimum standard unnecessary.

Voice Initiated Calls. The FCC granted a one year waiver of the requirement that IP relay be accessible by voice for one year. The Commission explained that "technology and the marketplace should drive the pace at which Internet-based relay providers resolve the problems involved with providing voice access to IP relay." However, the Commission made clear that if IP relay providers do develop the technology to provide VCO and STS before this time, they are authorized to provide those services and recover associated costs from the Interstate Fund.

Video Relay Services (VRS)" " FCC rules do not currently require VRS, but where these are provided via IP relay, costs associated with these services may be reimbursed from the Interstate Fund.

Pay-Per-Call. IP Relay must provide this service to achieve functional equivalency and can bill via credit card payments.

Contact Person " "IP providers must provide the name of a contact person or office to the FCC for consumer information and complaints. This parallels the obligation of other TRS providers to provide contact information.

Privacy/Security. TRS rules already mandate the confidentiality of all relay calls. These confidentiality mandates apply to IP relay calls. In addition, the Commission says that providers of IP relay should offer encryption of calls (already currently provided by WorldCom). Where providers do not offer encryption, they must warn callers and call recipients on each call that their service is not encrypted.

II. Second Further Notice of Proposed Rulemaking

The Commission explains that Title IV (Section 225) directs the Commission to issue rules that "generally" provide that the costs associated with interstate relay shall be recovered from interstate subscribers and that the costs associated with intrastate relay shall be recovered from the states. Although the Declaratory Ruling permits IP relay recovery from the Interstate Fund, it requests comment on whether it should attempt to create a method to allocate IP calls as intrastate and interstate. For this purpose, the Commission reaches two tentative conclusions: (1) TRS calls, whether made via PSTN or IP, should be classified by the location of the call's originator and the location of the recipient, without reference to the location of the TRS center, and (2) an interstate communication is one which originates in one state and terminates in another. The Commission seeks comment on these conclusions.

Given these premises, the Commission seeks comment on whether Section 225 requires it to develop a cost allocation methodology for IP relay calls, or whether the section provides discretion to determine that all IP relay costs can be reimbursed from the Interstate TRS Fund. Commenters believing that costs must be allocated between the interstate and intrastate jurisdictions should suggest methods to determine the location of IP Relay callers. Commenters are specifically asked to comment on:

• the use of profiles that can identify the caller's state.
• whether the use of a fixed allocator would satisfy the mandate that costs caused by interstate relay are to be recovered from all subscribers for every interstate service
• how a fixed allocator for dividing reimbursement should be determined
• whether TRS calling patterns made over the telephone network should determine the percentages of IP relay calls that are intra- vs. inter-state
• whether the FCC should devise a fixed allocator or whether this responsibility should be given to another entity, e.g., the Interstate TRS Advisory Council

The Commission makes a point of noting that the scope of its inquiry is limited to IP relay and the recovery of costs associated with this service; i.e., it is not intended to regulate the Internet or establish standards for the separation of Internet traffic in general.

This summary was prepared as part of the RERC on Telecommunications Access, a joint project of Gallaudet University and the Trace Center, University of Wisconsin-Madison under funding from the National Institute on Disability and Rehabilitation Research (NIDRR) of the US Dept of Education Grant H133E990006. The opinions offered herein are those of the author and do not necessarily represent those of the RERC on Telecommunications Access, the Universities or funding agencies.

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