MEMORANDUM

TO: Judy Harkins and Gregg Vanderheiden
Karen Peltz Strauss, KPS Consulting
Re:June 2004 TRS Report and Order

DATE: July 12, 2004

On June 30, 2004, the FCC released a Report and Order, Order on Reconsideration, and Further Notice of Proposed Rulemaking (FNPRM) on various aspects of telecommunications relay services (TRS). The following is a summary of this item. Docket numbers for the proceeding are 90-571, 98-67, 03-123. The due date for comments has not yet been established.

I. Report and Order

A. VRS Cost Recovery

1. The FCC will continue, on an interim basis, to use the per-minute compensation methodology for VRS. But it seeks additional comment in the FNPRM on whether a different methodology should be used, especially given the fact that the per-minute compensation rate for VRS has presented "serious challenges," with respect to CA staffing, labor costs and engineering costs."
2. The FCC will continue using the per minute reimbursement methodology (using a national average to develop the rate) for Internet relay. But it notes that the number of Internet relay minutes per month is now over double the number of minutes of interstate traditional TRS (March 2204. 2.2 million minutes of traditional TRS and 5.2 million minutes of Internet relay), and so in its FNPRM, the FCC asks whether the same compensation rate should be used for both Internet and traditional TRS.

B. Emergency Preparedness for TRS Facilities and Services

In 1988, the FCC created the Telecommunications Service Priority (TSP) Program, a voluntary program to establish priorities for carriers to restore telecommunications services in the event of a disaster. In its June 2003 NPRM, it asked whether TRS facilities should be given priority in the event of such an emergency. In this Order, the FCC clarifies that telecommunications services for the general public are not included in this TSP system, but rather are to be restored only after certain other designated priorities (e.g., telephone service for national security leaders, emergency service providers, and public health officials) are addressed.

The FCC explains that because there is no telephone service priority for the general public, giving TRS providers the same priority as the general public, as had been proposed in last year's NPRM, would not do very much to ensure the swift restoration of TRS. The real question, the FCC says, is whether TRS facilities perform a function that falls within one of the TSP's priority categories that do exist (the FCC gives as an example, "public health, safety, and maintenance of law and order). Because the TSP program is voluntary, not mandatory for anyone, the Commission encourages, but does not mandate, TRS facilities to apply for such priority status. If an application is made, the FCC says it will agree to sponsor such application (made to the Department of Homeland Security's National Communications System). The FCC has agreed that the costs associated with obtaining TSP assignment (e.g. there is a cost for enrolling each line in the program) are a reasonable cost of providing TRS that can be reimbursed.

In addition, the FCC notes that its existing rules already require TRS facilities to have emergency back-up power in the event of an emergency. It therefore rejects requests to require TRS providers and states to provide an operational plan that goes beyond this to ensure the "survivability and continued operation of TRS facilities."

C. Security of IP Relay Calls

In its June 2003 NPRM, the FCC sought comment on whether Internet Relay calls needed to have a level of security, such as encryption that is used in commercial Internet transactions, because these calls involve information packets that do not have the same privacy as do calls made via traditional TRS over the telephone network. Although the FCC now agrees that Internet relay providers should adopt measures that ensure confidentiality, "so that no aspect of a relayed conversation is retrievable in any form," it has decided to allow providers to voluntarily choose a particular technology to achieve this purpose. It says that it will revisit this privacy issue if these voluntary efforts do not sufficiently ensure the security of these calls.

D. Emergency Call Handling Over Wireless Networks

The issue here is the extent to which TRS centers have to be able to determine the appropriate PSAP for emergency calls made over wireless services.. The difficulty is that in the wireless context, it is difficult to determine the location of the caller. The FCC has decided to defer resolution of this issue until its requirements for enhanced 911 service (being handled in another FCC proceeding called the E911 proceeding) are further along. The Commission also noted that one commenter reported that current technology may allow pagers with Internet browsers to connect Internet Relay with emergency services, but it has decided to defer consideration of this issue as well to a future proceeding.

E. Non-Shared Language TRS

The FCC says that it recognizes that the provision of non-shared language relay service. and in particular Spanish to ASL. "may satisfy a specific need for persons with hearing or speech disabilities desiring to communicate with persons who use a different language." But it has determined that this service exceeds the functional equivalency mandate because it is a translation service which offers a "value added" service for hearing people. The FCC concludes that states and relay providers may voluntarily continue offering this feature to meet the needs of its communities, but the Commission will not allow the costs of providing this service to be compensated from the Interstate Fund.

F. Mandatory Minimum Standards

1. Call Set-Up Time. The FCC will not adopt any standards for call set-up (the time it takes for a provider to set up a call after it comes into a center. i.e., after the 85/10 requirement is met). It says that nearly all parties who commented opposed any specific call set-up times because these can vary depending on the type of TRS call, the caller's disability, and the caller's preferences. It also said that because providers are not reimbursed for the period of time it takes to set up a call, providers have their own incentive to keep call set-up times to a minimum.

2. TRS Facilities

i. Communication Access Real-time Translation (CART). The FCC concluded that "it would be premature to require the use of CART at this time" because this technology has several disadvantages that need additional analysis. It promises to revisit this and other technologies, such as speech recognition technology, when they are at a point where they are both effective in improving TRS transmission speed and "economically feasible" to use for TRS.

ii. Interrupt Functionality. This feature allows a TTY user to interrupt incoming text messages to send a message back to the CA. The FCC declines to mandate this feature because (1) it can only be provided via proprietary technology (e.g. TurboCode by Ultratec and Q140 protocol by Ameriphone) and (2) TRS users are increasingly turning to other forms of relay, such as Internet relay and VRS that permit interruptions.

iii. TRS Consumers LEC Offerings. The FCC is adopting a new rule to require anonymous call rejection, call screening, and preferred call-forwarding "to the extent such features are provided by the subscriber's LEC and the TRS facility possesses the necessary technology to pass through the subscriber's Caller ID information to the LEC."

iv. Talking Return Call. This feature allows a person to automatically call back the last incoming number received (e.g., by pressing *69). This feature can also be used to call back a number that has been busy. The FCC decided not to require either talking return call or the busy line monitoring feature because the feasibility of a TRS provider offering this depends on the TRS user's TTY or CPE (telephone equipment) and at present no TTY or CPE can offer a LEC-based talking return call feature. Also, the FCC says it is not practical to offer busy line monitoring because it would require a CA to wait idly for an unforeseeable length of time, monitoring the busy line.

3. Other Technologies

i. Speech Recognition Technology (SRT)" " The FCC decided it is premature to mandate the use of SRT by TRS facilities, since this is in the experimental stage, and there is no non-proprietary SRT available for TRS providers. But the FCC will continue to monitor the development of SRT because it says that any technology that can speed up a TRS call is important to functional equivalency services.

ii. Transmission Speed - The FCC has decided that it is premature to mandate any particular transmission speed technology, but will continue to monitor the development of technology that can enhance the transmission speed of TTY-based TRS calls.

iii. TTY protocols. The FCC will not mandate additional TTY protocols such as V.18 because there are no TTY protocols that are not proprietary. It will continue to monitor this issue.

G. Public Access to Information and Outreach

In its June 2003 NPRM, the FCC sought comment on the effectiveness of current outreach efforts, the need for additional outreach, the role that federal funding can have, and whether a national outreach campaign should be supported by the NECA TRS Fund. The comments received reflected the considerable need for more outreach to increase public awareness about TRS and the failure of existing outreach to achieve this goal. The FCC's Consumer Advisory Council (CAC) reported that approximately 10% of outbound calls result in hang-ups resulting from a lack of understanding of TRS, and was one of the many commenters that asked the FCC to require a coordinated information and outreach program to achieve a "national consciousness" on the use and benefits of TRS. Although the FCC now says that it recognizes that outreach is an issue of serious importance for TRS users, and that outreach efforts to date have not been adequate, it notes that its present regulations already require common carriers to take certain steps to make sure that callers are aware of the availability and use of TRS. Also, under the state certification requirements, states must ensure that providers in their programs provide outreach. especially important, the FCC says, because the majority of TRS calls are intrastate.

The FCC rejects requests to either permit or require the Interstate Fund to fund a national outreach campaign, noting that the costs of such a campaign might be "prohibitive, with uncertain outcomes." It goes on to say that "the amount of money that the Interstate TRS Fund might devote to an outreach campaign would have to be balanced with our efforts in other parts of this Order (and in other recent orders) to more precisely define and manage the costs that determine the compensation rates from the Interstate TRS Fund in an effort to safeguard the integrity of the fund." In this Order, the FCC sticks to clarifying for carriers their responsibility to ensure that callers in their service areas are aware of TRS, and because of the importance of conveying this message to people who may not have hearing and speech disabilities, suggests that common carriers "might consider directing some of their outreach efforts towards the general public."

The FCC also specifically rejects a recommendation of the CAC to give it an outreach role, because it says this is the responsibility of common carriers. But it does suggest that the CAC develop voluntary Best Practices Guidelines on outreach for state TRS programs, providers, and carriers. The Commission also directs CGB to "take concrete steps" on educational and outreach efforts, to include fact sheets and other informational materials through its web site and call centers, and a comprehensive outreach campaign that includes participating in conferences and other events to educate TRS users and the general public. Finally, the Commission will provide media outlets that reach TRS users and the general public with information about TRS.

H. Procedures for Determining TRS Provider Eligibility to Receive Interstate Fund

Payments

In its June 2003 NPRM, the Commission asked whether it should amend it rules to address when TRS providers are eligible to receive payments from the Interstate Fund. It also asked whether the FCC should certify TRS providers that want to offer TRS on their own, without being linked to a state program or a common carrier. Among other things, the Commission also asked whether it should institute a certification process for providers of Internet, VRS and other services that might be entirely compensated from the Interstate Fund. TDI strongly urged the development of a federal TRS certification program to ensure the quality of TRS when there is no state oversight.

The FCC has now decided to defer any decision about requiring federal certification for recipients of Interstate Fund money, but is inviting additional comment on this issue in its FNPRM as part of its broader inquiry on issues related to the oversight of VRS and Internet relay. It notes that if it requires the states to fund intrastate Internet based services, the states will have oversight of these services. It also notes that there is a complaint process that can keep it informed about service problems that need FCC corrective action. The FCC reaffirms the requirement that in order to be eligible for Interstate Funds, a provider must either be part of a state program or provide service under a contract with a carrier that is obligated to offer TRS.

I. Extensions on Existing VRS Waivers of TRS Mandatory Minimum Standards

The FCC has agreed to extend VRS waivers for the following minimum standards until January 1, 2008:

(1) types of calls that must be handled. The FCC says it remains technologically infeasible for VRS providers to offer operator-assisted calls and to bill for long distance calls because VRS providers cannot determine if the call is local or toll. During the waiver period, calls may continue to be placed using calling cards or VRS providers can provide free long distance calling.

(2) equal access to interexchange carriers. The FCC grants this waiver because VRS providers cannot identify whether calls are local or long distance. In its place, the FCC requires VRS providers to offer free long distance service to its customers. With respect to Internet international calls, the FCC clarifies that the Interstate TRS Fund does not reimburse providers for the costs of these calls (No such restriction applies to international VRS calls). At the same time, Internet and VRS providers may charge for long distance or international calls, so long as they offer carrier of choice.

(3) pay-per-call (900) services. The FCC extends this waiver because providers do not have the technology to complete pay-per-call calls.

The FCC has agreed to extend VRS waivers for the following minimum standards until January 1, 2006:

(1) emergency call handling. This minimum standard requires TRS providers to automatically and immediately transfer emergency calls to an appropriate PSAP. The waiver is still needed because VRS providers cannot identify the caller's location when the caller makes the relay connection via the Internet.

(2) speed of answer. Currently, 85% of all traditional TRS calls must be answered within 10 seconds. Although initially, VRS providers had asked for an extension of this waiver, some providers made supplemental submissions to the Commission arguing that the waiver should be reduced to one year to achieve functional equivalency. In addition, hundreds of consumers have sent comments to the FCC complaining of waiting times for VRS. The FCC has now decided to extend the answer speed waiver, but to have it expire on January 1, 2006, or until such time that the FCC adopts a speed of answer rule for VRS, whichever is earlier. It also conditions the waiver on an annual report described below, which it suggests should also include details of the provider's speed of answer data for the prior 12 month period.

The FCC goes on to note that VRS is a highly competitive service, and that this competition should provide incentive for VRS providers to answer VRS calls as promptly as possible until the waiver terminates. Finally, it notes that the answer speed issue is also raised in the FNPRM because of "the importance of this issue to the notion of functional equivalency."

All of the above waivers are granted so long as providers submit an annual report to the Commission containing the following information:

(1) the provider's plan or general approach to meeting the waived standards;

(2) any additional costs that would be required to meet the standards;

(3) the development of any new technology that may affect the particular waivers;

(4) the progress made by the provider to meet the standard;

(5) the specific steps taken to resolve any technical problems that prohibit the provider from meeting the standards; and

(6) any other factors relevant to whether the waivers should continue in effect.

J. Other VRS Waiver Requests

(1) VCO, STS and HCO. Hamilton asked for VRS waivers of these calls for the same reason that they are already waived for Internet relay. since the voice leg of the call must use the Internet, the quality of voice calls is often poor. The FCC waives these services for VRS until January 1, 2008, so long as an annual report is provided, as detailed above.

(2) Automatic Call Forwarding. No waiver is required because the FCC has not required TRS provider to offer this feature.

(3) Speech to Speech and Spanish Relay. The FCC clarifies that these are not required by VRS providers.

K. 711 Access to Pay-Per-Call (900 Services)

Sprint had requested approval to harmonize the rule requiring access to TRS through 711 with a customer's right to block 900 calls originating from his or her telephone. Specifically, Sprint proposed having callers access 900 numbers through TRS by dialing a special, toll-free 900 number. This way, Sprint would be able to ensure that there is no pay-per-call block on the line that the caller is using. The FCC says that Sprint's approach is reasonable and grants Sprint's request to handle 900 pay per calls in this fashion.

The FCC also took this opportunity to amend the definition of 711. Although before, it was defined as "[t]he abbreviated dialing code for accessing all types of relay services anywhere in the United States," the FCC notes that it is wrong to suggest that Internet based TRS (IP Relay and VRS) can be accessed through 711. The new definition deletes the words "all types of" and now reads: "The abbreviated dialing code for accessing relay services anywhere in the United States."

L. Hands On's Application for Certification as an Interstate VRS Provider

The FCC dismisses this petition, having declined to adopt a procedure for certifying providers eligible for compensation from the Interstate Fund.

M. CSD Petition for Limited Waiver for Legal Interpreting in State Legal

Proceedings

CSD had requested a limited waiver of the FCC's rules to allow VRS interpreters to refuse to handle VRS calls that were part of legal depositions and proceedings, such as pre-trial and status conferences with judges, hearings, police interrogations and other on the record proceedings. The FCC summarized CSD's concerns: (1) that a VRS interpreter may end up handling a call for which the CA is not qualified under state law, which in turn would put the interpreter at risk of civil or criminal liability for "interpreting" without the proper credentials; (2) that a VRS interpreter would not be able to adequately prepare for the legal call and therefore could have trouble accurately interpreting the communications; (3) that FCC rules do not allow the VRS interpreter to testify in court about the accuracy of the interpretation, which is often required in legal proceedings.

The Commission has rejected the requested waiver because it says that the CA is intended to be a transparent conduit, the equivalent of a dial tone. Therefore it would be inconsistent with the purpose of TRS, and in conflict with the functional equivalency mandate, to allow CAs to refuse certain calls. The FCC goes on to say that granting the waiver would put the TRS provider and CA in a difficult situation because the CA would need to determine whether a particular call involves a legal proceeding at the same time that the CA should not even know that the call is part of such a proceeding. the CA's role is simply to relay the call. Also, the FCC fears that states could pass similar laws restricting interpreter activities on other subject matters, such as laws that would require interpreters to have certain qualifications to interpret medical matters; CAs would then need to be excused from handling those calls as well.

The FCC explains that the role of VRS CAs is different from that of interpreters in legal settings under state laws because CAs are only responsible for relaying the information transmitted to them. they have "no responsibility for whether the information they relay is received, or received accurately." In contrast, the FCC describes the role of interpreters in legal settings:

[These interpreters] may intercede on behalf of the court, counsel, or client to help ensure that full and accurate comprehension of the proceeding is taking place. They may also be asked to attest to their ability to accurately interpret the legal proceeding in question. Interpreters in legal settings are also obliged to evaluate the assignment (i.e., the proceedings at hand) to determine if they are appropriately qualified, and are expected to recuse themselves or refuse the assignment if they feel they are not the appropriate interpreter. Such expectations are not. and cannot be . placed on VRS (or TRS) CAs.

VRS callers, the FCC concludes, should not expect to receive interpreting services that are common to interpreting in legal proceedings during a VRS call. Additionally, state laws governing legal interpreting in state proceedings do not affect the duties of CAs. CAs need not testify at a state court hearing concerning a relayed call because FCC rules prohibit the disclosure of relayed conversations. As for whether the CA would be exposed to civil or criminal liability under state laws regulating legal interpreting, the FCC concludes that the CA is not acting as a "legal interpreter" under state law when relaying a call. Moreover, absent proof that a CA knowingly participated in an illegal scheme while relaying a call, he or she could not be held liable for relaying a call involving a legal proceeding.

II. Order on Reconsideration

A. The June 20, 2003 Bureau TRS Rate Order

The FCC adopts the interim compensation rates for traditional TRS, Internet Relay and STS set forth in the Bureau's June 2003 Rate Order, but increases the VRS compensation rate from $7.751 to $8.854 per minute for 2003-04, back to September 1, 2003. That date was chosen because the FCC says it based the revised rate on data received after the Bureau's Order was released.

The FCC also finds that the Bureau had authority to modify NECA's proposed payment formulas. In addition, it notes that before the FCC's rules actually gave authority for overseeing interstate relay rates to the FCC's Wireline Competition Bureau. The FCC has now changed its rules to transfer this authority to CGB. The new Order breaks down a review of the June 2003 as follows:

1. Comparison of Costs of VRS and VRI. The FCC says that petitioners who challenged the June 2003 order "misread" the Order in asserting that a comparison between VRS and VRI was a basis for reducing VRS rates. Rather, it was other factors. profit calculations, taxes, and labor costs . that warranted an adjustment to the rates. The discrepancy between VRS and VRI rates, the FCC says, was only one factor that lead to concern over the VRS rates. It says that the sole basis of the rate modification was actually the result of an evaluation of the cost data provided by VRS providers and the conclusion that some costs were not reasonable.

2. Comparison of the Proposed VRS Rate to Historical VRS Compensation Rates. Again, the FCC says that petitioners "misread" the Bureau's Order to the extent they suggest that the rate history was a reason for modifying NECA's proposed VRS rate. Again, the Commission concludes, it was the provider's cost data, not the trend in compensation rates, that resulted in the rate being changed.

3. Disallowance of profit and use of 11.25% rate of return on investment

The FCC rejects arguments in favor of a cost methodology that would allow a profit, or mark-up on expenses that is not itself a cost of providing TRS. Where, as in the ADA, Congress has instructed that certain regulated entities must provide an accommodation for people with disabilities and allows compensation for doing so, it says that "reasonable costs" must be "direct and indirect costs necessary to provide the service. Here, those costs must be consistent with the TRS mandatory minimum standards, and cannot provide reimbursement for services that exceed those minimum standards.

4. Adjustments to Providers' Cost Data. The FCC says that when the Bureau made its adjustments to the VRS rate, it identified three areas in which the reported costs were not reasonable: profit calculations, taxes, and labor costs. The FCC finds that the explanation given by the Bureau for the adjustments is sufficient.

5. Engineering Costs. Providers had submitted engineering costs for improving picture quality, developing proprietary software and what they said was needed to achieve full compliance with the functional equivalency mandate. The FCC agrees with the Bureau's conclusion that such R&D costs aimed at providing advanced VRS features that fall outside of the functional equivalency mandate are not reimbursable as "reasonable costs" because they go beyond the applicable mandatory minimum standards. The "functionality" of a telephone call, the FCC says, is defined by the applicable mandatory minimum standards. The FCC goes on to explain that

there are not gradations of functional equivalency. For a particular provider, the requirement of functional equivalency is met when the service complies with the mandatory minimum standards applicable to the specific service. In this way, the Interstate TRS Fund does not become an unbounded source of funding for enhancements that go beyond these standards, but which a particular provider nevertheless wishes to adopt. . . . We believe that this conclusion best reconciles the Commission's interest in avoiding placing undue burdens on the Interstate TRS Fund with the statutory mandate that the Commission's regulations "do not discourage or impair the development of improved technology.

Although the FCC says that providers are encouraged to use and develop new technologies, it does not believe that "the Interstate TRS Fund was intended to be a source of funding for the development of TRS services, features, and enhancements that, although perhaps desirable, are not necessary for the provision of functionally equivalent TRS service as an accommodation for persons with certain disabilities." It says that such a result is especially problematic with respect to forms of TRS, such as VRS, that are allowed but not mandated.

6. The Providers' Supplemental Data. The FCC notes that some of the supplemental data provided by providers after the June 2003 Order resolved some concerns and others did not.

7. Labor Costs. As for labor costs, the Bureau has waived the 85/10 answer speed rule to avoid heavy and costly staffing needs. The waiver allows VRS providers to add VRS interpreters when needed to meet call volume. The FCC concludes that providers "seeking to justify labor costs based on the staffing necessary to meet the speed of answer requirement. a requirement waived for VRS. are not well-taken."

After reviewing all of the supplementary filings, the FCC increased the rate to $8.854.

8. The Bureau's TRS Order and the Mandates of Section 225 (Title IV of theADA)

The FCC says that the requirements for the Commission to ensure that relay services are available to the extent possible and in the most efficient manner to people with hearing and speech disabilities, as well as the directive to encourage the use of existing technology and not discourage or impair the development of improved technology do not mean that the FCC "must compensate VRS providers for whatever costs they choose to submit, either as a general matter or in pursuit of enhancements that go beyond what is required under the mandatory minimum standards." Rather, the guiding principle is the recovery of "reasonable" costs.

The FCC says it does not doubt that a higher VRS rate "would be more beneficial to the provider's ability (and desire) to offer VRS." But it says it will not allow compensation for higher rates to pursue enhancements for VRS since it is not mandatory" "Providers are not entitled to unlimited financing from the Interstate TRS Fund to enable them to further develop a service that is not even required, under a statute that requires providers to offer TRS as an accommodation for persons with certain disabilities." As for concerns by interpreters about the effect that lower rates will have on cuts in the interpreter workforce, the use of non-certified interpreters, and health and safety concerns that will result from greater workloads, the FCC says it has "not mandated particular interpreter certifications."

As for concerns by consumers about a reduction in the quality and availability of VRS, the FCC notes that since the June 2003 Order was adopted, a new provider began offering VRS and "hours of operation were reduced only slightly by some providers." It also says it "is in possession of no data that reflects a meaningful decline in the quality of VRS." (Note: The FCC has received approximately 4-500 comments from consumers on this issue.)

It concludes that the "reasonable" costs that may be recovered must relate to the provision of the service as it needs to comply with the non-waived mandatory minimum standards, and says that "although the principle of functional equivalency necessarily applies to the provision of all forms of TRS, the parameters of functional equivalency are specific to each form of TRS . . . [A]lthough providers are entitled to recover their costs for providing functionally equivalent service, they are not entitled to recover their costs of providing what they may think is the best possible service they can offer without regard to cost."

B. Order on Reconsideration on Coin Sent-Paid TRS Calls

In the 1990s, when it was determined that it was technically infeasible to handle TRS calls made with coins from payphones, industry and consumers got together and developed an Alternative Plan, approved by the FCC, for the handling of these calls. The plan called for local payphone TRS calls to be free, carriers to charge the lower of the coin rate or the rate for an alternative billing mechanism (credit card or pre-paid card), and carriers to engage in substantial outreach, as mandated by the FCC. On October 25, 2002, the FCC issued its final order on coin sent-paid relay calls, in which it approved the free calling of local calls, but eliminated the requirement for cost parity between coin rates and other forms of billing (though still maintaining the requirement for carriers to handle calls made with calling cards, prepaid cards, and collect or third party billing), and made outreach voluntary instead of mandatory.

TDI, the NAD, CAN and SHHH filed a petition for reconsideration of the FCC's October 2002 Order, arguing that functional equivalency cannot be achieved unless there is cost parity, and also arguing that the Commission should have implemented a national outreach program on coin-sent paid TRS alternatives. The FCC now denies this petition. The FCC rejects the need for parity between coins and other billing methods, noting that the "principle of functional equivalency does not required such rigid equality," especially where, as here, it is not technologically feasible to compare the rates between coins and other billing methods (in part because toll rates for the payphone industry are not regulated). As for outreach, the FCC says that it has declined to order this.

C. Orders on Reconsideration of June 17, 2003 Order

Handling of TRS Emergency Calls

The FCC's June 2003 Order directed all TRS facilities to be able to pass emergency callers on to the appropriate PSAP, and to ensure that databases used to route TRS emergency calls to PSAPs be updated on the same schedule that PSAP routing databases are updated for 911 voice calls. The FCC defined the "appropriate" PSAP as the same PSAP to which a direct call from the originating number would be delivered. After petitions for reconsideration on both of these points, the FCC has ruled:

(1) The FCC's original definition of what is an appropriate PSAP creates an "unnecessary and undue burden" on providers. Instead, the new definition for the appropriate PSAP to which calls must be referred is "either a PSAP that the caller would have reached if he had dialed 911 directly, or a PSAP that is capable of enabling the dispatch of emergency services to the caller in an expeditious manner." The FCC explains that to require routing to the same PSAP would require the entire TRS system to tap into the 911 routing system which would duplicate the 911 system and create substantial expense.

(2) Because the definition of "appropriate" PSAP is changed, it is unnecessary to require TRS facilities to ensure that any database for routing TRS emergency calls be updated on the same schedule as databases for voice 911 calls, or to require local telephone companies to provide PSAP updates to TRS facilities as they update their own facilities with PSAP information. At the same time, the FCC notes that TRS providers have already been maintaining their PSAP databases since the June Order came out, and so it encourages TRS providers to work with state public agencies on a process to provide PSAP data to TRS providers on a timelier basis.

III. Further Notice of Proposed Rulemaking

A. Internet Relay

The FCC notes that Title IV intended for the states to fund intrastate TRS. At present, however, there are no technologies available to provide identification of the caller to the IP Relay center. Therefore, the FCC is considering two other methods to divide IP relay costs, and seeks comment on each of these methods:

Fixed allocator. This would apportion Internet relay calls between the states and the Interstate Fund. The FCC notes that this could create an undue burden for some states if others do not mandate Internet relay service. The FCC asks if an allocator is used, how it should be determined.

Mandatory customer profiles. This would require registration of Internet relay users to determine their location. As for concerns that consumers might have about giving personal information via the Internet, the FCC notes that people are often required to give credit card, addresses and telephone numbers to Internet service providers. Also strict TRS confidentiality rules, as well as the FCC's encouragement to providers that they encrypt calls, it says, should allay these concerns. The FCC then lays out the following proposed registration scheme:

To be eligible for payments from the Interstate Fund, Internet relay providers would be required to ensure that users of their service register a profile showing their geographic location. Calls could then be handled in the following manner: (1) if the caller is registered and calling from the registered location, he or she would confirm that during call set up; (2) if the caller is registered but calling from a different location, he or she would have to provide the telephone number of the telephone line making the Internet connection to the Internet provider or, if calling via high speed Internet access, the location from which he or she is calling; (3) if the caller is not yet registered with the provider, he or she would have to register before the call is placed. Consumers could register with multiple providers. The FCC notes that a registration system may also permit providers to charge for long distance calls, but then they would no longer be entitled to a waiver of the carrier of choice minimum standard. Finally, the FCC asks for comment on whether Internet relay providers should be required to clearly inform customers that any information they provide beyond telephone number or address for the purpose of determining interstate or intrastate jurisdiction would be provided on a purely voluntary basis, as is the current case with caller profiles.

Alternatively, the FCC seeks comment as to whether all Internet calls should be considered to be interstate for purposes of cost reimbursement, whether this would be consistent with the intent of Congress, and the impact that this conclusion would have on the Interstate Fund. It also asks for other approaches to determining which Internet relay calls are inter- versus intrastate. Finally, the FCC asks when any new compensation scheme should be implemented, understanding that state TRS programs will need some time to assume the costs of intrastate services.

B. Mandating Internet Relay and Providing it 24/7

The FCC seeks comment on whether it should require Internet relay to be a mandatory form of TRS service, and if so, by when (e.g. should the effective date be the same as when the new compensation scheme requires a determination of which calls are intra versus interstate calls?). The FCC also asks whether Internet relay should be required to be provided 7 days a week, 24 hours a day. The FCC notes that since its inception in April of 2002, the provision of Internet relay has "sufficiently matured" and is "sufficiently widespread" so that making it mandatory may not pose new burdens on Internet relay providers or state TRS programs. The FCC understands that if it is not mandated, and states are required to assume its costs, there would be risks that states might elect not to offer the service.

C. Separate Rates for IP Relay and Traditional TRS

The FCC seeks comment on whether there should be separate compensation rates for Internet relay and traditional TRS, noting that the costs of providing Internet relay may be lower than the costs of providing traditional TRS.

D. Video Relay Service

1. Cost Methodology

The FCC asks for comment on the appropriate cost recovery methodology for VRS. Among other things, the FCC seeks comment on whether and how to determine VRS calls that are inter or intrastate, so that the Interstate Fund only compensates interstate costs. Like Internet relay, there is no way to determine the geographic location of the Internet-based leg of the call, so again the FCC asks for comment on the use of either caller registration, an allocator, or other approaches to distinguish between the two types of calls. It also asks if the same approach should be used for both Internet relay and VRS. Alternatively, it asks whether VRS calls should be deemed inherently interstate.

2. Mandatory VRS

The FCC asks whether it should require VRS as a mandatory form of TRS. It says that rapidly growing VRS minutes demonstrate consumer preference for this service. Also, it notes that as the FCC "embarks on a broader initiative to stimulate the deployment of broadband services," the FCC is aware that VRS "can be a demand driver for broadband connections." Again the FCC notes, as with Internet relay, that if the states must provide funding but are not mandated to provide the service, some states may choose not to fund intrastate VRS. It asks whether there should be a link between the time when funding shifts to the states and when and if VRS is made a mandatory service. It notes that the California Coalition of Agencies Serving the Deaf and Hard of Hearing filed a petition to make VRS mandatory and specifically invites comment to the petition in this FNPRM.

The FCC specifically asks about the potential implications of making VRS mandatory on

· State TRS programs

· The available labor pool of interpreters

· Interpreter working conditions, including the likelihood of repetitive motion injuries

· Whether VRS should be required 7 days a week, 24 hours a day as a mandatory service, or not as a mandatory service

· Any other issues that may be relevant to adopting VRS as a mandatory service or implementing a mechanism to determine which VRS calls are intra or interstate.

3. Speed of Answer

The FCC notes that consumers are frustrated with long wait times for VRS, a result, the Commission says is "at least in part due to the rapidly growing use of VRS by consumers." The FCC states that it recognizes that "long wait times undermine the notion of functional equivalency, mandated by Congress." It then asks for comment on what the appropriate speed of answer for VRS should be, when it should become effective, whether there are enough interpreters to meet a particular speed of answer rule, and "how a particular rule might affect the cost of providing VRS."

4. Data Reporting Period

The FCC notes that the rate for VRS has varied sharply from year to year, and that the lack of consistency may make it difficult for VRS providers to plan and budget for this service, particularly with respect to labor costs and staffing. Also, the FCC notes that the operating expenses for VRS are more complex than other forms of TRS and that costs are higher. So the FCC seeks comment on whether the VRS compensation rate should be set for a two year period (instead of one year), and invites related proposals that might result in the more efficient provision of VRS.

5. Other VRS issues

(i) 10 Minute Rule. This rule, which requires the CA to remain on a TRS call for at least 10 minutes, is intended to minimize disruption for callers. In the VRS context though, the FCC acknowledges that the CA who answers the call may not be the best interpreter to understand the signing of the calling party, and another CA may be better equipped to handle that call. The FCC asks whether the 10 minute rule should apply to VRS and if a different standard should apply, what that standard should be.

(ii) Questions to Caller. The FCC asks whether CAs should be permitted to ask questions to the VRS user during call set up to gain an understanding of the nature of the call before it begins. CAs generally do not ask questions because relay is supposed to be transparent, i.e., the equivalent to a dial tone. But VRS presents different challenges for CAs who must deal with the "complexities of sign language." If questions are permitted, the FCC asks how it should ensure that the CA does not interfere with the independence of a caller who does not want to answer those questions.

C. Certification

Although the FCC has declined to adopt rules to certify providers as eligible to receive compensation from the Interstate Fund, it seeks additional comment on whether the Commission, rather than the states, should certify and/or oversee providers of Internet Relay and VRS to the extent they are eligible to receive compensation from this Fund. Because there are only a handful of national Internet/VRS providers that consumers can access via their computer, not by geographic location, the FCC says it may not make sense to have all 50 states overseeing these providers. It also seeks comment on other matters related to oversight and compensation of Internet and VRS under schemes where states are responsible for the costs of intrastate IP relay and VRS.

D. TRS Advisory Council

In 1993, the FCC directed the creation of the TRS Advisory Council to NECA for the purpose of monitoring TRS cost recovery matters, and also to serve as a safeguard since NECA was associated with local exchange carriers. The FCC says it now sees the need to "reevaluate the appropriate mission of the Council." After noting its "fiduciary responsibility to ensure the integrity of the Interstate TRS Fund," the FCC goes on to say that although the Council has TRS users and providers, it does not have any members that represent the TRS Fund or the consumers of interstate telecommunications services from whom the costs of interstate TRS are recovered. The Commission asks whether these individuals should be added to the Council's representatives and whether other changes to the composition of the Council should be made "to ensure that all interested parties are fairly represented." The Commission also asks whether a different nomination procedure should be adopted, instead of the current practice of self-nomination, to ensure a broader opportunity for people to get onto the Council. Finally, the FCC invites comment "on other ways in which the Council may play a more productive role in connection with the interstate TRS cost recovery scheme or, indeed, whether the Council is simply no longer necessary." It also asks whether the Council's role should be broadened to advise the administrator and the Commission on other TRS matters.

E. Abuse of CAs

The FCC is aware that some relay calls are abusive, sexually explicit, obscene, threatening, use inappropriate conduct or language or that involve illegal acts (domestic violence or child abuse). The FCC asks for information on the scope of this problem, the extent to which existing laws apply to these scenarios, and whether the Commission can take any steps consistent with the ADA, the First Amendment, and other laws, to "to ensure that CAs are not subject to abusive conduct or language, and to preclude, or minimize to the extent possible, abusive, harassing, or obscene TRS calls directed at the called party." The FCC notes that the role of the CA as a transparent conduit that must relay all calls verbatim, regardless of content, prevents CAs from acting as a censor for calls they deem inappropriate. But it notes that rules defining this role existed before a large percentage of TRS migrated to IP and VRS, which provide anonymity to the user making the call from the Internet.

The FCC also notes that TRS calls, like other telephone calls, are covered by section 223, a section of the Communications Act that prohibits obscene or harassing telephone calls. But the FCC needs to determine whether CAs should have the obligation to handle such calls in confidence, or whether they should be able to decline to handle such calls. Accordingly, it asks for comment on whether the Commission should have a rule directed at curbing abusive calls directed at the CA or the called party, what types of calls should be included in this rule, and when the TRS provider or CA should be given the discretion to terminate abusive calls.

The FCC also asks for comment on appropriate CA conduct for VRS calls during idle time, confidentiality with respect to what is seen on the screen, and other issues that concern appropriate behavior and language of VRS CAs.

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