[Federal Register: February 17, 2005 (Volume 70, Number 32)]
[Rules and Regulations]               
[Page 8034-8037]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17fe05-5]                         

=======================================================================
-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CC Docket No. 98-67, CG Docket No. 03-123; DA 05-141]

 
Clarification of Telecommunications Relay Service Marketing and 
Call Handling Procedures and Video Relay Service Procedures

AGENCY: Federal Communications Commission.

ACTION: Policy and procedures; Clarification.

-----------------------------------------------------------------------

SUMMARY: This document clarifies that certain telecommunications relay 
services (TRS) practices violate the TRS rules, and that video relay 
services (VRS) may not be used as a video remote interpreting service 
by persons at the same location. This document also instructs the TRS 
Fund administrator that, any provider found to be engaging in the 
improper marketing or call handling practices described herein will be 
ineligible for compensation from the Interstate TRS Fund (Fund).

DATES: Clarification of the TRS rules was effective January 26, 2005.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW., 
Washington, DC 20054.

FOR FURTHER INFORMATION CONTACT: Thomas Chandler, Consumer & 
Governmental Affairs Bureau at (202) 418-1475 (voice), (202) 418-0597 
(TTY) or e-mail Thomas.Chandler@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
document DA 05-141, released January 26, 2005 in CC Docket No. 98-67 
and CG Docket No. 03-123. The complete text of this document may be 
purchased

[[Page 8035]]

from the Commission's duplication contractor, BCPI, Inc., Portals II, 
445 12th Street, SW., Room CY-B402, Washington, DC 20554. Customer may 
contact BCPI, Inc. at their Web site: http://www.bcpiweb.com. To request 

materials in accessible formats for people with disabilities (Braille, 
large print, electronic files, audio format), send an e-mail to 
fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 

(202) 418-0530 (voice), (202) 418-0432 (TTY). This Public Notice can 
also be downloaded in Word and Portable Document Format (PDF) at: 
http://www.fcc.gov/cgb/dro.


Synopsis

    The Commission has become aware that some TRS providers may be 
engaging in marketing practices that are inconsistent with the TRS 
statute and regulations. We have also become aware that some TRS 
providers may not be handling TRS calls in a manner that is consistent 
with the TRS statute and regulations, e.g., through the use of 
reservations systems. Finally, we are aware that VRS--a form TRS--is 
sometimes being used as a substitute for a live interpreter when a 
person who is deaf or hard of hearing seeks to communicate with a 
hearing person at the same location. Accordingly, we clarify that 
certain TRS practices violate the TRS rules, and that VRS may not be 
used as a video remote interpreting service. A provider found to be 
engaging in the improper marketing or call handling practices described 
herein will be ineligible for compensation from the Interstate TRS 
Fund. In addition, we will also consider appropriate enforcement action 
against providers that engage in any of the improper practices 
discussed herein.

Background

    TRS, mandated by Title IV of the Americans with Disabilities Act 
(ADA) of 1990, enables an individual with a hearing or speech 
disability to communicate by telephone with a person without such a 
disability. Public Law Number 101-336, section 401, 104 statute 327, 
336-69 (1990), adding section 225 to the Communications Act of 1934; 
see 47 U.S.C. 225. This is accomplished through TRS facilities that are 
staffed by specially trained communications assistants (CAs) who relay 
conversations between persons using various types of assistive 
communication devices and persons using a standard telephone. In a 
traditional text-based TRS call, for example, a TTY user types the 
number of the TRS facility and, after reaching the facility, types the 
number of the party he or she desires to call. The CA, in turn, places 
an outbound voice call to the called party. The CA serves as the 
``link'' in the conversation, converting text messages from the caller 
into voice messages, and voice messages from the called party into text 
messages for the TTY user.
    VRS is a form of TRS that allows people with hearing and speech 
disabilities to communicate with the CA through sign language, rather 
than typed text. Video equipment links the VRS user and the CA so that 
they can see and communicate with each other in signed conversation. 
Presently, VRS services are accessed through a broadband connection and 
video equipment connected to a personal computer or a television.
    The provision of TRS is ``an accommodation that is required of 
telecommunications providers, just as other accommodations for persons 
with disabilities are required by the ADA of businesses and local and 
state governments.'' Telecommunications Relay Services and Speech-to-
Speech Services for Individuals with Hearing and Speech Disabilities, 
Report and Order, Order on Reconsideration, and Further Notice of 
Proposed Rulemaking, CC Docket Nos. 90-571 and 98-67, CG Docket No. 03-
123, FCC 04-137, 69 FR 53346, September 1, 2004; 19 FCC Rcd 12475 at 
paragraph 182 n.521 (June 30, 2004) (2004 TRS Report & Order). To this 
end, section 225 is intended to ensure that TRS give[s] persons with 
hearing or speech disabilities ``functionally equivalent'' access to 
the telephone network. Telecommunications Relay Services and Speech-to-
Speech Services for Individuals with Hearing and Speech Disabilities, 
Notice of Proposed Rulemaking, CC Docket No. 98-67, FCC 98-90, 63 FR 
32798, June 16, 1998; 1998 WL251383 at paragraph 6 (May 20, 1998) (1998 
TRS NPRM); see generally 47 U.S.C. 225 (a)(3). The statute and 
regulations provide that eligible TRS providers offering interstate 
services and certain intrastate services will be compensated for their 
just and ``reasonable'' costs of doing so from the Interstate TRS Fund, 
currently administered by the National Exchange Carrier Association 
(NECA). See, e.g., 47 CFR 64.604(c)(5)(iii)(E).
    Section 225 and the TRS mandatory minimum standards contained in 
the regulations set forth the operational and technical standards TRS 
providers must meet. These standards reflect the functional equivalency 
mandate. We have repeatedly stated that, as a general matter, TRS 
providers seeking compensation from the Interstate TRS Fund must meet 
all non-waived mandatory minimum standards. See, e.g., 47 CFR 
64.604(c)(5)(iii)(E) (``The TRS Fund administrator shall make payments 
only to eligible TRS providers operating pursuant to the mandatory 
minimum standards as required in section 64.604.''); 2004 TRS Report & 
Order at paragraph 189. This is true whether the TRS service is a 
mandatory form of the TRS (like traditional TTY-based TRS) or a non-
mandatory form of TRS (like IP Relay and VRS). See, e.g., 
Telecommunications Relay Services and Speech-to-Speech Services for 
Individuals with Hearing and Speech Disabilities, Report and Order and 
Further Notice of Proposed Rulemaking, CC Docket No. 98-67, FCC 00-56, 
65 FR 38432, June 21, 2000; 15 FCC Rcd 5140 at paragraph 39 (March 6, 
2000) (2000 Improved TRS Order) (all relay services either mandated by 
the Commission or eligible for reimbursement from the interstate TRS 
Fund must comply with the mandatory minimum standards).

Improper Marketing Practices

    The Commission has received numerous complaints regarding improper 
marketing practices, particularly with regard to the provision of VRS. 
First, we understand that some providers install video equipment at a 
consumer's premise to enable the consumer to make VRS calls. We further 
understand that in the course of installing the equipment, the 
provider's installer may tell the consumer that he or she may only have 
one VRS provider, or that the consumer's broadband connection may be 
connected to only one piece of video equipment (generally the equipment 
of that provider). These statements have the effect of requiring the 
consumer to choose a single VRS provider. We also understand that some 
installers may adjust the consumer's hardware or software to restrict 
the consumer to using one VRS provider without the consumer's consent.
    The TRS rules do not require a consumer to choose or use only one 
VRS (or TRS) provider. A consumer may use one of several VRS providers 
available on the Internet or through VRS service hardware that attaches 
to a television. Therefore, VRS consumers cannot be placed under any 
obligation to use only one VRS provider's service, and the fact that 
they may have accepted VRS equipment from one provider does not mean 
that they cannot use another VRS provider via other equipment they may 
have. In addition, a VRS provider (or its installers) should not be 
adjusting a consumer's hardware or software to restrict access to other

[[Page 8036]]

VRS providers without the consumer's informed consent.
    Second, we understand that some providers use their customer 
database to contact prior users of their service and suggest, urge, or 
tell them to make more VRS calls. This marketing practice constitutes 
an improper use of information obtained from consumers using the 
service, is inconsistent with the notion of functional equivalency, and 
may constitute a fraud on the Interstate TRS Fund because the Fund, and 
not the consumer, pays for the cost of the VRS call. See 47 CFR 
64.604(a)(2)(i). As we have noted, the purpose of TRS is to allow 
persons with certain disabilities to use the telephone system. Entities 
electing to offer VRS (or other forms of TRS) should not be contacting 
users of their service and asking or telling them to make TRS calls. 
Rather, the provider must be available to handle the calls that 
consumers choose to make. In this regard, we question whether there are 
any circumstances in which it is appropriate for a TRS provider to 
contact or call a prior user of their service. Again, the role of the 
provider is to make available a service to consumers as an 
accommodation under the ADA when a consumer may choose to use that 
service. For this reason as well, VRS providers may not require 
consumers to make TRS calls, impose on consumers minimum usage 
requirements, or offer any type of financial incentive for consumers to 
place TRS calls. See Telecommunications Relay Services and Speech to 
Speech Services for Individuals with Hearing and Speech Disabilities, 
Declaratory Ruling, CC Docket No. 98-67, CG Docket No. 03-123, DA 05-
140 (January 26, 2005).
    Finally, we understand that some VRS (or TRS) providers may 
selectively answer calls from preferred consumers or locations, rather 
than answer the calls in the order they are received. For example, the 
VRS provider may monitor a list of incoming callers waiting for a CA 
and, rather than handling the calls in order, will first handle calls 
from preferred customers or from a specific location. This practice 
also constitutes an improper use of information obtained from consumers 
using the service and is inconsistent with the notion of functional 
equivalency. Providers must handle incoming calls in the order that 
they are received. We will continue to carefully monitor the provision 
of all forms of TRS to the public. To the extent providers offer TRS 
services in violation of our rules, they will be ineligible for 
compensation from the Interstate TRS Fund.

Improper Handling of TRS Calls

    We understand that some providers permit TRS consumers 
(particularly VRS users) to make advance reservations so that the 
consumer can reach a CA without delay at a specific time to place a 
call. This practice is inconsistent with the functional equivalency 
mandate of Section 225 and the TRS regulations. Under the functional 
equivalency mandate, TRS is intended to permit persons with hearing and 
speech disabilities to access the telephone system to call persons 
without such disabilities. As we have frequently noted, ``for a TRS 
user, reaching a CA to place a relay call is the equivalent of picking 
up a phone and getting a dial tone.'' See 2000 Improved TRS Order at 
paragraph 60. Therefore, TRS is intended to operate so that when a TRS 
user wants to make a call, a CA is available to handle the call. For 
this reason, for example, the TRS regulations presently require TRS 
providers (except in the case of VRS) to answer 85% of all calls within 
10 seconds. See 47 CFR 64.604(b)(2). This requirement has presently 
been waived for VRS, and has been raised in the Further Notice of 
Proposed Rulemaking (FNPRM) in the 2004 TRS Report & Order. See 2004 
TRS Report & Order at paragraphs 119-123 (extending speed of answer 
waiver until January 1, 2006, or until such time as the Commission 
adopts a speed of answer rule for VRS, whichever is sooner); 2004 TRS 
Report & Order at paragraph 246 (raising issue in FNPRM). See also 
Telecommunications Relay Services and Speech-to-Speech Services for 
Individuals with Hearing and Speech Disabilities, Order, CC Docket No. 
98-67, DA 01-3029, 17 FCC Rcd 157 at paragraphs 15-16 (December 31, 
2001) (VRS Waiver Order) (original VRS waiver order, which waived the 
speed of answer requirement for VRS to encourage more entrants into the 
VRS market, stimulate the growth of VRS, and provide more time for 
technology to develop). This ``speed of answer'' requirement was 
adopted so that the experience of a TRS caller in reaching a CA to 
place his or her call would be functionally equivalent to the 
experience of an individual without a hearing or speech disability 
placing a call. See 1998 TRS NPRM at paragraph 49. The Commission has 
noted that the ``ability of a TRS user to reach a CA prepared to place 
his or her call * * * is fundamental to the concept of `functional 
equivalency.' '' (Emphasis added).
    As a result, we find that the practice of permitting TRS consumers 
to reserve in advance a time at which a CA will handle a call is 
inconsistent with the nature of TRS and the functional equivalency 
mandate. TRS providers must have available CAs that can handle the 
calls as they come in (to, by analogy, provide the ``dial tone'') 
consistent with our rules. Handling calls by prior reservation is a 
different kind of service. For the same reason, calls must be handled 
in the order in which they are received (as we have also stated above). 
The fact that VRS is not a mandatory service, or that speed of answer 
has presently been waived for VRS, does not affect the application of 
these principles to VRS. In addition, TRS providers may not offer their 
service in such a way so that when a TRS consumer (including a hearing 
person) contacts the TRS provider the consumer reaches only a message 
or recording that asks the caller to leave certain information so that 
the provider can call the consumer back when the provider is able (or 
desires) to place the call. This type of ``call back'' arrangement is 
impermissible because it relieves the provider of its central 
obligation to be available when a caller desires to make a TRS call, 
and permits the provider, and not the caller, to ultimately be in 
control of when a TRS call is placed. As we have noted, the functional 
equivalency mandate rests in part on the expectation that when a TRS 
user reaches a CA that is the equivalent of receiving a dial tone. We 
distinguish this situation from the use of a ``call back'' service 
whereby a consumer, who has called the relay center to make a TRS call 
and reaches the provider but has to wait for an available CA, has the 
choice of either waiting for an available CA (i.e., without 
disconnecting) or having the TRS provider call the consumer back when a 
CA is available to handle the call. Nevertheless, we are concerned that 
the use of ``call back'' option in any context is inconsistent with the 
functional equivalency mandate, and therefore we will closely monitor 
the use of this feature. We also recognize that, given the speed of 
answer rule, use of a call back feature will be an issue only for those 
forms of TRS not subject to such a rule (e.g., VRS). Accordingly, 
because we interpret section 225 and the implementing regulations to 
prohibit any practice that undermines the functional equivalency 
mandate, effective March 1, 2005, any provider offering or utilizing 
advance call reservations, or a recording that greets all calls to the 
TRS provider and takes information so that the provider can call the 
consumer back, will be ineligible for compensation from the Interstate 
TRS Fund.

[[Page 8037]]

VRS Cannot Be Used as a Substitute for Video Remote Interpreting (VRI)

    We again remind providers (and consumers) that VRS is not the same 
as Video Remote Interpreting (VRI), even though both services use the 
Internet and a video connection to permit persons with hearing 
disabilities to communicate with persons without such disabilities. See 
generally 2004 TRS Report & Order at paragraphs 162 n.466 & 172 n.490. 
VRI is a service that is used when an interpreter cannot be physically 
present to interpret for two persons who are together at the same 
location (for example, at a meeting or in a doctor's office). In that 
situation, an interpreter at a remote location may be used via a video 
connection. A fee is generally charged by companies that offer this 
service.
    By contrast, VRS, like all forms of TRS, is a means of giving 
access to the telephone system. Therefore, VRS is to be used only when 
a person with a hearing disability, who absent such disability would 
make a voice telephone call, desires to make a call to a person without 
such a disability through the telephone system (or if, in the reverse 
situation, the hearing person desires to make such a call to a person 
with a hearing disability). VRS calls are compensated from the 
Interstate TRS Fund, which is overseen by the Commission. In 
circumstances where a person with a hearing disability desires to 
communicate with someone in person, he or she may not use VRS but must 
either hire an ``in-person'' interpreter or a VRI service.
    We will continue to carefully scrutinize the provision and use of 
VRS to ensure that it is being used only as a means of accessing the 
telephone system, not as a substitute for VRI.

Federal Communications Commission.
Jay Keithley,
Deputy Chief, Consumer & Governmental Affairs Bureau.
[FR Doc. 05-3066 Filed 2-16-05; 8:45 am]

BILLING CODE 6712-01-P