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:

Final rule; interpretation.

SUMMARY:

In this document, the Commission adopts a final interpretive rule modification to clarify its Telecommunications Relay Service (TRS) payment rule to explicitly provide that the Interstate TRS Fund (Fund or TRS Fund) administrator shall not be obligated to pay any request for compensation until it has been established as compensable. The Commission's action is intended preserve the integrity and viability of the TRS Fund by ensuring that obligations are not incurred prior to the Fund administrator or the Commission has determined that requests for payment are compensable. Because this is an interpretive rule modification, it is not subject to notice and comment procedures.

DATES:

Effective March 7, 2013.

FOR FURTHER INFORMATION CONTACT:

Eliot Greenwald, Consumer and Governmental Affairs Bureau, Disability Rights Office, at (202) 418-2235 or email Eliot.Greenwald@fcc.gov.

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Order, 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 Notice of Proposed Rulemaking, 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 fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

Final Paperwork Reduction Act of 1995 Analysis

Document FCC 13-13, final rule, does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

Synopsis

1. In document FCC 13-13, the Commission reminds TRS providers that, under existing law, they are not entitled to collect payment from the TRS Fund for service that does not constitute compensable TRS under the statute and our rules. TRS is defined as “telephone transmission services that provide the ability for an individual who is deaf, hard of hearing, deaf-blind, or who has a speech disability to engage in communication by wire or radio with one or more individuals, in a manner that is functionally equivalent to the ability of a hearing individual who does not have a speech disability to communicate using voice communication services by wire or radio.” 47 U.S.C. 225(a)(3). Payments to TRS providers are based on total monthly TRS minutes of use. §§ 64.601(a)(21), 64.604(c)(5)(iii)(E) of the Commission's rules. See also Publix Network Corp.; Customer Attendants, LLC; Revenue Controls Corp.; Revenue Controls Corp.; SignTel, Inc.; and Focus Group, LLC, Order to Show Cause and Notice of Opportunity for Hearing, 17 FCC Rcd 11487, 11495, paragraph 19 (2002) (Publix).

2. Thus, service to a user who is not “deaf, hard of hearing, deaf-blind, or who [does not have] a speech disability,” or service that otherwise does not meet the requirements in the Commission's rules and orders, does not qualify for reimbursement from the TRS Fund. Therefore, the Commission may, for example, request providers to submit to the Commission a description of the reasonable practices they are using to ensure that they are not requesting payment from the TRS Fund for service that does not constitute compensable TRS. Providers whose submissions do not adequately establish that they are requesting compensation only for service to eligible users may be denied compensation for IP CTS minutes.

3. To address any possible ambiguity in the Commission's existing rules as to when TRS providers are entitled to compensation, the Commission amends § 64.604(c)(5)(iii)(E) of its rules (governing payments to TRS providers) to clarify that the Fund administrator shall not be obligated to pay any request for compensation until it has been established as compensable. A request will be established as compensable only after the administrator or the Commission determines that the provider has met its burden to demonstrate that the claim is properly compensable under these rules and the procedures established by the administrator in consultation with the Commission. The Commission clarifies that any request for compensation for which payment has been suspended or withheld in accordance with 47 CFR 64.604(c)(5)(iii)(L) will not be considered compensable until the administrator, in consultation with the Commission, or the Commission on its own makes a final determination that the request is compensable in accordance with that provision. Because this revision to § 64.604 of the Commission's rules does not impose new substantive rules but rather clarifies existing rules, it constitutes an interpretive rule for which the Commission need not provide prior notice and obtain public comment. See 5 U.S.C. 553(b)(A). See also Syncor Intern. Corp. v. Shalala, 127 F.3d 90, 94 (DC Cir. 1997) (“an interpretive rule can construe an agency's substantive regulation as well as a statute”).

Final Regulatory Flexibility Analysis

4. 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.

5. In document FCC 13-13, to preserve the integrity and viability of the TRS Fund by ensuring that obligations are not incurred prior to the Fund administrator or the Commission has determined that requests for payment are compensable, the Commission adopts a final rule amending § 64.604(c)(5)(iii)(E) of its rules (governing payments to TRS providers) to clarify that the TRS Fund administrator shall not be obligated to pay any request for compensation until it has been established as compensable. As a result, a request will be established as compensable only after the administrator or the Commission determines that the provider has met its burden to demonstrate that the claim is properly compensable under the rules and the procedures established by the administrator in consultation with the Commission. Because this revision to § 64.604 of the Commission's rules does not impose new substantive rules but rather clarifies existing rules, it constitutes an interpretive rule for which the Commission need not provide prior notice and obtain public comment. See 5 U.S.C. 553(b)(A). See also Syncor Intern. Corp. v. Shalala, 127 F.3d 90, 94 (DC Cir. 1997) (“an interpretive rule can construe an agency's substantive regulation as well as a statute”).

6. 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 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, the interim rules would not have a significant economic impact on a substantial number of small entities.

7. The Commission therefore certifies, pursuant to the RFA, that the interim rules adopted in document FCC 13-13 will not have a significant economic impact on a substantial number of small entities. The Commission will send a copy of document FCC 13-13, including a copy of the RFA certification, to the Chief Counsel for Advocacy of the SBA.

Congressional Review Act

8. The Commission will send a copy of document FCC 13-13 in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act. 5 U.S.C. 801(a)(1)(A).

Ordering Clauses

9. 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
• Telecommunications

Final Rule Changes

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 64 as follows:

PART 64—MISCELLANEOUS RULES RELATING TO COMMON CARRIERS

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.

2. Amend § 64.604 by revising paragraph (c)(5)(iii)(E) to read as follows: