Clarification of Telecommunications Relay Service Marketing and Call Handling Procedures and Video Relay Service Procedures, 8034-8037 [05-3066]
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Federal Register / Vol. 70, No. 32 / Thursday, February 17, 2005 / Rules and Regulations
VI. Paperwork Reduction Act of 1995
This final rule contains no collection
of information. Therefore, clearance by
the Office of Management and Budget
under the Paperwork Reduction Act of
1995 is not required.
VII. References
The following references have been
placed on display in the Division of
Dockets Management (address above)
and may be seen by interested persons
between 9 a.m. and 4 p.m., Monday
through Friday.
1. Letter from A. Rulis, Office of Food
Additive Safety, to J. Lemker, Bell, Boyd, and
Lloyd, LLC, ‘‘Agency Response Letter, GRAS
Notice No. GRN 000058,’’ October 1, 2001,
Internet address: https://www.cfsan.fda.gov/
~rdb/opa-g058.html.
2. Select Committee on GRAS Substances,
Life Sciences Research Office, Federation of
American Societies for Experimental Biology,
‘‘Evaluation of the Health Aspects of Gum
Arabic as a Food Ingredient,’’ March, 1973.
3. Memorandum from M. DiNovi,
Chemistry Review Branch, to R. Martin,
Direct Additives Branch, ‘‘GRP 3G0287:
Beatrice Foods. Gum Arabic as a Stabilizer in
Alcoholic Beverage Mixes,’’ March 7, 1994.
4. Memorandum from J. Modderman, Food
Additive Chemistry Review Branch, to L.
Mansor, GRAS Review Branch, ‘‘GRASP
3G0287—Gum Arabic. Beatrice Foods Co.,’’
November 21, 1983.
5. Memorandum of Conference, Cancer
Assessment Committee Meeting, ‘‘Gum
Arabic,’’ January 6, 1998.
6. ‘‘Toxicological Evaluation of Certain
Food Additives and Contaminants,’’ WHO
Food Additives Series 26, No. 686, 1990.
7. Memorandum from J. Griffiths,
Additives Evaluation Branch, to C. Coker,
Case and Advisory Branch, ‘‘Gum Arabic and
Immunogenicity; updated literature survey,’’
March 8, 1988.
8. Memorandum from J. Griffiths,
Additives Evaluation Branch, to E. Flamm,
Direct Additives Branch, ‘‘Gum Arabic and
Immunogenicity; literature from Dr. D. M. W.
Anderson,’’ November 9, 1988.
9. Memorandum from C. Johnson,
Additives Evaluation Branch #1, to R. Martin,
Direct Additives Branch, ‘‘Gum Arabic in
Alcoholic Beverages: Final Toxicology
Evaluation,’’ April 8, 1996.
VIII. Objections
Any person who will be adversely
affected by this regulation may file with
the Division of Dockets Management
(see ADDRESSES) written or electronic
objections. Each objection shall be
separately numbered, and each
numbered objection shall specify with
particularity the provisions of the
regulation to which objection is made
and the grounds for the objection. Each
numbered objection on which a hearing
is requested shall specifically so state.
Failure to request a hearing for any
particular objection shall constitute a
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14:43 Feb 16, 2005
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waiver of the right to a hearing on that
objection. Each numbered objection for
which a hearing is requested shall
include a detailed description and
analysis of the specific factual
information intended to be presented in
support of the objection in the event
that a hearing is held. Failure to include
such a description and analysis for any
particular objection shall constitute a
waiver of the right to a hearing on the
objection. Three copies of all documents
are to be submitted and are to be
identified with the docket number
found in brackets in the heading of this
document. Any objections received in
response to the regulation may be seen
in the Division of Dockets Management
between 9 a.m. and 4 p.m., Monday
through Friday.
List of Subjects in 21 CFR Part 172
Food additives, Incorporation by
reference, Reporting and recordkeeping
requirements.
I Therefore, under the Federal Food,
Drug, and Cosmetic Act and under
authority delegated to the Commissioner
of Food and Drugs, and redelegated to
the Director, Center for Food Safety and
Applied Nutrition, 21 CFR part 172 is
amended as follows:
20740, or at the National Archives and
Records Administration (NARA). For
information on the availability of this
material at NARA, call 202–741–6030,
or go to: https://www.archives.gov/
federal__register/
code__of__federal__regulations/
ibr__locations.html.
(c) The ingredient is used as a
thickener, emulsifier, or stabilizer in
alcoholic beverages at a use level not to
exceed 20 percent in the final beverage.
Dated: November 16, 2004.
Leslye M. Fraser,
Director, Office of Regulations and Policy,
Center for Food Safety and Applied Nutrition.
[FR Doc. 05–3026 Filed 2–16–05; 8:45 am]
BILLING CODE 4160–01–S
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
Federal Communications
Commission.
ACTION: Policy and procedures;
Clarification.
PART 172—FOOD ADDITIVES
PERMITTED FOR DIRECT ADDITION
TO FOOD FOR HUMAN
CONSUMPTION
AGENCY:
1. The authority citation for 21 CFR
part 172 continues to read as follows:
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
I
Authority: 21 U.S.C. 321, 341, 342, 348,
371, 379e.
2. Section 172.780 is added to subpart
H to read as follows:
I
§ 172.780
Acacia (gum arabic).
The food additive may be safely used
in food in accordance with the
following prescribed conditions:
(a) Acacia (gum arabic) is the dried
gummy exudate from stems and
branches of trees of various species of
the genus Acacia, family Leguminosae.
(b) The ingredient meets the
specifications of the ‘‘Food Chemicals
Codex,’’ 5th Ed. (2004), pp. 210 and 211,
which is incorporated by reference. The
Director of the Office of the Federal
Register approves this incorporation by
reference in accordance with 5 U.S.C.
552(a) and 1 CFR part 51. You may
obtain copies from the National
Academies Press, 500 Fifth St. NW.,
Washington, DC 20001 (Internet
address: https://www.nap.edu). Copies
may be examined at the Center for Food
Safety and Applied Nutrition’s Library,
Food and Drug Administration, 5100
Paint Branch Pkwy., College Park, MD
PO 00000
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Federal Register / Vol. 70, No. 32 / Thursday, February 17, 2005 / Rules and Regulations
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:
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:
https://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
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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
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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 TTYbased 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
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Federal Register / Vol. 70, No. 32 / Thursday, February 17, 2005 / Rules and Regulations
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.
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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
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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.
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Federal Register / Vol. 70, No. 32 / Thursday, February 17, 2005 / Rules and Regulations
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]
Regulation Correction
For reasons set forth in the preamble,
we correct the final rule published on
January 4, 2005, at 70 FR 426 by
correcting amendatory instruction #3 on
page 448, column 1, to read as follows:
I
PART 17—[CORRECTED]
§ 17.95
[Corrected]
3. Amend § 17.95(e) by revising critical
habitat for the Santa Ana sucker
(Catostomus santaanae) in the same
alphabetical order as this species occurs
in § 17.11(h).
I
Dated: February 11, 2005.
Sara Prigan,
Fish and Wildlife Service Federal Register
Liaison.
[FR Doc. 05–3047 Filed 2–16–05; 8:45 am]
BILLING CODE 4310–55–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 622
Fisheries of the Caribbean, Gulf of
Mexico, and South Atlantic; Reef Fish
Fishery of the Gulf of Mexico;
Commercial Trip Limits for Gulf of
Mexico Grouper Fishery
Fish and Wildlife Service
50 CFR Part 17
RIN 1018–AT57
Endangered and Threatened Wildlife
and Plants; Final Rule To Designate
Critical Habitat for the Santa Ana
Sucker (Catostomus santaanae)
Fish and Wildlife Service,
Interior.
14:43 Feb 16, 2005
SUMMARY: On January 4, 2005, we, the
U.S. Fish and Wildlife Service,
published a final rule to designate
critical habitat for the threatened Santa
Ana sucker (Catostomus santaanae)
pursuant to the Endangered Species Act
of 1973, as amended. Because we made
an error in use of amendatory language,
one of the final rule’s two regulatory
amendments could not be properly
reflected in the Code of Federal
Regulations. This correction document
rectifies that error.
DATES: Effective February 3, 2005.
FOR FURTHER INFORMATION CONTACT: Sara
Prigan, Federal Register Liaison,
Division of Policy and Directives
Management, U.S. Fish and Wildlife
Service, at (703) 358–2508.
RIN 0648–AS97
DEPARTMENT OF THE INTERIOR
VerDate jul<14>2003
Final rule; correction.
[Docket No. 050209033–5033–01; I.D.
020405D]
BILLING CODE 6712–01–P
AGENCY:
ACTION:
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National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Emergency rule; request for
comments.
AGENCY:
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8037
SUMMARY: NMFS issues this emergency
rule to establish trip limits for the
commercial shallow-water and deepwater grouper fisheries in the exclusive
economic zone of the Gulf of Mexico.
The intended effect of this emergency
rule is to moderate the rate of harvest of
the available quotas and, thereby,
reduce the adverse social and economic
effects of derby fishing, enable more
effective quota monitoring, and reduce
the probability of overfishing.
DATES: This rule is effective March 3,
2005 through August 16, 2005.
Comments on this emergency rule must
be received no later than 5 p.m., eastern
time, on March 21, 2005.
ADDRESSES: You may submit comments
on this emergency rule by any of the
following methods:
• E-mail: 0648–
AS97.Emergency@noaa.gov. Include in
the subject line the following document
identifier: 0648–AS97.
• Federal e-Rulemaking Portal:
https://www.regulations.gov. Follow the
instructions for submitting comments.
• Mail: Phil Steele, Southeast
Regional Office, NMFS, 9721 Executive
Center Drive N., St. Petersburg, FL
33702.
• Fax: 727–570–5583, Attention: Phil
Steele.
Copies of the documents supporting
this emergency rule may be obtained
from the NMFS Southeast Regional
Office at the above address.
FOR FURTHER INFORMATION CONTACT: Phil
Steele, 727–570–5305; fax: 727–570–
5583, e-mail: Phil.Steele@noaa.gov.
SUPPLEMENTARY INFORMATION: The
fishery for reef fish is managed under
the Fishery Management Plan for the
Reef Fish Resources of the Gulf of
Mexico (FMP) that was prepared by the
Gulf of Mexico Fishery Management
Council (Council). This FMP was
approved by NMFS and implemented
under the authority of the MagnusonStevens Fishery Conservation and
Management Act (Magnuson-Stevens
Act) by regulations at 50 CFR part 622.
Background
On June 15, 2004, NMFS published a
final rule (69 FR 33315) to end
overfishing of red grouper in the Gulf of
Mexico and to implement a stock
rebuilding plan as provided in
Secretarial Amendment 1 to the FMP.
That final rule established a red grouper
commercial quota; reduced the shallowwater and deep-water grouper
commercial quotas; and included a
provision to close the entire shallowwater grouper commercial fishery when
either the red grouper quota or the
shallow-water grouper quota is reached.
E:\FR\FM\17FER1.SGM
17FER1
]]>Agencies
[Federal Register Volume 70, Number 32 (Thursday, February 17, 2005)]
[Rules and Regulations]
[Pages 8034-8037]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-3066]
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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.
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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: 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:
https://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
