Provision of Improved Telecommunications Relay Services and Speech-to-Speech Services for Individuals With Hearing and Speech Disabilities, 17330-17334 [05-6814]
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Federal Register / Vol. 70, No. 65 / Wednesday, April 6, 2005 / Rules and Regulations
or after January 20, 2006 shall comply
with the DFS and TPC requirements
specified in § 15.407. U–NII equipment
operating in the 5.25–5.35 GHz band
that are imported or marketed on or
after January 20, 2007 shall comply with
the DFS and TPC requirements in
§ 15.407.
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*
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[FR Doc. 05–6813 Filed 4–5–05; 8:45 am]
BILLING CODE 6712–01–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 64
[CC Docket No. 98–67; FCC 05–48]
Provision of Improved
Telecommunications Relay Services
and Speech-to-Speech Services for
Individuals With Hearing and Speech
Disabilities
Federal Communications
Commission.
ACTION: Final rule; petition for
reconsideration.
AGENCY:
SUMMARY: In this document, the Federal
Communications Commission
(Commission) grants petitions filed by
Sprint Corporation (Sprint) and
WorldCom, Inc. (MCI) seeking
reconsideration of the Commission’s
March 14, 2003, Order on
Reconsideration (IP Relay
Reconsideration Order). This matter
derives from the April 2002 IP Relay
DeclaratoryRuling and Further Notice of
Proposed Rulemaking (IP Relay
Declaratory Ruling & FNPRM), which
recognized IP Relay as a form of
telecommunications relay service (TRS),
authorized compensation for IP Relay
providers from the Interstate TRS Fund,
and waived certain mandatory
minimum standards as they apply to the
provision of IP Relay.
DATES: The petitions were granted as of
March 9, 2005.
ADDRESSES: Federal Communications
Commission, 445 12th Street, SW.,
Washington, DC 20554.
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 Order on
Reconsideration, CC Docket No. 98–67,
FCC 05–48, adopted March 1, 2005,
released March 9, 2005. The full text of
the Order on Reconsideration and
copies of any subsequently filed
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documents in this matter will be
available for public inspection and
copying during regular business hours
at the FCC Reference Information
Center, Portals II, 445 12th Street, SW.,
Room CY–A257, Washington, DC 20554.
The complete text of this Order on
Reconsideration and copies of
subsequently filed documents in this
matter may also be purchased from the
Commission’s duplicating contractor,
Best Copy and Printing Inc. (BCPI),
Portals II, 445 12th Street, SW., Room
CY–B402, Washington, DC 20554.
Customers may contact BCPI at their
Web site: https://www.bcpiweb.com or
call 1–800–378–3160.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). The Order on
Reconsideration can also be
downloaded in Word or Portable
Document Format (PDF) at: https://
www.fcc.gov/cgb/dro. On April 22,
2002, the Commission released the IP
Relay Declaratory Ruling & FNPRM, CC
Docket No. 98–67, FCC 02–121;
published at 67 FR 39386, June 11, 2002
and 67 FR 39929, June 11, 2002, finding
that IP Relay is a form of TRS and that
on an interim basis the cost of providing
all IP Relay calls could be compensated
from the Interstate TRS Fund. On March
14, 2003, the Commission released the
IP Relay Order on Reconsideration, CC
Docket No. 98–67, FCC 03–46;
published at 68 FR 18826, April 16,
2003, which granted an extension of the
waivers granted in the IP Relay
Declaratory Ruling & FNPRM for a
period of five years. The Commission
also granted the requested waiver of the
requirement to provide one-line hearing
carry over (HCO) for a period of five
years. This document does not contain
new or modified information collection
requirements subject to the Paperwork
Reduction Act of 1995 (PRA), Public
Law 104–13. In addition, 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 U.S.C.
3506(c)(4).
Synopsis
On April 14, 2003, Sprint filed a
petition for ‘‘limited reconsideration’’ of
the IP Relay Reconsideration Order,
requesting that the Commission
reconsider its decision not to make the
waivers granted in the IP Relay
Reconsideration Order retroactive, and
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therefore not to compensate providers of
IP Relay (Sprint) during the time period
in which they offered the service but
may not have been complying with the
then non-waived HCO and pay-per-call
requirements.
Sprint makes numerous arguments in
support of its petition. It argues that
there is no legal bar to providing
payment for services rendered before
the grant of the HCO and pay-per-call
waivers, distinguishing the cases cited
by the Commission for the proposition
that the retroactive application of
waivers is not favored. Sprint asserts,
for example, that the waivers it seeks are
‘‘merely to correct mistakes made by the
Commission in the [IP Relay Declaratory
Ruling & FNPRM] as of the date of that
ruling.’’ Sprint also argues that the IP
Relay Declaratory Ruling & FNPRM was
not ‘‘final’’ because of the pendency of
the petitions for reconsideration, and
that therefore the risk Sprint took was
that the Commission might deny its
petition for waiver of the 900 pay-percall and HCO requirements on the
merits (which, had that occurred, would
have precluded it from reimbursement),
but not that the Commission might grant
the petition but disallow
reimbursement.
Sprint also argues that ‘‘rigid
adherence to all TRS requirements is
inconsistent with other TRS precedent.’’
Sprint asserts that the Commission has
found in other contexts that TRS
providers are eligible for compensation
even if they do not meet every
requirement of the Commission’s rules,
stating that ‘‘absolute compliance with
each component of the rules may not
always be necessary to fulfill the
purposes of the statute and the policy
objectives of the implementing rules,
and that not every minor deviation
would justify withholding funding from
a legitimate TRS provider.’’ In this
regard, Sprint emphasizes that the
Commission has recognized that HCO
and pay-per-call services are
infrequently used, and that therefore IP
Relay providers, like Sprint, have
substantially complied with the TRS
mandatory minimum standards.
Sprint also contends that the
Commission ‘‘cannot lawfully single out
Sprint for non-payment’’ of
compensation, asserting that the
Commission’s conclusion in the IP
Relay Reconsideration Order that it is
not technically feasible to provide HCO
and pay-per-call services via IP Relay
means that no IP Relay provider could
have been providing these services in
compliance with the rules during the
period between the release of the April
2002 IP Relay Declaratory Ruling &
FNPRM and the waiver grant in the
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March 2003 IP Relay Reconsideration
Order. Therefore, according to Sprint, it
is improper to refuse to compensate
Sprint for its provision of IP Relay when
the Commission has compensated other
providers during that period for
providing the same service. (AT&T
received compensation for its provision
of IP Relay beginning in June 2002. MCI
received compensation for its provision
of IP Relay beginning in April 2002.)
Sprint notes that there are two ways to
cure this inequity: compensate Sprint
for the service it provided during the
period, or institute enforcement actions
against other IP Relay providers to
require them to return compensation
received during the period. Sprint
favors the first approach, which it
argues is in the public interest.
On May 16, 2003, MCI filed a petition
styled ‘‘Petition for Clarification and/or
Reconsideration.’’ See WorldCom, Inc.
d/b/a MCI, Petition for Clarification
and/or Reconsideration, filed May 16,
2003. MCI requests that the Commission
reconsider its apparent decision to
eliminate two-line HCO as a means of
satisfying the HCO mandatory minimum
standard, asserting that the HCO
requirement ‘‘only made sense as twoline HCO,’’ and clarify the meaning of
the now-waived pay-per-call mandatory
minimum standard and whether it was
satisfied by attempting to have the payper-call service accept alternate billing
information, i.e., a billing method other
than automatic billing to the caller’s
telephone bill. MCI also asserts that
providers should be compensated for
providing IP Relay service even if they
did not meet the pay-per-call and HCO
standards. Although MCI does not
expressly support Sprint’s position, it
argues that absolute compliance with all
mandatory minimum standards is not
the standard the Commission has used,
that the Commission in the past has
issued retroactive waivers to promote
the public interest, and that in the
circumstances of this matter—including
the fact that new technologies are
involved—the public interest supports
compensating the providers for the IP
Relay services provided.
On May 22, 2003, Sprint’s and MCI’s
petitions were placed on public notice.
See Petitions for Reconsideration of
Action in Rulemaking Proceedings,
Public Notice, Report No. 2608, released
May 22, 2003. Hamilton and consumer
groups (filing jointly) filed comments,
and both Sprint and MCI filed reply
comments. Hamilton filed comments on
both the April 28, 2003, and June 16,
2003 petitions. TDI, the National
Association of the Deaf (NAD), SHHH,
and the Deaf and Hard of Hearing
Consumer Advocacy Network
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(collectively, the Joint Commenters)
filed a joint comment on the Sprint
petition on May 16, 2003. On July 1,
2003, Sprint and MCI filed reply
comments. Hamilton asserts that the
Commission was correct in denying
retroactive compensation for the
provision of IP Relay during the time
period in which the service was offered
but was not in compliance with the nonwaived mandatory minimum standards
and, further, that the providers that
were compensated for such service
should be required to return the
compensation received. Hamilton had
earlier filed comments on April 28,
2003, which were resubmitted on June
16, 2003. Hamilton states that the
Commission’s decision to deny
retroactive compensation treats all IP
Relay providers equally, and that all
compensation paid to IP Relay providers
prior to the IP Relay Reconsideration
Order was improper because no IP Relay
provider was capable of meeting the
HCO and pay-per-call standards.
Hamilton further argues that the public
interest is best served by competition in
the IP Relay market. It notes that it did
not begin providing IP Relay until after
the HCO and pay-per-call waivers were
granted in the IP Relay Reconsideration
Order, and asserts that only large IP
Relay providers can provide service
before a waiver is granted and gamble
on retroactive compensation. Finally,
Hamilton emphasizes that maintenance
of the high quality of service demanded
by TRS users, including IP Relay users,
depends on enforcement of the
mandatory minimum standards, and
that allowing retroactive compensation
would give IP Relay providers an
incentive to ignore the TRS mandatory
minimum standards and provide lower
quality service. Hamilton cautions that
reliance on the Publix Show Cause
Order could lead to a ‘‘slippery slope’’
with the Commission authorizing
compensation for ever-greater
departures from the TRS mandatory
minimum standards.
The Joint Commenters support
Sprint’s petition and request that the
Commission compensate all providers
of IP Relay service even if they did not
provide HCO and 900 call services.
They assert that ‘‘the unique
circumstances of this case justify
reimbursing Sprint and other similarlysituated carriers for the IP Relay services
they rendered to deaf and hard-ofhearing individuals.’’ They further
assert that it would be unjust to penalize
Sprint for not providing services that
the Commission has found to be
‘‘technically infeasible to provide.’’
Finally, they assert that in light of
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‘‘these unique circumstances, where
deaf and hard-of-hearing individuals
benefited from a wider range of service
alternatives and the FCC ultimately
determined that it was technically
infeasible to provide the minimum
requirements at issues, the best way for
the Commission to accomplish th[e]
objective [of encouraging new services]
and promote the future deployment of
innovative TRS services is to grant
Sprint’s Petition.’’
In its reply, Sprint asserts that
Hamilton’s assertion that it would be
harmed by allowing Sprint and others
retroactive compensation is inaccurate
because by not providing IP Relay
service, Hamilton incurred no costs.
Sprint also states that competitive harm
would be more likely to occur if the
Commission refuses to provide
retroactive compensation, because
potential providers of new TRS services
will be deterred from beginning service
until all uncertainties about standards
are completely resolved. In its reply,
MCI asserts that, in fact, it complied
with the HCO and pay-per-call
standards as articulated in the IP Relay
Declaratory Ruling and FNPRM by
providing two-line HCO and pay-percall standards to the extent possible.
MCI also states that retroactive waivers
and compensation will benefit the
public by compensating IP Relay
providers for costs they actually
incurred in providing service, and that
the Commission supports
reimbursement where the mandatory
minimum standards have been
substantially complied with. Finally,
MCI denies that retroactive waivers will
encourage rule violations, asserting that
the circumstances that gave rise to the
initiation of IP Relay service were
unusual and unlikely to recur.
We conclude that, in the unique
circumstances of this proceeding, Sprint
is entitled to compensation for its
provision of IP Relay prior to the March
2003 IP Relay Reconsideration Order. At
the same time, we take this opportunity
to again remind providers that, as a
general matter, they must offer TRS
services in compliance with all nonwaived mandatory minimum standards
to be eligible for compensation from the
Interstate TRS Fund.
First, based on our review of this
proceeding as a whole, we find that we
cannot conclude that Sprint was in fact
offering IP Relay service in violation of
our rules. We recognize that the initial
IP Relay Declaratory Ruling & FNPRM
was not entirely clear in describing
what providers had to do to meet the
requirements to provide HCO and payper-call service. As MCI has noted, for
example, the HCO requirement could
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reasonably be read to mean that
providers must provide 2-line HCO
(given the reference to the ‘‘text leg’’ of
the call and the need for appropriate
customer premises equipment).
Similarly, the discussion of the pay-percall requirement expressly notes that the
CA can make such a call by passing
along the caller’s credit card number.
MCI maintains that it satisfied these two
requirements in those ways. We do not
find that that is an unreasonable
interpretation of those requirements as
they were spelled out in the IP Relay
Declaratory Ruling & FNPRM. At the
same time, however, Sprint asserted it
could not meet those requirements
based, as is now apparent, on its
interpretation of what meeting those
requirements entailed (i.e., one-line
HCO and providing 900 service by
passing along the ANI of the calling
party into the signaling stream). If,
however, the HCO and pay-per-call
requirements could be met by means
other than those understood by Sprint,
then Sprint may not, in fact, have been
offering IP Relay in violation of the
mandatory minimum standards. In other
words, Sprint was offering the service in
violation of the mandatory minimum
standards, and therefore could have
been ineligible for compensation on that
basis, only if its interpretation of what
the HCO and pay-per-call requirements
entail was the only reasonable
interpretation of those requirements as
described in the IP Relay Declaratory
Ruling & FNPRM.
Upon our review of the record in
these proceeding as set forth above, we
cannot conclude that Sprint’s
interpretation of the HCO and 900 call
requirements is the only reasonable
interpretation of those rules, and
therefore we cannot conclude that
Sprint was in fact offering IP Relay
service in violation of the rules. Sprint’s
interpretation of those requirements as
described in the IP Relay Declaratory
Ruling & FNPRM is not necessarily
correct because those requirements were
not made sufficiently clear, and
therefore that we cannot conclude that
its assertions that it was offering the
service in violation of our rules is
necessarily true. In this regard, we note
that we recently granted Sprint’s
petition on 711 access to pay-per-call
services, stating that we ‘‘do not require
that pay-per-calling be available through
TRS in any particular manner or via a
particular technology.’’ We further
stated that ‘‘Sprint’s solution provides
pay-per-call functionality to TRS users,
and * * * there can be multiple ways
to provide this particular functionality.’’
Therefore, in the absence of a specific
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directive on how a particular
functionality must be offered, we cannot
conclude that a provider is violating a
service requirement simply because that
functionality is offered one way rather
than another.
Second, as a matter of equity, the fact
that all parties agree that it was not
technologically feasible to provide oneline HCO and 900 service as understood
by Sprint, and that for this reason the
Commission ultimately waived those
requirements in the IP Relay
Reconsideration Order, supports the
conclusion that Sprint should not be
penalized for not offering these services
in the manner it described (i.e., for not
doing what no one could do) prior to the
IP Relay Reconsideration Order. We
believe that it would be unfair to
penalize Sprint for either its candor in
acknowledging that these requirements
could not be met (as it understood
them), or for a mistaken belief as to
what these services entailed,
particularly when the discussion of
these features in the initial IP Relay
Declaratory Ruling & FNPRM is
ambiguous. Further, it is implicit in the
IP Relay Reconsideration Order that
these requirements should have been
waived in the initial IP Relay
Declaratory Ruling & FNPRM.
Third, upon our complete review of
the record, we believe our conclusion
best comports with the public interest.
Sprint provided the IP Relay service for
which it now seeks compensation, and
had it not handled those calls, the calls
would have been handled either by
other IP Relay providers or as traditional
TRS calls. Further, Sprint began offering
IP Relay service when it was a new
service, involving, for relay, new
technology that providers and
consumers desired to have available as
soon as possible. Consumers place great
emphasis on having access to the latest
TRS innovations as soon as they are
technologically available in the market.
For example, in response to the 2002 IP
Relay Public Notice seeking comment
on MCI’s petition seeking clarification
that IP Relay is a form of TRS
compensable from the Interstate TRS
Fund, the Commission received
numerous comments from individuals
urging the Commission to expeditiously
recognize IP Relay as a form of TRS so
that the new service would quickly be
available to consumers. See IP Relay
Declaratory Ruling & FNPRM at
paragraph 6, note 12. The fact that the
IP Relay Declaratory Ruling & FNPRM
waived many of the mandatory
minimum standards for this service
shows that as new technologies develop
and are applied to relay, it is not always
easy to fit them into the pre-existing
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regulatory regime, especially a regime
developed when relay calls were made
entirely over the PSTN. Therefore, there
may be more uncertainty as to what preexisting requirements mean when
applied to new technology. In addition,
Sprint repeatedly told the Commission
that it could not, in its view, offer HCO
and 900 services, and repeatedly asked
that we promptly waive these
requirements (and compensate it for its
ongoing service). Therefore, this is not
a case where a provider was ‘‘caught’’
violating longstanding rules (indeed, as
we have noted, we have not concluded
that Sprint was violating the rules at
all). Finally, as MCI has noted, it is
unlikely that the set of circumstances
that led the Commission to first deny
the waivers, then to grant them upon
reconsideration, and now to have to
determine what the Commission
initially intended in requiring those
services, will occur again.
Further, although we are not
unmindful that Hamilton has likely
suffered some disadvantage from its
decision to delay offering the service
until the HCO and pay-per-call issues
were resolved, Sprint and other
providers that offered IP Relay during
this period did incur real costs in doing
so. For example, money was paid out for
the salaries of CAs and managers, for the
equipment necessary to provide the
service, and for other ancillary costs
related to providing service. Further,
any harm Hamilton might have suffered
from not offering the service is not
dependent on whether Sprint (and the
other providers) may be compensated
for the service they offered, but from the
fact that they offered it at all and
therefore were first to the market.
Finally, as the parties have noted, we
recognize that in the context of an
enforcement action against a TRS
provider and in determining whether
the provider complied with the
standards of § 64.604 and therefore was
entitled to compensation from the fund,
we stated that ‘‘absolute compliance
with each component of the rules may
not always be necessary to fulfill the
purposes of the statute * * *, and that
not every minor deviation would justify
withholding funding from a legitimate
TRS provider.’’ We also stated that ‘‘a
TRS provider is eligible for TRS Fund
reimbursement if it has substantially
complied with § 64.604.’’ We need not
address, however, whether Sprint is
entitled to compensation under that
standard because we have concluded
that Sprint did not offer the service in
violation of the rules given their initial
ambiguity. At the same time, we do note
that the number of HCO and 900 calls
handled by the providers at that time
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was de minimis and that, as is now
apparent, no provider could offer HCO
and pay-per-call service as understood
by Sprint.
Although we conclude that, in view of
the unusual circumstances of this
matter, payment to Sprint is warranted
for the IP Relay service it provided, we
caution all TRS providers, current and
potential, that we expect them to offer
service in compliance with all nonwaived mandatory minimum standards.
It bears repeating that TRS is an
accommodation for persons with
disabilities. As such, TRS providers are
required to offer service that is
functionally equivalent to voice
telephone service, as defined by all nonwaived mandatory minimum standards
applicable to the particular form of TRS.
It is therefore the consumers of TRS
who suffer when the service is not
provided consistent with our rules. We
will remain vigilant in ensuring that
providers do not offer service that shortchanges the intended beneficiaries of
these services. To that end, the leverage
that we have is to deny compensation
from the Interstate TRS Fund for the
provision of service that is not in
compliance with our rules. This Order
on Reconsideration, therefore, should
not be read to suggest that common
carriers and others can provide
regulated services in contravention of
our rules, with the hope that they
nevertheless will eventually be
rewarded for providing service. We
view the circumstances of this case to be
unique, and trust that this will prove to
be the case.
For the reasons set forth above, we
grant Sprint’s Petition for Limited
Reconsideration and MCI’s Petition for
Clarification and/or Reconsideration to
the extent they seek that Sprint be
compensated for its provision of IP
Relay prior to the release of the March
14, 2003, IP Relay Reconsideration
Order. As a result, IP Relay providers
who provided service between the date
of the IP Relay Declaratory Ruling &
FNPRM, released April 22, 2002, and
the date of the IP Relay Reconsideration
Order, released March 14, 2003, are
entitled to receive compensation for the
IP Relay service they provided during
that period notwithstanding whether, or
how, they offered HCO and pay-per-call
900 services.
Final Regulatory Flexibility
Certification
The Regulatory Flexibility Act of
1980, as amended (RFA), (the RFA, see
5 U.S.C. 601 et seq., has been amended
by the Contract with America
Advancement Act of 1996, Public Law
Number 104–121, 110 Statute 847
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(1996) (CWAAA). Title II of the CWAAA
is the Small Business Regulatory
Enforcement Act of 1996 (SBREFA)),
requires that a regulatory flexibility
analysis be prepared for rulemaking
proceedings, unless the agency certifies
that ‘‘the rule will not 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.
605(b). 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)
(incorporating by reference the
definition of ‘‘small business concern’’
in the Small Business Act, 15 U.S.C.
632). Pursuant to 5 U.S.C. 601(3), the
statutory definition of a small business
applies ‘‘unless an agency, after
consultation with the Office of
Advocacy of the Small Business
Administration and after opportunity
for public comment, establishes one or
more definitions of such term which are
appropriate to the activities of the
agency and publishes such definition(s)
in the Federal Register.’’ 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.
The Commission concludes in this
item that public interest is best served
by compensating Sprint for its provision
of IP Relay services prior to the March
2003 IP Relay Reconsideration Order
that waived the HCO and pay-per-call
requirements for IP Relay service. The
Commission believes that it would be
unfair to penalize Sprint and withhold
compensation for the following reasons:
(1) Sprint had a mistaken belief as to
what constituted satisfaction of the HCO
and pay-per-call requirements which
may have been fostered by a discussion
of the requirements in the initial IP
Relay Declaratory Ruling & FNPRM that
can be read to be ambiguous; (2) the IP
Relay Reconsideration Order
demonstrates that HCO and pay-per-call
requirements should have been waived
at the onset; (3) no IP Relay provider
could offer HCO and pay-per-call
services as understood by Sprint; and
(4) Sprint acknowledged and repeatedly
notified the Commission that based
upon their interpretation of the
mandatory minimum standards for TRS
calls they could not meet the
requirements for the provision of HCO
and pay-per-call IP Relay calls.
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This item affects IP Relay providers,
but imposes no regulatory burden upon
them. Currently, only four entities are
providing IP Relay: AT&T, Hamilton,
MCI, and Sprint. Moreover, this item
imposes no significant economic impact
on small entities, but in fact confers a
benefit rather than an adverse impact on
small entities by compensating an entity
that provided a nascent service in good
faith. Even if the compensation to Sprint
could be hypothetically construed as a
significant economic impact, the fact
that only four entities provide the
service, and that only one company is
receiving compensation, means that no
‘‘substantial number of small entities’’ is
affected.
Therefore, certification is in order
since both prongs of the legal test—i.e.,
(a) no significant economic impact; and
(b) no impact upon a substantial number
of small entities—are satisfied. The
entity affected by the item is not a small
entity; and if the entity were small,
there is no significant economic impact
since the result of the Order is a benefit.
Finally, if the economic impact were to
hypothetically be construed as a
significant economic impact, there are
not a substantial number of small
entities affected by this Order on
Reconsideration. Accordingly, the
Commission certifies that the
requirements of this Order on
Reconsideration will not have a
significant economic impact on a
substantial number of small entities.
Report to Congress
The Commission will send a copy of
this Order on Reconsideration,
including a copy of this final
certification, in a report to Congress and
the General Accounting Office pursuant
to the Congressional Review Act of
1996. See 5 U.S.C. 801(a)(1)(A). In
addition, the Order on Reconsideration
and this final certification will be sent
to the Chief Counsel for Advocacy of the
Small Business Administration, and
will be published in the Federal
Register. See 5 U.S.C. 605(b).
Ordering Clauses
Pursuant to the authority contained in
sections 1, 2, and 225 of the
Communications Act of 1934, as
amended, 47 U.S.C. 151, 152, and 225,
that this Order on Reconsideration IS
ADOPTED.
The Petition for Limited
Reconsideration filed by Sprint IS
GRANTED to the extent indicated
herein.
The Petition for Clarification and/or
Reconsideration filed by MCI IS
GRANTED to the extent indicated
herein.
E:\FR\FM\06APR1.SGM
06APR1
17334
Federal Register / Vol. 70, No. 65 / Wednesday, April 6, 2005 / Rules and Regulations
The Commission’s Consumer &
Governmental Affairs Bureau, Reference
Information Center, SHALL SEND a
copy of this Order on Reconsideration,
including a copy of this final
certification, to the Chief Counsel for
Advocacy of the Small Business
Administration.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 05–6814 Filed 4–5–05; 8:45 am]
BILLING CODE 6712–01–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 64
[CC Docket No. 98–67 and CG Docket No.
03–123; FCC 04–137; DA 05–728]
Telecommunications Relay Services
and Speech-to-Speech Services for
Individuals With Hearing and Speech
Disabilities
Federal Communications
Commission.
ACTION: Final rule; announcement of
effective date.
AGENCY:
SUMMARY: In this document, the Federal
Communications Commission
(Commission) announces that the Office
of Management and Budget (OMB)
approved for three years the information
collection requirements contained in the
Telecommunications Relay Services and
Speech-to-Speech Services for
Individuals with Hearing and Speech
Disabilities, Report and Order and Order
on Reconsideration, (Order).
DATES: 47 CFR 64.604(a)(4) published at
69 FR 53346, September 1, 2004 is
effective April 6, 2005.
FOR FURTHER INFORMATION CONTACT:
Dana Jackson, Consumer &
Governmental Affairs Bureau, Disability
Rights Office at (202) 418–2247 (voice),
(202) 418–7898 (TTY); e-mail:
Dana.Jackson@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s
document DA 05–728, released March
29, 2005, announcing OMB approval for
three years the information collection
requirements contained in the Order;
published at 69 FR 53346, September 1,
2004. The information collections were
approved by OMB on March 11, 2005.
OMB Control Number 3060–1043. The
Commission publishes this notice of the
effective date of the rules. If you have
any comments on these burden
estimates, or how we can improve the
collection(s) and reduce the burden(s)
they cause you, please write to Les
VerDate jul<14>2003
15:41 Apr 05, 2005
Jkt 205001
Smith, Federal Communications
Commission, Room 1–A804, 445 12th
Street, SW., Washington, DC 20554.
Please include the OMB Control
Number 3060–1043, in your
correspondence. We will also accept
your comments regarding the Paperwork
Reduction Act aspects of the collection
via the Internet, if you send them to
Leslie.Smith@fcc.gov or call (202) 418–
0217.
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). The notice can also be
downloaded in Word and Portable
Document Format (PDF) at: https://
www.fcc.gov/cgb/dro.
Synopsis
As required by the Paperwork
Reduction Act of 1995 (PRA) (44 U.S.C.
3507), the FCC is notifying the public
that it received approval from OMB on
March 11, 2005, for the collection(s) of
information contained in the
Commission’s annual reporting
requirements in 47 CFR 64.604(a)(4).
The OMB Control Number is 3060–
1043. The annual reporting burden for
the collection(s) of information,
including the time for gathering and
maintaining the collection of
information, is estimated to be: 7
respondents, and average of 10 hours
per response per annum, for a total hour
burden of 70 hours, and no annual cost.
Under 5 CFR part 1320, an agency may
not conduct or sponsor a collection of
information unless it displays a current
valid OMB Control Number. No person
shall be subject to any penalty for failing
to comply with a collection of
information subject to the PRA that does
not display a valid OMB Control
Number. The OMB Control Number is
3060–1043.
The foregoing notice is required by
the Paperwork Reduction Act of 1995,
Public Law 104–13, October 1, 1995, 44
U.S.C. 3507.
List of Subjects in 47 CFR Part 64
Telecommunications, Individuals
with disabilities, Reporting and
recordkeeping requirements.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 05–6811 Filed 4–5–05; 8:45 am]
BILLING CODE 6712–01–P
PO 00000
Frm 00032
Fmt 4700
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FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 73
[DA 05–686, MB Docket No. 03–144, RM–
10733, RM–10788, RM–10789]
Radio Broadcasting Services;
Breckenridge, Crawford, Eagle, Fort
Morgan, Greenwood Village, and
Gunnison, CO, Laramie, WY, Loveland,
Olathe and Strasburg, CO
Federal Communications
Commission.
ACTION: Final rule, petition for
reconsideration.
AGENCY:
SUMMARY: This document grants the
Petition for Reconsideration filed by
Dana J. Puopolo directed to the Report
and Order in this proceeding by
allotting Channel 299C3 at Gunnison,
Colorado, as its fourth local service. See
69 FR 58840, published October 1, 2004.
Channel 299C3 can be allotted to
Gunnison, consistent with the minimum
distance separation requirements of the
Commission’s rules provided there is a
site restriction of 19.5 kilometers (12.1
miles) northeast at coordinates 38–40–
48 NL and 106–46–48 WL. This site
restriction will ensure full-spacing to
the license site of Station KBKL on
Channel 300C at Grand Junction,
Colorado. This document also allots
Channel 274C3 in lieu of Channel
272C2 at Crawford, as its first local
service. Channel 274C3 can be allotted
to Crawford in compliance with the
minimum distance separation
requirements of the Commission’s rules
provided there is a site restriction of
19.5 kilometers (12.1 miles) northeast at
coordinates 38–38–09 NL and 107–34–
43 WL. As a result, the Station
KVLE(FM) Channel 299A substitution at
Gunnison and the site relocation for
vacant Channel 270C2 at Olathe is no
longer necessary. See SUPPLEMENTARY
INFORMATION.
DATES: Effective May 2, 2005.
ADDRESSES: Federal Communications
Commission, 445 Twelfth Street, SW.,
Washington, DC 20554.
FOR FURTHER INFORMATION CONTACT:
Rolanda F. Smith, Media Bureau, (202)
418–2180.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Report
and Order, MB Docket No. 03–144
adopted March 14, 2005, and released
March 16, 2005. The full text of this
Commission decision is available for
inspection and copying during normal
business hours in the Commission’s
Reference Center, 445 Twelfth Street,
SW., Washington, DC 20554. The
E:\FR\FM\06APR1.SGM
06APR1
Agencies
[Federal Register Volume 70, Number 65 (Wednesday, April 6, 2005)]
[Rules and Regulations]
[Pages 17330-17334]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-6814]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 64
[CC Docket No. 98-67; FCC 05-48]
Provision of Improved Telecommunications Relay Services and
Speech-to-Speech Services for Individuals With Hearing and Speech
Disabilities
AGENCY: Federal Communications Commission.
ACTION: Final rule; petition for reconsideration.
-----------------------------------------------------------------------
SUMMARY: In this document, the Federal Communications Commission
(Commission) grants petitions filed by Sprint Corporation (Sprint) and
WorldCom, Inc. (MCI) seeking reconsideration of the Commission's March
14, 2003, Order on Reconsideration (IP Relay Reconsideration Order).
This matter derives from the April 2002 IP Relay DeclaratoryRuling and
Further Notice of Proposed Rulemaking (IP Relay Declaratory Ruling &
FNPRM), which recognized IP Relay as a form of telecommunications relay
service (TRS), authorized compensation for IP Relay providers from the
Interstate TRS Fund, and waived certain mandatory minimum standards as
they apply to the provision of IP Relay.
DATES: The petitions were granted as of March 9, 2005.
ADDRESSES: Federal Communications Commission, 445 12th Street, SW.,
Washington, DC 20554.
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 Order
on Reconsideration, CC Docket No. 98-67, FCC 05-48, adopted March 1,
2005, released March 9, 2005. The full text of the Order on
Reconsideration and copies of any subsequently filed documents in this
matter will be available for public inspection and copying during
regular business hours at the FCC Reference Information Center, Portals
II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The
complete text of this Order on Reconsideration and copies of
subsequently filed documents in this matter may also be purchased from
the Commission's duplicating contractor, Best Copy and Printing Inc.
(BCPI), Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC
20554. Customers may contact BCPI at their Web site: https://
www.bcpiweb.com or call 1-800-378-3160.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). The Order on Reconsideration can also be
downloaded in Word or Portable Document Format (PDF) at: https://
www.fcc.gov/cgb/dro. On April 22, 2002, the Commission released the IP
Relay Declaratory Ruling & FNPRM, CC Docket No. 98-67, FCC 02-121;
published at 67 FR 39386, June 11, 2002 and 67 FR 39929, June 11, 2002,
finding that IP Relay is a form of TRS and that on an interim basis the
cost of providing all IP Relay calls could be compensated from the
Interstate TRS Fund. On March 14, 2003, the Commission released the IP
Relay Order on Reconsideration, CC Docket No. 98-67, FCC 03-46;
published at 68 FR 18826, April 16, 2003, which granted an extension of
the waivers granted in the IP Relay Declaratory Ruling & FNPRM for a
period of five years. The Commission also granted the requested waiver
of the requirement to provide one-line hearing carry over (HCO) for a
period of five years. This document does not contain new or modified
information collection requirements subject to the Paperwork Reduction
Act of 1995 (PRA), Public Law 104-13. In addition, 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 U.S.C.
3506(c)(4).
Synopsis
On April 14, 2003, Sprint filed a petition for ``limited
reconsideration'' of the IP Relay Reconsideration Order, requesting
that the Commission reconsider its decision not to make the waivers
granted in the IP Relay Reconsideration Order retroactive, and
therefore not to compensate providers of IP Relay (Sprint) during the
time period in which they offered the service but may not have been
complying with the then non-waived HCO and pay-per-call requirements.
Sprint makes numerous arguments in support of its petition. It
argues that there is no legal bar to providing payment for services
rendered before the grant of the HCO and pay-per-call waivers,
distinguishing the cases cited by the Commission for the proposition
that the retroactive application of waivers is not favored. Sprint
asserts, for example, that the waivers it seeks are ``merely to correct
mistakes made by the Commission in the [IP Relay Declaratory Ruling &
FNPRM] as of the date of that ruling.'' Sprint also argues that the IP
Relay Declaratory Ruling & FNPRM was not ``final'' because of the
pendency of the petitions for reconsideration, and that therefore the
risk Sprint took was that the Commission might deny its petition for
waiver of the 900 pay-per-call and HCO requirements on the merits
(which, had that occurred, would have precluded it from reimbursement),
but not that the Commission might grant the petition but disallow
reimbursement.
Sprint also argues that ``rigid adherence to all TRS requirements
is inconsistent with other TRS precedent.'' Sprint asserts that the
Commission has found in other contexts that TRS providers are eligible
for compensation even if they do not meet every requirement of the
Commission's rules, stating that ``absolute compliance with each
component of the rules may not always be necessary to fulfill the
purposes of the statute and the policy objectives of the implementing
rules, and that not every minor deviation would justify withholding
funding from a legitimate TRS provider.'' In this regard, Sprint
emphasizes that the Commission has recognized that HCO and pay-per-call
services are infrequently used, and that therefore IP Relay providers,
like Sprint, have substantially complied with the TRS mandatory minimum
standards.
Sprint also contends that the Commission ``cannot lawfully single
out Sprint for non-payment'' of compensation, asserting that the
Commission's conclusion in the IP Relay Reconsideration Order that it
is not technically feasible to provide HCO and pay-per-call services
via IP Relay means that no IP Relay provider could have been providing
these services in compliance with the rules during the period between
the release of the April 2002 IP Relay Declaratory Ruling & FNPRM and
the waiver grant in the
[[Page 17331]]
March 2003 IP Relay Reconsideration Order. Therefore, according to
Sprint, it is improper to refuse to compensate Sprint for its provision
of IP Relay when the Commission has compensated other providers during
that period for providing the same service. (AT&T received compensation
for its provision of IP Relay beginning in June 2002. MCI received
compensation for its provision of IP Relay beginning in April 2002.)
Sprint notes that there are two ways to cure this inequity: compensate
Sprint for the service it provided during the period, or institute
enforcement actions against other IP Relay providers to require them to
return compensation received during the period. Sprint favors the first
approach, which it argues is in the public interest.
On May 16, 2003, MCI filed a petition styled ``Petition for
Clarification and/or Reconsideration.'' See WorldCom, Inc. d/b/a MCI,
Petition for Clarification and/or Reconsideration, filed May 16, 2003.
MCI requests that the Commission reconsider its apparent decision to
eliminate two-line HCO as a means of satisfying the HCO mandatory
minimum standard, asserting that the HCO requirement ``only made sense
as two-line HCO,'' and clarify the meaning of the now-waived pay-per-
call mandatory minimum standard and whether it was satisfied by
attempting to have the pay-per-call service accept alternate billing
information, i.e., a billing method other than automatic billing to the
caller's telephone bill. MCI also asserts that providers should be
compensated for providing IP Relay service even if they did not meet
the pay-per-call and HCO standards. Although MCI does not expressly
support Sprint's position, it argues that absolute compliance with all
mandatory minimum standards is not the standard the Commission has
used, that the Commission in the past has issued retroactive waivers to
promote the public interest, and that in the circumstances of this
matter--including the fact that new technologies are involved--the
public interest supports compensating the providers for the IP Relay
services provided.
On May 22, 2003, Sprint's and MCI's petitions were placed on public
notice. See Petitions for Reconsideration of Action in Rulemaking
Proceedings, Public Notice, Report No. 2608, released May 22, 2003.
Hamilton and consumer groups (filing jointly) filed comments, and both
Sprint and MCI filed reply comments. Hamilton filed comments on both
the April 28, 2003, and June 16, 2003 petitions. TDI, the National
Association of the Deaf (NAD), SHHH, and the Deaf and Hard of Hearing
Consumer Advocacy Network (collectively, the Joint Commenters) filed a
joint comment on the Sprint petition on May 16, 2003. On July 1, 2003,
Sprint and MCI filed reply comments. Hamilton asserts that the
Commission was correct in denying retroactive compensation for the
provision of IP Relay during the time period in which the service was
offered but was not in compliance with the non-waived mandatory minimum
standards and, further, that the providers that were compensated for
such service should be required to return the compensation received.
Hamilton had earlier filed comments on April 28, 2003, which were
resubmitted on June 16, 2003. Hamilton states that the Commission's
decision to deny retroactive compensation treats all IP Relay providers
equally, and that all compensation paid to IP Relay providers prior to
the IP Relay Reconsideration Order was improper because no IP Relay
provider was capable of meeting the HCO and pay-per-call standards.
Hamilton further argues that the public interest is best served by
competition in the IP Relay market. It notes that it did not begin
providing IP Relay until after the HCO and pay-per-call waivers were
granted in the IP Relay Reconsideration Order, and asserts that only
large IP Relay providers can provide service before a waiver is granted
and gamble on retroactive compensation. Finally, Hamilton emphasizes
that maintenance of the high quality of service demanded by TRS users,
including IP Relay users, depends on enforcement of the mandatory
minimum standards, and that allowing retroactive compensation would
give IP Relay providers an incentive to ignore the TRS mandatory
minimum standards and provide lower quality service. Hamilton cautions
that reliance on the Publix Show Cause Order could lead to a ``slippery
slope'' with the Commission authorizing compensation for ever-greater
departures from the TRS mandatory minimum standards.
The Joint Commenters support Sprint's petition and request that the
Commission compensate all providers of IP Relay service even if they
did not provide HCO and 900 call services. They assert that ``the
unique circumstances of this case justify reimbursing Sprint and other
similarly-situated carriers for the IP Relay services they rendered to
deaf and hard-of-hearing individuals.'' They further assert that it
would be unjust to penalize Sprint for not providing services that the
Commission has found to be ``technically infeasible to provide.''
Finally, they assert that in light of ``these unique circumstances,
where deaf and hard-of-hearing individuals benefited from a wider range
of service alternatives and the FCC ultimately determined that it was
technically infeasible to provide the minimum requirements at issues,
the best way for the Commission to accomplish th[e] objective [of
encouraging new services] and promote the future deployment of
innovative TRS services is to grant Sprint's Petition.''
In its reply, Sprint asserts that Hamilton's assertion that it
would be harmed by allowing Sprint and others retroactive compensation
is inaccurate because by not providing IP Relay service, Hamilton
incurred no costs. Sprint also states that competitive harm would be
more likely to occur if the Commission refuses to provide retroactive
compensation, because potential providers of new TRS services will be
deterred from beginning service until all uncertainties about standards
are completely resolved. In its reply, MCI asserts that, in fact, it
complied with the HCO and pay-per-call standards as articulated in the
IP Relay Declaratory Ruling and FNPRM by providing two-line HCO and
pay-per-call standards to the extent possible. MCI also states that
retroactive waivers and compensation will benefit the public by
compensating IP Relay providers for costs they actually incurred in
providing service, and that the Commission supports reimbursement where
the mandatory minimum standards have been substantially complied with.
Finally, MCI denies that retroactive waivers will encourage rule
violations, asserting that the circumstances that gave rise to the
initiation of IP Relay service were unusual and unlikely to recur.
We conclude that, in the unique circumstances of this proceeding,
Sprint is entitled to compensation for its provision of IP Relay prior
to the March 2003 IP Relay Reconsideration Order. At the same time, we
take this opportunity to again remind providers that, as a general
matter, they must offer TRS services in compliance with all non-waived
mandatory minimum standards to be eligible for compensation from the
Interstate TRS Fund.
First, based on our review of this proceeding as a whole, we find
that we cannot conclude that Sprint was in fact offering IP Relay
service in violation of our rules. We recognize that the initial IP
Relay Declaratory Ruling & FNPRM was not entirely clear in describing
what providers had to do to meet the requirements to provide HCO and
pay-per-call service. As MCI has noted, for example, the HCO
requirement could
[[Page 17332]]
reasonably be read to mean that providers must provide 2-line HCO
(given the reference to the ``text leg'' of the call and the need for
appropriate customer premises equipment). Similarly, the discussion of
the pay-per-call requirement expressly notes that the CA can make such
a call by passing along the caller's credit card number. MCI maintains
that it satisfied these two requirements in those ways. We do not find
that that is an unreasonable interpretation of those requirements as
they were spelled out in the IP Relay Declaratory Ruling & FNPRM. At
the same time, however, Sprint asserted it could not meet those
requirements based, as is now apparent, on its interpretation of what
meeting those requirements entailed (i.e., one-line HCO and providing
900 service by passing along the ANI of the calling party into the
signaling stream). If, however, the HCO and pay-per-call requirements
could be met by means other than those understood by Sprint, then
Sprint may not, in fact, have been offering IP Relay in violation of
the mandatory minimum standards. In other words, Sprint was offering
the service in violation of the mandatory minimum standards, and
therefore could have been ineligible for compensation on that basis,
only if its interpretation of what the HCO and pay-per-call
requirements entail was the only reasonable interpretation of those
requirements as described in the IP Relay Declaratory Ruling & FNPRM.
Upon our review of the record in these proceeding as set forth
above, we cannot conclude that Sprint's interpretation of the HCO and
900 call requirements is the only reasonable interpretation of those
rules, and therefore we cannot conclude that Sprint was in fact
offering IP Relay service in violation of the rules. Sprint's
interpretation of those requirements as described in the IP Relay
Declaratory Ruling & FNPRM is not necessarily correct because those
requirements were not made sufficiently clear, and therefore that we
cannot conclude that its assertions that it was offering the service in
violation of our rules is necessarily true. In this regard, we note
that we recently granted Sprint's petition on 711 access to pay-per-
call services, stating that we ``do not require that pay-per-calling be
available through TRS in any particular manner or via a particular
technology.'' We further stated that ``Sprint's solution provides pay-
per-call functionality to TRS users, and * * * there can be multiple
ways to provide this particular functionality.'' Therefore, in the
absence of a specific directive on how a particular functionality must
be offered, we cannot conclude that a provider is violating a service
requirement simply because that functionality is offered one way rather
than another.
Second, as a matter of equity, the fact that all parties agree that
it was not technologically feasible to provide one-line HCO and 900
service as understood by Sprint, and that for this reason the
Commission ultimately waived those requirements in the IP Relay
Reconsideration Order, supports the conclusion that Sprint should not
be penalized for not offering these services in the manner it described
(i.e., for not doing what no one could do) prior to the IP Relay
Reconsideration Order. We believe that it would be unfair to penalize
Sprint for either its candor in acknowledging that these requirements
could not be met (as it understood them), or for a mistaken belief as
to what these services entailed, particularly when the discussion of
these features in the initial IP Relay Declaratory Ruling & FNPRM is
ambiguous. Further, it is implicit in the IP Relay Reconsideration
Order that these requirements should have been waived in the initial IP
Relay Declaratory Ruling & FNPRM.
Third, upon our complete review of the record, we believe our
conclusion best comports with the public interest. Sprint provided the
IP Relay service for which it now seeks compensation, and had it not
handled those calls, the calls would have been handled either by other
IP Relay providers or as traditional TRS calls. Further, Sprint began
offering IP Relay service when it was a new service, involving, for
relay, new technology that providers and consumers desired to have
available as soon as possible. Consumers place great emphasis on having
access to the latest TRS innovations as soon as they are
technologically available in the market. For example, in response to
the 2002 IP Relay Public Notice seeking comment on MCI's petition
seeking clarification that IP Relay is a form of TRS compensable from
the Interstate TRS Fund, the Commission received numerous comments from
individuals urging the Commission to expeditiously recognize IP Relay
as a form of TRS so that the new service would quickly be available to
consumers. See IP Relay Declaratory Ruling & FNPRM at paragraph 6, note
12. The fact that the IP Relay Declaratory Ruling & FNPRM waived many
of the mandatory minimum standards for this service shows that as new
technologies develop and are applied to relay, it is not always easy to
fit them into the pre-existing regulatory regime, especially a regime
developed when relay calls were made entirely over the PSTN. Therefore,
there may be more uncertainty as to what pre-existing requirements mean
when applied to new technology. In addition, Sprint repeatedly told the
Commission that it could not, in its view, offer HCO and 900 services,
and repeatedly asked that we promptly waive these requirements (and
compensate it for its ongoing service). Therefore, this is not a case
where a provider was ``caught'' violating longstanding rules (indeed,
as we have noted, we have not concluded that Sprint was violating the
rules at all). Finally, as MCI has noted, it is unlikely that the set
of circumstances that led the Commission to first deny the waivers,
then to grant them upon reconsideration, and now to have to determine
what the Commission initially intended in requiring those services,
will occur again.
Further, although we are not unmindful that Hamilton has likely
suffered some disadvantage from its decision to delay offering the
service until the HCO and pay-per-call issues were resolved, Sprint and
other providers that offered IP Relay during this period did incur real
costs in doing so. For example, money was paid out for the salaries of
CAs and managers, for the equipment necessary to provide the service,
and for other ancillary costs related to providing service. Further,
any harm Hamilton might have suffered from not offering the service is
not dependent on whether Sprint (and the other providers) may be
compensated for the service they offered, but from the fact that they
offered it at all and therefore were first to the market.
Finally, as the parties have noted, we recognize that in the
context of an enforcement action against a TRS provider and in
determining whether the provider complied with the standards of Sec.
64.604 and therefore was entitled to compensation from the fund, we
stated that ``absolute compliance with each component of the rules may
not always be necessary to fulfill the purposes of the statute * * *,
and that not every minor deviation would justify withholding funding
from a legitimate TRS provider.'' We also stated that ``a TRS provider
is eligible for TRS Fund reimbursement if it has substantially complied
with Sec. 64.604.'' We need not address, however, whether Sprint is
entitled to compensation under that standard because we have concluded
that Sprint did not offer the service in violation of the rules given
their initial ambiguity. At the same time, we do note that the number
of HCO and 900 calls handled by the providers at that time
[[Page 17333]]
was de minimis and that, as is now apparent, no provider could offer
HCO and pay-per-call service as understood by Sprint.
Although we conclude that, in view of the unusual circumstances of
this matter, payment to Sprint is warranted for the IP Relay service it
provided, we caution all TRS providers, current and potential, that we
expect them to offer service in compliance with all non-waived
mandatory minimum standards. It bears repeating that TRS is an
accommodation for persons with disabilities. As such, TRS providers are
required to offer service that is functionally equivalent to voice
telephone service, as defined by all non-waived mandatory minimum
standards applicable to the particular form of TRS. It is therefore the
consumers of TRS who suffer when the service is not provided consistent
with our rules. We will remain vigilant in ensuring that providers do
not offer service that short-changes the intended beneficiaries of
these services. To that end, the leverage that we have is to deny
compensation from the Interstate TRS Fund for the provision of service
that is not in compliance with our rules. This Order on
Reconsideration, therefore, should not be read to suggest that common
carriers and others can provide regulated services in contravention of
our rules, with the hope that they nevertheless will eventually be
rewarded for providing service. We view the circumstances of this case
to be unique, and trust that this will prove to be the case.
For the reasons set forth above, we grant Sprint's Petition for
Limited Reconsideration and MCI's Petition for Clarification and/or
Reconsideration to the extent they seek that Sprint be compensated for
its provision of IP Relay prior to the release of the March 14, 2003,
IP Relay Reconsideration Order. As a result, IP Relay providers who
provided service between the date of the IP Relay Declaratory Ruling &
FNPRM, released April 22, 2002, and the date of the IP Relay
Reconsideration Order, released March 14, 2003, are entitled to receive
compensation for the IP Relay service they provided during that period
notwithstanding whether, or how, they offered HCO and pay-per-call 900
services.
Final Regulatory Flexibility Certification
The Regulatory Flexibility Act of 1980, as amended (RFA), (the RFA,
see 5 U.S.C. 601 et seq., has been amended by the Contract with America
Advancement Act of 1996, Public Law Number 104-121, 110 Statute 847
(1996) (CWAAA). Title II of the CWAAA is the Small Business Regulatory
Enforcement Act of 1996 (SBREFA)), requires that a regulatory
flexibility analysis be prepared for rulemaking proceedings, unless the
agency certifies that ``the rule will not 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. 605(b). 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) (incorporating
by reference the definition of ``small business concern'' in the Small
Business Act, 15 U.S.C. 632). Pursuant to 5 U.S.C. 601(3), the
statutory definition of a small business applies ``unless an agency,
after consultation with the Office of Advocacy of the Small Business
Administration and after opportunity for public comment, establishes
one or more definitions of such term which are appropriate to the
activities of the agency and publishes such definition(s) in the
Federal Register.'' 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.
The Commission concludes in this item that public interest is best
served by compensating Sprint for its provision of IP Relay services
prior to the March 2003 IP Relay Reconsideration Order that waived the
HCO and pay-per-call requirements for IP Relay service. The Commission
believes that it would be unfair to penalize Sprint and withhold
compensation for the following reasons: (1) Sprint had a mistaken
belief as to what constituted satisfaction of the HCO and pay-per-call
requirements which may have been fostered by a discussion of the
requirements in the initial IP Relay Declaratory Ruling & FNPRM that
can be read to be ambiguous; (2) the IP Relay Reconsideration Order
demonstrates that HCO and pay-per-call requirements should have been
waived at the onset; (3) no IP Relay provider could offer HCO and pay-
per-call services as understood by Sprint; and (4) Sprint acknowledged
and repeatedly notified the Commission that based upon their
interpretation of the mandatory minimum standards for TRS calls they
could not meet the requirements for the provision of HCO and pay-per-
call IP Relay calls.
This item affects IP Relay providers, but imposes no regulatory
burden upon them. Currently, only four entities are providing IP Relay:
AT&T, Hamilton, MCI, and Sprint. Moreover, this item imposes no
significant economic impact on small entities, but in fact confers a
benefit rather than an adverse impact on small entities by compensating
an entity that provided a nascent service in good faith. Even if the
compensation to Sprint could be hypothetically construed as a
significant economic impact, the fact that only four entities provide
the service, and that only one company is receiving compensation, means
that no ``substantial number of small entities'' is affected.
Therefore, certification is in order since both prongs of the legal
test--i.e., (a) no significant economic impact; and (b) no impact upon
a substantial number of small entities--are satisfied. The entity
affected by the item is not a small entity; and if the entity were
small, there is no significant economic impact since the result of the
Order is a benefit. Finally, if the economic impact were to
hypothetically be construed as a significant economic impact, there are
not a substantial number of small entities affected by this Order on
Reconsideration. Accordingly, the Commission certifies that the
requirements of this Order on Reconsideration will not have a
significant economic impact on a substantial number of small entities.
Report to Congress
The Commission will send a copy of this Order on Reconsideration,
including a copy of this final certification, in a report to Congress
and the General Accounting Office pursuant to the Congressional Review
Act of 1996. See 5 U.S.C. 801(a)(1)(A). In addition, the Order on
Reconsideration and this final certification will be sent to the Chief
Counsel for Advocacy of the Small Business Administration, and will be
published in the Federal Register. See 5 U.S.C. 605(b).
Ordering Clauses
Pursuant to the authority contained in sections 1, 2, and 225 of
the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, and
225, that this Order on Reconsideration IS ADOPTED.
The Petition for Limited Reconsideration filed by Sprint IS GRANTED
to the extent indicated herein.
The Petition for Clarification and/or Reconsideration filed by MCI
IS GRANTED to the extent indicated herein.
[[Page 17334]]
The Commission's Consumer & Governmental Affairs Bureau, Reference
Information Center, SHALL SEND a copy of this Order on Reconsideration,
including a copy of this final certification, to the Chief Counsel for
Advocacy of the Small Business Administration.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 05-6814 Filed 4-5-05; 8:45 am]
BILLING CODE 6712-01-P