Misuse of Internet Protocol (IP) Captioned Telephone Service; Telecommunications Relay Services and Speech-to-Speech Services for Individuals With Hearing and Speech Disabilities, 53684-53694 [2013-21259]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 78, Number 169 (Friday, August 30, 2013)]
[Rules and Regulations]
[Pages 53684-53694]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-21259]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CG Docket Nos. 13-24 and 03-123; FCC 13-118]


Misuse of Internet Protocol (IP) Captioned Telephone Service; 
Telecommunications Relay Services and Speech-to-Speech Services for 
Individuals With Hearing and Speech Disabilities

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Commission adopts permanent rules 
addressing marketing, labeling, registration and default equipment-
setting requirements for internet protocol captioned telephone relay 
service (IP CTS). This action is necessary to ensure that persons with 
hearing disabilities have access to telecommunications relay services 
(TRS) that address their needs in an efficient manner, in furtherance 
of the objectives of section 225 of the Communications Act of 1934, as 
amended (Act), to provide relay services enabling communication that is 
functionally equivalent to conventional telephone voice services, while 
at the same time protecting the TRS Fund for all forms of TRS.

DATES: Effective September 30, 2013, except for Sec. Sec.  
64.604(c)(9), (c)(10)(iv), (c)(11)(iii) and (iv), and 
64.606(a)(2)(ii)(F) of the Commission's rules, which contain 
information collection requirements that have not been approved by the 
Office of Management and Budget (OMB). The Commission will publish a 
separate document in the Federal Register announcing the effective 
date.

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

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Misuse 
of Internet Protocol (IP) Captioned Telephone Service; 
Telecommunications Relay Services and Speech-to-Speech Services for 
Individuals with Hearing and Speech Disabilities, Report and Order 
(Order), document FCC 13-118, adopted on August 26, 2013 and released 
on August 26, 2013, in CG Docket Nos. 13-24 and 03-123. In document FCC 
13-118, the Commission also seeks comment in an accompanying Further 
Notice of Proposed Rulemaking (FNPRM), which is summarized in a 
separate Federal Register Publication. The full text of document FCC 
13-118 will be available for public inspection and copying via ECFS, 
and during regular business hours at the FCC Reference Information 
Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 
20554. It also may be purchased from the Commission's duplicating 
contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street 
SW., Room CY-B402, Washington, DC 20554, telephone: (800) 378-3160, 
fax: (202) 488-5563, or Internet: www.bcpiweb.com. Document FCC 13-118 
can also be downloaded in Word or Portable Document Format (PDF) at: 
https://www.fcc.gov/encyclopedia/telecommunications-relay-services-trs. 
To request materials in accessible formats for people with disabilities 
(Braille, large print, electronic files, audio format), send an email 
to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau 
at 202-418-0530 (voice), 202-418-0432 (TTY).

Final Paperwork Reduction Act of 1995 Analysis

    Document FCC 13-118 contains new and revised information collection 
requirements. The Commission, as part of its continuing effort to 
reduce paperwork burdens, will invite the general public to comment on 
the information collection requirements contained in document FCC 13-
118 as required by the Paperwork Reduction Act (PRA) of 1995, Public 
Law 104-13, in a separate notice that will be published in the Federal 
Register.

Synopsis

    1. Title IV of the Americans with Disabilities Act (ADA) requires 
the Commission to ensure that TRS is available to the extent possible 
and in the most efficient manner, to people with hearing or speech 
disabilities. The Act defines TRS as services that enable an individual 
with a hearing or speech disability to communicate with other 
individuals ``in a manner that is functionally equivalent'' to a 
hearing individual's ability to communicate using voice communications 
services. This requirement is currently accomplished through TRS 
facilities staffed by communications assistants (CAs) who relay 
conversations between persons using various types of assistive 
communication devices and persons using end user telephone equipment, 
such as a standard phone, smartphone, or computer.
    2. Captioned Telephone Service (CTS) is one type of TRS that works 
by having

[[Page 53685]]

a person who is hard of hearing dial the number she or he wishes to 
call. The CTS user's phone is automatically connected to a captioned 
telephone CA at the same time she or he reaches the called party. Once 
connected, the CA re-voices everything the called party says into a 
voice recognition program that automatically transcribes those words 
into captions. The captions then are transmitted directly to the caller 
and are displayed on a captioned telephone device, a computer, or a 
smartphone. The service also provides captions for incoming calls that 
are placed using designated phone numbers. The Commission approved 
compensation for CTS, which allows calls to be made over wireless or 
wireline devices using the public switched telecommunications network 
(PSTN) or voice over Internet protocol (VoIP), in Telecommunications 
Relay Services and Speech-to-Speech Services for Individuals with 
Hearing and Speech Disabilities, Declaratory Ruling, CC Docket No. 98-
67, published at 68 FR 55898, September 29, 2003 (CTS Declaratory 
Ruling). IP CTS, by which the user utilizes an Internet Protocol-
enabled device or Internet-enabled software to simultaneously listen to 
the other party and read captions of what that party is saying, was 
approved in 2007. Telecommunications Relay Services and Speech-to-
Speech Services for Individuals with Hearing and Speech Disabilities, 
CG Docket No. 03-123, Declaratory Ruling, published at 72 FR 6960, 
February 14, 2007 (IP CTS Declaratory Ruling).
    3. In 2012, the Commission witnessed an unusually steep increase in 
the growth of IP CTS minutes. This sudden and unprecedented escalation 
raised serious concerns for the Commission that threatened to overwhelm 
and, therefore, jeopardize the Fund for all forms of TRS if not 
immediately addressed. In order to protect the Fund, on January 25, 
2013, the Commission took swift and immediate action, in Misuse of 
Internet Protocol (IP) Captioned Telephone Service; Telecommunications 
Relay Services and Speech-to-Speech Services for Individuals with 
Hearing and Speech Disabilities, CG Docket Nos. 13-24 and 03-123, Order 
and Notice of Proposed Rulemaking, published at 78 FR 8032, February 5, 
2013 (IP CTS Interim Order) to prohibit, on an interim basis, provider 
practices that appeared to be directly causing the sharp increase in IP 
CTS usage by individuals who did not need this service to communicate 
in a functionally equivalent manner. The interim rules also included a 
requirement that providers set equipment to a default captions-off 
setting, and certain registration and certification requirements. In an 
accompanying Notice of Proposed Rulemaking (NPRM), published at 78 FR 
8090, February 5, 2013, the Commission sought comment on whether to 
make permanent, revise, or eliminate the interim rules. In addition, 
the NPRM sought comment on a range of additional matters pertaining to 
the provision of IP CTS, including whether to extend the self-
certification requirements to existing users; whether to adopt 
quantitative threshold requirements for IP CTS eligibility; whether 
professional certification by individuals attesting to their 
eligibility in order to get a free IP CTS device should be made under 
penalty of perjury; whether to prohibit the free or significantly 
subsidized distribution of end user equipment by IP CTS providers; 
whether to adopt a labeling requirement for end user equipment 
restricting its use to eligible persons with hearing disabilities; 
whether the Commission should amend its speed of answer rules for IP 
CTS in light of the default-off rule; whether to require potential IP 
CTS providers to describe how they will ensure compliance with the 
self-certification rules as a pre-condition to receiving certification; 
and whether the Commission should link provider compensation to 
compliance with the Commission's new rules on certification and 
restrictions on rewards and free equipment.
    4. Legal Authority. Section 225(b) of the Act directs the 
Commission to ensure that relay services are available to persons with 
hearing and speech disabilities ``to the extent possible and in the 
most efficient manner.'' 47 U.S.C. 225(b)(1) of the Act. Further, 
section 225(d) of the Act instructs the Commission to adopt regulations 
implementing section 225, including regulations ``establish[ing] 
functional requirements, guidelines, and operations procedures for 
[TRS],'' 47 U.S.C. 225(d)(1)(A), as well as mandatory ``minimum 
standards'' governing the provision of TRS, 47 U.S.C. 225(d)(1)(B). The 
Commission found that these provisions authorized the interim rules 
adopted for IP CTS, and the Commission now concludes that they likewise 
authorize the final rules adopted in this order.
    5. In directing the Commission, ``[i]n order to carry out the 
purposes established under section 151 of the Act,'' to ensure the 
availability of TRS ``to the extent possible and in the most efficient 
manner,'' Congress qualified the objective of making TRS ``available'' 
by using the caveats ``to the extent possible'' and ``in the most 
efficient manner,'' granting the Commission discretion in implementing 
that provision. 47 U.S.C. 225(b)(1). Moreover, the Commission has 
authority to balance the goals of section 225 of the Act when 
implementing that provision. Likewise, in ``establish[ing] functional 
requirements, guidelines, and operations procedures,'' 47 U.S.C. 
225(d)(1)(A), and mandatory ``minimum standards,'' for TRS, 47 U.S.C. 
225(d)(1)(B), the Commission must act, consistent with its mandate, to 
ensure that TRS is made available ``in the most efficient manner.'' 47 
U.S.C. 225(b)(1). In this regard, the Commission can take steps to 
ensure that federal funding for usage of a particular relay service is 
limited to users that genuinely need that relay service, and preclude 
federal funding for users that do not have such a need-whether because 
they can use ordinary voice telephone service or because an alternative 
(such as amplification) would meet their needs.
    6. In the IP CTS Interim Order, the Commission described various 
marketing practices by which an IP CTS provider had been offering 
monetary rewards for the referral of customers who signed up for the 
installation of the provider's IP CTS equipment. These rewards were 
being given by the provider to its customers, members of the general 
public, and to hearing and health care professionals, such as 
audiologists. The Commission found in the IP CTS Interim Order that 
such incentive programs, the growth of which appears to have coincided 
with the sudden and unexpected spike in IP CTS usage, may well have 
been incenting consumers to use the service whether or not it was 
actually needed. More specifically, by enabling potential customers and 
third parties to earn money or any other reward either directly or for 
their friends or charitable organizations, these incentive programs 
would, if not prohibited, continue to encourage IP CTS use by 
individuals who do not need it to obtain functionally equivalent 
telephone service. The Commission found good cause to justify the 
immediate adoption of an interim rule prohibiting these referrals for 
rewards programs and any other form of direct or indirect inducements, 
to subscribe to or use, or encourage subscription to or use of, IP CTS. 
The rule is consistent with the types of actions the Commission 
previously has taken to restrict financial incentives determined to be 
impermissible, including those made in exchange for signing up for or 
using

[[Page 53686]]

TRS. See, e.g., Telecommunications Relay Services and Speech-to-Speech 
Services for Individuals with Hearing and Speech Disabilities, CC 
Docket No. 98-67 and CG Docket No. 03-123, Declaratory Ruling, 
published at 70 FR 9239, February 25, 2005 (2005 Financial Incentives 
Declaratory Ruling).
    7. In document FCC 13-118, the Commission adopts on a permanent 
basis this interim rule prohibiting IP CTS providers from providing 
referrals for rewards programs, as well as any other provider programs 
that offer or provide payments or incentives to sign up or use this 
service, although it revises the language of the interim rule in 
certain important respects. The Commission finds that registration 
incentives raise particular concerns for IP CTS due to the unique 
characteristics of this service. As IP CTS does not require special 
skills such as sign language, is generally automated and invisible to 
the calling parties, and allows a conversation to flow without 
interruption, and as IP CTS phones offer many, if not all, of the same 
features and functions of conventional phones, consumers can subscribe 
to and use IP CTS without sacrificing any ordinary voice communication 
functionality. As a result, consumers are less likely to ``self-
screen'' in choosing whether to subscribe to IP CTS, than in choosing 
whether to subscribe to other forms of TRS. Ensuring that IP CTS is 
made available ``in the most efficient manner'' to those consumers who 
actually need it requires special attention to the manner in which this 
unusually transparent service is marketed to consumers. The rule also 
prohibits the offering or provision of incentives to third parties, 
such as audiologists and other hearing health professionals, to 
increase consumer registration for or use of IP CTS. These incentives 
are likely to waste the Fund's resources on payments for services used 
by individuals who may not need the service and therefore are 
inconsistent with the goals and objectives of section 225 of the Act. 
The final rule is written, however, to ensure that the rule cannot be 
construed to prohibit advertising and noncommercial speech-something 
the Commission never intended to prohibit. The rule also adjusts the 
terminology to prohibit direct or indirect ``incentives'' ``register 
for'' rather than ``inducements'' for ``subscription to'' or use of IP 
CTS. The term ``incentives'' is more consistent with the 2005 Financial 
Incentives Declaratory Ruling and better captures the Commission's 
intent to prohibit any kind of reward for signing up such users or 
getting them to use the service, rather than prohibit outreach and 
advertising conducted to educate potential users about this service. 
The term ``register'' more accurately describes the way a consumer 
signs up to use IP CTS than does the term ``subscription.'' The final 
rule also clarifies that the incentives prohibition does not apply to 
the relationship between an IP CTS provider or equipment distributor 
and an equipment retailer, where the retailer is not a hearing health 
professional. Where the retailer is not a professional on whom a 
consumer may rely for objective advice on solutions for hearing loss, 
consumers are less likely to be unduly influenced to purchase equipment 
that they do not need.
    8. The Commission also finds that joint marketing arrangements 
between IP CTS providers and professionals upon whom consumers 
potentially rely for advice in regard to their hearing loss violate the 
prohibition of referrals for rewards and other incentives. The 
Commission finds that joint marketing arrangements between IP CTS 
providers and such hearing health professionals are akin to a reward 
for a referral. Moreover, the joint marketing campaigns themselves 
could be perceived by the consumer as an endorsement of the IP CTS 
provider by his or her hearing health professional.
    9. Finally, the Commission declines, in document FCC 13-118, to 
make a general determination regarding the scope of provider payments 
that will be denied when a provider fails to comply with the incentives 
prohibition. Instead, the Commission will make case-by-case 
determinations of the appropriate amount of withholdings. Moreover, the 
Commission will not allow third party certification to serve as a means 
of curing a provider's failure to comply with its prohibition of 
referrals for rewards and other incentives. The Commission advises that 
such providers may also be subject to other remedies, including but not 
limited to forfeitures and revocation of their certification to provide 
IP CTS pursuant to Sec.  64.606(e)(2) of its rules.
    10. Document FCC 13-118 also adopts on a permanent basis, with some 
modification, the interim rules relating to registration, 
certification, equipment and eligibility requirements. First, 
Commission amends the interim rule requiring that providers that give 
away, or sell at a cost of less than $75, equipment to potential or 
existing IP CTS users must require such users to submit to the provider 
a certification from a professional that the user needs IP CTS in order 
to achieve functionally equivalent telephone service. The rule adopted 
in document FCC 13-118 prohibits TRS providers from receiving 
compensation from the Fund for any IP CTS minutes of use generated by 
IP CTS equipment that they distribute, directly or indirectly, for free 
or for less than $75 to consumers after the effective date of the rule. 
The alternative of professional certification is thus eliminated. The 
prohibition also applies to any officer, director, partner, employee, 
agent, subcontractor, or sponsoring organization or entity 
(collectively ``affiliate'') of any TRS provider. Further, any type of 
arrangement by an IP CTS provider, directly or indirectly through any 
third party (other than through a state or local equipment distribution 
program), to distribute equipment at no charge or for less than $75 to 
consumers is likewise prohibited. The Commission notes that many IP CTS 
devices are modern and attractive, and often provide enhanced sound 
amplification--features that are likely to entice consumers with or 
without hearing loss to seek their acquisition if they are given away 
for free or at low cost. Once the device is in a consumer's possession, 
consumers may routinely use the device with captions--as might others 
in the consumer's household--even if they do not actually need the 
service for effective communication. In fact, the unobtrusive nature of 
IP CTS is such that consumers may not even be aware that captions are 
turned on or that they have the ability to turn them off. In this 
manner, the free distribution of such devices is likely to contribute 
to IP CTS usage by persons who do not have a sufficient degree of 
hearing loss to require this service to understand conversation over 
the phone. Paying at least $75 for IP CTS equipment, by contrast, 
provides a concrete indication that the consumer has thought the 
transaction through sufficiently to have concluded that she or he needs 
IP CTS for effective communication.
    11. In adopting this rule, the Commission also concludes that 
overall, as a practical matter, consumer self-screening based on having 
to make a significant investment in equipment is likely to be a more 
effective approach to screening than is third-party certification. The 
Commission's interim rule, requiring certification by an independent 
professional when equipment is provided for free or for less than $75, 
had been designed to prevent the distribution of IP CTS equipment to 
individuals who do not actually need IP CTS. However, experience with 
this approach suggests that it may not be very effective in achieving 
adequate screening of such individuals. Under the interim rule,

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determining whether a person qualifies for free or low-cost 
distribution of IP CTS necessarily involves the exercise of 
professional judgment by numerous individuals about whom the Commission 
has little information. The Commission cannot effectively oversee the 
performance of this important gatekeeping function by hundreds or 
thousands of hearing health and other professionals. Further, where 
free IP CTS phones have been offered directly or indirectly by a 
provider under the interim rules, the advertising for such phones 
continues to focus on the availability of a ``free'' IP CTS phone, with 
the need for third-party certification alluded to only vaguely, if at 
all. Thus, the professional's role is likely to change from helping the 
consumer select on their merits from a number of alternative assistive 
technologies, to accepting or vetoing a choice already made by the 
consumer, based on exposure to ads promoting the free availability of 
an IP CTS phone. Moreover, contrary to the Commission's clearly stated 
intent that the screening third party professional be independent of 
any provider, the Commission is aware of numerous instances in which 
sessions are arranged by a provider, to which consumers are invited to 
obtain a free hearing analysis and a free IP CTS phone at the same time 
and location. Professionals who participate in such sessions, whether 
for compensation, the prospect of meeting potential new clients, or for 
other reasons, are linked to the sponsoring provider (or are so 
perceived by potential customers and clients), and thus are not 
``independent'' as contemplated by the interim rules.
    12. Setting $75 as the minimum price threshold represents a 
reasonable balancing of interests. There is record support for this 
amount, and it is high enough to deter a consumer from purchasing an 
item if he or she does not need it for communication, but not so high 
as to make the purchase of equipment overly burdensome. It is below the 
listed retail prices for the captioned telephones used with several IP 
CTS offerings. In addition, $75 may be roughly comparable to the price 
of a good-quality ``specialty'' phone such as an enhanced amplification 
phone. The $75 minimum price is also low enough to take into account 
the different financial circumstances of those who need IP CTS.
    13. To ensure that information supporting provider compliance with 
this requirement is maintained and available for Commission review, 
providers must maintain, with each consumer's registration records, 
records describing any IP CTS equipment provided, directly or 
indirectly, to such consumer and the amount paid for such equipment. 
Such records shall be maintained for a minimum of five years after the 
consumer ceases to obtain service from the provider.
    14. The Commission finds this rule to be consistent with functional 
equivalence and the statutory goal to achieve full communications 
access by people with disabilities. The Commission has consistently 
distinguished between the provision of relay service, which is 
explicitly mandated under 47 U.S.C. 225, and the provision of 
equipment, which is not. Moreover, since users of voice communications 
services pay for equipment, there is no plausible basis for reading 
into the statute a restriction against requiring users of TRS to also 
pay for equipment. The Commission, however, places no restriction on 
the free distribution of equipment by state or local governmental 
programs, which are relatively neutral parties that can objectively 
screen consumers for their eligibility in the program. The availability 
of such free or discounted equipment in most states will help to 
fulfill Congress's and the Commission's goals of ensuring the 
widespread availability of IP CTS to individuals who can benefit from 
the service.
    15. The Commission also applies this restriction to software and 
applications, e.g., for mobile phone or computer users of IP CTS. As 
with hardware, because of the ease and convenience of using IP CTS, 
persons who do not have a sufficient degree of hearing loss to require 
this service to understand conversation over the phone (or who do not 
have any hearing loss at all) could find this service desirable for 
reasons such as creating a transcript or making calls in noisy 
locations. Absent the restriction, free or de minimis cost IP CTS 
software would be widely promoted by IP CTS providers in the same way 
as free IP CTS equipment has been. From the providers' perspective, the 
more users that sign up to acquire IP CTS software and applications, 
the more compensation the provider may seek to collect from the Fund, 
at no cost to the user. The Commission thus disagrees with commenters 
who argue that consumers would not download and use applications and 
software that they do not need, and that because software, updates, and 
applications are generally free or available at a low cost, the 
incentive for a consumer to accept a valuable phone for free generally 
does not apply to software. Offering such software for free or for less 
than $75 has the potential effect of attracting customers who might not 
need to use the service, which is inconsistent with the purpose of the 
TRS program. The Commission does not, however, consider it necessary to 
proscribe the provider practice of permitting consumers who are already 
registered users of their service to download mobile applications or 
other software for free. Once the user has made the initial investment 
in an IP CTS device, or has been deemed eligible for the provision of a 
device by a state EDP, the Commission believes that the risk that such 
a user is ineligible for IP CTS is substantially reduced. New users 
without IP CTS telephones will be required, however, to make a one-time 
payment of at least $75 for the initial software or application in 
order for IP CTS service to that user to be compensable from the Fund.
    16. The rules adopted in document FCC 13-118 also require each IP 
CTS provider, in order to be eligible for compensation from the Fund 
for providing service to new IP CTS users, to register each new IP CTS 
user. Specifically, the rule requires, as part of a registration 
process required for both new and existing consumers, that each 
provider secure from each consumer the consumer's name, address and 
telephone number and a self-certification form, signed under penalty of 
perjury, stating that the consumer (1) has a hearing loss that 
necessitates use of captioned telephone service, (2) understands that 
the captions on captioned telephone service are provided by a live 
communications assistant who listens to the other party on the line and 
provides the text on the captioned phone, (3) understands that the cost 
of captioning each IP CTS call is funded through a federal program, and 
(4) will not permit, to the best of the consumer's ability, persons who 
have not registered to use IP CTS to make captioned telephone calls on 
the consumer's registered IP captioned telephone service or device. 
Document FCC 13-118 amends slightly the language needed for self-
certification from that in the interim rule, to ensure that IP CTS 
consumers fully understand the certification, and to have the consumer 
certify that he or she will not permit individuals who are not 
registered to use the service. The Commission further makes permanent 
the requirements that such self-certification be made on a form 
separate from any other user agreement (such as on a separate page); 
that it bear a separate signature specific to the self-certification; 
and that the signature be made under penalty of perjury. The interim 
rule's requirements for self-

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certification are also modified to permit a user's spouse or person 
with legal custody or power of attorney for the user to sign the 
certificate, for users who are not competent to sign a legal document. 
The Commission finds that the registration required in the IP CTS 
Interim Order for new users, together with the mandate that consumers 
self-certify under penalty of perjury their eligibility to use IP CTS, 
will help prevent the registration of individuals who do not need 
captions to obtain functionally equivalent telephone service. Such 
registration is already required of other IP-enabled forms of TRS, and 
is a logical and useful means to ensure that only those individuals who 
are truly eligible for different forms of TRS are allowed to use these 
services.
    17. The Commission also adopts a new rule requiring providers to 
register all existing IP CTS consumers within 180 days. Although the 
Commission proposed in the IP CTS Interim Order that all existing IP 
CTS users must be registered within a 90-day period, the rule adopted 
in document FCC 13-118 requires providers to register and obtain 
certification from their existing users within 180 days of the rule's 
effective date. A 180-day deadline will strike the appropriate balance 
between removing ineligible individuals from this service and allowing 
eligible individuals to continue using it. The longer registration 
period of 180 days will allow providers the time necessary to complete 
the registration process and prevent the loss of eligible users because 
of an inability to register on time. IP CTS providers that fail to 
register existing users within this period will not be compensated for 
service to any unregistered users, or to any users who fail to provide 
the required self-certification, immediately upon expiration of this 
period. For existing consumers who received their equipment for free or 
at a price below $75 directly from an IP CTS provider, prior to the 
effective date of the interim rules, the Commission also requires that 
the provider obtain from the consumer either a payment of $75 or a 
certification from an independent, third party professional, made under 
penalty of perjury, that (1) the consumer has a hearing loss that 
necessitates use of captioned telephone service, and (2) the third 
party professional understands that the captioning on captioned 
telephone service is performed by a live CA and is funded through a 
federal program. In addition, providers must require consumers to 
obtain and provide the professional's name, title, address, telephone 
number, and email address. If the equipment was obtained from a source 
other than a provider or an equipment distribution program administered 
by a state or local government) for free or at a price below $75, prior 
to the effective date of the interim rules, the provider must obtain 
the above third party professional certification and related 
information about the third party professional. Third party 
professionals must be qualified to evaluate hearing loss. The third 
party professional may not have been referred to the IP CTS user 
directly or indirectly by any TRS provider or affiliate. The third 
party professional also may have no relationship with a TRS provider, 
and the TRS provider may play no role in acquisition of the third party 
professional certificate.
    18. Registration and certification must be obtained from existing 
users within 180 days of the effective date. Providers that do not meet 
these deadlines will not be compensated for services to unregistered 
users. To ensure that information supporting the eligibility of users 
continues to be available for Commission review, the rule requires that 
records of all new and existing consumers' registration and self-
certification, with all the information required to be included in such 
certifications, be maintained for a minimum of five years after the 
consumer ceases to obtain service from the provider. The Commission 
also makes permanent its interim rule requiring each IP CTS provider to 
maintain the confidentiality of registration and certification 
information that it acquires, and to not disclose such registration and 
certification information except as required by law. Finally, the 
Commission rule requires that applicants seeking certification as IP 
CTS providers must submit to the Commission a description of how they 
will ensure that they do not request or collect payment from the TRS 
Fund for service to users who do not satisfy the registration and 
certification requirements, and establish that they have adequate 
measures and procedures in place to ensure that they will seek payment 
for serving only eligible users who satisfy the registration and 
certification requirements.
    19. The Commission declines to adopt a specific quantitative 
threshold to determine eligibility to use IP CTS. The majority of 
commenters, including providers, consumers, and telecommunications 
carriers contributing to the Fund, express opposition to quantitative 
threshold eligibility requirements based on decibel levels to determine 
IP CTS eligibility. The Commission is persuaded by the commenters' 
concerns that the use of a specified decibel level of hearing loss does 
not take into account all other factors that may contribute to an 
individual's difficulty in understanding speech on a telephone. Thus, 
at this time, the Commission is not persuaded that it can readily 
identify bright-line eligibility thresholds for which the benefits in 
protecting the Fund outweigh the costs, including the potential for 
excluding users for whom use of IP CTS otherwise would be consistent 
with section 225 of the Act and Commission policy. Nevertheless, the 
Commission will continue to monitor IP CTS provider practices and 
usage.
    20. The Commission concludes in Document FCC 13-118 that a printed 
label to be adhered to the IP CTS device itself is the best approach 
for supplementing other information made available to IP CTS users on 
the need to limit use of the device only to registered IP CTS users, 
and is appropriate to further prevent casual or inadvertent use of IP 
CTS. However, for software-based IP CTS on mobile phones, laptops, 
tablets, computers or other similar devices, the Commission concludes 
that a printed label is impractical. Instead, IP CTS providers must 
ensure that, each time the consumer logs into the application, the 
notification language shown above appears in a conspicuous location on 
the device screen immediately after log-in. The Commission rule adopts 
a shorter notice than that proposed in the NPRM, and requires that IP 
CTS providers ensure that any newly distributed IP CTS equipment has 
affixed to its face and in a conspicuous location, and in a clearly 
legible font, a label that contains the following brief statement:

Federal Law Forbids Anyone But Registered Users With Hearing Loss From 
Using This Phone With the Captions On

    The rule also requires any IP CTS provider that already has 
distributed IP CTS equipment to users as of the effective date of the 
final rule, to distribute the above equipment labels to such users 
within thirty (30) days after the effective date of the final rule, 
along with clear and specific instructions directing the users to place 
such labels on the face of their IP CTS equipment in a conspicuous 
location. Each IP CTS provider shall maintain, with each consumer's 
registration records, records stating whether the required label was 
affixed to such equipment prior to its provision to the consumer. Such 
records

[[Page 53689]]

shall be maintained for a minimum period of five years after the 
consumer ceases to obtain service from the provider.
    21. In the IP CTS Interim Order, the Commission expressed concerns 
that IP CTS equipment with a default of automatically displaying 
captions (``default captions-on'') presented the risk that individuals 
who do not need CTS to communicate in a functionally equivalent manner 
might inadvertently use IP CTS when using the IP CTS telephone of an 
eligible IP CTS user, resulting in improper billing of the TRS Fund. To 
avoid such misuse and to safeguard the Fund, the Commission required, 
on an interim basis, that all providers ensure that equipment and 
software used in conjunction with their IP CTS have captions turned off 
as the default setting, and that users be required to affirmatively 
turn on the captions for each call. The Commission sought comment on 
whether it should make this interim rule permanent, and if so, whether 
it should be changed in any way. Despite opposition to the captions 
default off requirement, the Commission finds that, given the unusual 
characteristics of IP CTS relative to other relay services, it is 
reasonable and prudent to protect the viability of the Fund by 
requiring that equipment, software, and mobile applications used in 
conjunction with IP CTS have a default setting of ``captions off'' at 
the beginning of each call. Especially in light of the history of this 
service prior to the adoption of the interim rules, it may be that some 
currently registered IP CTS users do not actually need IP CTS for 
effective communication. Others may need captions in some 
circumstances, but not others. Accordingly, and because IP CTS is 
provided without interruption in the normal conversational flow and the 
captions do not interfere in any way with the consumer's ability to 
conduct a telephone call by voice in the ordinary manner, defaulting 
captions to ``on'' would mean that IP CTS may be provided to 
individuals who do not need it and the TRS Fund is inappropriately 
billed for the cost. The Commission concludes that a requirement to 
push one additional button when dialing or when receiving a call will 
become habit and will not interfere with the functional equivalence of 
the IP CTS experience for most users. The Commission recognizes, 
however, that the certain modifications to the interim rule are 
appropriate, as supported by extensive comments. The Commission is 
sensitive to comments that highlight the difficulties that some users, 
especially users with a cognitive or mobility disability, are 
reportedly having with the default captions off requirement, and the 
concern that the rule might undermine the functional equivalence 
requirement of the ADA for these users. The Commission therefore amends 
the interim rule, to adopt a process for this unique group of users to 
obtain an exemption from the default-off requirement if the user has a 
cognitive or physical disability that significantly impairs the ability 
of the user to turn on captioning at the start of each call. To prevent 
abuse of this exception, the rule requires applicants seeking this 
exception to submit to their provider (1) a self-certification, dated 
and made under penalty of perjury, that the requirement to activate 
captioning at the start of each call significantly impedes the user's 
ability to make use of the captioned telephone service; and (2) a 
certification from an independent, third party licensed physician in 
good standing, dated and made under penalty of perjury, that the 
consumer has a physical or mental disability or functional limitation 
that significantly impedes the consumer's ability to activate 
captioning at the start of each call, including a brief description of 
the basis for such statement. In the event that the user is not 
competent to provide the required self-certification, such 
certification shall be made by the user's consumer's spouse or legal 
guardian or a person with power of attorney. A third-party, independent 
physician certification must include the physician's name, title, area 
of specialty or expertise, address, telephone number, and email 
address. In addition, the rule prohibits providers from accepting a 
certification from any physician who has been referred to the IP CTS 
user, either directly or indirectly, by any provider of TRS or any 
officer, director, partner, employee, agent, subcontractor, or 
sponsoring organization or entity of any TRS provider. In addition, the 
physician making such certification shall not have any relationship 
with and shall not have received any payment or other thing of value 
from the TRS provider or any affiliate of the TRS provider, with whom 
the individual seeking the exemption is requesting service. 
Additionally, the rule prohibits any provider from facilitating or 
otherwise playing a role, in any way, in the acquisition of such 
physician certifications. If any IP CTS provider facilitates 
certification by a third party physician, such IP CTS provider shall be 
subject to the potential array of consequences that arise from 
violations of TRS rules, including revocation of its certification to 
provide IP CTS or other enforcement actions. IP CTS providers must 
maintain detailed records of all consumers who have submitted such 
certifications for five years, and report to the Commission on a 
monthly basis subject to confidentiality requirements, and such records 
shall include a list of all newly exempted consumers (with names 
redacted), the dates on which each consumer registered for IP CTS with 
the provider and was provided with IP CTS equipment with a default 
setting of captions on, the area of specialty or expertise of the 
certifying physician accompanying each hardship certification, and the 
basis for granting each hardship exception. The Commission requires 
each IP CTS provider to maintain the confidentiality of such exemption 
certification information, and shall also maintain the confidentiality 
of such information itself, and shall carefully review it to ensure 
that this exception to the rule is not abused.
    22. For the purpose of limiting as much as possible the delay 
between when a user answers an incoming call and pushes the button to 
initiate captioning, the Commission modifies the interim rule by 
requiring that providers ensure that each IP CTS telephone they 
distribute includes a button, icon, or other comparable feature that is 
easily operable and requires only one step for the user to turn on 
captioning.
    23. The Commission concludes that IP CTS software applications when 
used on mobile phones, laptops, tablets, and computers meet the 
underlying purpose of the captions off requirement because of the way 
these software products operate and how they are likely to be used. The 
Commission therefore rules that the captions off requirement is met by 
IP CTS software applications when used on mobile phones, laptops, 
tablets, and computers, provided that the following two conditions are 
satisfied: (1) Consumers must actively set up the IP CTS software 
feature by individually logging in with a unique ID and password that 
is provided only to the registered user; and (2) the default setting 
switches to ``captions on'' only for the limited session during which 
the user is logged on, rather than remaining on indefinitely. The 
Commission reserves the right to reconsider the manner in which it will 
apply the captions off requirement to these devices.
    24. Several commenters raise concerns that in an emergency 
situation, individuals may not remember to activate the caption 
functionality when calling 911 services. The Commission

[[Page 53690]]

finds that the record does not provide sufficient data to enable it to 
evaluate the extent of this hazard or the technical feasibility of 
configuring equipment so that captions are defaulted to ``on'' solely 
for 911 calls. The Commission will continue to monitor and seek comment 
on this issue. In order to address immediate concerns about 911 
calling, the Commission permits, in document FCC 13-118, providers to 
turn on captions automatically for 911 calls if it is technically 
feasible to do so while maintaining captions defaulted to off for other 
calls. In the Notice accompanying document FCC 13-118, the Commission 
seeks comment on other issues related to its default caption-off rule, 
including whether the rule should apply to answering machines and 
similar devices. The Notice also asks whether an exemption should be 
provided for consumers with IP CTS phones that are available only to 
registered IP CTS users, or whether there should be any other 
exemptions to the captions default off rule. The Commission declines, 
at this time to create any further exemption to the default caption-off 
rule, such as for IP CTS users who live alone, live only with other 
individuals who are hard of hearing, or who are in an office setting 
with sole access to the IP CTS phone. The Commission remains concerned 
that even a consumer living alone may not need captioning for every 
call, and that a default off setting may be needed to prevent unneeded 
use of the captioning. The Commission remains open, however, to 
revisiting this conclusion in the future, and for this reason solicits 
comments on the issue.
    25. The interim rules adopted in the IP CTS Interim Order are set 
to expire on September 3, 2013, which will be less than 30 days after 
these rule extensions will be published in the Federal Register. The 
Commission therefore extends the effectiveness of each interim rule 
until the final rule replacing it becomes effective.

Final Regulatory Flexibility Certification

    26. The Regulatory Flexibility Act of 1980, as amended (RFA), 
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.'' The RFA generally defines ``small entity'' as having 
the same meaning as the terms ``small business,'' ``small 
organization,'' and ``small governmental jurisdiction.'' In addition, 
the term ``small business'' has the same meaning as the term ``small 
business concern'' under the Small Business Act. A small business 
concern is one which: (1) Is independently owned and operated; (2) is 
not dominant in its field of operation; and (3) satisfies any 
additional criteria established by the Small Business Administration 
(SBA).
    27. Internet protocol captioned telephone relay service (IP CTS) is 
a form of telecommunications relay service (TRS) that permits people 
who can speak, but who have difficulty hearing over the telephone, to 
speak directly to another party on a telephone call and to use an 
Internet Protocol-enabled device to simultaneously listen to the other 
party and read captions of what that party is saying. During the spring 
and fall of 2012, the Commission witnessed an unusually steep increase 
in the growth of IP CTS minutes. This sudden and unprecedented 
escalation raised serious concerns for the Interstate 
Telecommunications Relay Services (TRS) Fund (Fund) that, if not 
immediately addressed, threatened to overwhelm and, therefore, 
jeopardize the Fund for all forms of TRS. In order to protect the Fund, 
on January 25, 2013, the Commission took swift and immediate action, in 
the IP CTS Interim Order, to terminate, on an interim basis, provider 
practices that appeared to be resulting in the use of IP CTS by 
individuals who did not need this service to communicate in a 
functionally equivalent manner.
    28. In document FCC 13-118, the Commission modifies and makes 
permanent certain of those interim rules. The Commission therefore 
permanently prohibits all referrals for rewards programs and any other 
form of direct or indirect incentives, financial or otherwise, to 
register for or use IP CTS or for referral of IP CTS customers. The 
Commission also adopts as a final rule its interim requirement that 
each IP CTS provider, in order to be eligible for compensation from the 
Fund for providing service to new IP CTS users, (i) to register each 
new IP CTS user, and, (ii) as part of the registration process, to 
obtain from each user a self-certification that the user has a hearing 
loss that necessitates IP CTS to communicate in a manner that is 
functionally equivalent to communication by conventional voice 
telephone users. The Commission further makes permanent its interim 
rule requiring IP CTS providers to ensure that equipment and software 
used in conjunction with their service have a default setting of 
captions off at the beginning of each call, so that the consumer must 
take an affirmative step to turn on the captions each time the consumer 
wishes to use IP CTS, while allowing IP CTS users to apply for an 
exception to this provision upon a showing of hardship. Document FCC 
13-118 also adopts rules: (1) Requiring each IP CTS provider, as a 
condition of continuing to offer service to existing IP CTS users, (a) 
to register each such user with the IP CTS provider and (b) as part of 
the registration process, to obtain from each user self-certification 
that the user has a hearing loss that necessitates IP CTS to 
communicate in a manner that is functionally equivalent to 
communication by conventional voice telephone users and that the user 
understands the nature and restrictions of IP CTS; (2) requiring IP CTS 
equipment to have labels informing consumers that IP CTS may be used 
only by the person(s) registered to use the equipment; (3) prohibiting 
all providers from receiving compensation from the Fund for minutes of 
use generated from IP CTS users receiving IP CTS equipment, at no cost 
or below $75 on or after the effective date of this rule; and (4) 
making provider compensation contingent on compliance with the 
requirements for user self-certification.
    29. The Commission believes that none of these requirements would 
impose a significant economic impact on providers, including small 
businesses. Specifically, each of the new requirements is either 
already in place, or entails only minor operational changes that can be 
accomplished at minimal cost to each provider of IP CTS, including 
small businesses, and each requirement is necessary to help to ensure 
that IP CTS is as immune as possible from waste, fraud and abuse that 
could otherwise threaten the long-term viability of this program. In 
particular, the hardship exemption adopted in document FCC 13-118 will 
impose new reporting and recordkeeping obligations on all IP CTS 
providers, including small entities. However, the reporting and 
recordkeeping requirements will not be substantial, because each IP CTS 
provider will have a one-time requirement for each consumer who 
qualifies for the hardship exemption. Moreover, the hardship exemption 
was supported by all commenters, including all IP CTS providers. 
Because the exemption will allow the impacted consumers to be able to 
make use of the service, the hardship exemption should result in 
additional legitimate compensable minutes for IP CTS providers, and 
thereby benefit such providers, including small entities. The 
Commission thus finds that the hardship exemption will not cause any 
significant economic impact on

[[Page 53691]]

providers, including those which are small entities. Additionally, 
although the 911 exception will require a one-time software change on 
the part of providers, it is only required if technically feasible, and 
the requirement to implement such software change is outweighed by the 
public safety benefit of better access to 911 service. Therefore, the 
Commission finds that the 911 exception will not cause any significant 
economic impact on providers, including those which are small entities.
    30. Therefore, the Commission concludes that there will be no 
significant economic impact on the small entities affected by the 
changes adopted in document FCC 13-118.
    31. In analyzing whether a substantial number of small entities 
will be affected by the requirements adopted in document FCC 13-118, 
the Commission notes that the SBA has developed a small business size 
standard for Wired Telecommunications Carriers, which consists of all 
such firms having 1,500 or fewer employees. Four providers currently 
receive compensation from the Interstate TRS Fund for providing IP CTS: 
Hamilton Relay, Inc.; Purple Communications, Inc.; Sorenson 
Communications, Inc. and its wholly-owned subsidiary CaptionCall; and 
Sprint Nextel Corporation. In addition, Miracom USA, Inc. has applied 
to the Commission for certification to be authorized to receive 
compensation from the Interstate TRS Fund (Fund) to provide IP CTS. The 
Commission concludes that two of the five IP CTS providers and 
applicants that would be affected by the proposed rules are deemed to 
be small entities under the SBA's small business size standard. Because 
each of the new requirements adopted in the in document FCC 13-118 is 
either already in place or has no, or minimal, economic impact upon 
small entities, the Commission concludes that there will be no 
significant economic impact on the small entities affected by the 
changes adopted in document FCC 13-118, and adopts these rules as 
necessary to help to ensure that IP CTS is as immune as possible from 
waste, fraud and abuse that could otherwise threaten the long-term 
viability of this program.
    32. Therefore, for all of the reasons stated above, the Commission 
certifies that the requirements of document FCC 13-118 will not have a 
significant economic impact on a substantial number of small entities.
    33. The Commission will send a copy of document FCC 13-118, 
including a copy of the Final Regulatory Flexibility Certification, to 
the Chief Counsel for Advocacy of the SBA.

Congressional Review Act

    34. The Commission will send a copy of document FCC 13-118 in a 
report to be sent to Congress and the Governmental Accountability 
Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).

Ordering Clauses

    Pursuant to the authority contained in sections 1, 2, 4(i), (4)(j) 
and 225 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 
152, 154(i), 154(j) and 225, document FCC 13-118 Report and Order is 
hereby adopted.
    The final rules on referrals for rewards, 47 CFR 64.604(c)(8) of 
the Commission's rules, shall be effective September 30, 2013, pursuant 
to 5 U.S.C. 553(d) and Sec.  1.427(a) of the Commission's rules, 47 CFR 
1.427(a).
    The interim rules on referrals for rewards, 47 CFR 64.604(c)(8) of 
the Commission's rules, adopted in the Commission's IP CTS Interim 
Order, document FCC 13-13, shall continue to be effective until the 
final rules on referrals for rewards adopted herein become effective.
    The interim rules on new user registration and certification, 47 
CFR 64.604(c)(9) of the Commission's rules, adopted in the Commission's 
IP CTS Interim Order, document FCC 13-13, shall continue to be 
effective until the final rules on user registration and certification 
adopted herein become effective.
    The final rules requiring a default setting of captions off, 47 CFR 
64.604(c)(10)(i), (c)(10)(ii), (c)(10)(iii) and (c)(10)(v) of the 
Commission's rules, shall be effective September 30, 2013, pursuant to 
5 U.S.C. 553(d) and 1.427(a) of the Commission's rules, 47 CFR 
1.427(a).
    The interim rules requiring a default setting of captions off, 47 
CFR 64.604(c)(10) of the Commission's rules, adopted in the 
Commission's IP CTS Interim Order, document FCC 13-118, shall continue 
to be effective until the final rules requiring a default setting of 
captions off adopted herein become effective.
    The final rules regarding compensation of IP CTS providers in 
regard to minutes of use generated by consumers receiving certain IP 
CTS equipment and the final rules prohibiting persons who have not 
registered for IP CTS from using IP CTS equipment with captions turned 
on, 47 CFR 64.604(c)(11)(i) and (ii) of the Commission's rules, shall 
be effective September 30, 2013, pursuant to 5 U.S.C. 553(d) and Sec.  
1.427(a) of the Commission's rules, 47 CFR 1.427(a).
    The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, shall send a copy of document FCC 13-118 
Report and Order, including the Final Regulatory Flexibility 
Certification, to the Chief Counsel for advocacy of the Small Business 
Administration.

List of Subjects in 47 CFR Part 64

    Individuals with disabilities, Reporting and recordkeeping 
requirements, Telecommunications.

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

PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS

0
1. The authority citation to part 64 continues to read as follows:

    Authority: 47 U.S.C. 154, 254(k); 403(b)(2)(B), (c), Pub. L. 
104-104, 110 Stat. 56. Interpret or apply 47 U.S.C. 201, 218, 222, 
225, 226, 227, 228, 254(k), 616, 620, and the Middle Class Tax 
Relief and Job Creation Act of 2012, Pub. L. 112-96, unless 
otherwise noted.


0
2. Amend Sec.  64.604 by revising paragraphs (c)(8), (9), and (10), and 
by adding paragraph (c)(11) as follows:


Sec.  64.604  Mandatory minimum standards.

* * * * *
    (c) * * *
    (8) Incentives for use of IP CTS. (i) An IP CTS provider shall not 
offer or provide to any person or entity that registers to use IP CTS 
any form of direct or indirect incentives, financial or otherwise, to 
register for or use IP CTS.
    (ii) An IP CTS provider shall not offer or provide to a hearing 
health professional any direct or indirect incentives, financial or 
otherwise, that are tied to a consumer's decision to register for or 
use IP CTS. Where an IP CTS provider offers or provides IP CTS 
equipment, directly or indirectly, to a hearing health professional, 
and such professional makes or has the opportunity to make a profit on 
the sale of the equipment to consumers, such IP CTS provider shall be 
deemed to be offering or providing a form of incentive tied to a 
consumer's decision to register for or use IP CTS.
    (iii) Joint marketing arrangements between IP CTS providers and 
hearing health professionals shall be prohibited.
    (iv) For the purpose of this paragraph (c)(8), a hearing health 
professional is any medical or non-medical professional who advises 
consumers with regard to hearing disabilities.

[[Page 53692]]

    (v) Any IP CTS provider that does not comply with this paragraph 
(c)(8) shall be ineligible for compensation for such IP CTS from the 
TRS Fund.
    (9) IP CTS registration and certification requirements. (i) IP CTS 
providers must first obtain the following registration information from 
each consumer prior to requesting compensation from the TRS Fund for 
service provided to the consumer. The consumer's full name, date of 
birth, last four digits of the consumer's social security number, 
address and telephone number.
    (ii) Self-certification prior to demarcation date. IP CTS 
providers, in order to be eligible to receive compensation from the TRS 
Fund for providing IP CTS, also must first obtain a written 
certification from the consumer, and if obtained prior to the 
demarcation date, such written certification shall attest that the 
consumer needs IP CTS to communicate in a manner that is functionally 
equivalent to the ability of a hearing individual to communicate using 
voice communication services. The certification must include the 
consumer's certification that:
    (A) The consumer has a hearing loss that necessitates IP CTS to 
communicate in a manner that is functionally equivalent to 
communication by conventional voice telephone users;
    (B) The consumer understands that the captioning service is 
provided by a live communications assistant; and
    (C) The consumer understands that the cost of IP CTS is funded by 
the TRS Fund.
    (iii) Self-certification on or after demarcation date. IP CTS 
providers must also first obtain from each consumer prior to requesting 
compensation from the TRS Fund for the consumer, a written 
certification from the consumer, and if obtained on or after the 
demarcation date, such certification shall state that:
    (A) The consumer has a hearing loss that necessitates use of 
captioned telephone service;
    (B) The consumer understands that the captioning on captioned 
telephone service is provided by a live communications assistant who 
listens to the other party on the line and provides the text on the 
captioned phone;
    (C) The consumer understands that the cost of captioning each 
Internet protocol captioned telephone call is funded through a federal 
program; and
    (D) The consumer will not permit, to the best of the consumer's 
ability, persons who have not registered to use Internet protocol 
captioned telephone service to make captioned telephone calls on the 
consumer's registered IP captioned telephone service or device.
    (iv) The certification required by paragraphs (c)(9)(ii) and (iii) 
of this section must be made on a form separate from any other 
agreement or form, and must include a separate consumer signature 
specific to the certification. Beginning on the demarcation date, such 
certification shall be made under penalty of perjury. For purposes of 
this section, an electronic signature, defined by the Electronic 
Signatures in Global and National Commerce Act, 15 U.S.C. 7001 et seq., 
as an electronic sound, symbol, or process, attached to or logically 
associated with a contract or other record and executed or adopted by a 
person with the intent to sign the record, has the same legal effect as 
a written signature.
    (v) Third-party certification prior to demarcation date. Where IP 
CTS equipment is or has been obtained by a consumer from an IP CTS 
provider, directly or indirectly, at no charge or for less than $75 and 
the consumer was registered in accordance with the requirements of 
paragraph (c)(9) of this section prior to the demarcation date, the IP 
CTS provider must also obtain from each consumer prior to requesting 
compensation from the TRS Fund for the consumer, written certification 
provided and signed by an independent third-party professional, except 
as provided in paragraph (c)(9)(xi) of this section.
    (vi) To comply with paragraph (c)(9)(v) of this section, the 
independent professional providing certification must:
    (A) Be qualified to evaluate an individual's hearing loss in 
accordance with applicable professional standards, and may include, but 
are not limited to, community-based social service providers, hearing 
related professionals, vocational rehabilitation counselors, 
occupational therapists, social workers, educators, audiologists, 
speech pathologists, hearing instrument specialists, and doctors, 
nurses and other medical or health professionals;
    (B) Provide his or her name, title, and contact information, 
including address, telephone number, and email address; and
    (C) Certify in writing that the IP CTS user is an individual with 
hearing loss who needs IP CTS to communicate in a manner that is 
functionally equivalent to telephone service experienced by individuals 
without hearing disabilities.
    (vii) Third-party certification on or after demarcation date. Where 
IP CTS equipment is or has been obtained by a consumer from an IP CTS 
provider, directly or indirectly, at no charge or for less than $75, 
the consumer (in cases where the equipment was obtained directly from 
the IP CTS provider) has not subsequently paid $75 to the IP CTS 
provider for the equipment prior to the date the consumer is registered 
to use IP CTS, and the consumer is registered in accordance with the 
requirements of this paragraph (c)(9) on or after the demarcation date, 
the IP CTS provider must also, prior to requesting compensation from 
the TRS Fund for service to the consumer, obtain from each consumer 
written certification provided and signed by an independent third-party 
professional, except as provided in paragraph (c)(9)(xi) of this 
section.

    Note to paragraphs (c)(9)(ii), (iii), (iv), (v) and (vii): The 
date demarking which certification obligations apply to which 
consumers shall be the date when notice of OMB approval of the 
amendments to the registration and certification requirements is 
published. The FCC will publish a notice of the effective date along 
with a corrective amendment to specify the demarcation date.

    (viii) To comply with paragraph (c)(9)(vii) of this section, the 
independent third-party professional providing certification must:
    (A) Be qualified to evaluate an individual's hearing loss in 
accordance with applicable professional standards, and must be either a 
physician, audiologist, or other hearing related professional. Such 
professional shall not have been referred to the IP CTS user, either 
directly or indirectly, by any provider of TRS or any officer, 
director, partner, employee, agent, subcontractor, or sponsoring 
organization or entity (collectively ``affiliate'') of any TRS 
provider. Nor shall the third party professional making such 
certification have any business, family or social relationship with the 
TRS provider or any affiliate of the TRS provider from which the 
consumer is receiving or will receive service.
    (B) Provide his or her name, title, and contact information, 
including address, telephone number, and email address.
    (C) Certify in writing, under penalty of perjury, that the IP CTS 
user is an individual with hearing loss that necessitates use of 
captioned telephone service and that the third party professional 
understands that the captioning on captioned telephone service is 
provided by a live communications assistant and is funded through a 
federal program.
    (ix) In instances where the consumer has obtained IP CTS equipment 
from a local, state, or federal governmental program, the consumer may 
present documentation to the IP CTS provider demonstrating that the 
equipment was

[[Page 53693]]

obtained through one of these programs, in lieu of providing an 
independent, third-party certification under paragraphs (c)(9)(v) and 
(vii) of this section.
    (x) Each IP CTS provider shall maintain records of any registration 
and certification information for a period of at least five years after 
the consumer ceases to obtain service from the provider and shall 
maintain the confidentiality of such registration and certification 
information, and may not disclose such registration and certification 
information or the content of such registration and certification 
information except as required by law or regulation.
    (xi) IP CTS providers must obtain registration information and 
certification of hearing loss from all IP CTS users who began receiving 
service prior to March 7, 2013. Notwithstanding any other provision of 
paragraph (c)(9) of this section, IP CTS providers shall be compensated 
for compensable minutes of use generated prior to the registration 
deadline by any such users, but shall not receive compensation for 
minutes of IP CTS use generated on or after the registration deadline 
by any IP CTS user who has not been registered.

    Note to paragraph (c)(9)(xi): The deadline for compliance with 
the requirement for IP CTS providers to register consumers who began 
service prior to March 7, 2013 shall be 180 days after OMB approval 
has been obtained, and IP CTS providers shall be permitted to 
receive compensation for minutes of use generated by such consumers 
prior to the registration deadline. The FCC will publish a notice of 
the effective date along with a corrective amendment to specify the 
deadline for compliance.

    (10) IP CTS default settings. (i) IP CTS providers must ensure that 
their equipment and software applications used in conjunction with 
their service have a default setting of captions off, so that all IP 
CTS users must affirmatively turn on captioning for each telephone call 
initiated or received before captioning is provided.
    (ii) Each IP CTS provider shall ensure that each IP CTS telephone 
they distribute, directly or indirectly, shall include a button, icon, 
or other comparable feature that is easily operable and requires only 
one step for the consumer to turn on captioning.
    (iii) For software applications on mobile phones, laptops, tablets, 
computers or other similar devices, the requirements of this paragraph 
(c)(10) are satisfied so long as:
    (A) Consumers must log in to access the IP CTS software feature 
with a unique ID and password, and
    (B) The default setting switches to captions on only while the 
consumer is logged in, and does not remain on indefinitely.
    (iv) Hardship exception. If a consumer has a cognitive or physical 
disability that significantly impedes the ability of the consumer to 
turn on captioning at the start of each call, the IP CTS provider may 
set that consumer's IP CTS telephone to have a default of captions on, 
provided that the consumer submits, in addition to the self-
certification required under paragraphs (c)(9)(ii) or (iii) of this 
section, the following to the IP CTS provider:
    (A) A self-certification, dated and made under penalty of perjury, 
that the requirement to turn on captioning at the start of each call 
significantly impedes the consumer's ability to make use of captioned 
telephone service, provided that such certification shall be made by 
the consumer's spouse or legal guardian or a person with power of 
attorney where the consumer is not competent to provide the required 
self-certification; and
    (B) A certification from a licensed, independent, third party 
physician in good standing, dated and made under penalty of perjury, 
that the consumer has a physical or mental disability or functional 
limitation that significantly impedes the consumer's ability to 
activate captioning at the start of each call, including a brief 
description of the basis for such statement. Such physician shall be 
the consumer's primary care physician or a physician whose specialty is 
such that the physician is qualified to make such certification and 
shall provide his or her name, title, area of specialty or expertise, 
and contact information, including address, telephone number, and email 
address on such certification. Providers shall not accept a 
certification from any physician referred to the IP CTS user, either 
directly or indirectly, by any provider of TRS or any officer, 
director, partner, employee, agent, subcontractor, or sponsoring 
organization or entity (collectively ``affiliate'') of any TRS 
provider. Nor shall the physician making such certification have any 
business, family or social relationship with and shall not have 
received any payment, referral, or other thing of value from the TRS 
provider or any affiliate of the TRS provider from which the consumer 
is receiving service.
    (C) Each IP CTS provider shall maintain detailed records of all 
consumers, who, because of a showing of hardship under this section, 
have been permitted to receive IP CTS equipment with a setting of 
default captions on, including the dated and signed consumer and 
physician certifications submitted by each such consumer pursuant to 
this paragraph (c)(10)(iv), for a period of at least five years after 
the consumer ceases to obtain service from the provider. Each IP CTS 
provider shall maintain the confidentiality of such certification 
information, and may not disclose such certification information or the 
content of such certification information except as required by law or 
regulation.
    (D) Each IP CTS provider shall submit, on a monthly basis and 
subject to confidentiality requirements, a report to the Commission on 
the consumers who have received a hardship exception pursuant to this 
paragraph (c)(10)(iv), which shall include a list of such newly 
excepted individuals (with names redacted), including the dates on 
which each individual registered for IP CTS with the provider and was 
provided with IP CTS equipment with a default setting of captions on, 
the area of specialty or expertise of the certifying physician 
accompanying each hardship certification, and the basis for granting 
each hardship exception.
    (v) 911 Calling. Each IP CTS provider may turn captions on 
automatically for 911 calls so long as the provider remains in 
compliance with the provisions of this paragraph (c)(10) for all other 
types of calls.
    (11) IP CTS Equipment. (i) Any IP CTS provider, including its 
officers, directors, partners, employees, agents, subcontractors, and 
sponsoring organizations and entities, that provides equipment, 
software or applications to consumers, directly or indirectly, at no 
charge or for less than $75, whether through giveaway, sale, loan, or 
otherwise, on or after September 30, 2013 shall be ineligible to 
receive compensation for minutes of IP CTS use generated by consumers 
using such equipment. An IP CTS provider may provide software or 
applications at no charge or for less than $75 to a consumer who has 
already paid a minimum of $75 for equipment, software or applications 
to that IP CTS provider without affecting the IP CTS provider's 
eligibility to receive compensation for minutes of IP CTS use generated 
by that consumer. This paragraph (c)(11)(i) of this section shall not 
apply in instances where the consumer has obtained IP CTS equipment 
from a local, state, or federal governmental program.
    (ii) No person shall use IP CTS equipment or software with the 
captioning on, unless:
    (A) Such person is registered to use IP CTS pursuant to paragraph 
(c)(9) of this section; or

[[Page 53694]]

    (B) Such person was an existing IP CTS user as of March 7, 2013, 
and either paragraph (c)(9)(xi) of this section is not yet in effect or 
the registration deadline in paragraph (c)(9)(xi) of this section has 
not yet passed.
    (iii) IP CTS providers shall ensure that any newly distributed IP 
CTS equipment has a label on its face in a conspicuous location with 
the following language in a clearly legible font: ``FEDERAL LAW 
PROHIBITS ANYONE BUT REGISTERED USERS WITH HEARING LOSS FROM USING THIS 
DEVICE WITH THE CAPTIONS ON.'' For IP CTS equipment already distributed 
to consumers by any IP CTS provider as of the effective date of this 
paragraph, such provider shall distribute to consumers equipment labels 
with the same language as mandated by this paragraph for newly 
distributed equipment, along with clear and specific instructions 
directing the consumer to attach such labels to the face of their IP 
CTS equipment in a conspicuous location. For software applications on 
mobile phones, laptops, tablets, computers or other similar devices, IP 
CTS providers shall ensure that, each time the consumer logs into the 
application, the notification language required by this paragraph 
appears in a conspicuous location on the device screen immediately 
after log-in.

    Note to paragraph (c)(11)(iii): The deadline for compliance with 
the requirement for IP CTS providers to distribute to consumers 
equipment labels along with instructions for applying the labels to 
equipment already distributed to consumers shall be thirty days 
after OMB approval has been obtained. The FCC will publish a notice 
of the effective date along with a corrective amendment to specify 
the deadline for compliance.

    (iv) IP CTS providers shall maintain, with each consumer's 
registration records, records describing any IP CTS equipment provided, 
directly or indirectly, to such consumer, stating the amount paid for 
such equipment, and stating whether the label required by paragraph 
(c)(11)(iii) of this section was affixed to such equipment prior to its 
provision to the consumer. For consumers to whom IP CTS equipment was 
provided directly or indirectly prior to the effective date of this 
paragraph (c)(11), such records shall state whether and when the label 
required by paragraph (c)(11)(iii) of this section was distributed to 
such consumer. Such records shall be maintained for a minimum period of 
five years after the consumer ceases to obtain service from the 
provider.
* * * * *

0
3. Section 64.606 is amended by adding paragraph (a)(2)(ii)(F) as 
follows:


Sec.  64.606  Internet-based TRS provider and TRS program 
certification.

    (a) * * *
    (2) * * *
    (ii) * * *
    (F) In the case of applicants to provide IP CTS or IP CTS 
providers, a description of measures taken by such applicants or 
providers to ensure that they do not and will not request or collect 
payment from the TRS Fund for service to consumers who do not satisfy 
the registration and certification requirements in Sec.  64.604(c)(9), 
and an explanation of how these measures provide such assurance.
* * * * *

Federal Communications Commission.
Gloria J. Miles,
Federal Register Liaison, Office of the Secretary, Office of Managing 
Director.
[FR Doc. 2013-21259 Filed 8-29-13; 8:45 am]
BILLING CODE 6712-01-P