**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | CG Docket No. 03-123         |
|                                  | *) |                              |
| Telecommunications Relay         | ** |                              |
| Services                         |    |                              |
|                                  | *  |                              |
| and Speech-to-Speech Services    | *) |                              |
| for                              | ** |                              |
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| Individuals with Hearing and     | *  |                              |
| Speech                           | *) |                              |
|                                  | ** |                              |
| Disabilities                     |    |                              |
|                                  | *  |                              |
| Request for Stay Pending         | *) |                              |
| Judicial Review                  | ** |                              |
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|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
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|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
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|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**ORDER**

**Adopted: May 6, 2008 Released: May 6, 2008**

By the Chief, Consumer & Governmental Affairs Bureau:

# INTRODUCTION

1.  In paragraphs 95 and 96 of the *2007 TRS Cost Recovery Declaratory
    Ruling*,[^1] the Commission restricted telecommunications relay
    service (TRS) providers from using consumer or call databases to
    contact TRS users.[^2] On February 7, 2008, the Commission's
    Consumer & Governmental Affairs Bureau (CGB) granted a request to
    stay[^3] the effectiveness of these paragraphs for 90 days, pending
    further Commission review.[^4] In this *Order*, we extend the stay
    of paragraphs 95 and 96, which is set to expire after May 7, 2008,
    until May 28, 2008, to afford the Commission sufficient time to
    complete its review of this matter.

# background

2.  On November 19, 2007, the Commission released the *2007 TRS Cost
    Recovery Declaratory Ruling*, which, among other things, prohibits
    providers from using a consumer or call database to contact TRS
    users "for lobbying or any other purpose,"[^5] and prohibits
    providers from using a consumer or call database to "contact TRS
    users or to in any way attempt to affect or influence, directly or
    indirectly, their use of relay service."[^6]

3.  Following release of the *2007 TRS Cost Recovery Declaratory
    Ruling*, several TRS providers, in filings with the Commission,
    asserted that the restrictions contained in paragraphs 95 and 96
    violate the First Amendment rights of TRS providers.[^7] On January
    16, 2008, Sorenson Communications, Inc. (Sorenson), a VRS provider,
    filed a Petition for Review in the United States Court of Appeals
    for the Tenth Circuit asserting, in part, that the above-quoted
    language violates the First Amendment rights of TRS providers.[^8]
    On January 28, 2008, Sorenson filed with the Commission a request
    for a stay of paragraphs 95 and 96 pending judicial review.[^9]

4.  In its *Stay Request*, Sorenson contends that it has a substantial
    likelihood of prevailing on the merits of the judicial review
    proceeding in the Tenth Circuit because paragraphs 95 and 96 of the
    *2007 TRS Cost Recovery Declaratory Ruling* violate Sorenson's First
    Amendment rights by "limiting \[its\] ability to engage in core
    political speech and to petition the government for redress of
    grievances" and by "restrict\[ing\] \[its\] ability to engage in
    protected commercial speech."[^10] Although Sorenson does not
    dispute that the Commission has a substantial interest in preventing
    providers from using customer call data to offer TRS users financial
    incentives to make unnecessary TRS calls,[^11] it contends that the
    Commission has no substantial interest in preventing providers from
    contacting users for other reasons, including to assist them with
    service issues, to educate them about new service features, or to
    inform them of potential misuse of the service by third
    parties.[^12] Sorenson also asserts that, absent a stay, it will
    suffer irreparable harm through the loss of its First Amendment
    rights and harm to its business as a result of its inability to warn
    its users of scams and abusive relay practices.[^13] Sorenson
    further asserts that a stay will not injure other parties, as it
    will simply preserve the *status quo*.[^14] Finally, Sorenson
    asserts that a stay is in the public interest because the challenged
    restrictions run afoul of the First Amendment and impair the ability
    of TRS users to learn about developments in the provision of relay
    service.[^15]

5.  To afford the Commission sufficient time to consider the arguments
    presented by Sorenson and others,[^16] CGB issued an order on
    February 7, 2008, granting a 90-day stay of paragraphs 95 and
    96.[^17] The stay granted by that order is set to expire after May
    7, 2008.

# discussion

6.  In order to provide the Commission with sufficient time to complete
    its consideration of the arguments presented by Sorenson and others,
    we find that a brief extension of the February 7^th^ stay of
    paragraphs 95 and 96 of the *2007 TRS Cost Recovery Declaratory
    Ruling* is warranted. We note that Sorenson and other providers[^18]
    have raised several concerns, including their asserted inability to
    contact users for emergency or consumer protection-related purposes,
    that, if borne out by further Commission examination, may cause the
    Commission to reconsider the language of paragraphs 95 and 96. We
    therefore find that it is in the public interest to extend the stay
    of paragraphs 95 and 96 for a period of 21 days, until May 28, 2008,
    pending further Commission review.

# ORDERING CLAUSES

7.  Accordingly, IT IS ORDERED, pursuant to Section 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and the
    authority delegated under Sections 0.141 and 0.361 of the
    Commission's rules, 47 C.F.R. §§ 0.141, 0.361, that the STAY granted
    by the Commission's Consumer & Governmental Affairs Bureau on
    February 7, 2008, IS EXTENDED, and will remain in effect for a
    period of 21 days, until May 28, 2008.

8.  To request materials in accessible formats (such as Braille, large
    print, electronic files, or audio format), send an e-mail to
    <fcc504@fcc.gov> or call the Consumer & Governmental Affairs Bureau
    at (202) 418-0530 (voice) or (202) 418-0432 (TTY). This *Order* can
    also be downloaded in Word and Portable Document Formats (PDF) at
    <http://www.fcc.gov/cgb/dro/trs.html#orders>.

    FEDERAL COMMUNICATIONS COMMISSION

    Catherine W. Seidel, Chief Consumer & Governmental Affairs Bureau

[^1]: *Telecommunications Relay Services and Speech-to-Speech Services
    for Individuals with Hearing and Speech Disabilities,* Report and
    Order and Declaratory Ruling, CG Docket No. 03-123, 22 FCC Rcd
    20140, at 20176, paras. 95-96 (Nov. 19, 2007) (*2007 TRS Cost
    Recovery Declaratory Ruling*).

[^2]: TRS, mandated by Title IV of the Americans with Disabilities Act
    (ADA) of 1990, enables an individual with a hearing or speech
    disability to communicate by telephone with a person without such a
    disability. *See* 47 U.S.C. § 225; 47 C.F.R. § 64.601 *et seq.*
    (implementing regulations). This is accomplished through TRS
    facilities that are staffed by specially trained communications
    assistants (CAs) who relay conversations between persons using
    various types of assistive communication devices and persons using a
    standard telephone. There are presently several forms of TRS,
    including Video Relay Service (VRS), which is Internet-based. *See
    generally Telecommunications Relay Services and Speech-to-Speech
    Services for Individuals with Hearing and Speech Disabilities,*
    Report and Order, Order on Reconsideration, and Further Notice of
    Proposed Rulemaking, CC Docket Nos. 90-571 & 98-67, CG Docket No.
    03-123, FCC 04-137, 19 FCC Rcd 12475, 12479-86, at paras. 3-13 (June
    30, 2004) (*2004 TRS Report & Order*).

[^3]: Sorenson Communications, Inc., *Request for Stay Pending Judicial
    Review*, CG Docket No. 03-123 (Jan. 28, 2008) (*Stay Request*).

[^4]: *Telecommunications Relay Services and Speech-to-Speech Services
    for Individuals with Hearing and Speech Disabilities, Request for
    Stay Pending Judicial Review*, Order, CG Docket No. 03-123, DA
    08-312 (Cons. & Govt. Aff. Bur. Feb. 7, 2008) (*February 7^th^ Stay
    Order*).

[^5]: *2007 TRS Cost Recovery Declaratory Ruling*, 22 FCC Rcd at 20176,
    para. 95.

[^6]: *Id.*, 22 FCC Rcd at 20176, para. 96.

[^7]: Letter from George L. Lyon, Jr., Hands On Video Relay Services,
    Inc., to Marlene H. Dortch, FCC, dated December 12, 2007 (*Hands On
    Ex Parte*); Letter from Michael B. Fingerhut, Sprint Nextel
    Corporation, to Marlene H. Dortch, FCC, dated December 14, 2007
    (*Sprint Ex Parte*); Letter from Toni Acton, AT&T, Deb MacLean,
    Communication Access Center for the Deaf and Hard of Hearing, Inc.,
    Sean Belanger, CSDVRS, LLC, Mark Stern, GoAmerica, Inc., Kelby
    Brick, Hands On Video Relay Services, Inc., Jeff Rosen, Snap
    Telecommunications, Inc., Michael D. Maddix, Sorenson
    Communications, Inc., Michael B. Fingerhut, Sprint Nextel
    Corporation, and Carla Mathers, Viable, Inc., to Marlene H. Dortch,
    FCC, dated January 11, 2008 (*Coalition Ex Parte*).

[^8]: *Sorenson Communications v. FCC*, Petition for Review, Nos.
    08-9503 & 08-9507 (10^th^ Cir. Jan. 16, 2008 (08-9503) and Jan. 23,
    2008 (08-9507)).

[^9]: *Stay Request*.

[^10]: *Id.* at 5.

[^11]: *Id.* at 8-9.

[^12]: *Id.* at 9. Apart from its First Amendment argument, Sorenson
    also argues that the challenged restrictions are invalid under the
    Administrative Procedure Act (APA) because the Commission "did not
    promulgate them using notice-and-comment procedures," and because
    the restrictions "are arbitrary and capricious." *Id.* at 15.

[^13]: *Id.* at 21-22.

[^14]: *Id.* at 22. Sorenson notes that it "does not challenge the
    prohibition on contacting users for call-pumping purposes" and does
    not "seek to contact users in ways that violate their reasonable
    privacy expectations." *Id.*

[^15]: *Id.* at 23.

[^16]: *See* note 7, *supra*.

[^17]: *February 7^th^ Stay Order*.

[^18]: *See* note 7, *supra*.