> **Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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**Order on Reconsideration**

**Adopted: March 4, 2003 Released: March 14, 2003**

By the Commission: Commissioner Abernathy issuing a separate statement.

# Introduction

1.  This order resolves two petitions for reconsideration of the
    *Declaratory Ruling and Second Further Notice of Rulemaking (IP
    Relay Order),*[^1] addressing certain telecommunications relay
    service (TRS)[^2] issues. For the reasons discussed below, we extend
    the previously granted one year waivers of the emergency call
    handling, voice carry over (VCO),[^3] and speech-to-speech (STS)[^4]
    TRS mandatory minimum standards[^5] for five years for IP Relay
    providers. We grant waivers of the "900" number services[^6] and
    hearing carry over (HCO)[^7] TRS mandatory minimum standards for a
    five year period for IP Relay providers. All waivers will be
    contingent on IP Relay providers filing an annual report with the
    Commission detailing the technological changes in these areas, the
    progress made, and the steps taken to resolve the technical problems
    that prohibit IP Relay providers from meeting the TRS mandatory
    minimum standards waived herein. These waivers of TRS mandatory
    minimum standards shall apply to all other current and potential IP
    Relay providers, for the same period of time indicated herein,
    beginning on the release date of this *Order on Reconsideration*. As
    set forth below, for administrative convenience all waivers granted
    herein will expire on January 1, 2008. Finally, we deny cost
    recovery to those IP Relay providers who have been providing IP
    Relay, prior to the effective date of this Order, without meeting
    all of the applicable TRS mandatory minimum standards, including
    those concerning HCO and 900 number services.

# Background

2.  In the March *2000* *Improved TRS* *Report and Order*, the
    Commission concluded that TRS is not limited to the use of TTYs, but
    rather that \"section 225 must be read to apply to any service that
    allows individuals with hearing and speech disabilities to
    communicate by wire or radio.\"[^8] Although the Commission declined
    to establish a single, formal process for determining whether any
    new service is part of TRS, it stated that \"\[a\]s new services
    develop, parties may petition us for a determination as to whether a
    service falls within the definition of \[TRS\].\" In the *2000
    Improved TRS Report and Order*, the Commission requested comment on
    a number of issues involving new and improved technologies,
    including \"use of the World Wide Web for voice communications,
    internet telephony, and any other technologies or changes to
    technology that may improve Relay services or should be available
    via TRS.\"[^9]

3.  On December 22, 2000, WorldCom, Inc., (WorldCom) filed a Petition
    for Clarification, [^10] requesting that the Commission clarify that
    IP Relay[^11] is a telecommunications relay service eligible for
    reimbursement from the Interstate TRS Fund. [^12] WorldCom further
    sought temporary waiver of certain mandatory minimum standards for
    providing TRS, asserting that these standards do not apply to IP
    Relay. WorldCom also requested that the Commission allow it to
    recover the costs of all IP Relay calls from the Interstate TRS
    Fund. WorldCom stated that because calls come to IP Relay via the
    Internet, there is no way to tell whether a given call is intrastate
    or interstate, because Internet addresses have no geographic
    correlates. The Commission issued a Public Notice requesting comment
    on WorldCom\'s petition,[^13] and received comment from individuals,
    disability advocacy groups, and industry.

4.  In the *IP Relay Order,* the Commission granted WorldCom\'s petition
    finding that IP Relay falls within the statutory definition of TRS,
    and that TRS providers providing such services are eligible to
    recover their costs in accordance with section 225 of the
    Communications Act of 1934, as amended.[^14] The Commission also
    temporarily or permanently waived some of the mandatory minimum
    standards applicable to TRS because they do not apply to IP Relay,
    or because IP Relay\'s technology requires further development to
    meet some standards.[^15] The Commission stated that the
    authorization and waiver applied to all other current and potential
    IP Relay providers.[^16]

5.  On May 22, 2002, WorldCom filed a petition for reconsideration of
    the *IP Relay Order* requesting that the Commission extend the
    emergency call handling, VCO, and STS waivers from a one year period
    to either a five year period or an indefinite time.[^17] On July 11,
    2002, Sprint Corporation (Sprint) filed a petition for
    reconsideration of the *IP Relay Order* requesting that the
    Commission grant IP Relay providers waivers of the 900 number
    service and HCO TRS mandatory minimum standards.[^18] On July 22,
    2002, the petitions for reconsideration were placed on Public
    Notice; five parties filed comments.[^19] All parties filing
    comments support both petitions for reconsideration. No comments in
    opposition to either petition were filed. On November 18, 2002, in
    an *ex parte* presentation, Sprint requested that if its petition
    for reconsideration is granted, the Commission clarify that Sprint
    (and other IP Relay providers that have been providing IP Relay
    service) are eligible to receive compensation for the entire past
    period in which such carriers offered IP Relay, even if they did not
    offer 900 number service or HCO during that time period.[^20]

# Discussion

6.  *Waiver Standard.* In analyzing the applicability of our TRS
    mandatory minimum standards to IP Relay, we consider established
    legal standards for waiver of the Commission's rules. The Commission
    will adhere strictly to its rules unless a party can demonstrate
    that "in the public interest the rule should be waived."[^21]
    Furthermore, the Commission may only waive a provision of its rules
    for "good cause shown."[^22] The Commission must take a "hard look"
    at applications for waiver[^23] and must consider all relevant
    factors when determining if good cause exists.[^24] The party
    petitioning the Commission for a waiver bears the heavy burden of
    showing good cause: "\[an\] applicant \[for a waiver\] faces a high
    hurdle even at the starting gate."[^25] In addition, "\[t\]he agency
    must explain why deviation better serves the public interest, and
    articulate the nature of the special circumstances, to prevent
    discriminatory application and to put future parties on notice as to
    its operation."[^26] Finally, a waiver of one or more portions of
    the Commission's rules does not excuse an applicant from compliance
    with the Commission's other requirements.[^27] Applying these
    standards, we find good cause exists to grant WorldCom's[^28] and
    Sprint's waiver requests, to the extent indicated herein, and that
    doing so is in the public interest.[^29]

7.  *Emergency Call Handling.* Our rules require TRS centers to provide
    \"a system for incoming emergency calls that, at a minimum,
    automatically and immediately provides the nearest Public Safety
    Answering Point (PSAP) with the caller\'s telephone number. In
    addition, a relay center must pass along the caller\'s telephone
    number to the PSAP when a caller disconnects before being connected
    to emergency services.\"[^30] Because we have found that IP Relay
    falls within the statutory definition of TRS, IP Relay providers are
    obligated to maintain a system for handling emergency calls. In the
    *IP Relay Order*, however, we granted IP Relay providers a one year
    waiver of the TRS emergency call handling mandatory minimum standard
    because IP Relay providers are unable to provide location
    information to PSAPs. Because IP Relay users gain access to TRS via
    computer and an Internet address, rather than a telephone, IP Relay
    providers do not have the automatic number identification (ANI) of
    the calling party; therefore, they do not have the information to
    identify the caller's location.[^31] We recognized that the
    ANI-based emergency system does not work for IP Relay and granted a
    one year waiver of this standard.[^32] We believed that this was a
    reasonable time period for IP Relay providers to devise a method
    that would allow IP Relay providers to automatically transfer calls
    to emergency service providers, including location information.[^33]

8.  WorldCom asserts that traditional relay providers are able to comply
    with the Commission's requirement for relay centers to automatically
    pass the ANI to the nearest PSAP because transmission of customer
    billing information based on location historically developed on the
    public switched telephone network.[^34] WorldCom asserts that while
    Internet transmission requires an originating and terminating
    address, these addresses are not based on physical or geographic
    location like the public switched telephone network. Frequently an
    Internet user is assigned a different address for each Internet
    session, an address that does not contain geographic location
    information.[^35] WorldCom states that currently there is no
    movement within Internet standards-setting bodies to develop
    protocols linking customer location with Internet addresses.
    Moreover, WorldCom notes that the mobile nature of computers adds to
    the difficulty of this issue. For example, a pre-determined
    emergency message may be set to transmit the user's home location
    information, but this information may not be accurate if the user is
    accessing IP Relay using a laptop computer in a location other than
    his or her residence.[^36]

9.  Sprint, Hamilton, and CSD support WorldCom's request to extend the
    one year emergency service waiver for an indefinite period of
    time.[^37] Hamilton posits that granting IP Relay providers an
    indefinite waiver of the emergency call handling TRS requirement
    would realistically tie the pace of technological development to the
    waiver period thereby allowing technology to drive such
    developments. Hamilton further argues that the Commission and TRS
    providers alike must work within the reality that geographical
    location is simply not a relevant dimension of IP Relay
    communications.[^38] In the alternative, Hamilton asserts that a
    five year waiver period would provide better incentives for TRS
    providers to deploy and provide IP Relay services, without fear that
    short waiver periods will interrupt TRS providers' ability to obtain
    reimbursement from the TRS Fund.[^39]

10. TDI agrees that presently it is not technically feasible for
    emergency calls to be handled through IP Relay and supports waiver
    of the TRS emergency call handling requirement for a one year
    period. [^40] TDI recognizes that the technical limitations may not
    be resolved within a one year period and recommends that the
    Commission judiciously allow for extension of the waiver upon the
    submission of technical feasibility reports by the IP Relay provider
    at the end of the waiver period.[^41]

11. In its comments, AT&T asserts that it can respond to an IP Relay
    caller's request to connect to an emergency agency by relying on its
    Emergency Call Handling data base, which allows for the retrieval of
    emergency services by city/state, address, and/or telephone
    number.[^42] However, AT&T notes that the location information must
    be provided real time by the customer to the communications
    assistant. AT&T asserts that it is not feasible to rely on stored
    customer profile information regarding the caller's location,
    because IP Relay callers can potentially access IP Relay service
    from any city or state as long as they have an Internet
    connection.[^43]

12. The record reflects that the IP Relay providers will not have the
    technology or the means in place within the current one year waiver
    period to accurately and automatically transfer calls to emergency
    service providers, and to transfer the call with the location
    information.[^44] Additionally, we note that no party, including
    representatives of the disability community, filed comments opposing
    a waiver of the TRS emergency call handling requirement for IP Relay
    providers. We will, therefore, waive the TRS mandatory minimum
    standard requiring emergency call handling for a five year period as
    applied to IP Relay providers. Because emergency call handling is an
    important function required by our TRS rules, we find that an
    indefinite waiver period is inappropriate: we do not want to
    discourage IP Relay providers from developing innovative means of
    meeting this important TRS requirement. To assist us in monitoring
    the rapid advancement taking place in IP Relay technology, we
    require IP Relay providers to submit an annual report updating the
    Commission on changes in IP Relay technology that may enable IP
    Relay providers to comply with the emergency call handling TRS
    requirement waived herein.

13. *Voice Initiated Calls: Voice Carry Over (VCO) and Speech-to-Speech
    (STS).* In the *IP Relay Order*, we waived for one year the
    requirement that IP Relay providers be accessible by voice, *i.e*.,
    that IP Relay providers offer VCO and STS, because of the
    technological limitations of providing these services at that
    time.[^45] The record demonstrated that voice initiated calls were
    possible if the customer had a microphone, a sound card, and
    Internet telephony software. The record also indicated, however,
    that the quality of service of a voice call via one's computer over
    the Internet is poor and dependent on the quality of the user's
    customer premise equipment (CPE), frequently resulting in the
    communications assistant being unable to accurately communicate
    conversations.[^46] WorldCom now seeks extension of the one year
    waivers for VCO and STS calls to either a five year or indefinite
    time, asserting that it still may be many years before the voice
    quality for these services significantly improves and the necessary
    CPE becomes widely adopted by the hearing and speech-disabled
    community.[^47] Sprint, AT&T, Hamilton and CSD agree that the one
    year waivers for VCO and STS should be extended for five years or an
    indefinite period.[^48] Specifically, Hamilton asserts that the
    waiver period should be extended until such time that the quality of
    voice Internet telephone service and CPE penetration justify such a
    requirement.[^49]

14. Based on the record,[^50] we agree that a one year waiver for these
    voice initiated calls may be too short of a time period for the
    necessary technological advancements to become available to
    consumers and IP relay providers. We will, therefore, waive the
    minimum requirements to provide VCO and STS calls for a period of
    five years. Because of the public interest in having these services
    available to those individuals who need them, we find that it is not
    appropriate to grant an indefinite waiver of this TRS requirement.
    We emphasize that IP Relay should be available to voice users, and
    strongly encourage parties to seek technological advances to make
    these services possible.

15. *Hearing Carry Over (HCO).* Although the *IP Relay Order* waived the
    VCO and STS requirements, it did not waive the requirement to
    provide HCO because we found that IP Relay could be used for the
    text leg of the call.[^51] In its petition, Sprint seeks
    reconsideration of this decision, asserting that the provision of
    HCO requires the use of the same technology that is used to provide
    VCO.[^52] Sprint notes that both services require text messaging
    during one leg of the call, the only difference is the directional
    flow of the text. For VCO calls, the deaf or hard-of-hearing
    individual can speak to, but not hear the response from, the other
    party; the communications assistant sends such a response to the
    deaf or hard-of-hearing customer as a text message. For HCO calls,
    the individual with a speech disability can hear, but not speak to,
    the other party; the individual with a speech disability sends a
    text message to the communications assistant who then reads it to
    the other party.[^53] Sprint asserts that the technological
    limitations that prevent the offering of VCO functionality through
    IP Relay apply equally to HCO functionality.[^54]

16. In its comments, AT&T asserts that the development of HCO
    functionality for IP Relay will be costly and could divert technical
    development funds from other features that would benefit the
    majority of IP relay users, such as developing faster access and
    faster connections to the called party.[^55] Moreover, AT&T contends
    that customer demand should drive relay providers' development of
    this functionality, not preset waiver periods. AT&T supports waiving
    the HCO TRS mandatory minimum standard indefinitely or until such
    time as HCO is available to two or more IP Relay providers.[^56]
    Hamilton asserts that the technological obstacles recognized in the
    *IP Relay Order* require waiver of HCO to encourage deployment of IP
    Relay by all potential providers and reimbursement for the costs of
    IP Relay functions that are currently feasible.[^57] CSD and
    WorldCom also support waiver of this TRS mandatory minimum
    standard.[^58] CSD notes that Sprint presently handles over 60
    percent of all TRS calls in the United States: of these calls HCO
    and STS, when combined, comprise only .0006 percent of all TRS calls
    handled by Sprint.[^59]

17. SHHH and TDI support waiver of the one-line HCO TRS mandatory
    minimum standard for a one year period. SHHH and TDI agree that,
    unlike two-line HCO, it is not currently possible for IP Relay
    providers to offer one-line HCO.[^60] Neither party supports a
    permanent waiver of this requirement arguing that the opportunity
    for technology to develop must remain open to permit one-line HCO
    through IP Relay for people with speech disabilities. SHHH and TDI
    encourage the Commission to require that IP Relay providers submit a
    yearly report on technological developments that may allow IP Relay
    providers to offer this service.[^61]

18. Because the same technological obstacles exist for HCO as for VCO
    and STS, we also grant IP Relay providers a waiver of the
    requirement to provide one-line HCO for a period of five years. We
    limit the waiver to a five year period to encourage continual
    development of the technology to provide one-line HCO service. To
    enable us to closely monitor the rapidly advancing technology of IP
    Relay, we require IP Relay providers to submit a report annually to
    the Commission on the status of the feasibility of providing
    one-line HCO.

19. *900 number services.* In the *IP Relay Order*, we required IP Relay
    providers to offer 900 number services,[^62] stating that it was
    technically feasible for relay centers to accommodate these types of
    calls.[^63] In its petition, Sprint asks us to waive this
    requirement, stating that it is technologically infeasible to
    provide such service at this time. Sprint states that "a carrier
    offering 900 number service requires that the ANI of the calling
    party be included in the signaling stream sent to its switch by
    either the calling party's local exchange carrier or, in the case of
    TTY-based TRS service, the TRS center."[^64] If the ANI is not
    included in the signaling stream, the 900 service center carrier's
    switch will reject the call either by returning a fast busy signal
    to the caller or by an announcement that the call cannot be
    completed as dialed.[^65] Sprint contends that the only way for 900
    calls to be completed is for the TRS center's ANI to be inserted in
    the signaling stream transmitted to the 900 service carrier's
    switch, or by asking the person accessing the relay center over the
    Internet to provide a telephone number for inserting into the
    signaling stream

20. Industry commenters agree with Sprint that the Commission should
    waive the 900 services TRS mandatory minimum standard for an
    indefinite period.[^66] Specifically, AT&T agrees that it is not
    always possible for the communication assistant to provide the
    caller's telephone number when connecting to 900 number
    services.[^67] AT&T states that in the event a 900 number service
    was answered by a live attendant there would be no way to verify
    that the caller was providing his/her correct telephone number, and
    no way to verify if the number provided has a restriction on it for
    900 number calls.[^68] Hamilton asserts that the few possible ways
    to interject the customer's number information would result in
    unacceptable risks that pay-per-call charges would be charged to the
    wrong party or fraudulently evaded.[^69]

21. SHHH and TDI support waiver of the 900 number TRS mandatory minimum
    standard for IP Relay providers, but would limit the waiver period
    to one year and require IP Relay providers to file an annual report
    on the feasibility of providing this service via IP Relay. [^70]
    SHHH agrees that currently an IP Relay provider cannot pass an IP
    Relay user's telephone number to the carrier providing 900 number
    service, and that without such information, the carrier's switches
    will reject the call as there is no way to bill the caller. SHHH
    also notes that the number of 900 calls made "\[t\]hrough TRS is
    small -- 10 a month for the entire nation" and that TRS users, if
    they wish, can make 900 calls through traditional TRS.[^71]

22. Based on the record,[^72] we agree that the options proposed by the
    industry are not viable solutions for compliance with the 900 number
    call minimum standard. Inserting the TRS center's ANI in the
    signaling stream to complete 900 number calls would result in the
    TRS center being billed for the call rather then the consumer.
    Additionally, we recognize that it is not always possible for the
    relay center to provide the caller's telephone number to the
    pay-per-call service for billing, as frequently the 900 call
    terminates to a recorded announcement that is not answered by a live
    attendant.[^73] For these reasons, we grant IP Relay providers a
    waiver of the 900 number requirement for a period of five years. We
    also require IP Relay providers to submit a report annually updating
    the Commission on any advancing technology that may allow IP Relay
    providers to offer 900 number service. We believe that, along with
    an annual reporting requirement, this is a reasonable time period
    for IP Relay providers to develop a method to resolve the billing
    problems associated with 900 number IP Relay calls.[^74]

23. *Retroactive Application of Waivers.* In the *IP Relay Order*, we
    clarified that TRS includes Internet-based relay services, and that
    providers of IP Relay services are eligible to recover their costs.
    To encourage the development of this emerging technology, and
    because it is technically impossible at this time to distinguish
    between intra and interstate IP Relay calls, we allowed all costs
    for Internet-based relay services to be recovered from the
    Interstate TRS Fund.[^75] We also stated that to be certified and
    eligible for reimbursement, the IP Relay provider must meet all
    applicable TRS mandatory minimum standards, or request and receive
    waiver of these standards.[^76]

24. In its *Ex Parte* presentation, Sprint requested that if its
    petition for reconsideration is granted, the Commission clarify that
    Sprint (and other IP Relay providers that have been providing IP
    Relay service) are eligible to receive compensation for the entire
    past period in which such carriers offered IP Relay, even if they
    did not offer 900 number services or HCO during that time
    period.[^77] Sprint states that it informed the TRS Fund
    Administrator that is was not offering 900 number services or HCO,
    because it was not technically feasible to do so, and has therefore
    not been receiving compensation for the costs of providing IP Relay.
    Sprint now posits that it would be unfair to penalize those
    providers (such as itself) that have been offering IP Relay to
    consumers, even though they could not certify that they were meeting
    the TRS mandatory minimum standards, since in granting its petition
    for reconsideration the Commission will have agreed that providing
    900 number services and HCO is currently infeasible. Sprint also
    notes that denial of compensation on a retroactive basis will force
    these IP Relay providers to absorb the significant costs of
    providing IP Relay during the past period.[^78] WorldCom and TDI
    support the retroactive compensation of IP Relay providers who have
    been offering all mandated IP-Relay services except 900 number
    services and HCO.[^79]

25. We conclude that Sprint and other similarly-situated providers are
    not entitled to retroactive application of the waivers we grant in
    this Order, and that these waivers are prospective only. Permitting
    Sprint to recover compensation for past services rendered in
    violation of the then-applicable mandatory minimum standards, based
    on our present waiver of those standards, is tantamount to applying
    these waivers retroactively, a result that is generally not favored
    under existing law. [^80] Sprint also has not demonstrated that it
    is in the public interest to retroactively apply the effective date
    of the waivers.

26. Sprint and other similarly-situated providers were well aware that
    their provision of IP Relay was not in compliance with the
    then-applicable rules, and thus they were not eligible for
    compensation from the interstate TRS Fund. These providers therefore
    had no settled expectation of payment for these services. We do not
    want to encourage common carriers and others to provide regulated
    services in contravention of our rules, with the hope that they
    eventually may be retroactively rewarded for providing the services.
    There were other avenues available to Sprint and the other
    similarly-situated carriers by which they could have determined
    whether they were offering IP Relay in compliance with applicable
    rules *before* they began offering the service and incurring the
    costs thereof. Further, other carriers may have chosen not to offer
    IP Relay when they knew they could not do so in compliance with our
    rules; their *compliance* with our rules would effectively be
    penalized if those who did *not comply* with the rules are
    nevertheless reimbursed for their services. That Sprint and other
    similarly-situated carriers chose to go ahead and offer the service,
    even though they could not comply with the rules, was their own
    decision.

27. This conclusion does not affect our underlying belief that IP Relay
    is a valuable addition to TRS because it permits consumers to access
    TRS through personal computers and similar devices. As Hamilton has
    noted, IP Relay use appears to be growing approximately 15 percent
    each month.[^81] We believe that the availability of IP Relay will
    lead to competition in TRS, a regulated service that typically has
    only one provider per state. As a regulated service, however, TRS
    providers must comply with our rules to be a certified provider
    eligible for reimbursement.[^82] As Sprint was not in compliance
    with the TRS mandatory minimum standards when it offered the IP
    Relay service, we cannot authorize reimbursement for its cost of
    providing that service.

# Conclusion

28. As we indicated in the *IP Relay Order*, all other TRS mandatory
    minimum standards apply to IP Relay.[^83] We reiterate that the
    waivers we grant herein are temporary and are intended to facilitate
    the growth of IP Relay as a new service. We grant these waivers for
    a five year period because we believe that the growing customer
    demand for IP Relay services, and the rapid technological changes
    occurring in this industry, provide strong incentive for IP Relay
    providers to offer these services within this time period. We note
    that since the deployment of IP Relay there has been a steady
    increase in the monthly minutes of use for TRS. [^84] In granting
    these waivers we anticipate that more providers will be able to
    provide IP Relay which will allow more people to take advantage of
    this service. At the same time, we find that IP Relay providers
    should annually submit a report to the Commission, detailing the
    technical developments that have occurred to enable IP Relay
    providers to offer the TRS mandatory minimum standards waived
    herein. These waivers are granted with the requirement that IP Relay
    providers submit a report to the Commission twelve months after
    publication of this Order in the Federal Register. The report should
    be in narrative form detailing technological changes, progress made,
    and the steps taken to resolve the technical problems that prohibit
    IP Relay from meeting the TRS mandatory minimum standards waived
    herein. Such a report will facilitate our efforts to ensure that IP
    Relay users have all services required by our TRS rules that are
    technically feasible for IP Relay providers to offer. These waivers
    and reporting requirements will apply to all other current or
    prospective IP Relay providers, for the time periods indicated
    herein. For administrative convenience, all waivers granted herein
    will expire on January 1, 2008.

# Procedural Matters

29. *Final Regulatory Flexibility Certification.* The Regulatory
    Flexibility Act of 1980, as amended (RFA)[^85] 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."[^86] The RFA generally defines "small entity" as having
    the same meaning as the terms "small business," "small
    organization," and "small governmental jurisdiction."[^87] In
    addition, the term "small business" has the same meaning as the term
    "small business concern" under the Small Business Act.[^88] 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.

30. This item imposes a regulatory burden on IP Relay providers ,
    requiring them to file an annual report with the Commission
    concerning the status of technology developed that will allow IP
    Relay providers to meet the telecommunications relay services
    mandatory minimum standards waived herein for IP Relay providers.
    Currently only three entities are providing IP Relay: AT&T, Sprint,
    and WorldCom. These are large entities. There is one entity,
    Hamilton Relay, Inc., that is preparing to offer IP Relay service
    which may be a small entity. The effect of this reporting
    requirement on any small business will not be significant. Based on
    the small number of entities providing IP Relay service, we conclude
    that this action will not cause a significant impact on small
    business. Based on the above, we conclude that our action will not
    affect a substantial number of small businesses.

31. Therefore, we certify that the requirements of this Order on
    Reconsideration will not have a significant economic impact on a
    substantial number of small entities. The Commission will send a
    copy of the Order on Reconsideration including a copy of this final
    certification, in a report to Congress pursuant to the Congressional
    Review Act of 1996[^89] In addition, the Order on Reconsideration
    and this certification will be sent to the Chief Counsel for
    Advocacy of the Small Business Administration, and will be published
    in the Federal Register.[^90]

32. *Paperwork Reduction Act*. This Report & Order contains new or
    modified information collection(s) subject to the Paperwork
    Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted
    to the Office of Management and Budget (OMB) for review under
    Section 3507(d) of the PRA. OMB, the general public and other
    Federal agencies are invited to comment on the new or modified
    collection(s) contained in this proceeding.

# Ordering clauses

33. Accordingly, IT IS ORDERED that, 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, this ORDER ON RECONSIDERATION
    IS ADOPTED.

34. IT IS FURTHER ORDERED that WorldCom's Petition for Reconsideration
    IS GRANTED to the extent indicated herein.

35. IT IS FURTHER ORDERED that Sprint's Petition for Limited
    Reconsideration IS GRANTED to the extent indicated herein.

36. IT IS FURTHER ORDERED that IP Relay providers subject to the waivers
    granted shall submit annually a report, as indicated herein, to the
    Commission twelve months after publication of this Order on
    Reconsideration in the Federal Register.

37. IT IS FURTHER ORDERED that the late filed comments of
    Telecommunications for the Deaf, Inc., and Self Help for Hard of
    Hearing People are considered as part of the record in this
    proceeding.

38. IT IS FURTHER ORDERED that the Commission\'s Consumer and
    Governmental Affairs Bureau, Reference Information Center, SHALL
    SEND a copy of the Order on Reconsideration, including the Final
    Regulatory Flexibility Certification, to the Chief Counsel for
    Advocacy of the Small Business Administration.

39. IT IS FURTHER ORDERED that the information collection(s) contained
    in the Order on Reconsideration SHALL BECOME EFFECTIVE following
    approval by the Office of Management and Budget in the Federal
    Register announcing the effective date for those sections.

40. Accessible formats (braille, large print, electronic files or audio
    recording) are available to persons with disabilities by contacting
    Brian Millin, of the Consumer and Governmental Affairs Bureau,
    at (202) 418-7426, TTY (202) 418-7365, or at <bmillin@fcc.gov>. This
    *Order on Reconsideration* can also be downloaded in Text and ASCII
    formats, at: <http://www.fcc.gov/cgb/dro>.

    FEDERAL COMMUNICATIONS COMMISSION

    Marlene H. Dortch

    Secretary

**SEPARATE STATEMENT OF**

**COMMISSIONER KATHLEEN Q. ABERNATHY**

*Re: Provision of Improved Telecommunications Relay Services and
Speech-to-Speech Services for Individuals with Hearing and Speech
Disabilities, CC Docket 98-67, Order on Reconsideration.*

I strongly support granting IP Relay providers the flexibility to
provide this exciting new service without being forced to comply with
certain regulatory mandates that were adopted with older technology in
mind. I only regret that the Commission needlessly withheld this relief
a year ago and forced providers to seek reconsideration. Last year, when
the Commission found that IP Relay falls within the statutory definition
of telecommunications relay services (TRS), we granted providers a
one-year waiver from certain requirements (including standards regarding
hearing carry over and 900 number service) that presented technical
feasibility problems. I argued then that the Commission was being
shortsighted in its grant of such limited relief.[^91] I stated that the
Commission should be more willing to refrain from extending legacy
regulatory requirements to nascent technologies like IP Relay. By
delaying the relief granted in today's Order, the Commission
unfortunately denied cost-recovery to providers that rolled out this
service in the face of regulatory uncertainty and may have deterred
additional carriers from offering IP Relay service. I hope that, in
future proceedings, the Commission will be quicker to recognize that the
reflexive extension of legacy regulations to nascent technologies often
harms the public interest.

[^1]: In the Matter of Provision of Improved Telecommunications Relay
    Services and Speech-to-Speech Services for Individuals with Hearing
    and Speech Disabilities, *Declaratory Ruling and Second Further
    Notice of Rulemaking,* CC Docket No. 98-67, FCC 02-121, 17 FCC Rcd
    7779 (2002) (*IP Relay Order*).

[^2]: Telecommunications relay service is a telephone transmission
    service that allows persons with a hearing or speech disability to
    engage in communications by wire or radio with a hearing individual
    in a manner that is functionally equivalent to the ability of an
    individual who does not have a hearing or speech disability to
    communicate using voice communication services by wire or radio. TRS
    facilities are staffed by communications assistants who relay
    conversation between people who use text telephone devices and
    people who communicate by voice. *See* 47 C.F.R. § 64.601(7).

[^3]: Voice Carry Over service is a reduced form of telecommunications
    relay service used by persons with hearing disabilities who are able
    to speak directly to the other end user. The communications
    assistant types the response back to the person with the hearing
    disability, but does not voice the conversation. *See* 47 C.F.R. §
    64.601(9).

[^4]: Speech-to-Speech relay service is a telecommunications relay
    service that allows persons with speech disabilities to communicate
    with voice telephone users through the use of specially trained
    communications assistants who understand the speech patterns of
    persons with disabilities and can repeat the words spoken by the
    person. *See* 47 C.F.R. § 64.601(10).

[^5]: *See* 47 C.F.R. § 64.604. This section contains the mandatory
    minimum standards with which TRS providers must comply.

[^6]: 900 number services is a type of pay-per-call service. *See* 47
    C.F.R. § 64.1501.

[^7]: Hearing Carry Over service is a reduced form of telecommunications
    relay service used by persons with speech disabilities who are able
    to listen to the other end user but, in reply, the communications
    assistant speaks the text as typed by the person with the speech
    disability. The communications assistant does not type any
    conversation. *See* 47 C.F.R. § 64.601(6).

[^8]: Improved Service Order and Further Notice of Proposed Rulemaking,
    *Report and Order and Further Notice of Proposed Rulemaking,* CC
    Docket No. 98-67, FCC 00-56, 15 FCC Rcd 5140 at ¶ 14 (*2000 Improved
    TRS Report and Order).*

[^9]: *Id.* at ¶ 138.

[^10]: WorldCom, *Petition for Clarification*, CC Docket No. 90-571,
    Dec. 22, 2000.

[^11]: IP Relay is telecommunications relay service provided over the
    Internet. IP Relay works as follows: 1) A user establishes a local
    connection to an Internet service provider using a computer, web
    phone, personal digital assistant, or any other IP- capable device;
    2) the user selects the Internet address of an IP Relay provider; 3)
    when the user reaches the IP Relay provider's Internet platform (or
    web site), a java applet is launched, which then automatically
    establishes an internet connection, via an 800 number, to the relay
    center; and 4) the call is immediately routed to a communications
    assistant, and a regular relay session is initiated.

[^12]: 47 U.S.C. § 225(d)(3) requires that "costs from interstate
    telecommunications relay service shall be recovered from all
    subscribers for every interstate service and costs caused by
    intrastate telecommunications relay service shall be recovered from
    the intrastate jurisdiction." The Interstate TRS Fund was
    established to administer the recovery of costs for interstate TRS.
    *See* Telecommunications Relay Service, and the Americans with
    Disabilities Act of 1990, CC Docket No. 90-571, *Third Report and
    Order and Further Notice of Proposed Rulemaking*, 8 FCC Rcd 5300
    n.34 (1993).

[^13]: Consumer Information Bureau Seeks Additional Comment on the
    Provision of Improved Telecommunications Relay Service, DA 01-1555,
    *Public Notice*, 66 Fed. Reg. 37,631 (July 19, 2001).

[^14]: *IP Relay Order,* 17 FCC Rcd 7779 at ¶ 1; *See also* U.S.C §
    255(a)(3).

[^15]: For example, we waived the VCO and STS TRS mandatory minimum
    requirements. *See IP Relay Order*, 17 FCC Rcd 7779 at ¶32.

[^16]: *IP Relay Order*, 17 FCC Rcd 7779 at ¶1.

[^17]: *See Petition for Reconsideration WorldCom, Inc.,* In the Matter
    of Provision of Improved Telecommunications Relay Services and
    Speech-to-Speech Services for Individuals with Hearing and Speech
    Disabilities, CC Docket No. 98-67, filed by WorldCom Inc., on May
    22, 2002 (*WorldCom Petition*).

[^18]: *See Petition for Limited Reconsideration,* In the Matter of
    Provision of Improved Telecommunications Relay Services and
    Speech-to-Speech Services for Individuals with Hearing and Speech
    Disabilities, CC Docket No. 98-67, filed by Sprint Corporation July
    11, 2002 (*Sprint Petition).*

[^19]: *See* Comments filed by Hamilton Relay, Inc. (Hamilton) July 26,
    2002, AT&T Corporation (AT&T) August 13, 2002, and Communication
    Services for the Deaf (CSD) September 3, 2002. *See* Late filed
    comments filed by Self Help for Hard of Hearing People (SHHH)
    December 5, 2002 and Telecommunications for the Deaf, Inc., (TDI)
    December 9, 2002. *See also* Motion for Acceptance of Late-Filed
    Comments filed by TDI December 9, 2002. We note that SHHH did not
    file a similar motion requesting acceptance of its late filed
    comments into the record. Nonetheless, in the interest of having a
    complete record, we accept TDI and SHHH's late filed comments into
    the record. *See also Ex Parte* letter from Michael Fingerhut,
    Sprint Corporation, to Marlene H. Dortch, Secretary, Federal
    Communications Commission, dated November 18, 2002; *Ex Parte*
    letters from Larry Fenster, WorldCom, to Marlene H. Dortch,
    Secretary, Federal Communications Commission, dated November 20,
    2002 and January 23, 2003; *Ex Parte* letters from Margot Smiley
    Humphrey, Hamilton Relay Inc., to Marlene H. Dortch, Secretary,
    Federal Communications Commission, dated October 9, 2002 and
    December 2, 2002; *Ex Parte* letter from Gary Warren, Hamilton Relay
    Inc., to Marlene H. Dortch, Secretary, Federal Communications
    Commission, dated January 12, 2003; *Ex Parte* letter from Karen
    Peltz Strauss, CSD Consultant, to Marlene H. Dortch, Secretary,
    Federal Communications Commission, dated December 5, 2002.

[^20]: *See* Sprint e*x parte* letter dated November 18, 2002.

[^21]: *FPC v Texaco, Inc*., 377 U.S. 33, 39 (1964).

[^22]: 47 C.F.R. § 1.3.

[^23]: *FPC v Texaco, Inc.,* 377 U.S. 33, 39 (1964)

[^24]: *Citizens to Preserve Overton Park, Inc., v. Volpe*, 401 U.S.
    402, 416 (1971).

[^25]: *WAIT Radio v. FCC*, 418 F.2d 1153, 1157 (D.C. Cir. 1969).

[^26]: *Northeast Cellular Telephone Company, L.P v. FCC*, 897 F.2d
    1164, 1166 (D.C. Cir. 1990).

[^27]: *See* 47 C.F.R. § 1.3; *Part 68 Waiver Request of Alameda
    Engineering Inc., et al, Order*, 10 FCC Rcd 12135, 12139 (1995).

[^28]: We note that WorldCom incorrectly states that the *IP Relay
    Order* granted IP Relay providers a one year waiver of the TRS speed
    of answer standard. We declined to waive the speed of answer
    requirement for IP Relay providers. *See* WorldCom's *Petition* at
    1; *see also* *IP Relay Order* 17 FCC Rcd 7779 at XX; 47 C.F.R. §
    64.604(b)(2).

[^29]: Comments were filed by AT&T, Hamilton, CSD, SHHH, and TDI.

[^30]: 47 C.F.R. § 64.604(a)(4).

[^31]: *IP Relay Order,* 17 FCC Rcd 7779 at ¶30.

[^32]: One year waivers granted pursuant to the *IP Relay Order* became
    effective on April 22, 2002 and expire on April 22, 2003.

[^33]: *IP Relay Order,* 17 FCC Rcd 7779 at ¶30.

[^34]: WorldCom Comments at 3.

[^35]: *Id*.

[^36]: *Id.*

[^37]: *See* Sprint Comments at 1; Hamilton Comments at 4.

[^38]: Hamilton Comments at 4.

[^39]: *Id.*

[^40]: TDI Comments at1.

[^41]: *Id.*

[^42]: AT&T Comments at 5; *see also IP Relay Order* 17 FCC Rcd 7779 at
    ¶30.

[^43]: AT&T Comments at 5.

[^44]: *See* AT&T Comments at 4; Hamilton Comments at 4.

[^45]: *IP Relay Order* 17 FCC Rcd 7779 at ¶¶ 32 , 57.

[^46]: *Id*.

[^47]: WorldCom Petition at 6.

[^48]: *See* Sprint Petition at 1; AT&T Comments at 6; Hamilton Comments
    at 5; and CSD Comments at 2.

[^49]: Hamilton Comments at 5.

[^50]: *See* Hamilton Comments at 5; AT&T Comments at 5-6.

[^51]: *See IP Relay Order,* 17 FCC Rcd 7779 at ¶ 34.

[^52]: Sprint Petition at 4; *see also* Hamilton Comments at 3-4; AT&T
    Comments at 6.

[^53]: Sprint Petition at 4-5.

[^54]: *Id.* at 5.

[^55]: AT&T Comments at 6.

[^56]: *Id.*

[^57]: Hamilton Comments at 4.

[^58]: *See* CSD Comments; WorldCom *ex parte* letter filed November 20,
    2002.

[^59]: *See Ex Parte* letter from Karen Pelt Strauss, CSD Consultant, to
    Marlene H. Dortch, Secretary, Federal Communications Commission,
    dated December 20, 2002. Moreover, in its *ex parte* presentation on
    December 4, 2002, CSD stated that with the implementation of STS
    service there has been a steady migration from HCO to STS use.

[^60]: SHHH Comments at 2, TDI Comments.

[^61]: *Id.*

[^62]: *See* 47 C.F.R. § 64.1501.

[^63]: *IP Relay Order,* 17 FCC Rcd 7779 at ¶¶ 34, 57.

[^64]: Sprint Petition at 3.

[^65]: *Id.* at 3-4.

[^66]: *See* AT&T Comments at 3, Hamilton Comments at 3, WorldCom *Ex
    Parte* letter filed November 20, 2002; CSD Comments.

[^67]: AT&T Comments at 3.

[^68]: *Id*.

[^69]: Hamilton Comments at 3.

[^70]: SHHH Comments at 2, TDI Comments.

[^71]: SHHH Comments at 2.

[^72]: *See* Sprint Comments at 4; AT&T Comments at 3; Hamilton Comments
    at 3.

[^73]: AT&T Comments at 3.

[^74]: We note that 900 number service is infrequently used by TRS
    users. *See* Letter dated November XX, 2002, from the National
    Exchange Carriers Association (NECA), filed in Docket No. 98-67,
    indicating that from January to September 2002 wireline TRS recorded
    2,300 900 service calls minutes of use, compared to the three
    million minutes of use for all TRS services in October 2002.

[^75]: *IP Relay Order*, 17 FCC Rcd 7779 at ¶46. *See also* footnote 12
    *supra* for discussion of Interstate TRS Fund.

[^76]: *IP Relay Order*, 17 FCC Rcd 7779 at ¶33.

[^77]: *See* Sprint E*x parte* letter dated November 18, 2002.

[^78]: *Id.* at 2.

[^79]: *See* WorldCom *Ex parte* letter dated November 20, 2002; TDI
    Comments.

[^80]: *See, e.g., Bowen v. Georgetown University Hospital,* 488 U.S.
    204 (1988); *McElroy Electronics Corp.,* 10 FCC Rcd 6762 (1995). As
    a general matter, rules adopted pursuant to notice-and-comment rule
    making procedures that change the past legal consequences of past
    actions are 'primarily retroactive' and therefore impermissible.
    1998 Biennial Regulatory Review -- Streamlining of Mass Media,
    *Memorandum Opinion and Order,* 14 FCC Rcd 17,525 par. 27 (1995).

[^81]: *See Ex parte* letter from Hamilton dated December 2, 2002.

[^82]: 47 C.F.R. § 64.604.

[^83]: *See* 47 C.F.R. § 64.604; s*ee also IP Relay Order,* 17 FCC Rcd
    7779 at ¶34.

[^84]: *See* Chart dated December 13, 2002, from NECA, filed in Docket
    No. 98-67, indicating monthly usage of TRS including IP Relay.

[^85]: The RFA, *see* § 5 U.S.C. § 601 *et. seq.,* has been amended by
    the Contract with America Advancement Act of 1996, Pub. L. No.
    104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA is the
    Small Business Regulatory Enforcement Act of 1996 (SBREFA).

[^86]: 5 U.S.C.§ 605(b).

[^87]: 5 U.S.C.§ 601(b).

[^88]: 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 definitions(s) in the Federal
    Register."

[^89]: *See* 5 U.S.C. § 801(a)(1)(A).

[^90]: *See* 5 U.S.C. § 605(b).

[^91]: *See* Separate Statement of Commissioner Kathleen Q. Abernathy,
    *Provision of Improved Telecommunications Relay Services and
    Speech-to-Speech Services for Individuals with Hearing and Speech
    Disabilities*, Declaratory Ruling and Second Further Notice of
    Proposed Rulemaking, CC Docket No. 98-67, 17 FCC Rcd 7779 (2002).