**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | CC Docket No. 90-571         |
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| Telecommunications Relay         | ** | CC Docket No. 98-67          |
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|                                  | *  | CG Docket No. 03-123         |
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| Speech Disabilities              | *  |                              |
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**REPORT AND ORDER, ORDER ON RECONSIDERATION, AND FURTHER NOTICE OF
PROPOSED RULEMAKING**

**Adopted: June 10, 2004 Released: June 30, 2004**

Comment Date: 45 days after Federal Register publication of this FNPRM

Reply Comment Date: 75 days after Federal Register publication of this
FNPRM

By the Commission: Chairman Powell and Commissioner Abernathy issuing
separate statements; Commissioners Copps and Adelstein approving in
part, dissenting in part, and issuing separate statements.

**TABLE OF CONTENTS**

**[Paragraph Number]{.underline}**

I. INTRODUCTION 1

II\. BACKGROUND 3

III\. EXECUTIVE SUMMARY 14

IV\. REPORT AND ORDER 17

A. VRS COST RECOVERY (CC DOCKET NO. 98-67) 17

1\. Background 17

2\. Discussion 23

B. IP RELAY COST RECOVERY (CC DOCKET NO. 98-67) 25

1\. Background 25

2\. Discussion 34

C. IMPROVED TRS MEASURES (CG DOCKET NO. 03-123) 38

1\. Emergency Preparedness for TRS Facilities and Services 39

2\. Mandatory Minimum Standards (Operational Standards) 49

a\. Security of IP Relay Calls 49

b\. Emergency Call Handling over Wireless Networks 52

c\. Non-Shared Language TRS 55

3\. Mandatory Minimum Standards (Technical Standards) 63

a\. Call Set-up Time 63

b\. TRS Facilities 66

\(i\) Communication Access Real-time Translation 66

\(ii\) Interrupt Functionality 69

\(iii\) TRS Consumers' LEC Offerings 72

\(iv\) Talking Return Call 76

c\. Technology 81

> \(i\) Speech Recognition Technology 81
>
> \(ii\) Transmission Speed 84
>
> \(iii\) TTY Protocols 87

4\. Public Access to Information and Outreach 90

5\. Procedures for Determining TRS Providers' Eligibility for Receiving

Payments from the Interstate TRS Fund 99

D. VRS WAIVERS OF TRS MANDATORY MINIMUM STANDARDS 105

1\. Background 105

2\. Discussion 109

a\. Extension of TRS Waivers Granted in the December 31, 2001,

VRS Waiver Order 109

b\. New Waiver Requests 133

3\. Summary of VRS and IP Relay waivers, expiration dates, and annual

report filing requirements 140

E. 711 ACCESS TO PAY-PER-CALL (900) SERVICES (CG DOCKET NO. 98-67) 141

1\. Background 141

2\. Discussion 145

F. HANDS ON'S APPLICATION FOR CERTIFICATION AS A VRS PROVIDER

ELIGIBLE FOR COMPENSATION FROM THE INTERSTATE TRS FUND 147

1\. Background 147

2\. Discussion 148

G. PETITION FOR LIMITED WAIVER CONCERNING VIDEO RELAY SERVICE

AND INTERPRETING IN STATE LEGAL PROCEEDINGS 149

1\. Background 149

2\. Discussion 152

V. ORDER ON RECONSIDERATION 163

A. THE JUNE 30, 2003, BUREAU TRS ORDER 163

1\. Background 163

2\. The Bureau's Authority to Adopt the Bureau TRS Order 167

3\. The Bureau TRS Order is Based on Reasoned Analysis 171

a\. The comparison of the costs of VRS with the costs of Video

Remote Interpreting (VRI) 172

b\. The comparison of the proposed VRS compensation rate to

historical VRS compensation rates 175

c\. The disallowance of profit and use of 11.25% rate of return

on investment 177

d\. The adjustments to the providers' cost data 183

\(i\) The Bureau's explanation of its adjustments to

the cost data 183

\(ii\) Engineering costs 188

\(iii\) The providers' supplemental data 191

4\. The Bureau TRS Order and the mandates of Section 225 194

5\. Conclusion 200

B. THE OCTOBER 25, 2002, FIFTH REPORT AND ORDER ON "COIN

SENT-PAID" TRS CALLS FROM PAYPHONES (CC DOCKET 90-571) 201

1\. Background 201

2\. Discussion 207

C. THE JUNE 17, 2003, SECOND IMPROVED TRS REPORT

AND ORDER (CC DOCKET 98-67) 209

1\. Background 209

2\. Discussion 216

VI\. FURTHER NOTICE OF PROPOSED RULEMAKING (CG DOCKET NO. 03-123) 220

A. IP RELAY 221

1\. Determining which IP Relay Calls are Interstate and which are
Intrastate 221

2\. IP Relay as a Mandatory Form of TRS and Offered 24/7 231

3\. Separate Rates for IP Relay and Traditional TRS 233

B. VIDEO RELAY SERVICE 234

1\. Cost Recovery Methodology 234

2\. Determining which VRS Calls are Interstate and which are Intrastate
241

3\. VRS as a Mandatory Form of TRS and Offered 24/7 243

4\. Speed of Answer 246

5\. Data Reporting Period 247

6\. Other VRS issues 248

C. CERTIFICATION AND OVERSIGHT OF IP RELAY AND VRS PROVIDERS 250

D. TRS ADVISORY COUNCIL 251

E. ABUSE OF COMMUNICATIONS ASSISTANTS (CAs) 255

VII\. PROCEDURAL MATTERS 259

A. Ex parte Presentations 259

B. Regulatory Flexibility Act 260

C. Paperwork Reduction Act 261

D. Comment and Reply Dates for FNPRM in CG Docket No. 03-123 262

VIII\. ORDERING CLAUSES 265

IX\. APPENDIX A: LIST OF PARTIES

X. APPENDIX B: FINAL REGULATORY FLEXIBILITY ANALYSIS

(CG DOCKET NO. 03-123)

XI\. APPENDIX C: INITIAL REGULATORY FLEXIBILITY ANALYSIS

(CG DOCKET NO. 03-123)

XII\. APPENDIX D: FINAL RULES

XIII\. APPENDIX E: SUMMARY OF IP RELAY AND VRS WAIVERS

# INTRODUCTION

1.  In this *Report and Order, Order on Reconsideration, and Further
    Notice of Proposed Rulemaking* (*Order*) the Commission addresses
    cost recovery and other matters relating to the provision of
    telecommunications relay services (TRS)[^1] pursuant to Title IV of
    the Americans with Disabilities Act of 1990 (ADA).[^2] This *Order*
    contains, first, a *Report and Order* addressing: (1) cost recovery
    issues arising from the *TRS Cost Recovery MO&O & FNPRM*;[^3] (2)
    cost recovery issues arising from the *IP Relay Declaratory Ruling &
    FNPRM*;[^4] (3) issues arising from the Notice of Proposed
    Rulemaking contained in the *Second Improved TRS Order &
    NPRM*;[^5] (4) petitions seeking extension of the waivers set forth
    in the *VRS Waiver Order*[^6]; (5) the *711 Petition*;[^7] (6) the
    petition by a provider of VRS for "certification" as a TRS provider
    eligible to receive compensation from the Interstate TRS Fund[^8];
    and (7) the petition for limited waiver concerning Video Relay
    Service and interpreting in state legal proceedings.[^9] This
    *Order* also includes an *Order on Reconsideration* addressing
    petitions for reconsideration of three TRS matters: (1) the
    petitions for reconsideration of the June 30, 2003 *Bureau TRS
    Order*[^10] with respect to the per-minute compensation rate for
    VRS; (2) the *Second Improved TRS Order & NPRM*; and (3) the *Coin
    Sent-Paid Fifth Report & Order.*[^11] Finally, this *Order* contains
    a *Further Notice of Proposed Rulemaking* (*FNPRM*) seeking comment
    on various TRS-related matters relating to the two Internet-based
    forms of TRS, IP Relay and VRS. We also seek comment on issues
    concerning the TRS Advisory Council[^12] and the abuse of
    communications assistants (CAs) handling TRS calls. We have
    concluded that it is in the interest of administrative efficiency to
    consolidate the various proceedings into this *Order.*[^13]

2.  Over the past decade, the Commission has issued dozens of orders
    addressing the provision of telecommunications relay services.[^14]
    In these orders, the Commission has steadily expanded the scope of
    TRS and the features and services available to both persons with
    hearing and speech disabilities, and to other persons who desire to
    communicate by telephone with persons with hearing or speech
    disabilities.[^15] In this *Order*, we take another step toward
    fulfilling the goals of Title IV of the ADA by further refining the
    rules governing the provision of TRS. We also take, in the *FNPRM*
    below, what may be the first steps in expanding the forms of TRS
    that are mandatory TRS services. In this regard, this *Order* also
    reflects the vital role that broadband services can play in
    consumers' lives, the economy of our nation, and the fulfillment of
    important social policy objectives.

# Background

3.  The purpose of the ADA is "to provide a clear and comprehensive
    national mandate for the elimination of discrimination against
    individuals with disabilities."[^16] In adopting Title IV of the
    ADA, Congress recognized that persons with hearing and speech
    disabilities have long experienced barriers to their ability to
    access, utilize, and benefit from telecommunications services.[^17]
    As a result, Title IV requires common carriers offering telephone
    voice transmission services to *also* provide TRS throughout the
    area in which they offer service so that persons with disabilities
    will have access to telecommunications services, and provides that
    they will be compensated for their just and reasonable costs of
    doing so.[^18] The intent of Title IV is to further the
    Communications Act's goal of universal service by providing to
    individuals with hearing or speech disabilities telephone services
    that are "functionally equivalent" to those available to individuals
    without such disabilities.[^19]

4.  *TRS and the Design of the TRS Regulations.* Section 225 sets forth
    several overarching principles governing the provision and
    regulation of TRS. First, section 225 requires the Commission to
    ensure that TRS is available "to the extent possible and in the most
    efficient manner" to persons with hearing or speech disabilities in
    the United States.[^20] Second, section 225 requires that TRS
    provide "functionally equivalent" telephone service for persons with
    hearing or speech disabilities.[^21] Further, the statute requires
    that the Commission's implementing regulations encourage the use of
    existing technology and not discourage the development of new
    technology.[^22] Finally, the regulatory scheme distinguishes
    between *intra*state and *inter*state TRS services, and is
    reflected, in part, by the arrangement whereby states are
    responsible for the reimbursement of the costs of intrastate TRS and
    the Interstate TRS Fund is responsible for the reimbursement of the
    costs of interstate TRS.[^23] With the recognition of VRS and IP
    Relay as forms of TRS, new issues have arisen, including how to
    determine whether a particular IP Relay or VRS call should be
    reimbursed by a state or the Interstate TRS Fund, and the desire of
    entities that are not offering voice telephone services to become
    TRS providers. We address these issues in this *Order.*

5.  As we have noted, one of the fundamental premises underlying the TRS
    regulatory scheme is the distinction between *inter*state and
    *intra*state TRS. At the time section 225 and the implementing
    regulations were enacted, TRS calls -- as a functionally equivalent
    telephone service -- were placed over the Public Switched Telephone
    Network (PSTN). Therefore, it was possible under prevailing
    technology to automatically determine for every TRS call whether it
    was an *inter*state or *intra*state call. As a result, both the
    oversight of TRS and the mechanism for compensating providers for
    the costs of TRS, could be based on -- and were based on -- whether
    the common carrier was providing *intra*state TRS or *inter*state
    TRS. That situation ultimately evolved, however, and in the March
    2000 *Improved TRS Order & FNPRM,* the Commission recognized Video
    Relay Service (VRS) as a form of TRS. Since VRS generally involves
    the use of the Internet for one leg of the call to the CA, it is
    currently not possible to automatically determine the geographic
    location of that party to the call, and therefore to determine
    whether a particular VRS call is *intra*state or *inter*state.
    Similarly, in April 2002 we recognized that IP Relay was also a form
    of TRS; such calls present the same issue.[^24] Therefore, VRS and
    IP Relay have presented regulatory challenges not necessarily
    contemplated by a regulatory scheme largely based on the
    determination whether a particular call is *inter*state or
    *intra*state.

6.  The interstate/intrastate distinction is first reflected in the
    oversight of the provision of TRS by common carriers. Congress
    structured section 225 in such a way that although the Commission
    has jurisdiction over both *intra*state and *inter*state TRS, the
    states have the option to exercise primary jurisdiction over the
    provision of *intra*state TRS, via a mechanism whereby the
    Commission would review and certify individual state TRS
    programs.[^25] Congress explained that once a state has a TRS
    program certified by the Commission, the state is responsible for
    regulating the provision of *intra*state TRS within the parameters
    of its certified program.[^26] The House Report on the ADA states
    that "\[t\]he FCC's authority over the provision of intrastate
    telecommunications relay services \... is expressly limited by
    certification procedures ...whereby a state retains jurisdiction
    over the intrastate provision of telecommunications relay services.
    The Committee finds it necessary to grant the FCC such residual
    authority ... to ensure universal service to the hearing- and
    speech-impaired community."[^27] In short, as we noted in the
    *Improved TRS Order & FNPRM*, "\[w\]hile the statutory obligation to
    provide relay services falls to common carriers, the law gives
    states a strong role by considering carriers to be in compliance
    with this obligation if they operate in a state that has a relay
    program certified as compliant by this Commission."[^28]

7.  The interstate/intrastate distinction is also reflected in the cost
    recovery scheme; *i.e.,* the compensation of common carriers for
    their costs of providing TRS. There are two aspects to the cost
    recovery framework: (1) collecting "contributions' from "\[e\]very
    carrier providing interstate telecommunications services" based on
    "interstate end-user telecommunications revenues" to create a fund
    from which TRS providers may be compensated; and (2) the payment of
    money from the fund to eligible TRS providers to compensate them for
    the costs of providing eligible TRS services.[^29] With regard to
    collecting money to create the fund, section 225 provides that the
    costs caused by the provision of *inter*state TRS "shall be
    recovered from all subscribers for every interstate service," and
    the costs caused by the provision of *intra*state TRS "shall be
    recovered from the intrastate jurisdiction."[^30] With regard to the
    provision of *intra*state TRS, as a general matter the costs of
    providing *intra*state TRS are recovered by each state. [^31] No
    specific funding method is required for *intra*state TRS or state
    TRS programs.[^32] States with certified TRS programs generally
    recover the costs of intrastate TRS either through rate adjustments
    or surcharges assessed on all intrastate end users, and reimburse
    TRS providers directly for their intrastate TRS costs.

8.  With respect to *inter*state TRS cost recovery, the Commission has
    established a shared-funding mechanism based on contributions from
    all carriers that provide interstate telecommunications services.
    Those contributions are based on the carrier's interstate end-user
    telecommunications revenues.[^33] All contributions are placed in
    the Interstate TRS Fund, which is administered by the TRS Fund
    Administrator, currently the National Exchange Carrier Association
    (NECA).[^34] The fund administrator uses these funds to compensate
    "eligible" TRS providers[^35] for the costs of providing the various
    forms of TRS; presently, interstate traditional TRS, interstate
    Speech-to-Speech, interstate Spanish Relay service, IP Relay, and
    VRS. Fund distributions are made on the basis of a payment formula
    initially computed by NECA in accordance with the Commission's
    rules, and then approved or modified by the Commission.[^36] The
    reimbursement rate calculations are presently based on the
    cumulative average cost per interstate minute for each service.[^37]
    There are currently three different compensation rates for different
    forms of TRS: a rate for traditional TRS and IP Relay,[^38] a rate
    for STS, and a rate for VRS.[^39]

9.  *Commission Orders and Rulings.* The Commission issued its first
    order pursuant to Title IV of the ADA implementing TRS on July 26,
    1991.[^40] TRS became available on a nationwide basis pursuant to
    Commission regulations in July 1993.[^41] Since 1991, the Commission
    has revisited the regulations governing TRS on numerous occasions,
    in part, to make available to consumers new forms of TRS, and to
    amend the mandatory minimum standards[^42] to improve the quality of
    TRS, consistent with the goal of functional equivalency set forth in
    section 225.[^43] In March 2000, the Commission issued the *Improved
    TRS Order & FNPRM,* which, in part, concluded that VRS was a form of
    TRS, but tentatively concluded that the provision of VRS should not
    be mandatory given its technological infancy.[^44] The Commission
    nevertheless encouraged the use and development of VRS,[^45] and to
    this end stated that, on an interim basis, all VRS calls would be
    eligible for cost recovery from the Interstate TRS Fund.[^46] On
    December 21, 2001, the Commission released the *TRS Cost Recovery
    MO&O & FNPRM* which, among other things, sought additional comment
    on the appropriate cost recovery mechanism for VRS.[^47] On December
    31, 2001, the Wireline Competition Bureau[^48] issued the *VRS
    Waiver Order* waiving, until December 31, 2003, various TRS
    mandatory minimum standards as applied to VRS.[^49] In September
    2003, several petitions were filed to extend these waivers beyond
    December 31, 2003. We address those petitions below.[^50]

10. On April 22, 2002, the Commission released the *IP Relay Declaratory
    Ruling & FNPRM*, which further expanded the scope of TRS by
    concluding that IP Relay falls within the statutory definition of
    TRS. Although the Commission did not require that TRS providers
    offer IP Relay, the Commission authorized, on an interim basis,
    recovery of the costs of providing both intrastate and interstate IP
    Relay from the Interstate TRS Fund.[^51] In the *FNPRM,* the
    Commission requested comment on whether it should devise a method
    for allocating IP Relay calls as intrastate or interstate. We
    address that issue below.

11. On October 25, 2002, the Commission released the *Coin Sent-Paid
    Fifth Report & Order*, which resolved long-standing issues
    concerning access to TRS by depositing coins in a public payphone.
    We concluded that a technological solution to processing coin
    sent-paid calls was not available, and that the coin sent-paid
    functionality was not necessary to achieve functional
    equivalence.[^52] We therefore eliminated the requirement that TRS
    carriers and providers be capable of providing coin sent-paid TRS
    service from payphones.[^53] With regard to local (non-toll) calls,
    we mandated that carriers provide free TRS local calls from
    payphones.[^54] With regard to toll calls, we required carriers to
    allow the use of calling cards, prepaid cards, and collect or third
    party billing for TRS calls from payphones.[^55] We also declined to
    adopt a requirement that common carriers may not charge more than
    the lower of the coin sent-paid rate or the rate for the calling
    card, collect, or third-party billing, for TRS toll calls from
    payphones.[^56] Finally, we encouraged specific outreach and
    education programs to inform TRS users of alternatives to the use of
    coins when placing toll calls from payphones.[^57] We address a
    petition for reconsideration of this order below.

12. On June 17, 2003, the Commission released the *Second Improved TRS
    Order & NPRM*, which, in part, authorized the availability of
    signaling system 7 technology to TRS providers, and required TRS
    facilities to provide various new types of TRS calls, including
    two-line voice carry-over (VCO) and two-line hearing carry-over
    (HCO), HCO-to-TTY and HCO-to-HCO, and VCO-to-TTY and
    VCO-to-VCO.[^58] The Commission also granted waivers of certain of
    the newly adopted requirements for IP Relay and VRS,[^59] and
    changed the requirement that TRS facilities automatically forward
    emergency calls to the nearest Public Safety Answering Point (PSAP)
    to a requirement that the TRS facilities forward such calls to the
    appropriate PSAP.[^60] Further, the Commission mandated the offering
    of several additional TRS features on a functionally equivalent
    basis with voice telephone features.[^61] In the *NPRM*, the
    Commission asked for comment on such matters as (1) whether TRS
    facilities should receive a national security/emergency preparedness
    priority; (2) the security of IP Relay calls; (3) the handling of
    emergency calls from wireless telephones; and (4) whether and how
    the Commission should establish a national TRS outreach
    campaign.[^62] The Commission also sought comment on ways to improve
    the operational and technical aspects of TRS service.[^63] Finally,
    the Commission requested comment on whether and how it should
    address the provision of TRS in circumstances not covered by the
    rules, including eligibility of providers for compensation from the
    Interstate TRS Fund.[^64] We address these issues below. We also
    address the petitions for reconsideration of the *Second* *Improved
    TRS Order & FNPRM*.

13. On June 30, 2003, the Consumer & Governmental Affairs Bureau (CGB)
    released the *Bureau TRS Order* adopting interim compensation rates
    for the various forms of TRS for the July 2003-June 2004 Interstate
    TRS Fund year.[^65] The Bureau established interim compensation
    rates of \$1.368 per completed call minute for traditional TRS and
    IP Relay,[^66] \$2.445 per completed call minute for STS,[^67] and
    \$7.751 per completed call minute for VRS.[^68] The TRS fund
    administrator (NECA), had proposed a per-minute VRS compensation
    rate of \$14.023. On July 30, 2003, five parties filed petitions for
    reconsideration, challenging the interim VRS compensation rate of
    \$7.751 per minute and requesting that the Commission adopt NECA's
    proposed compensation rate of \$14.023. We address these petitions
    below.

# EXECUTIVE SUMMARY

14. In this *Report and Order*, we:

-   Continue, on an interim basis, the per-minute cost recovery
    methodology for VRS.

-   Adopt the per-minute cost recovery methodology for IP Relay.

-   Address the TRS features, requirements, and issues raised in the
    *Second Improved TRS Order & NPRM*. We decline to adopt a national
    outreach program or to permit the Interstate TRS Fund to fund such a
    campaign. We also decline at this time to adopt new rules providing
    that the Commission can certify providers as eligible for
    compensation from the Interstate TRS Fund.

-   Grant the extension of certain waivers of our TRS mandatory minimum
    standards as applied to the provision of VRS.

-   Grant Sprint's *711 Petition* requesting that the Commission declare
    that the manner in which it provides 900 pay-per-call services to
    users who access a relay center by dialing 711 fully satisfies the
    requirement that such service be offered by TRS providers. At the
    same time, we acknowledge that there are other ways that TRS
    providers can achieve this functionality.

-   Dismiss, without prejudice, the petition by a provider of VRS for
    "certification" as a TRS provider eligible for compensation from the
    Interstate TRS Fund. We note that neither section 225 nor our TRS
    regulations provide that the Commission can "certify" any TRS
    provider as eligible to receive compensation from the Interstate TRS
    Fund.

-   Deny the petition filed by a provider of VRS that requests limited
    waiver of our rule prohibiting CAs from refusing to handle calls in
    the context of VRS calls that are part of legal depositions or other
    state legal proceedings. We explain that when a VRS CA is acting as
    such pursuant to section 225 he or she is acting as an invisible,
    confidential conduit relaying the call between the parties to
    provide functionally equivalent telephone service. The fact that a
    party to the call may be making a VRS call to accomplish a
    particular purpose regulated by state law does not affect the role
    and obligations of the VRS CA under the congressionally mandated TRS
    scheme.

15. In the *Order on Reconsideration*, we:

-   Affirm in part, and modify in part, the Bureau's decision setting
    interim compensation rates for TRS from the Interstate TRS Fund as
    set forth in the June 30, 2003 *Bureau TRS Order.* More
    specifically, we conclude that the Bureau correctly determined the
    interim TRS compensation rates in the *Bureau TRS Order* for the
    various forms of TRS, but upon review of amended cost data submitted
    by the providers we modify the per-minute compensation rate for
    Video Relay Service, increasing it from \$7.751 per minute to
    \$8.854 per minute. Because the modified compensation rate of
    \$8.854 is based on information the Commission received from various
    providers subsequent to the release of the *Bureau TRS Order,* the
    new compensation rate shall apply to the provision of eligible VRS
    service effective September 1, 2003, through the end of the
    2003-2004 fund year.

-   Deny a joint petition for reconsideration of the October 25, 2002,
    *Coin Sent-Paid Fifth Report & Order*. We again decline to impose
    cost parity for toll calls via payphones made by TRS users and made
    by non-TRS users. We also decline to adopt a national outreach
    program with respect to this issue, or to impose specific outreach
    obligations on carriers relating to payphone calls.

-   Grant, in part, petitions for reconsideration filed in response to
    the June 17, 2003, *Second Improved TRS Order & NPRM* with respect
    to the requirement that TRS facilities route emergency *wireline*
    TRS calls to an "appropriate" PSAP, and amend our rules accordingly.

16. The Commission is also issuing a *Further Notice of Proposed
    Rulemaking (FNPRM)* seeking public comment on various matters
    concerning IP Relay and VRS, including the appropriate cost recovery
    methodology for VRS, possible mechanisms to determine which IP Relay
    and VRS calls are intrastate and which are interstate for purposes
    of reimbursement, whether IP Relay and VRS should become mandatory
    TRS services, whether IP Relay and VRS should be required to be
    offered 7 days a week, 24 hours a day, and whether, when, and how we
    should apply the speed of answer rule to the provision of VRS. We
    also seek comment on redefining the composition, functions, and
    responsibilities of the TRS Advisory Council, and on issues relating
    to the abuse of CAs by persons using TRS.

# REPORT AND ORDER 

## VRS COST RECOVERY (CC DOCKET NO. 98-67)

### Background

17. In the March 2000 *Improved TRS Order & FNPRM*, the Commission
    concluded that VRS is a form of TRS,[^69] but did not make it
    mandatory because VRS "remains in its technological infancy."[^70]
    At the same time, the Commission adopted a "special funding
    arrangement\[\]for \[VRS service\] by allowing the costs of all
    calls -- both *intrastate* and *interstate* -- to be reimbursed from
    the \[I\]nterstate TRS Fund" [^71] The Commission explained that the
    special funding arrangement was temporary and intended to speed the
    development of VRS, and that the Commission would "continue to
    assess the availability of the service and its technological
    development and determine at some point in the future when it best
    can be funded in the traditional manner."[^72] At the same time, the
    Commission directed the TRS Fund Advisory Council (Advisory Council)
    and the TRS Fund Administrator to develop cost recovery guidelines
    for the new types of TRS -- including VRS -- recognized in the
    order.[^73]

18. In response to that directive, on November 9, 2000, the Advisory
    Council and the TRS Fund Administrator submitted recommended TRS
    cost recovery guidelines for traditional TRS, STS, and VRS. [^74]
    The Advisory Council and the TRS Fund Administrator proposed the
    following four recommendations with respect to VRS cost
    recovery: (1) that the same methodology for rate development in
    place today for traditional TRS interstate cost recovery be used to
    develop the VRS reimbursement rate; (2) that providers should be
    reimbursed based on completed conversation minutes at a national
    average reimbursement rate; (3) that the TRS Center Data
    Request[^75] should be expanded to include specific VRS sections to
    capture VRS costs and demand separately; and (4) that due to its
    unique characteristics, a separate reimbursement rate based on VRS
    costs and demand should be calculated.[^76]

19. On December 6, 2000, the former Common Carrier Bureau (now the
    Wireline Competition Bureau) issued a Public Notice seeking comment
    on the recommended cost recovery guidelines.[^77] The Commission
    noted that the "recommendations propose methodologies for recovering
    costs associated with the provision of traditional \[TRS\], \[STS\],
    and \[VRS\]," and that in each case the recommendation is to apply
    "the traditional TRS cost recovery model to each service, but
    captur\[e\] minutes of use and costs separately and establish\[\]
    separate reimbursement rates."[^78] Sprint Communications
    Corporation (Sprint), MCI (WorldCom),[^79] and Communications
    Services for the Deaf (CSD) filed comments on the VRS
    recommendations.[^80] Sprint and CSD raised alternative proposals
    for VRS reimbursement.[^81]

20. On December 21, 2001, the Commission issued the *TRS Cost Recovery
    MO&O & FNPRM* addressing the Advisory Council and the TRS Fund
    Administrator's cost recovery guidelines. With respect to VRS, the
    Commission adopted two of the recommendations, concluding that given
    "the unique characteristics of VRS, a separate reimbursement rate
    for VRS should be calculated" and "the TRS Center Data Request
    should be expanded to include specific sections to capture
    separately VRS costs and minutes for this service."[^82] The
    Commission declined to adopt, however, the recommendations that the
    VRS compensation rate should be based on the same methodology in
    place for traditional TRS, and that the VRS reimbursement rate
    should be based on completed conversation minutes of use at a
    national average reimbursement rate.[^83] The Commission stated that
    it was "not convinced that this methodology will provide adequate
    incentives to carriers to provide \[VRS\]."[^84] The Commission
    noted that both Sprint and CSD argued that "compensation on a
    per-minute basis may not adequately compensate VRS providers for the
    substantial up-front capital costs required to provide the
    service."[^85] Therefore, the Commission stated that it would seek
    further comment on these issues. In the interim, the Commission
    directed the TRS Fund Administrator to adopt a VRS cost recovery
    rate using the average per minute compensation methodology used for
    traditional TRS. The Commission stated that the "interim rate shall
    be in effect until such time that the Commission is able to collect
    and assess additional data regarding what the permanent VRS
    compensation methodology should be."[^86]

21. As a result, the *TRS Cost Recovery MO&O* *& FNPRM* sought
    additional comment on the appropriate cost recovery mechanism for
    VRS. The Commission noted that both Sprint and CSD suggested in
    their comments that because of the relatively high initial capital
    expenditures required for VRS, a per minute compensation rate may
    not allow them adequate cost recovery.[^87] As a result, Sprint and
    CSD had proposed that, "for the present time, VRS compensation be
    based on a flat monthly payment for an assumed number of minutes
    rather than the completed conversation minutes of use at a national
    average reimbursement rate."[^88] The Commission concluded that
    Sprint and CSD's proposal was not sufficiently detailed, and
    therefore the Commission sought additional comment on these
    proposals. The Commission also encouraged parties to propose other
    compensation plans for the provision of VRS.[^89]

22. Only two parties, Sprint and MCI (WorldCom), submitted comments in
    response to the *TRS Cost Recovery MO&O* *FNPRM*. MCI (WorldCom)
    opposed Sprint's and CSD's flat rate proposal, contending that the
    current per minute compensation methodology is adequate and that
    their proposal would have the perverse affect of rewarding providers
    for declining levels of demand.[^90] In its February 2002 comments,
    however, Sprint withdrew its proposed flat monthly compensation
    plan, stating that it no longer believed it was necessary because
    the per minute reimbursement rate for providing VRS had increased to
    a level sufficient to be an incentive for providing VRS.[^91] As a
    result, there are no comments in the record opposing the original
    proposal of the TRS Advisory Council and TRS Fund Administrator that
    the VRS compensation rate should be based on the same methodology in
    place for traditional TRS, and that the VRS reimbursement rate
    should be based on completed conversation minutes of use at a
    national average reimbursement rate.

### Discussion 

23. We will continue at this time the interim arrangement adopted in the
    *TRS Cost Recovery MO&O & FNPRM* that permits VRS to be reimbursed
    using the same per-minute compensation methodology used for
    traditional TRS.[^92] As discussed in the *FNPRM* below, however, we
    seek additional comment on the appropriate cost recovery methodology
    for VRS and, in particular, whether a methodology other than a
    per-minute based compensation rate should be adopted for VRS. The
    determination of a "reasonable" per-minute compensation rate for VRS
    has presented serious challenges, in part due to issues concerning
    CA staffing, labor costs, and engineering costs particular to
    VRS.[^93] For this reason, we raise below whether an arrangement
    other than one based on a per-minute compensation rate predicated on
    predictions of minutes of use and costs would be more appropriate
    for VRS.

24. We also note that we have made clear that the current arrangement of
    compensating VRS providers from the Interstate TRS Fund for *all*
    VRS calls (*i.e.,* both interstate and intrastate) is a temporary
    one, and one that we would revisit at an appropriate time.
    Therefore, as also set forth below in the *FNPRM,* we seek comment
    on what mechanism might be adopted to satisfy the statutory
    requirement that "costs caused by interstate \[TRS\] shall be
    recovered from all subscribers for every interstate service and
    costs caused by intrastate \[TRS\] shall be recovered from the
    intrastate jurisdiction."[^94] We also seek comment below on whether
    the provision of VRS has sufficiently developed such that it should
    be included as a mandatory form of TRS.

## IP RELAY COST RECOVERY (CC DOCKET NO. 98-67) 

### Background

25. In the April 2002 *IP Relay Declaratory Ruling & FNPRM*, the
    Commission concluded that IP Relay falls within the definition of
    TRS,[^95] and that such services were eligible for cost recovery in
    accordance with section 225 and our regulations.[^96] Because "there
    is currently no automatic means for determining whether a call made
    via IP Relay is intrastate or interstate," the Commission
    "authorize\[d\], on an interim basis, recovery of all costs of
    providing IP Relay from the Interstate TRS Fund."[^97] As we
    explained, with IP Relay the caller contacts the TRS provider via
    the Internet through an Internet service provider (ISP). Because
    Internet addresses have no geographic correlates (*i.e.,* because
    Internet addresses are assigned without identifiers of geographic
    location), the record does not indicate that TRS providers can
    automatically determine the location of the caller, and therefore
    determine whether the call is interstate or intrastate.[^98]

26. The Commission nevertheless addressed possible methods by which the
    costs of IP Relay could be allocated between the states and the
    Interstate TRS Fund.[^99] First, the Commission noted that a method
    could be adopted that would identify the origination of an IP Relay
    call, and that "\[o\]ne possible method of doing so would require IP
    Relay callers to establish profiles that identify the state from
    which they are calling."[^100] Second, the Commission noted that a
    cost allocation formula could be developed based on an approximation
    of the mix of interstate/intrastate calls that were placed over IP
    Relay. In other words, a fixed allocator would be adopted by which
    the total costs of providing IP Relay would be apportioned between
    the Interstate TRS Fund and the states, and among the several
    states. Finally, the Commission noted that, "\[a\]lternatively, a
    determination could be made that cost allocation is not necessary,"
    and that IP Relay costs could be permanently recovered from the
    Interstate TRS Fund.[^101]

27. The Commission concluded that it would not "at this time ... adopt
    either of the methods ... of allocating costs between states and the
    Interstate TRS Fund," noting that each method had various
    shortcomings.[^102] Because, however, the Commission found that it
    was "in the public interest to authorize a compensation methodology
    for IP Relay quickly ... in order to encourage the development of
    this service, the Commission authorized, "on an interim basis, ...
    any current or prospective IP Relay provider to receive compensation
    for providing IP Relay-based TRS from the Interstate TRS Fund, using
    the same formula that is used for interstate PSTN-based TRS calls,
    until such time as a determination is made concerning the
    development of a permanent IP Relay cost recovery formula."[^103]
    The Commission also directed the Interstate TRS Fund administrator
    to develop cost recovery guidelines for IP Relay within six
    months.[^104]

28. In the accompanying FNPRM, the Commission requested "comment on
    whether we should attempt to devise a method for allocating calls as
    intrastate or interstate, and, if so, suggestions for how we may
    accomplish that goal."[^105] In this regard, the Commission
    tentatively concluded that the classification of an IP Relay call
    should be decided by the locations of the caller and the ultimate
    recipient, without regard to the location of any intermediate point
    of switching or exchange, including the IP Relay center.[^106] At
    the same time, the Commission acknowledged that "this methodology of
    allocation is problematic because ... there is no automatic means of
    determining the origination of IP Relay calls."[^107] The Commission
    therefore sought comment (1) on whether section 225 requires the
    Commission to develop a method for allocating IP Relay costs between
    the Interstate TRS Fund and among the several states, and, if
    so, (2) on what methods exist or could be developed to determine the
    location of an IP Relay caller.[^108] Specifically, the Commission
    requested comment on the use of caller profiles to determine the
    location of the caller, as well as on the use of a fixed
    allocator.[^109] The Commission emphasized that the scope of its
    inquiry was confined to IP Relay only as a means of functionally
    equivalent access to the voice telephone network and to the recovery
    of TRS costs from the Interstate TRS Fund pursuant to section 225 of
    the Act.[^110]

29. On June 17, 2002, the Commission issued a Public Notice, noting that
    the *IP Relay Declaratory Ruling & FNPRM* sought "comment on whether
    the Commission should attempt to devise a method for allocating \[IP
    Relay\] calls as intrastate or interstate."[^111] Nine individuals,
    corporations, and states filed comments, and two parties filed reply
    comments.[^112] Generally, all parties approved of compensating IP
    Relay from the Interstate TRS Fund as an interim measure. There were
    differing views, however, on the question of how to compensate IP
    Relay providers permanently. Many commenters maintain that the
    Interstate TRS Fund should continue to fund all IP Relay calls, and
    that such an arrangement is not precluded by the statute. For
    example, Telecommunications for the Deaf, Inc. (TDI) notes that
    section 225 requires only that the Commission's regulations
    "generally" provide for the allocation of costs, and therefore
    asserts that promoting IP Relay is sufficient reason for an
    exemption from allocating costs between the states and Interstate
    TRS Fund.[^113] TDI further notes that insisting on the allocation
    of costs would be excessively onerous to IP Relay providers and to
    the states because each IP Relay provider would be required to
    negotiate contracts with each of 50 states, and it is unlikely that
    all 50 states would be willing to contract with every IP Relay
    provider.[^114]

30. With respect to the specific proposals for how the Commission might
    separate IP Relay calls into intrastate and interstate calls for
    purposes of cost reimbursement, the commenters generally oppose
    registration. First, several commenters state that many users
    dislike customer profiles and are unwilling to submit personal
    information via the Internet.[^115] Further, commenters assert that
    registration may raise in customers the fear of long-distance
    charges, since long-distance calls via IP Relay are currently free
    of charge to the consumer. This fear could cause some consumers to
    supply false information in the registration process.[^116] AT&T
    asserts that a registration requirement would impose an additional
    burden on IP Relay providers.[^117] Only one commenter, Verizon,
    advocates the use of registration, and does so out of concerns about
    the use of IP Relay for calls both originating and terminating
    outside the United States, or for calls between parties where
    neither party has a hearing or speech disability.[^118]

31. With respect to the use of an allocator, AT&T calls the use of an
    allocator "potentially acceptable" but also states that this method
    is currently infeasible, without some means for determining the
    caller's location.[^119] Although MO PSC supports continued funding
    from the Interstate TRS Fund, it asserts that if the Commission
    decides to allocate the costs of IP Relay it should use the same
    allocator currently used for toll-free calls, *i.e.*, 60 percent of
    costs paid by the Interstate TRS Fund and 40 percent paid by the
    state.[^120] MCI (WorldCom) and TDI question the accuracy of any
    allocator, given the dearth of data yet available on IP Relay
    calling patterns.[^121] Sprint asserts that states whose residents
    use IP Relay infrequently will realize that they are subsidizing
    states with higher IP Relay usage, and may refuse to fund IP Relay
    in their states, which would require minimizing IP Relay
    availability to citizens in those states by the use of customer
    profiles.[^122]

32. On October 9, 2002, NECA, pursuant to the Commission's direction in
    the *IP Relay Declaratory Ruling & FNPRM*, filed its IP Relay cost
    recovery guidelines.[^123] In the "Findings" section of its filing,
    NECA stated that there was no automatic means of determining whether
    an IP Relay call is intrastate or interstate, and that a "resolution
    of this problem is not in the foreseeable future."[^124] NECA also
    stated that "\[r\]equiring all IP Relay users to register or create
    profiles is considered discriminatory, an invasion of privacy, and a
    deterrent to the use of this service."[^125] Further, NECA stated
    that use of a fixed allocator "could unfairly allocate costs between
    intrastate and interstate jurisdictions."[^126] NECA also stated
    that it would be "overly burdensome" on the states if some IP Relay
    costs were required to be recovered as intrastate.[^127] NECA's
    recommended cost recovery guidelines, however, did not directly
    address the allocation of costs or a means by which it could be
    determined which calls are interstate and which are intrastate.
    Rather, NECA simply recommended that because the characteristics of
    traditional TRS and IP Relay are basically the same except for the
    method of accessing the TRS facility, "the same national average
    rate development methodology and cost recovery reimbursement rate as
    traditional TRS service \[should apply to\] ... all IP Relay
    minutes."[^128] NECA did note that IP Relay costs could
    significantly increase "if providers are required to establish and
    maintain reporting and reimbursement relationships with every
    state," and that a fixed allocator "is not feasible at this
    time."[^129] NECA added that "\[o\]nly reimbursement from the
    Interstate TRS Fund for all IP Relay minutes will assure the growth
    of this innovative service in its early stages," and that the
    "Commission should revisit IP Relay cost recovery periodically to
    determine if changes in technology or other circumstances make a
    change in the funding mechanism workable."[^130]

33. On December 13, 2002, the Commission issued a Public Notice inviting
    comment on NECA's proposed cost recovery guidelines.[^131] Four
    parties filed comments in response to this Public Notice, and four
    parties filed reply comments.[^132] Commenters generally supported
    NECA's recommendation for compensation of IP Relay on a per-minute
    basis at the same rate as traditional TRS.[^133] Commenters also
    agreed that all IP Relay calls should continue to be compensated
    from the Interstate TRS Fund because it was impossible to
    automatically determine the location of an IP Relay caller[^134] and
    such an arrangement would promote the growth of IP Relay and
    competition among IP Relay providers.[^135]

### Discussion 

34. We are presented with two distinct cost recovery issues with respect
    to IP Relay: first, what cost methodology should we adopt to
    compensate providers for their costs of providing eligible IP Relay
    service, and second, by what mechanism can we determine (directly or
    by proxy) which IP Relay calls are interstate and which are
    intrastate so that the states, as well as the Interstate TRS Fund,
    are responsible for the cost of IP Relay. As discussed below, we
    conclude that the per minute reimbursement methodology, presently in
    place for all types of TRS, should continue to be used for IP Relay,
    and we therefore adopt that methodology for IP Relay. We seek
    further comment, however, in the *FNPRM* below, on what mechanism we
    might adopt to ensure that, consistent with congressional intent,
    only the costs of interstate IP Relay calls are compensated from the
    Interstate TRS Fund. Although, as noted above, this issue was
    previously raised, we believe that it is important to refresh the
    record on this issue and that we are able to address, in tandem,
    possible means of determining which calls are interstate and which
    calls are intrastate for both of the Internet based TRS services,
    *i.e.,* IP Relay and VRS.

35. *Cost Recovery Methodology.* We conclude that the per minute
    reimbursement methodology presently in place for all types of TRS
    should continue to be used for IP Relay, and therefore we adopt that
    cost recovery methodology for compensating eligible providers of
    this service. We agree with NECA that the same national average rate
    development methodology used for traditional TRS service should
    apply to the provision of IP Relay. We note that no party has
    opposed the continued use of this methodology for IP Relay, or is on
    record as supporting an alternative cost recovery approach.

36. At the same time, we question whether the same per-minute
    compensation rate should apply to both IP Relay and traditional TRS.
    We note, for example, that the use of IP Relay has matured to the
    point where presently the number of IP Relay minutes per month is
    over double the number of minutes of interstate traditional
    TRS.[^136] In addition, the costs associated with providing each
    service may be sufficiently different so that under the present
    arrangement the providers of one service may be significantly
    over-compensated and the providers of the other service may be
    significantly under-compensated. Therefore, in the *FNPRM* below we
    seek comment on whether we should direct the TRS Fund Administrator
    to calculate and propose for Commission adoption separate per-minute
    compensation rates for IP Relay and traditional TRS based on the
    respective costs and projected minutes of use for each of these
    forms of TRS.

37. *Determining which calls are interstate and which calls are
    intrastate.* The issue of determining what mechanism might be
    adopted to determine which IP Relay calls are interstate, and
    therefore compensable from the Interstate TRS Fund, and which calls
    are intrastate, requires us to address the tension among: Congress's
    directive that states compensate providers of *intra*state TRS and
    the Interstate TRS Fund compensates providers of *inter*state TRS;
    the fact that the record does not indicate that TRS providers can
    automatically determine the location of the person using the
    Internet-based leg of an IP Relay call, and therefore determine
    whether the particular call is interstate or intrastate[^137]; and
    Congress's directive that we encourage existing technology and not
    impair the development of new technology. As we recognized as much
    in the *IP Relay Declaratory Ruling & FNPRM,* the present
    arrangement of compensating all IP Relay calls from the Interstate
    TRS Fund was intended to be an interim one.[^138] Therefore, as
    noted above, we seek comment in the *FNPRM* below on what mechanism
    we might adopt to ensure that the Interstate TRS Fund compensates IP
    Relay providers only for the costs of interstate IP Relay calls, and
    that the states assume the burden of compensating providers of
    intrastate service.

## IMPROVED TRS MEASURES (CG DOCKET NO. 03-123)

38. In the June 2003 *Second Improved TRS Order & NPRM,* the Commission
    sought comment on additional issues concerning the provision of TRS,
    including other services and features that could further the
    statutory mandate of functional equivalency. We address these
    matters below.

### Emergency Preparedness for TRS Facilities and Services

39. *Background.* In the *Second Improved TRS Order & NPRM*, we noted
    that in 1988 the Commission created the Telecommunications Service
    Priority (TSP) Program as the regulatory framework to guide
    telecommunications carriers in repairing or providing new
    telecommunications services in the event of a disaster.[^139] The
    program was established to help reduce the chaos after a disaster
    when carriers may be overwhelmed with requests for repairs or new
    services. In accordance with the TSP rules, telecommunications
    services are prioritized so that the carriers can determine which
    services to repair first.

40. Under the TSP rules, entities engaged in national security and
    emergency preparedness (NSEP)[^140] activities that rely on
    telecommunications services to carry out these activities qualify
    for participation in the program. There are two NSEP categories:
    "Emergency NSEP" services and "Essential NSEP" services.[^141] These
    categories (and subcategories) set forth particular functions that a
    telecommunications service must support in order for the service to
    obtain a TSP designation, and therefore be eligible for priority
    restoration or provisioning before service is restored to non-TSP
    entities.[^142] A service designated under the TSP program is
    assured of restoration of existing circuits or provisioning of new
    circuits before service is restored to non-TSP services.
    Telecommunications lines serving federal, state, and local
    government agencies (such as 911 call centers), as well as private
    firms, can be covered by the program, provided they serve at least
    one of the enumerated national security or emergency preparedness
    functions.[^143]

41. The TSP program is a voluntary program. As a general matter,
    "service users" -- *i.e*., individuals or organizations supported by
    particular telecommunications services or lines --may make a request
    that particular telecommunications services upon which they rely
    receive an NSEP priority assignment.[^144] As we have noted, in so
    doing they must show that the telecommunications services support an
    NSEP function. These requests are directed to the Office of Priority
    Telecommunications (OPT) of the Department of Homeland Security's
    National Communications System (NCS). Non-federal TSP users (e.g.,
    state, local, foreign governments) require a federal sponsor.[^145]
    The FCC functions as a sponsoring federal organization.[^146] The
    FCC also provides regulatory oversight of implementation of the TSP
    system.

42. In the *Second Improved TRS Order & NPRM*, we noted that the NSEP
    priorities "do not presently address the provision of TRS."[^147] We
    also noted that, in most cases, TRS is the only means of
    communication between persons with hearing and speech disabilities
    and emergency services and other persons.[^148] The Commission
    therefore tentatively concluded that in the event of a disaster it
    is appropriate that TRS services be made available on the same basis
    that telephone service for the general public is made
    available.[^149] We also sought comment on whether our rules should
    be amended to provide for the continuity of operations of TRS
    facilities in the event of an emergency.[^150] We reasoned that if
    operation of the LEC and the TRS facilities were compromised during
    an emergency, both facilities would be reinstated
    simultaneously.[^151]

43. Although commenters generally support the notion that TRS facilities
    should have the same level of service restoration priority in the
    event of a disaster as assigned to LEC facilities,[^152] several
    commenters suggest that the NPRM was not entirely accurate in
    describing how the NSEP system works.[^153] Verizon notes, for
    example, that basic telecommunications services to the general
    public are not addressed by the NSEP priority system.[^154] Verizon
    also states that telecommunications carriers are not included in the
    NSEP because they are permitted to make repairs to their own
    networks before restoring service to those on the NSEP list. If
    telecommunications carriers did not make such repairs, none of the
    priority service repairs would work.[^155] Verizon suggests the
    Commission engage the expertise of the Commission's Network
    Reliability Interoperability Council or the TSP Oversight Committee
    before adopting a new set of rules that might be confusing or
    conflict with other national security priorities.[^156] More
    generally, several commenters caution that our proposal does not
    give clear enough guidance to carriers, and may have the unintended
    effect of slowing down a carrier's ability to respond to other
    priorities that are important for national security.[^157]

44. Only a few commenters addressed the questions raised in the *NPRM*
    concerning whether TRS providers and state TRS programs should be
    required to provide an operational plan, beyond that already
    required in our rules, to ensure the survivability and continued
    operation of TRS facilities in case of an emergency.[^158] The MD
    DBM urges the Commission to require all TRS providers to establish a
    formal agreement to support each other during emergency
    situations.[^159] The TDI Coalition suggests the Commission require
    TRS providers and state TRS programs to develop, and provide to the
    Commission, operational plans to address how they will respond in
    the event of an emergency affecting TRS service.[^160]

45. *Discussion*. We continue to believe that all appropriate steps
    should be taken to ensure that service to TRS facilities is made
    available in time of emergency, and that restoration of service to
    TRS facilities should occur, to the extent feasible, in tandem with
    restoration of dial tone service to the general public, thus
    ensuring that individuals with hearing or speech disabilities have
    service available on the same basis as individuals without such
    disabilities. We do not, however, adopt our tentative conclusion in
    the NPRM to assign at least the same NSEP priority to TRS that
    applies to telecommunications carriers or other telecommunications
    services available to the general public. As noted by several
    commenters, carriers are permitted to make repairs to their own
    networks before restoring service to those on the NSEP list.[^161]
    In addition, telecommunication services for the general public are
    *not* included in the priority system *per se*, but are to be
    restored only after the designated priorities -- such as restoring
    service to national security leaders, emergency service providers,
    and public health officials -- have been addressed.[^162] Since
    there is no priority assignment for the general public, according
    TRS providers the same priority as the general public would do
    nothing to ensure rapid recovery of TRS service.[^163]

46. The more relevant question is whether TRS facilities perform a
    function that falls within one of the NSEP categories so that
    certain telecommunications services or lines that support this
    function would be eligible for priority restoration. If the answer
    to that question is yes, the next step is to identify the particular
    telecommunications services and lines that should be restored. We
    believe, for example, that a TRS facility might assert that it falls
    within the "Public health, safety, and maintenance of law and order"
    category, and that therefore at least some of the circuits that
    connect a TRS facility to the switch might be given a priority
    designation.[^164] The particular circuits or lines that might be
    covered depend in large part, of course, on how calls to the
    particular TRS facility (e.g., 711 calls) reach the facility.

47. Because the TSP program is voluntary, we are not mandating that TRS
    facilities apply for priority status, but we strongly encourage them
    to enroll all qualifying services in the TSP program. In this
    regard, they will have to work with their telecommunications carrier
    to identify the particular circuits or lines that link the facility
    to the switch, or other circuits or lines upon which the facility
    relies to handle TRS calls. When asked to do so, we will sponsor
    their applications to the NCS, as we have with PSAPs.[^165]

48. Finally, we decline at this time to require TRS providers and states
    to provide an operational plan, beyond that already required in our
    rules, to ensure the survivability and continued operation of TRS
    facilities. However, we encourage the states and TRS providers to
    work together to ensure that TRS services continue to be available
    in the case of an emergency, whether this means allowing TRS
    facilities to remain open when a state of emergency is declared or
    allowing TRS employees to travel the roads when a weather state of
    emergency has been declared. We will revisit this issue in the
    future as necessary.

### Mandatory Minimum Standards (Operational Standards)

#### Security of IP Relay Calls

49. *Background.* In the *Second Improved TRS Order & NPRM*, the
    Commission sought comment on whether additional requirements might
    be necessary to ensure the security of IP Relay calls.[^166] We
    noted that IP Relay calls involve information packets that are sent
    via the Internet, and that the Internet does not have the same
    privacy protections as does traditional TRS over the PSTN. We
    therefore sought comment on whether IP Relay calls should have a
    level of security using encryption that is similar to that used in
    commercial transactions over the Internet. We also sought comment on
    whether other security measures exist or are expected that could be
    used by IP Relay providers to ensure the security of IP Relay
    transmissions.[^167]

50. Commenters addressing the issue of security of IP Relay calls
    generally agree that IP Relay users should be guaranteed the same
    standards of security and confidentiality that apply to traditional
    TRS,[^168] and assert that reliance on encryption to ensure the
    confidentiality of IP Relay calls is superior to other security
    measures available with current technology.[^169] A number of
    commenters also support security for Internet-based TRS
    transmissions that would be comparable to that used in protecting
    Internet commercial transactions.[^170] Other commenters, however,
    assert that a non-relay user of the Internet for communications such
    as instant messaging or email is not guaranteed encryption, and
    therefore it should not be mandated for IP Relay.[^171] The CA PUC
    states, for example, that the Commission may want to consider IP
    Relay to be functionally equivalent to other means of public
    Internet communication, not to commercial transactions, and cautions
    that, in fact, mandating certain security levels over the Internet
    may potentially dampen the development or application of new
    technologies for Internet access to relay.[^172] The MO PSC suggests
    that if a relay user's communication contains highly sensitive
    information, the user can make a traditional land line text
    telephone call, and forego IP Relay for that particular call.[^173]
    MCI (WorldCom) does not support measures such as registration,
    sign-ins, or passwords as a means to provide security for TRS
    calls.[^174] MCI (WorldCom) asserts that these steps would do
    nothing to increase confidentiality and that TRS users have
    consistently stated that requiring registration would violate the
    notion of functional equivalency.[^175] Several commenters also urge
    the Commission to not require multiple methods to ensure
    confidentiality*, i.e.* encryption *and* registration, sign-ins or
    passwords, because imposing such requirements would lead to delays
    in handling IP Relay calls.[^176]

51. *Discussion.* We believe that providers of IP Relay calls should
    adopt measures to ensure the confidentiality of those
    communications. We will not require, however, that providers adopt
    any particular technology in this regard. We will allow TRS
    providers to determine for themselves the level of security they
    will offer consumers, and the means by which they will protect the
    privacy of the Internet-based TRS callers and their personal
    identification information, so that no aspect of a relayed
    conversation is retrievable in any form. Because consumers may
    choose among several IP Relay providers, we are confident that
    consumers will factor their desire for security into their choice of
    provider. We will, of course, revisit this issue if it appears that
    voluntary efforts by the providers are not sufficiently ensuring the
    security of IP Relay calls.

#### Emergency Call Handling over Wireless Networks

52. *Background.* In the *Second Improved TRS Order & NPRM*, we noted
    that dialing 911 is the most familiar and effective way of reaching
    help in an emergency, and that PSAPs are required to be able to
    receive direct calls from persons who use a TTY.[^177] We also noted
    that calling 911 via a TTY is the preferred method for reaching
    assistance. Nevertheless, persons with disabilities may also call a
    PSAP by dialing 711 (or another direct access number) to reach a TRS
    facility and CA, who in turn can call the PSAP. With respect to
    *wireline* calls, we concluded in the *Second Improved TRS Order &
    NPRM* that emergency calls made through TRS must be routed to the
    "appropriate" PSAP, not necessarily the "nearest" PSAP, based on the
    calling party's telephone number and its caller location
    information.[^178] With respect to *wireless* emergency calls made
    via a TRS facility, however, we noted that additional challenges
    remain with respect to determining the appropriate PSAP because
    there is no correlation between a wireless telephone number and the
    location of the person making the call that the TRS facility can use
    to determine the appropriate PSAP to call.[^179] We therefore noted
    that in the wireless context, in order to route an emergency call to
    the appropriate PSAP, the TRS provider must have an alternative way
    to identify the location of the caller and the telephone number for
    the appropriate PSAP for that location. We therefore sought comment
    on how TRS facilities might determine the appropriate PSAP to call
    when receiving an emergency wireless 711 call.[^180] We also sought
    comment on whether wireless carriers have the capability and should
    be required to transmit Phase I or Phase II E911 information to TRS
    facilities.[^181]

53. Some commenters urge us not to adopt a requirement that TRS
    facilities route wireless emergency calls made to the facility with
    a TTY device to an appropriate PSAP based on the location of the
    calling party because PSAPs are already required to be able to
    receive direct calls from TTYs pursuant to the ADA.[^182] Commenters
    also assert that such a mandate would raise serious implementation
    difficulties for both wireless carriers and TRS providers.[^183] TRS
    providers also generally oppose such a requirement.[^184] T-Mobile
    also emphasizes that the use of TRS facilities to answer and route
    emergency calls is not only at odds with the "direct access"
    requirement, but also makes such calls more time-consuming than
    direct TTY-911 calls and therefore potentially less effective.[^185]
    The TDI Coalition, however, asserts that functional equivalency
    requires that an emergency call from a wireless phone be treated in
    the same manner regardless of whether the call goes to the PSAP
    through a TRS facility via 711 or directly via 911.[^186]

54. *Discussion.* We find that it is premature to implement guidelines
    for TRS facilities routing wireless emergency TRS calls. We will
    defer further consideration of how TRS facilities should respond to
    such calls pending further implementation of the E911 requirements.
    At the same time, we will continue to monitor the handling of
    emergency calls via wireless networks by persons with hearing and
    speech disabilities, and if we determine that these calls are not
    handled in an efficient manner or in compliance with our regulations
    for E911 over wireless networks, we will revisit this issue. We also
    note that the record demonstrates that innovative methods have been
    developed that allow routing of wireless emergency calls through TRS
    facilities to an appropriate PSAP.[^187] SBC, for example, states if
    the wireless carrier can provide E911 Phase I or Phase II data, at
    least one of SBC's TRS facilities can receive this information, even
    though SBC does not have the capability to then route the 711
    wireless call along with the Phase I or Phase II E911 data received
    to an appropriate PSAP.[^188] This suggests that, under certain
    circumstances, it is technologically feasible to receive some
    emergency information and to route emergency calls to an appropriate
    PSAP. Finally, we continue to advise TRS users to call a PSAP
    directly via 911, rather than through a TRS facility, until such
    time as it is technologically feasible for TRS facilities to direct
    wireless emergency calls to an appropriate PSAP.[^189]

#### Non-Shared Language TRS

55. *Background.* Our regulations define "\[n\]on-English language relay
    service" as a "telecommunications relay service that allows persons
    with hearing or speech disabilities who use languages other than
    English to communicate with voice telephone users in a shared
    language other than English, through a CA who is fluent in that
    language."[^190] In the *1998 TRS NPRM*,[^191] we noted that "some
    TRS providers may be offering 'translation' services to TRS users
    (*i.e.,* communication between two parties who each use a different
    language) including Spanish-language and ASL \[American Sign
    Language\] translation services."[^192] We tentatively concluded,
    however, "that any such 'translation' TRS, especially foreign
    language translation services, are value-added TRS offerings that go
    beyond 'relaying' of conversation between two end users."[^193] At
    the same time, we asked whether an exception should be made for ASL
    translation services. We noted that ASL is a language unique to the
    deaf community," and therefore "ASL translation services may be
    necessary to provide 'functional equivalency' to ASL users."[^194]

56. In the *Improved TRS Order & FNPRM*, the Commission concluded that
    the provision of ASL translation service was necessary to provide
    "functional equivalency" to ASL users.[^195] We noted that ASL is a
    language with a syntax and grammar different than that of English,
    and that because many ASL relay users type in ASL syntax rather than
    in English syntax, a CA must be able to correctly translate the ASL
    text message to English in order to avoid translation inaccuracies.

57. In response to the *Improved TRS Order & FNPRM*, the Public
    Utilities Commission of Texas (TX PUC) filed a petition requesting
    that the Commission allow other non-shared language relay
    translation service (beyond ASL to English translation service) to
    be reimbursable from the Interstate TRS Fund.[^196] The TX PUC
    asserted that there is a great demand for the translation of
    non-shared language through TRS.[^197] For so many of these
    children, Spanish is the spoken language in their homes. However,
    because these children are educated in school in ASL and English,
    many deaf children of Spanish speaking families are not able to
    participate in family communications.[^198]

58. In the *Second Improved TRS Order & NPRM,* we noted that
    multi-lingual translation services through TRS might meet the unique
    needs of certain identifiable TRS user populations.[^199] We
    therefore sought comment on whether the Commission should find that
    *non-shared* (or multi-lingual) language translation service through
    relay is a form of TRS compensable from the Interstate TRS Fund.
    More specifically, we asked whether provision of such service is
    consistent with, or necessary under, our functional equivalency
    mandate. Recognizing new types of relay services offered since the
    Commission originally raised this question in 1998, we also asked
    how, if adopted, non-shared language TRS would be implemented for
    VRS, STS, and other forms of TRS, and how the service would be
    funded.

59. Commenters representing TRS providers and disability advocacy groups
    assert that non-shared language relay should be recognized as TRS
    because it provides functionally equivalent relay access to millions
    of deaf children, parents, or friends with Spanish speaking
    Americans who wish to communicate by telephone but cannot because
    the persons who are deaf have been educated in ASL and
    English.[^200] This support, however, is not unanimous. Several LECs
    and state utility commissions oppose a requirement that non-shared
    language TRS, whether traditional TRS or VRS, be reimbursed.[^201]

60. *Discussion.* We recognize that the provision of non-shared language
    relay service may satisfy a specific need for persons with hearing
    or speech disabilities desiring to communicate with persons who use
    a different language. Nevertheless, we affirm our conclusion in the
    *1998 TRS NPRM* that such a service exceeds the functional
    equivalency mandate.[^202] The Commission finds that non-shared
    language TRS is equivalent to a translation service, which is a
    "value-added" service for hearing parties.[^203]

61. We recognize, however, that states, in their efforts to tailor
    intrastate TRS to meet the needs of their citizenry while meeting or
    exceeding the Commission's minimum standards, may identify the need
    to offer non-shared language TRS. We support, and in fact encourage,
    states to assess the need for, and if appropriate offer, non-shared
    language intrastate TRS.[^204] The Commission does not find that
    offering non-shared language TRS conflicts with Commission rules,
    but rather is an example of an entity permissibly exceeding the
    mandatory minimum standards.[^205] We therefore agree with
    commenters that states and TRS providers should be able to make the
    determination on whether to offer non-shared language TRS.[^206]
    Because we find that this service is beyond the scope of section
    225, however, even though we encourage the voluntary provision of
    intrastate (or interstate) non-shared language TRS, non-shared
    language TRS is not reimbursable from the Interstate TRS Fund.[^207]

62. Sprint proposes that any non-shared language TRS offerings should
    require that at least one party be using English or ASL.[^208] We
    decline to adopt such a requirement. We believe that the
    determination whether to offer such services, and the possible
    combinations of languages, should be left to the states to
    determine.

### Mandatory Minimum Standards (Technical Standards)

#### Call Set-up Time

63. *Background.* In the *Second Improved TRS Order & NPRM*, the
    Commission noted that our TRS speed of answer rule currently
    requires that providers shall answer 85% of all calls within 10
    seconds.[^209] We further noted that after a call is answered, the
    TRS provider may require additional time to set-up the call, but
    that our rules currently do not specify a call set-up time and some
    consumers have expressed frustration with the length of time it
    takes to set up certain TRS calls. The Commission recognized that
    there may be several ways to reduce call set-up time, especially for
    non-traditional TRS calls. We therefore sought comment on how call
    set-up can be effectively and efficiently handled for the various
    forms and types of TRS with the aid of new technology or by any
    other methods. We also sought comment on whether the Commission
    should require a specific call set-up time for various types and
    forms of TRS calls, and if so, how such set-up time should be
    measured.[^210]

64. Nearly all commenters oppose any requirement that TRS providers
    complete the call set-up time for TRS calls within a specific period
    of time. They note, for example, that call set-up times vary
    significantly depending on the type of TRS call, the caller's
    disability, and the caller's preferences, making it difficult to
    generalize various call set-up times.[^211] Commenters also assert
    that specific call set-up times are not necessary because there is a
    financial incentive for TRS providers to set-up the calls as quickly
    as possible, since the time spent on setting up calls is not
    compensable from the Interstate TRS Fund.[^212] The TDI Coalition,
    however, suggests that the Commission could reasonably determine an
    average set-up time for the various forms and types of TRS, and
    require that a certain percentage of all call set-ups be completed
    within such a time. [^213]

65. *Discussion.* We decline to adopt either a standard call set-up time
    for all forms of TRS, or specific set-up times for the various forms
    of TRS and types of TRS calls. We believe that it would be difficult
    to determine appropriate set-up times, and that the established
    principle of not compensating the TRS providers for setting up the
    call is sufficient incentive for providers to continue to attempt to
    minimize this time period. In this regard, we urge TRS providers to
    set-up all TRS calls as expeditiously as possible. At the same time,
    we encourage consumers to file complaints should they experience
    unreasonable delays in setting up their TRS calls. Finally, we do
    not believe that TDI Coalition's suggestion for establishing
    standards for call set-up times, and mandating percentage-based
    compliance, would be more effective in reducing call set-up times
    than the inherent incentive a TRS provider has to minimize the
    non-compensable time their CAs are occupied.

#### TRS Facilities

##### Communication Access Real-time Translation

66. *Background.* In the *Second Improved TRS Order & NPRM*, the
    Commission explained that communication access real-time translation
    (CART) can be used to increase the speed of a TRS call.[^214] The
    Commission sought comment to determine whether TRS providers should
    offer CART or CART-type services to improve the speed of TRS. We
    requested detailed information regarding how CART, or similar
    technology and equipment, may be utilized by a TRS facility, as well
    as relevant technical requirements, CA training issues, and other
    challenges that may exist to providing this service through TRS.

67. Some commenters agree that CART's greater transmission speed may
    shorten the conversational lag in a TRS call.[^215] They generally
    note, however, that the use of CART by a TRS facility has several
    disadvantages. Several commenters note that there would be an
    insufficient number of CART-trained CAs to meet the demand for CART
    if it were required for TRS, and that therefore the labor costs for
    stenographers would increase and drive up the cost of providing
    TRS.[^216] MCI (WorldCom) and MO PSC assert that most TTY users
    would not realize increased communication speed from CART because of
    the limited transmission speed coming from the end user's TTY.[^217]
    Sprint also notes that stenographer-based CART and CART-type
    technologies may well become obsolete because of increasing advances
    in voice recognition technology.[^218] Although CART is offered in
    Maryland, its state TRS administrator proposes further study before
    determining whether CART should be required for TRS.[^219] On the
    other hand, because CART increases the speed of a TRS call and
    therefore makes it more functionally equivalent, and it is
    technologically feasible to use CART with TRS, the TDI Coalition
    recommends that we mandate the use of CART in the provision of
    TRS.[^220]

68. *Discussion.* We conclude that it would be premature to require the
    use of CART at this time. The record reflects that the use of CART
    by TRS facilities has several disadvantages that warrant further
    analysis. The record also demonstrates that CART is not the only
    technology available that is designed to increase communication
    speed in this context, and also that it is not economical to offer
    such service for conference calls.[^221] We will revisit this matter
    when it appears that CART or other technologies such as speech
    recognition technology develop to the point where they not only are
    effective in improving the transmission speed of a TRS call, but are
    also economically feasible to use for TRS.

##### Interrupt Functionality

69. *Background.* In the *Second Improved TRS Order & NPRM,* we sought
    comment on the technological feasibility of providing TRS consumers
    with interrupt functionality.[^222] We noted that this feature
    allows a TTY user to interrupt incoming text messages in order to
    convey a message back to the CA, so that the TRS conversation is
    more like a conventional telephone conversation in which each party
    can begin speaking before the other party has finished
    speaking.[^223] As a general matter, when a TTY user is typing or
    receiving a TTY message he or she cannot type in response until the
    sending party is finished typing on his or her TTY. We noted,
    however that some TRS providers were already offering some type of
    interrupt functionality.[^224] We sought additional information
    about how the interrupt functionality is being provided, whether any
    non-proprietary TTY protocols are able to support interrupt
    functionality, and the experiences consumers have had with use of
    this feature. We noted, for example, that Ultratec's TurboCode TTYs
    and other TTYs with this feature have been available for nearly a
    decade.[^225]

70. Commenters assert that there are no non-proprietary TTY protocols on
    the market that would enable TRS providers to offer interrupt
    functionality.[^226] The MD DBM and AT&T explain, for example, that
    although interrupt functionality can be made available with consumer
    premises equipment (CPE) or TTYs supported by non-Baudot protocols,
    [^227] the vast majority of existing TTYs are supported by the
    Baudot protocol for which only a proprietary type of interrupt
    functionality exists.[^228]

71. *Discussion.* We decline to mandate interrupt functionality at this
    time. First, we believe that it is not appropriate to mandate
    specific TRS features that can only be provided via proprietary
    technology. Second, TRS consumers are increasingly using other forms
    of TRS, such as IP Relay and VRS. With respect to VRS, it is
    possible for the consumer and VRS CA to interrupt one another
    because they see each other signing. With respect to IP Relay, it is
    also technologically possible for the consumer and the CA to
    interrupt each other.[^229] We nevertheless continue to encourage
    TRS providers to be innovative with new telecommunications
    technologies that would further place persons with hearing and
    speech disabilities on an equal footing with voice callers.

##### TRS Consumers' LEC Offerings

72. *Background.* In the *Second Improved TRS Order & NPRM*, we sought
    comment on the applicability of certain LEC features -- *i.e.,*
    anonymous call rejection, call screening, and preferred
    call-forwarding[^230] -- to TRS. These features are all services
    that affect how incoming calls to the subscriber will be handled or
    directed; the services respond to either the identification of the
    caller or the lack of such identification. We tentatively concluded
    that these features should be provided to TRS customers, whether the
    called party is the voice user or the TTY user, if they are offered
    by the subscribing TRS customer's local carrier *and* if the TRS
    facility can send Caller ID to the local carrier. We sought comment
    on this tentative conclusion, as well as on how these features or
    services could be implemented by TRS providers.

73. Commenting TRS providers note that they would be able to provide
    anonymous call rejection, call screening, and preferred
    call-forwarding to the extent that they have the necessary
    technology (such as Signaling System 7 (SS7)) and the TRS consumers
    subscribe to these features through their LEC.[^231] TRS providers
    explain that these features may be provided in a TRS call only when
    the TRS facility possesses the necessary technology to pass the
    subscriber's ten-digit Caller ID information to the LEC.[^232]
    Several TRS providers emphasize the need for the LECs' cooperation
    in giving the TRS provider access to the Caller ID information if
    the TRS provider is going to be able to provide these LEC-based
    services to the TRS consumers who subscribe to them.[^233]

74. *Discussion.* We conclude that TRS providers are capable of
    providing anonymous call rejection, call screening, and preferred
    call-forwarding as long as the TRS consumer seeking to use these
    features, whether the calling party or called party, subscribes to
    the service. The provision of these features is akin to provision of
    Caller ID, which we addressed in the *Second Improved TRS Order &
    NPRM*.[^234] In that order, we concluded that "when a TRS facility
    is able to transmit any identifying information, the TRS facility
    must pass through, to the called party, the number of the TRS
    facility, 711, or, if possible, the 10-digit number of the calling
    party."[^235] We also noted that "TRS providers are required to
    observe the Commission's rules pertaining to Caller ID and call
    blocking services."[^236] The same result applies here. Since the
    same technology that is used to transmit the Caller ID data also
    enables anonymous call rejection, call screening, and preferred
    call-forwarding, we require the offering of these features to the
    extent such features are provided by the subscriber's LEC and the
    TRS facility possesses the necessary technology to pass through the
    subscriber's Caller ID information to the LEC.

75. With respect to the LECs' cooperation in giving the TRS provider
    access to the Caller ID information for the TRS provider to be able
    to provide these LEC-based services to the TRS consumers who
    subscribe to them, we note that in the *Second Improved TRS Order*
    we required the Caller ID transmission to the extent that the
    providers have access to SS7 technology or similar technology.[^237]
    We reach a similar conclusion here and encourage LECs to allow TRS
    providers access to a subscriber's information that would enable the
    TRS provider to support these features. At the same time, we remind
    LECs not to interfere with TRS providers' ability to provide
    functionally equivalent TRS service under our rules, just as is the
    case with a consumer's ability to have equal access to his or her
    interexchange carrier of choice.[^238]

##### Talking Return Call

76. *Background.* Talking return call, sometimes referred to as
    "automatic call-back," is a feature widely available to non-TRS
    users, which allows a consumer to automatically call the last
    incoming telephone call received, whether or not the call was
    answered. To use this feature, the user enters a code (such as
    "\*69") to obtain the telephone number of the party that last called
    the user's telephone number. The customer will then receive by voice
    the telephone number of the last incoming telephone call. The
    feature also includes an additional option for the consumer to enter
    another code, such as "1," to request that the carrier call the
    telephone number of the last party that called the consumer.[^239]
    In addition, this feature can be used to automatically call a
    telephone number that has been busy once the called party hangs up
    (busy line monitoring).[^240] Because this feature relies on voice,
    it is largely unusable by persons who are deaf.

77. In the *Second Improved TRS Order & NPRM*, we noted that in certain
    circumstances the deaf TRS user might be able to use an automatic
    call back feature.[^241] We explained that we believed it was
    possible for the TRS facility to provide the identification of the
    last party who called the TRS consumer via the TRS facility (unless
    the caller's information was blocked by the caller). We also noted
    that if the TRS consumer is a TTY user, it may also be possible for
    the TRS facility to provide this information via a TTY interface
    (*i.e.,* by text), instead of the voice interface used by LECs. The
    Commission, therefore, sought comment on the feasibility of TRS
    providers offering this feature and whether this feature should be
    required as a mandatory minimum standard. The Commission also sought
    comment on whether it was feasible for the TRS provider to do busy
    line monitoring to determine when the line becomes idle and is able
    to receive a call.

78. Commenting TRS providers and the CA PUC agree that offering talking
    return call to the TRS user with a hearing disability would be
    either cost-prohibitive or technologically infeasible.[^242] Sprint
    contends that the TRS provider would have to build and operate a
    large database that would capture and store the last called number
    for each call placed through its TRS platform.[^243] Hamilton and
    the MO PSC contend that this feature depends on a TTY or CPE that
    enables such functionality.[^244] Hamilton points out that this
    feature is available only in a "station-to-station" environment, and
    not when an operator, or a CA in the case of TRS, is involved in the
    call.[^245] The TDI Coalition, however, emphasizes that because TRS
    providers have the obligation to ensure the functional equivalency
    of TRS, they should place much effort in facilitating the talking
    return call feature for TRS consumers.[^246]

79. With respect to busy line monitoring, some TRS providers oppose
    having to offer this feature because the TRS provider would have to
    undertake an extensive network build-up.[^247] For example, a
    provider would likely be required to have a separate line to monitor
    the busy line, and such "monitoring lines" would not be used for the
    provision of other TRS services, and therefore would be
    underutilized, increasing costs of providing TRS services.[^248]

80. *Discussion.* We will not require the talking return call and busy
    line monitoring features at this time. We find that the feasibility
    of TRS providers offering the talking return call feature depends on
    the technical capability of a TRS user's TTY or CPE, and that
    presently no TTY or CPE is capable of offering a LEC-based talking
    return call feature. We also agree with the commenters that it is
    not practical to offer busy line monitoring because requiring a CA
    to monitor a busy line involves the CA waiting idly on line for an
    unforeseeable length of time until the line becomes available, at
    which time the CA will need to call the TRS user to inform the TRS
    user of the intended called party's availability. Furthermore, our
    TRS reimbursement scheme does not provide for compensating a CA's
    idle time. We conclude that busy line monitoring would be unduly
    burdensome to the TRS provider and to the TRS user.

#### Technology

##### Speech Recognition Technology

81. *Background.* In the *Second Improved TRS Order & NPRM*, the
    Commission sought further comment on computer-assisted speech
    recognition technology (SRT), sometimes referred to as voice-to-text
    (VTT) technology, and its possible use in the TRS environment.[^249]
    We noted that SRT could significantly shorten the time it takes for
    the voice caller's message to be converted into text, and therefore
    could greatly improve the use of TRS. The Commission noted, however,
    that it lacked sufficient information on this technology to require
    its use by TRS providers, and therefore sought comment on the
    current status of the development of speech recognition technology,
    including the extent, if any, to which TRS providers have already
    integrated speech recognition technology into their operations.

82. Although some commenters note that use of SRT is becoming
    increasingly prevalent,[^250] other commenters also assert that
    further research and development of such technology is necessary
    before its use can be mandated for TRS. [^251] Several commenters
    also suggest that we should not mandate the use of SRT because the
    market, and not regulation, should drive its availability in the TRS
    industry.[^252] In addition, two commenters report that there is no
    non-proprietary SRT available for use by TRS providers.[^253]

83. *Discussion.* We conclude that it is premature to mandate the use of
    SRT by TRS facilities. Such technology remains in an experimental
    stage, and there is no non-proprietary SRT available for use by TRS
    providers. We will, however, closely monitor the development of SRT
    and may revisit this matter in the future.[^254] We believe that the
    use of any technology, such as SRT, that can substantially speed up
    a TRS call is important to the provision of TRS consistent with the
    functional equivalency mandate.

##### Transmission Speed

84. *Background.* In the *Second Improved TRS Order & NPRM*, we noted
    that text-based TRS calls generally take four times as long as
    similar voice-to-voice calls, and therefore that faster transmission
    speeds for text-based TRS calls would move the speed of such calls
    closer to that of voice-to-voice calls.[^255] We therefore sought
    comment on whether improved transmission speeds for the TTY leg of a
    TRS call is technologically feasible, and whether mandating improved
    transmission speeds would be compatible with legacy TTYs.

85. The few commenters on this issue have not proposed a specific
    requirement that would promote increased transmission speed. Rather,
    they recommend that we encourage continued research into this
    issue.[^256]

86. *Discussion.* We conclude that it is premature to mandate any
    particular transmission speed technology. Such technology continues
    to develop. At the same time, the sharp increase in the use of IP
    Relay and VRS may render this issue less relevant to the evolution
    and growth of TRS. Nevertheless, we will continue to monitor the
    development of technology that can enhance the transmission speed of
    TTY-based TRS calls.

##### TTY Protocols

87. *Background.* In the *Second Improved TRS Order & NPRM*, we noted
    that we previously sought comment on the use of new transmission TTY
    protocols, such as the V.18 protocol, for TTYs and similar products
    that might improve the interconnection of TRS facilities or TTYs
    with wireless devices.[^257] We also noted, however, that we had not
    received adequate information on this issue; therefore, we sought
    further comment regarding the extent to which innovative
    non-proprietary protocols for TTY products are currently being used
    and could be used by TRS providers. We note that our rules presently
    require that TRS be capable of communicating with ASCII and Baudot
    formats.[^258]

88. The record demonstrates that there are no new non-proprietary TTY
    protocols available on the market.[^259] The TDI Coalition
    nevertheless recommends that the Commission encourage the adoption
    and prompt implementation of new, faster TTY protocols as soon as
    they are commercially available and have widespread use among TTY
    users.[^260]

89. *Discussion.* We will not mandate the use of additional TTY
    protocols. We recognize that it is desirable to make TRS "universal"
    for all types of callers by ensuring its compatibility with various
    TTY protocols. The record reflects, however, that presently there
    are no TTY protocols available that are not proprietary, and we will
    not mandate proprietary protocols.[^261] Nevertheless, this is an
    issue we will continue to monitor.

### Public Access to Information and Outreach

90. *Background.* In the *Second Improved TRS Order & NPRM,* we noted
    that although our mandatory minimum standards require providers to
    take certain steps to inform the general public about TRS,[^262] the
    rule may not be fully effective. We therefore sought comment on a
    variety of issues regarding the public's access to information about
    TRS and outreach.[^263] In particular, we sought comment on the
    effectiveness of current outreach efforts, the availability of state
    programs to serve as models for a national program, and the types of
    additional outreach requirements that might be required for TRS
    providers and states.[^264] We also sought comment on the role, if
    any, federal funding should have in these efforts, including
    whether, if the Commission were to require a coordinated outreach
    campaign (instead of, or in addition to, the outreach required of
    individual TRS providers), such a campaign could be supported by the
    Interstate TRS Fund. We noted that our rules provide for payments
    from the Interstate TRS Fund to compensate eligible TRS providers
    for their reasonable costs of providing interstate TRS.[^265] We
    sought comment on whether the Interstate TRS Fund may be used to
    compensate third parties (*i.e.,* non-providers) for the cost of a
    coordinated outreach program.[^266] We also sought comment on
    whether the cost recovery provisions of section 225[^267] require
    that portions of an outreach campaign designed for implementation at
    the state level must be paid for by the states. Finally, we
    instructed the Consumer Advisory Committee (CAC) to review the
    issues concerning outreach as set forth in the *NPRM,* and make
    recommendations to the Commission regarding this matter.[^268]

91. Generally, the comments reflect a need for more outreach to educate
    the public about TRS and support a nationwide awareness campaign
    that is funded by the Interstate TRS Fund, and assert that the
    Commission has authority under section 225 to use the Interstate TRS
    Fund to fund outreach, whether by paying individual TRS providers'
    outreach expenses or by funding programs administered by the
    Interstate TRS Fund Administrator or a government body.[^269] For
    example, the TDI Coalition states that nearly all commenters (1)
    documented the need for a national outreach program, (2) supported
    the Commission's authority to implement such a program, and (3)
    provided useful insights into how such a national outreach program
    could be administered and funded.[^270] At the same time, the TDI
    Coalition recognizes there was a difference in opinion about how to
    fund a national outreach program.[^271] The TDI Coalition also
    asserts that the record clearly demonstrates that despite the
    Commission's exhortations for carriers to voluntarily engage in
    outreach, adequate successful outreach is not occurring.[^272]

92. AT&T cautioned, however, that TRS is now in a transitional phase
    between reliance on the circuit switched network and Internet-based
    relay services, and therefore that imposing additional and
    unnecessary obligations on TRS providers to popularize TRS based on
    an obsolescent technology may be inconsistent with the Commission's
    broader ADA mandate.[^273] The CA PUC also cautioned that
    establishing specific outreach standards or dollar requirements
    would not treat all providers fairly, and that in a multi-vendor
    environment (such as California) there is competitive pressure to
    provide TRS outreach to consumers.[^274] CSD points out that while
    some states have taken the initiative to broaden TRS awareness,
    others have done little. CSD also believes that some of the
    duplication occurring across the state programs can be eliminated
    through a single national campaign that would benefit all
    subscribers uniformly across America.[^275] CSD urges the Commission
    to permit the TRS Fund Administrator to procure the services of
    vendors to conduct a coordinated and comprehensive outreach program
    to promote universal access to all forms of TRS.[^276]

93. At the November 20, 2003, CAC meeting the recommendations of the TRS
    Working Group were adopted, and subsequently submitted to the
    Commission. The CAC reported that approximately 10% of outbound
    calls result in hang-ups by hearing parties, and that these hang-ups
    result from a lack of understanding of TRS; that current efforts for
    educating the public on TRS are not effective, as many hearing
    people still associate a relay service call with a
    telemarketing-type call; that although some states have a formalized
    outreach program, the programs are "branded" to an individual state
    or a specific relay provider; and that TRS information appearing in
    the front of local telephone directories was the most common form of
    outreach in many states, but that this information needs to be
    standardized and made more understandable.[^277]

94. The CAC stated that only a coordinated information and outreach
    program could achieve a "national consciousness" on the use and
    benefits of TRS. In this regard, the CAC believes that the
    Commission has authority to conduct a national TRS outreach campaign
    pursuant to its broad ancillary jurisdiction contained in section
    4(i) of the Act.[^278] The CAC notes that the Commission has, on
    many occasions, been involved with customer education or outreach
    programs to one extent or another.[^279] The CAC asserts that since
    the Commission has statutory authority to direct carriers to engage
    in a customer outreach program, and it also has authority to direct
    that such program be funded from TRS contributions from carriers and
    their customers. The CAC recommends that the TRS national outreach
    campaign be funded by monies approved by the Commission in whatever
    capacity it deems appropriate, whether that be the Interstate TRS
    Fund or another mechanism within the responsibility of the
    Commission. In addition, the CAC believes that a new advisory board
    should be established to operate under the chosen funding mechanism,
    which will advise the Commission on a national outreach campaign and
    direct the outreach payments to an approved professional outreach
    firm.

95. *Discussion.* We recognize that outreach is an issue of recurring
    and serious importance for TRS users. Those who rely on TRS for
    access to the nation's telephone system, and thereby for access to
    family, friends, businesses, and the like, gain little from the
    mandate of Title IV if persons receiving a TRS call do not
    understand what a relay call is and therefore do not take the call,
    or if persons desiring to call a person with a hearing or speech
    disability do not know that this can easily be accomplished through
    TRS (and dialing 711). We also recognize the strong sentiment
    reflected in the comments that outreach efforts to date have not
    been adequate. At the same time, we note that our regulations
    presently require that common carriers take certain steps to "assure
    that callers in their service areas are aware of the availability
    and use of all forms of TRS."[^280] These regulations reflect that
    it is the duty and responsibility of common carriers obligated to
    provide TRS to ensure that the public is aware of TRS.[^281]
    Moreover, state TRS programs play a vital role in providing
    outreach; pursuant to our state certification requirements, the
    states must ensure that the providers in their state program also
    provide outreach as required under our regulations.[^282]

96. Our current regulatory scheme, therefore, has not overlooked the
    importance of outreach, and we have reminded carriers on a number of
    occasions of their obligations under our rules.[^283] We now
    reiterate that common carriers obligated to provide TRS must take
    steps to educate the public about TRS. We take this opportunity to
    clarify that the responsibility for outreach lies with all carriers
    to "assure that callers in their service areas are aware of TRS. The
    term 'callers' refers to the general public, not just consumers with
    speech and hearing disabilities. It is crucial for everyone to be
    aware of the availability of TRS for it to offer the functional
    equivalence required by the statute."[^284] In this regard, given
    the continued existence of some anecdotal evidence indicating that
    recipients of TRS calls may hang-up on the calls, and at the same
    time the sharp increase in the use of TRS generally, the common
    carriers obligated to provide outreach might consider directing some
    of their outreach efforts towards the general public.

97. We decline to permit or require the Interstate TRS Fund to fund a
    national outreach campaign. We have noted in the past the question
    whether the Interstate TRS Fund can fund such a program.[^285] Even
    apart from that issue, however, we conclude that the cost of an
    effective *national* outreach campaign would be prohibitive, with
    uncertain outcomes. Further, the amount of money that the Interstate
    TRS Fund might devote to an outreach campaign would have to be
    balanced with our efforts in other parts of this *Order* (and in
    other recent orders) to more precisely define and manage the costs
    that determine the compensation rates from the Interstate TRS Fund
    in an effort to safeguard the integrity of the fund. These costs, as
    we have noted, may include costs attributable to reasonable outreach
    efforts, and in this way some of the costs for outreach are already
    supported by the Interstate TRS Fund. We also note that the majority
    of TRS calls are local and intrastate, which suggests that the state
    TRS providers and state TRS programs should be taking the lead in
    providing meaningful outreach.

98. Finally, we decline to implement the recommendation of the CAC that
    we charge it with a continuing role in TRS outreach planning and
    implementation. We appreciate their willingness to continue in this
    capacity; however, with our recognition that it is ultimately the
    responsibility of the common carriers to provide effective outreach,
    it is unnecessary to further impose upon the CAC at this time. At
    the same time, we suggest the CAC develop voluntary Best Practice
    Guidelines for state TRS programs, TRS providers, and common
    carriers. We will work with the working group on this effort, and
    will ensure that the results of this effort, and other relevant
    materials, are available on our website so that common carriers, TRS
    providers, state programs and advocates will have the opportunity to
    share their outreach ideas and approaches. In this regard, we also
    direct the Consumer & Governmental Affairs Bureau to take concrete
    steps through educational and outreach efforts to further enhance
    public awareness of TRS. In addition to making factsheets and other
    informational materials available for dissemination through the
    Commission\'s web site and national consumer call centers, the
    Commission will launch a comprehensive outreach campaign that will
    include participating in conferences and other events that provide
    opportunities for Commission staff to further educate not only users
    of TRS, but also the general public, about TRS. Finally, the
    Commission will provide media outlets likely to reach individuals
    who use TRS, as well as those of general distribution, with
    information about the availability of, and further developments in,
    the provision of TRS.

### Procedures for Determining TRS Providers' Eligibility for Receiving Payments from the Interstate TRS Fund

99. *Background.* In the *Second Improved TRS Order & NPRM*, we noted
    that there is no federal certification process for TRS providers
    seeking compensation from the Interstate TRS Fund for the provision
    of eligible TRS services.[^286] Presently, our regulations provide
    for the certification of state TRS programs,[^287] and that TRS
    providers seeking compensation from the Interstate TRS Fund may
    establish their eligibility by showing that they operate "under
    contract with and/or by certified state TRS programs."[^288] In
    these circumstances, the state program is responsible for ensuring
    that the provider offers its services in compliance with the TRS
    mandatory minimum standards. In addition, our regulations currently
    provide that TRS providers may establish their eligibility by
    showing that they are "owned by or operated under contract with a
    common carrier providing interstate \[TRS\] services,"[^289] or are
    "\[i\]nterstate common carriers offering TRS pursuant to
    64.604."[^290] In these circumstances, however, because of the
    absence of any certification process, there is no means by which the
    Commission can determine whether the providers are offering the TRS
    services in compliance with our rules. For this reason, we sought
    comment on whether, and if so, how, we should amend our rules to
    address the eligibility of TRS providers for compensation from the
    Interstate TRS Fund in those circumstances not presently covered by
    our regulations.[^291]

100. We sought comment on proposed rules that would require the
     Commission to certify a TRS provider desiring to offer TRS
     independent of a certified state program or eligible common carrier
     providing TRS and to receive compensation from the Interstate TRS
     Fund.[^292] Further, we sought comment on whether the Commission
     should institute a certification process specifically for providers
     of IP Relay, VRS, and any other technology that does not fit easily
     into the traditional separation of intrastate and interstate
     services, for the period of time that such services are totally
     reimbursed from the Interstate TRS Fund.[^293] We also sought
     comment on whether we should require all TRS providers seeking
     reimbursement from the Interstate TRS Fund to apply to the
     Commission, under the rules proposed above, regardless of their
     involvement in a certified state program.[^294]

101. Commenters generally agree that we should continue allowing
     interstate TRS providers to be reimbursed from the Interstate TRS
     Fund so long as the TRS provider participates in a certified state
     TRS program, without having a federal certification requirement.
     Commenters also generally agree, however, that a federal
     certification requirement is appropriate if a TRS provider does not
     participate in a state TRS program, is not a common carrier, and is
     providing Internet-based TRS, such as IP Relay and VRS.[^295] In
     this regard, the MO PSC[^296] and Sorenson,[^297] among others,
     assert that a federal certification process should be an
     alternative to participating in a state TRS program, and not an
     additional regulatory requirement for new or existing TRS
     providers. SBC opposes a certification requirement for existing TRS
     providers, and believes that imposing the proposed federal
     certification or other requirements on TRS providers that already
     qualify for federal reimbursement is wholly unnecessary and would
     prove duplicative, inefficient, wasteful, and ultimately burdensome
     for these providers.[^298]

102. Sorenson states that the current requirement that a non-common
     carrier be associated with a certified state program creates a
     burden for potential TRS providers, discouraging potential TRS
     providers that are unfamiliar with state regulatory
     processes.[^299] Sorenson therefore contends that a federal
     certification process would reduce the administrative and
     regulatory costs experienced by potential TRS providers and ensure
     they are not stymied by individual state regulatory processes.
     [^300] The TDI Coalition asserts that it is vital that measures be
     implemented to ensure that interstate TRS providers provide quality
     of service, and that a federal certification program can ensure a
     baseline national level of quality, consistency of service, and
     outreach requirements.[^301] The TDI Coalition strongly urges us to
     establish a federal TRS certification program to ensure the quality
     provision of TRS when there is no state program oversight of
     interstate TRS providers.[^302]

103. *Discussion.* We will defer at this time any decision about
     requiring Commission certification of providers seeking
     compensation from the Interstate TRS Fund, but invite further
     comment on this issue in the *FNPRM* below as part of our broad
     inquiry into issues relating to the provision, compensation, and
     oversight of IP Relay and VRS. As a general matter, we recognize
     that the underlying issue we are facing is two-fold: (1) how to
     define those entities providing TRS that are eligible for
     compensation from the Interstate TRS Fund for providing eligible
     services; and (2) how to ensure that such entities are providing
     TRS in compliance with the TRS mandatory minimum standards. With
     regard to the first point, our regulations set forth the
     eligibility requirements for TRS providers seeking compensation
     from the Interstate TRS Fund.[^303] As a general matter, we have
     construed these requirements to require eligible providers to be
     either part of a state program or to provide service under contract
     with another provider obligated to provide TRS services.[^304]
     Because Title IV puts the obligation on the entities providing
     telephone transmission service to also offer TRS, and also grants
     states the primary jurisdiction over the provision of TRS, we
     believe that requiring eligible providers to fall into one of these
     categories is consistent with the statutory scheme.[^305]

104. With regard to ensuring that TRS providers meet our applicable
     mandatory minimum standards, presently all states have certified
     state TRS programs, which are primarily responsible for providers'
     compliance with our rules. Although it is conceivable that there
     may be eligible TRS providers that neither provide service under
     contract with another provider obligated to provide TRS services or
     operate outside of any state program (*e.g.,* if a state no longer
     has a certified program), we do not believe that that possibility
     warrants the adoption at this time of a new regulatory scheme for
     TRS providers. We also note that the complaint process provides a
     mechanism by which we can learn about service problems and take
     necessary corrective action when it is not possible for a state to
     address the matter.[^306] Finally, we note that to the extent we
     adopt separation of cost rules for Internet based services
     presently compensated solely from the Interstate TRS Fund, and
     therefore require the states to fund the intrastate calls, state
     oversight of such services will necessarily follow. For these
     reasons, we will not adopt a procedure at this time by which
     providers seeking compensation from the Interstate TRS Fund must be
     certified by the Commission, but will seek further comment on this
     issue below with respect to providers of IP Relay and VRS.

## VRS WAIVERS OF TRS MANDATORY MINIMUM STANDARDS

### Background

105. In 2001, Hamilton and Sprint filed requests for waiver of certain
     aspects of the *Improved TRS Order & FNPRM* relating to the TRS
     mandatory minimum standards as applied to the provision of VRS. On
     December 31, 2001, the Commission issued the *VRS Waiver Order*
     granting, for a period of two years ending December 31, 2003, the
     requests for waiver.[^307] The waivers were for the following TRS
     requirements: (1) types of calls that must be handled; (2)
     emergency call handling; (3) speed of answer; (4) equal access to
     interexchange carriers; and (5) pay-per-call services.[^308]

106. In September 2003, Hamilton, Hands On,[^309] and AT&T filed
     petitions to extend these VRS waivers.[^310] Hamilton also seeks
     waiver of voice initiated calls, including voice carry over
     (VCO)[^311] and Speech-to-Speech (STS),[^312] as well as hearing
     carry over (HCO).[^313] In addition, Hamilton requests that, to the
     extent necessary, we waive the automatic call forwarding
     requirement in circumstances where the called party is a VRS
     user.[^314] Further, Hamilton seeks clarification that VRS
     providers need not provide STS or Spanish Relay.[^315] Finally,
     these parties request that we conform the various IP Relay and VRS
     waiver expiration dates, and combine the required annual reporting
     requirements for IP Relay and VRS into one annual filing.

107. On October 6, 2003, Hamilton's and Hands On's *Petitions* were
     placed on Public Notice.[^316] On October 8, 2003, AT&T's
     *Petition* was placed on Public Notice*.*[^317] In response to the
     Public Notices*,* three parties filed comments. [^318] No reply
     comments were filed.

108. On December 12, 2003, Hands On filed an amendment to its waiver
     request, asserting that VRS should be made a mandatory service and
     that, relatedly, the speed of answer waiver should be for only one
     year, not five years (as Hands On originally requested).[^319]
     Hands On summarizes that making VRS a mandatory TRS service, and
     requiring VRS providers to meet the speed of answer rule, are
     essential steps to making VRS functionally equivalent to voice
     telephone service.[^320] Hands On's amended filing followed CSD's
     November 25, 2003, amendment to its comments, wherein CSD asserted
     that VRS should be a mandatory TRS service and that the speed of
     answer requirement should be waived for only one year.[^321]

### Discussion

#### Extension of TRS Waivers Granted in the December 31, 2001, *VRS Waiver Order*

109. Our rules set forth operational, technical, and functional
     mandatory minimum standards applicable to the provision of
     TRS.[^322] These standards apply to all forms of TRS when they are
     offered, unless they are waived. Therefore, for a provider to be
     eligible for reimbursement from the Interstate TRS Fund[^323] for
     the provision of TRS, the provider must either meet all applicable
     mandatory minimum standards or request and receive a waiver of the
     standards.

110. In analyzing the applicability of our TRS mandatory minimum
     standards to VRS, we consider established legal standards for
     waiver of the Commission's rules. As we have noted, the Commission
     will adhere strictly to its rules unless a party can demonstrate
     that "in the public interest the rule should be waived."[^324]
     Furthermore, the Commission may only waive a provision of its rules
     for "good cause shown."[^325] The Commission must take a "hard
     look" at applications for waiver and must consider all relevant
     factors when determining if good cause exists.[^326] The party
     petitioning the Commission for a waiver bears the heavy burden of
     showing good cause: "\[an\] applicant \[for waiver\] faces a high
     hurdle even at the starting gate."[^327] 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."[^328] Finally, we have also regularly
     reminded that waiver of one or more portions of the Commission's
     rules does not excuse an applicant from compliance with the
     Commission's other requirements.[^329]

111. Applying these standards, we find good cause exists to grant
     Hamilton's, Hands On's, and AT&T's waiver requests, to the extent
     indicated below, with respect to the five TRS requirements
     originally waived in the December 31, 2001, *TRS Waiver Order*, and
     that doing so is in the public interest. As set forth below, these
     waivers are granted provided that VRS providers submit an annual
     report to the Commission, in narrative form, detailing: (1) the
     provider's plan or general approach to meeting the waived
     standards; (2) any additional costs that would be required to meet
     the standards; (3) the development of any new technology that may
     affect the particular waivers; (4) the progress made by the
     provider to meet the standard; (5) the specific steps taken to
     resolve any technical problems that prohibit the provider from
     meeting the standards; and (6) any other factors relevant to
     whether the waivers should continue in effect. Further, as
     requested by the parties and for administrative convenience, VRS
     providers may combine the reporting requirement established in this
     Order with existing VRS/IP Relay reporting requirements scheduled
     to be submitted annually on April 16^th^ of each year pursuant to
     the *IP Relay Order on Reconsideration* and the *Second Improved
     TRS Order & NPRM*.[^330] Further, for administrative convenience,
     and also consistent with the *IP Relay Order On Reconsideration*
     and the *Second Improved TRS Order & NPRM*, all waivers granted
     herein, with the exception of emergency call handling and speed of
     answer, will expire on January 1, 2008. Because the speed of answer
     issue is raised below in the *FNPRM,* the waiver for VRS of the
     speed of answer requirement will end on January 1, 2006, or at the
     time the Commission adopts a speed of answer rule for VRS,
     whichever is earlier. The waiver for emergency call handling will
     expire on January 1, 2006.

112. As set forth below, we extend the waivers of the following
     mandatory minimum standards for providers of VRS: (1) types of
     calls that must be handled; (2) emergency call handling; (3) speed
     of answer; (4) equal access to interexchange carriers; and (5)
     pay-per-call services.

113. *Types of Calls.* Commission rules require TRS providers to handle
     any type of call normally handled by common carriers.[^331] In the
     *VRS Waiver Order,* the Commission granted VRS providers a two-year
     waiver of the requirement to offer operator assisted calls and to
     bill certain types of long distance calls to the end user.[^332]
     The Commission conditioned this waiver on VRS providers allowing
     "VRS calls to be place\[d\] using calling cards and/or
     provid\[ing\] free long distance calls during the waiver
     period."[^333]

114. Petitioners contend that extension of this waiver is necessary
     because it continues to be technologically infeasible for VRS
     providers to determine if a VRS call is local or long
     distance.[^334] Petitioners and commenters also agree that VRS
     providers do not have the billing mechanism to handle operator
     assisted calls or to bill long distance calls.[^335]

115. We agree with the parties that it remains technologically
     infeasible for VRS providers to offer operator assisted calls and
     to bill for certain types of long distance calls because one leg of
     the VRS call is transmitted over the Internet.[^336] We therefore
     grant VRS providers a waiver of this TRS requirement until January
     1, 2008, conditioned on the filing of an annual report with the
     Commission as indicated above. We will also continue to require VRS
     providers to allow calls to be placed using calling cards and/or to
     provide free long distance calls during the waiver period.

116. *Emergency Call Handling.* Our rules require TRS providers to
     automatically and immediately transfer emergency calls to an
     appropriate public safety answering point (PSAP).[^337] The *VRS
     Waiver Order* granted VRS providers a two-year waiver of this
     requirement, but also required VRS providers to clearly explain on
     their website and in any VRS promotional materials "the
     shortcomings and potential dangers of using VRS to place an
     emergency call using 911."[^338]

117. Petitioners contend that extension of this waiver is appropriate
     because VRS users gain access to VRS via a computer and Internet
     address, rather than via a telephone, and therefore VRS providers
     do not receive the automatic number identification (ANI) of the
     calling party. As a result, the VRS providers cannot identify the
     caller's location to automatically pass that information on to the
     PSAP. Commenters agree that, for this reason, this requirement
     should be waived for VRS providers.[^339]

118. The record reflects that VRS providers currently do not have the
     technology to automatically transfer emergency calls, with the
     caller's location information, to the appropriate emergency service
     provider.[^340] We also note that no party, including those in the
     disability community, filed comments opposing an extension of the
     emergency call handling waiver for VRS providers. Therefore,
     because it is currently technologically infeasible for VRS
     providers to automatically and immediately transfer emergency calls
     to the appropriate PSAP, we waive this TRS mandatory minimum
     standard. Because of the importance of emergency call handling,
     however, this waiver will expire on January 1, 2006, and is
     conditioned on the filing of an annual report with the Commission
     as indicated above. In addition, we will continue to require VRS
     providers to inform VRS users in their promotional materials and on
     their website of the potential dangers of using VRS for emergency
     calls.

119. *Speed of Answer.* Our rules mandate that 85 percent of relay calls
     must be answered within 10 seconds "by any method which results in
     the caller's call immediately being placed, not put in a queue or
     on hold."[^341] Because this rule is based on projected call
     volumes and such projections are difficult to make for a new
     service, the *VRS* *Waiver Order* waived this TRS mandatory minimum
     standard for VRS providers.[^342] The Commission's aim was to
     encourage more entrants into the VRS market and help provide more
     time for technology to develop.[^343] The Commission also reasoned
     that because demand for VRS was undetermined, the 85/10 rule might
     keep potential VRS providers out of the market, thereby hindering
     the development and growth of VRS.[^344]

120. As a general matter, petitioners assert that this waiver should be
     extended because VRS is still in its infancy, it is not a mandatory
     TRS service, and VRS providers do not have sufficient data with
     which to determine staffing needs to comply with this rule.[^345]
     Petitioners and commenters contend that VRS is still in a
     "start-up" period, and that during this period staffing
     requirements may not be clear, and therefore available staffing may
     not be sufficient to promptly handle all of the incoming VRS calls
     during times of high demand.[^346] CSD and Hands On, however,
     although initially supporting a five-year waiver of this
     requirement,[^347] assert that this waiver should be granted only
     for one year.[^348] CSD rests its assertion on its view that the
     interim reduction in the VRS compensation rate has resulted in a
     "less than functionally equivalent" Video Relay Service because, in
     part, the lower compensation rate has made it difficult for them to
     meet the speed of answer rule.[^349] In other words, CSD suggests
     that the compensation rate is necessarily tied to the standard of
     service that is provided, and therefore that by eliminating the
     waiver for speed of answer the "functionally equivalent bar" will
     be raised for all VRS providers, and the VRS compensation rate will
     ultimately reflect a higher standard of service, not a lower
     standard of service.[^350] CSD nevertheless asks for a one-year
     waiver so that providers can prepare to meet the 85/10 standard
     under a final (*i.e.,* non-interim) compensation rate.[^351] Hands
     On, in its amendment to its waiver request, agrees with CSD,
     asserting that the only reason it cannot meet the speed of answer
     rule is cost.[^352] Hands On therefore requests that the waiver of
     the speed of answer rule be for only one year. Hands On further
     suggests that after one year the standard for VRS should be that 85
     percent of all calls must be answered within 20 seconds, instead of
     the 10 seconds set forth in the rule.[^353]

121. We find that VRS will continue to benefit from an extension of the
     waiver of our speed of answer rule, and therefore we waive our
     speed of answer requirement as set forth herein. We condition this
     waiver on VRS providers submitting to the Commission an annual
     report as indicated above detailing, and which also summarizes the
     provider's speed of answer data for the prior twelve-month period.
     Although we are extending this waiver, we again urge providers to
     work diligently to meet the needs of callers. We note that the
     record reflects that VRS is a highly competitive service, and that
     providers who do not provide prompt and efficient service will run
     the risk that customers will go elsewhere.[^354] We believe that
     this competition should provide incentive for VRS providers to
     answer VRS calls as promptly as possible until such time as we
     terminate this waiver. We also note that because VRS remains a
     voluntary service, it is appropriate to provide flexibility that
     might not be warranted for a mandatory service.

122. With regard to CSD's and Hands On's concerns, we believe that it is
     premature to require VRS providers to meet the speed of answer
     requirement (or to adopt a different speed of answer requirement
     for VRS), and note that the record as a whole does not reflect that
     the sole, or even principal, reason that this requirement cannot be
     met is because of the current VRS compensation rate.[^355]
     Nevertheless, we understand CSD's and Hands On's concerns about the
     quality of service, and the apparent "Catch-22" that so long as a
     mandatory minimum standard is waived providers cannot be
     compensated for the costs of meeting the requirement, but that
     without additional compensation they cannot cover the costs of
     meeting the requirement to therefore justify the end of the waiver.
     We will rely on the annual reports to inform us on when the
     termination of this waiver may be appropriate, as well as on what
     additional costs may be necessary. In this regard, we intend to
     closely monitor all of the TRS waivers to ensure that they do not
     have the unintended effect of "lowering the bar" for quality of
     service where it is not necessary to do so because of technological
     or other similarly compelling reasons.

123. Further, because of the importance of this issue to the notion of
     functional equivalency, we raise below in the *FNPRM*, in
     connection with other issues concerning VRS, issues concerning
     speed of answer and the provision of VRS. The comments we receive
     in response to this *FNPRM* will supplement the information we
     receive in the annual reports. Because we have expressly raised
     this issue in the *FNPRM,* the speed of answer waiver for VRS will
     terminate on January 1, 2006, or at such time as the Commission
     adopts a rule addressing speed of answer for VRS, whichever is
     earlier.

124. *Equal Access to Interexchange Carriers.* Our rules require that
     TRS users have access to their chosen interexchange carrier through
     TRS to the same extent that such access is provided to voice
     users.[^356] In the *VRS Waiver Order,* the Commission granted VRS
     providers a two-year waiver of this TRS mandatory minimum standard,
     recognizing that the systems necessary to hand off a video
     teleconferencing call to a carrier preferred by the end user do not
     yet exist.[^357]

125. Petitioners contend that a technical solution to this problem has
     not been developed, and that therefore an extension of this waiver
     is appropriate.[^358] Commenters support extension of this waiver,
     noting that because VRS providers do not receive a caller's ANI via
     the Internet, they do not have the ability to identify long
     distance calls, much less to automatically route the call to the
     calling party's carrier of choice.[^359] Petitioners and commenters
     assert that a viable alternative to this TRS requirement is for the
     Commission to continue to require VRS providers to offer free long
     distance calling.[^360]

126. Hamilton goes one step further, and argues that this requirement
     should be permanently waived for VRS providers, as it was for IP
     Relay providers.[^361] Hamilton argues that in the *IP Relay
     Declaratory Order & FNPRM* the Commission recognized the inherent
     difficulty in determining whether an IP Relay call is long distance
     or local, and that because IP Relay providers provide long distance
     services free of charge there was no need for a carrier of choice
     requirement.[^362] CSD notes, however, that even though technology
     that allows providers to approximate the location of an IP user
     does not exist today, it may become available in the future.[^363]

127. Based on the record, we grant VRS providers a waiver of the equal
     access to interexchange carrier requirement until January 1, 2008.
     We do not grant a permanent waiver because we agree with CSD that
     it is likely that technology that will allow VRS providers to
     approximate the location of VRS users will become available in the
     future. Until such time, however, we will require VRS providers to
     provide free long distance service to their VRS customers.[^364] We
     also condition this waiver on VRS providers submitting an annual
     report to the Commission as indicated above.

128. Relatedly, Hands On seeks clarification that it may require credit
     card billing to complete international calls.[^365] Hands On
     contends that requiring credit card billing for international calls
     will reduce the potential for abuse or gaming of the system
     (*i.e.,* a caller located outside of the United States using United
     States VRS to complete a call to another party located outside of
     the United States).[^366] CSD supports Hands On's request, but
     notes that billing for VRS international calls would have to be
     measured from the VRS provider's location to the international
     destination, and not from the location of the VRS user initiating
     the call, because VRS providers are unable to determine the
     location of the VRS party making the call.[^367]

129. We believe the parties are confusing our rules governing the
     provider's compensation for eligible TRS services from the
     Interstate TRS Fund, with our rules concerning the provider's
     ability to charge the TRS user for the long distance (including
     international) charges that apply to such calls. The Interstate TRS
     Fund does not currently reimburse providers for the costs of
     providing international calls via IP Relay.[^368] No such
     restriction currently applies, however, to international VRS
     calls.[^369] At the same time, for IP Relay we have waived the
     interexchange carrier of choice requirement so long as the provider
     does not charge for the long distance call.[^370] Therefore, IP
     Relay providers *may* charge for long distance calls if they offer
     carrier of choice; they may even do so for international IP Relay
     calls, although, as noted above, they will not be compensated from
     the Interstate TRS Fund for the TRS minutes involved in such a
     call.[^371] With respect to VRS, we have similarly conditioned our
     waiver of the carrier of choice requirement on the VRS providers
     offering free long distance calls to the VRS customer. At the same
     time, as with IP Relay, we clarify that the VRS provider may charge
     for the long distance call provided it offers carrier of choice;
     this rule also applies to international VRS calls.

130. *Pay-Per-Call Services -- 900 number calls.* Our rules require TRS
     providers to be capable of handling pay-per-call calls (*i.e.,* 900
     number calls).[^372] The *VRS Waiver Order* granted VRS providers a
     two-year waiver of this TRS requirement, noting that demand for
     pay-per-call VRS was expected to be low and the cost of compliance
     was high.[^373]

131. Petitioners now seek extension of this waiver, asserting that VRS
     providers do not have access to the calling party's ANI, and
     therefore have no way to bill the calling party for the 900
     call.[^374] Petitioners note that, for this reason, we recently
     extended the waiver of this requirement for IP Relay.[^375]
     Petitioners further assert that simply absorbing the costs of 900
     number calls would unnecessarily increase the cost of VRS and
     unfairly subsidize users of this particular service.[^376]
     Commenters support extension of this waiver, stating that there
     continues to be minimal demand for these services among VRS
     customers, and that the technological obstacles to handling these
     types of calls have not been removed.[^377]

132. We agree with the parties that VRS providers do not have the
     technology to complete pay-per-call (900 number) calls, and
     therefore we waive this TRS requirement until January 1, 2008. We
     believe that technology will be developed to allow VRS providers to
     handle these types of calls, and will require VRS providers to
     submit a report annually to the Commission as indicated above and
     detailing advancements that may enable VRS providers to comply with
     this requirement.

#### New Waiver Requests

133. In addition to requesting extension of the waivers of the TRS
     mandatory minimum standards set forth in the *VRS Waiver Order*,
     Hamilton seeks waiver of various other TRS requirements for VRS
     providers. Specifically, Hamilton seeks waiver of two kinds of
     voice initiated calls, voice carry over (VCO) and Speech-to-Speech
     (STS), as well as hearing carry over (HCO).[^378] Hamilton also
     seeks waiver of the automatic call forwarding requirement in
     circumstances where the *called* party is a VRS user.[^379]
     Further, Hamilton seeks clarification that VRS providers need not
     provide STS or Spanish Relay.[^380] We address these issues, in
     turn, below.

134. *Voice Initiated Calls and HCO.* Hamilton seeks waiver for VRS
     providers of the TRS mandatory minimum standards requiring the
     provision of voice initiated calls, *i.e.,* VCO and STS, as well as
     HCO.[^381] Hamilton notes that in the *IP Relay Order on
     Reconsideration* the Commission waived these requirements for IP
     Relay providers because technological limitations prevent IP Relay
     providers from providing such calls.[^382] Hamilton contends that
     the same technological limitations that prevent IP Relay providers
     from providing voice initiated calls -- *i.e.,* that the Internet
     is used for one leg of the call and the quality of a voice call of
     the Internet is often poor and depends on the user's CPE -- also
     limits the ability of VRS providers to provide such calls. For this
     reason, Hamilton seeks waiver of the requirement that VRS providers
     must offer VCO and HCO until January 1, 2008. CSD supports
     Hamilton's request for waiver of this requirement.[^383]

135. We agree that because the Internet has to be used for the voice leg
     of a VCO or HCO VRS call, the quality of such voice calls is
     uncertain with current technology. For this reason, and because we
     have waived this requirement for providers of IP Relay, we waive
     the requirement that VRS providers must provide VCO and HCO until
     January 1, 2008.[^384] This waiver is conditioned on the annual
     submission of a report to the Commission as detailed above.

136. *Automatic Call Forwarding.* In the *Second Improved TRS Order &
     NPRM,* we did not require automatic call forwarding[^385] as a TRS
     mandatory minimum standard because we concluded that this feature
     is one that the called party subscribes to through his or her local
     telephone company. As we noted, when a called party has subscribed
     to call forwarding, any calls to that number -- whether from a CA
     relaying a TRS call or from a person making a conventional voice
     call -- will be automatically forwarded to the alternate number
     designated by the called party.[^386] Hamilton agrees with the
     Commission's conclusion when it is the VRS user placing a call to a
     voice user.[^387] Hamilton points out, however, that when the role
     of the callers is reversed -- *i.e.,* where a voice caller
     initiates a VRS call, and therefore the VRS CA must make an
     out-bound VRS call to a VRS user -- automatic call forwarding will
     not work because the called party's number is really an IP address,
     and "IP addresses and log-ins (*i.e.,* the method by which VRS
     users receive calls) do not contain the ANI information necessary
     to permit call forwarding using the traditional telephone
     network."[^388] Therefore, Hamilton, requests that "to the extent
     that a waiver of this requirement is necessary," the Commission
     should waive this requirement in this context until January 1,
     2008, consistent with the other waivers granted to VRS
     providers.[^389] CSD supports Hamilton's request for waiver of this
     feature in this context.[^390]

137. Hamilton seeks waiver of a requirement that does not exist. We have
     not required that TRS providers offer automatic call forwarding in
     any context; therefore, automatic call forwarding need not be
     provided when a VRS call is initiated by a voice telephone user.
     Because we have not imposed an automatic call forwarding
     requirement, no waiver is necessary.

138. *Speech-to-Speech and Spanish Relay.* Hamilton correctly notes that
     Section 64.603 of our regulations requires TRS providers to offer
     STS relay service and Spanish Relay.[^391] Hamilton also correctly
     notes that in the *TRS Cost Recovery MO&O* we stated that VRS
     providers are not required to provide STS or Spanish Relay.[^392]
     Hamilton now seeks clarification that VRS providers need not
     provide STS and Spanish Relay, and that a request for a waiver, or
     a request for an extension of a waiver, for these forms of TRS is
     not necessary.[^393]

139. We clarify that, as we stated in the *TRS Cost Recovery MO&O,*
     providers of VRS need not provide STS or Spanish Relay. As we
     noted, STS is a speech-based service, whereas VRS is a visual
     service using interpreters to interpret sign language over a video
     connection.[^394] Further, we noted that it would be unduly
     burdensome to require VRS to be provided in languages other than
     American Sign Language.[^395] Therefore, until such time as the
     Commission directs otherwise, the requirement that VRS providers --
     as TRS providers -- also provide STS and Spanish Relay is waived.

### Summary of VRS and IP Relay waivers, expiration dates, and annual report filing requirements

140. Several parties suggest that, for administrative convenience and
     clarity, we conform the various IP Relay and VRS waiver expiration
     dates to the extent possible, and combine the annual reporting
     requirements for IP Relay and VRS providers into one annual filing.
     We recognize that we have now granted waivers of TRS mandatory
     minimum standards for IP Relay and VRS providers in several orders,
     and have imposed annual reporting requirements that must address
     some, but not all, of these waivers. Therefore, we will require IP
     Relay and VRS providers to file one annual report with the
     Commission on April 16^th^ of each year addressing the feasibility
     of meeting any of the TRS requirements waived in our various
     orders. As we have noted, these reports shall detail the provider's
     plans to meet the waived standards, the incremental costs that may
     be incurred in meeting the standards, any relevant technological
     changes affecting the waived requirements, and the progress made
     and steps taken to resolve the technological problems that prevent
     IP Relay and VRS providers from meeting these waived standards.
     Additionally, to conform the expiration date for all of the waivers
     for IP Relay and VRS, all waivers granted herein, with the
     exception of the emergency call handling and speed of answer
     waivers for VRS, shall expire on the January 1, 2008, expiration
     date we have mandated for VRS and IP Relay waivers in previous
     orders.[^396] Finally, to the extent set forth above, the waivers
     granted in this *Order* shall apply to all current and potential
     VRS providers beginning on the release date of this *Order*. We
     have summarized the present waivers of TRS mandatory minimum
     standards for IP Relay and VRS providers, the expiration dates of
     these waivers, and the annual reporting requirements applicable to
     these waivers in Appendix E to the *Order*.

## 711 ACCESS TO PAY-PER-CALL (900) SERVICES (CG DOCKET NO. 98-67)

### Background

141. In May 2003, Sprint filed a Petition for Declaratory Ruling (*711
     Petition*) requesting that the Commission declare that the manner
     in which it provides "900 pay-per-call services to end users who
     access Sprint's TRS facilities by dialing 711 fully satisfies the
     requirement that such services be offered by relay
     providers."[^397] As Sprint notes, our rules require TRS providers
     to offer pay-per-call services -- *i.e.*, services that are
     accessible through use of a 900 number -- as "another component of
     functional equivalency."[^398] Our rules also require that TRS
     providers offer "access via the 711 dialing code to all relay
     services as a toll free call."[^399] Further, our rules require
     that subscribers be given the ability to block access to
     pay-per-call services from their lines.[^400] Sprint asserts that
     it has adopted its particular approach for handling 900 calls "in
     order to comply with the Commission's regulatory paradigm governing
     access to pay-per-call services"; namely, to enable Sprint "to deny
     access to pay-per-call services through a toll-free number -- the
     711 access code call is delivered to the TRS center via a toll-free
     number -- and to ensure that there is no pay-per-call block on the
     line being used by the TRS caller."[^401] Sprint requests that we
     remove any uncertainty regarding whether this approach complies
     with the pay-per-call requirement.[^402]

142. More specifically, Sprint explains "that when a person dials the
     access code 711, the number is converted to the toll-free number
     assigned to the TRS center of the state from which the end user is
     calling"; for example, "the 711 voice call by an end user in North
     Carolina would be converted to 1-800-\[ ... \] and would then be
     routed by the local carrier to Sprint's TRS center handling North
     Carolina's calls."[^403] Sprint further explains that because the
     Commission has recognized that pay-per-call services cannot be
     accessed using a toll-free dialing sequence such as a 1-800 number,
     a person cannot use 711 to place a 900 call.[^404] Sprint,
     therefore, has adopted an alternate approach whereby "Sprint CAs
     instruct callers wishing to avail themselves of pay-per-call
     services to dial a special 900 number (which is provided without
     charge) in order to use TRS to place the 900 call."[^405] In this
     way, Sprint asserts, Sprint "is able to ensure that there is no
     pay-per-call block on the line being used by such user."[^406]
     Sprint believes that this approach satisfies our rules and,
     "\[i\]ndeed, ... may be the only way to harmonize the availability
     of pay-per-call services through TRS with the Commission
     requirement that subscribers be given the ability to block access
     to pay-per-call services from their lines."[^407]

143. Three parties filed comments in response to the *711 Petition*:
     AT&T, TDI, and MCI (WorldCom). Two parties filed reply comments:
     Sprint and TDI. No party filing comments opposed Sprint's petition.
     AT&T asserts, however, that "insofar as the \[*711 Petition*\] may
     be read to imply that access by TRS customers to 900 pay-per-call
     services via the 711 dialing code is generally technically
     infeasible or unavailable, that impression is erroneous."[^408]
     AT&T states that its TRS facilities "already offer this capability
     to customers who use the 711 dialing code" by using "a database
     that enables the \[CA\] to correlate the customer-provided 900
     number to the appropriate center offering 900 transport for the
     call," and then "rout\[ing\] the outbound call to the identified
     900 carrier."[^409] AT&T also asserts that "other methods are \...
     available to harmonize the ability to access a TRS center via the
     711 code with the customer's right to block 900 calling originated
     from his/her telephone."[^410] AT&T further explains that it
     provides 900 blocking capability through its "TRS Relay Choice
     Profile ("RCP") database."[^411] AT&T therefore suggests that the
     Commission not conclude that Sprint's method for providing TRS
     users access to 900 calling is the *only* acceptable method of
     providing that service.[^412]

144. TDI acknowledges AT&T's approach to harmonizing the Commission's
     rules concerning 900 calls via TRS and the separate 900-calling
     blocking rules by the use of customer profile databases.[^413] TDI
     asserts, however, that many TRS users do not have profiles
     established with their various TRS providers, and are unaware of
     how to set one up.[^414] TDI, therefore, believes that Sprint and
     MCI's (WorldCom) procedures are more "failsafe" than AT&T's.[^415]
     Accordingly, TDI supports the *711 Petition* that Sprint's
     provision of 900 pay-per-call services to TRS end users who access
     Sprint's TRS facilities by dialing 711 fully satisfies our rules
     requiring that feature be offered to TRS users.[^416] MCI
     (WorldCom) also supports Sprint's petition, and notes that its CAs
     also redirect the caller to a special 900 number in these
     circumstances so that its TRS facilities would not be conduits for
     the circumvention of the pay-per-call blocking rules.[^417] MCI
     (WorldCom) states that it has "not discovered any reliable method
     of ensuring call blocking for callers who have requested call
     blocking unless it redirects a relay call made via 711 to its
     special 900 number."[^418] In its reply comments, Sprint notes that
     AT&T's and MCI (WorldCom)'s approach may be valid, despite
     suggesting some pitfalls, and states that it is not asking the
     Commission to adopt its approach to the exclusion of others.
     Rather, Sprint simply seeks assurance that its approach does not
     run afoul of the Commission's rules.[^419]

### Discussion

145. We grant Sprint's *711 Petition*. Sprint's approach is a reasonable
     method of providing TRS users functional equivalency in making 900
     pay-per-call telephone calls through TRS. We conclude that as
     described in the *711 Petition*, there is no benefit to Sprint
     expending an uncertain amount of money to develop an alternate
     method of complying with the TRS mandatory minimum standards that
     require 900 calls be available to TRS users. We do not require that
     pay-per-calling be available through TRS in any particular manner
     or via a particular technology. We find that Sprint's solution
     provides pay-per-call functionality to TRS users, and at the same
     time agree with AT&T and MCI (WorldCom) that there can be multiple
     ways to provide this particular functionality.

146. Relatedly, we amend the definition of "711" contained in our rules.
     Presently, 711 is defined as "\[t\]he abbreviated dialing code for
     accessing *all types of* relay services anywhere in the United
     States."[^420] With the advent of Internet based TRS -- *i.e.,* IP
     Relay and VRS -- we recognize that it is not correct to suggest
     that these forms of TRS can be accessed by calling 711. Therefore,
     we amend the definition of 711 to delete the words "all types of"
     and therefore to read: "The abbreviated dialing code for accessing
     relay services anywhere in the United States."

## HANDS ON'S APPLICATION FOR CERTIFICATION AS A VRS PROVIDER ELIGIBLE FOR COMPENSATION FROM THE INTERSTATE TRS FUND

### Background

147. On August, 30, 2002, Hands On filed an application for
     "certification"[^421] as a Video Relay Service provider eligible
     for compensation from the Interstate TRS Fund. As we have noted,
     VRS is a form of TRS that, rather than using TTYs, uses computers
     and videoconferencing software to connect the TRS user to a
     communications assistant who communicates with the TRS user in
     American Sign Language. The application indicates that Hands On
     seeks to provide only VRS, and not the traditional TTY-based TRS,
     Speech-to-Speech (STS) relay service, or Spanish Relay Services
     that are forms of TRS currently mandated by the Commission's
     rules.[^422] Moreover, Hands On seeks to provide VRS neither as
     part of a certified state program nor as a service operated in
     contract with a common carrier providing interstate TRS.[^423]
     Hands On suggests that it is eligible to receive compensation from
     the Interstate TRS Fund under the third prong of the eligibility
     standards; *i.e.*, as an "Interstate common carrier offering TRS
     pursuant to 64.604."[^424] Hands On also acknowledges that the
     regulations do not specify any requirement for "certification" of
     TRS providers as eligible for compensation from the Interstate TRS
     Fund.[^425]

### Discussion

148. We dismiss the *Hands On Application* without prejudice. Neither
     the statute nor the regulations governing the provision of TRS
     provides that the Commission can "certify" any TRS provider as
     eligible to receive compensation from the Interstate TRS
     Fund.[^426] The only certification process in the Commission's
     rules applies to state TRS programs.[^427] Although, as discussed
     above, in the *Notice of Proposed Rulemaking* of the *Second
     Improved TRS Order & NPRM* we specifically sought comment on
     whether the Commission should establish a process whereby the
     Commission certifies those providers eligible for compensation from
     the Interstate TRS Fund,[^428] in this *Order* we have declined to
     adopt such a procedure at this time.

## PETITION FOR LIMITED WAIVER CONCERNING VIDEO RELAY SERVICE AND INTERPRETING IN STATE LEGAL PROCEEDINGS

### Background

149. On June 12, 2003, CSD filed a Petition for Limited Waiver and
     Request for Expedited Relief (*CSD Petition*) requesting a
     "limited" waiver of our rule prohibiting CAs from refusing to
     handle calls in the context of TRS calls that are part of legal
     depositions and other legal proceedings.[^429] CSD states that over
     the past year its VRS facilities have received an increasing number
     of requests to provide VRS in these circumstances.[^430] CSD notes
     that there are usually specific qualifications, credentialing, and
     licensing requirements under state law that apply to interpreters
     in a legal setting.[^431] CSD asserts that these state law
     requirements for legal interpreters create a conflict with the TRS
     mandatory minimum standards in three ways.

150. First, CSD asserts that whereas section 225 and the TRS regulations
     require TRS CAs to handle all calls, some state laws prohibit the
     use of interpreters who do not have certain credentials to
     interpret legal proceedings. Second, CSD asserts that under some
     state law interpreters are generally required to review the case
     and discuss the proceeding with the parties before they begin
     interpreting, but the TRS regulations require that call set-up be
     as expeditious as possible. Third, CSD notes that some states
     require that interpreters in a legal setting be able to testify as
     to the accuracy of their interpreted conversations, but that the
     TRS mandatory minimum standards prohibit TRS CAs from disclosing
     the contents of relayed conversations.[^432] CSD therefore asserts
     that when a VRS CA receives a call that is part of a legal
     proceeding, the VRS provider cannot ensure that the VRS CA complies
     with state law and, as a result, the VRS CA is potentially exposed
     to civil and criminal liability under state law governing the
     qualifications of legal interpreters. [^433] CSD also asserts that
     to the extent the VRS CA does not meet state requirements for legal
     interpreters, the legal protection that these state statutes were
     intended to create for deaf consumers are jeopardized.[^434] CSD's
     suggested solution to this apparent conflict is to have the
     Commission waive the requirement that VRS CAs handle any type of
     call when the call involves a deposition or other legal proceeding
     so that the VRS CA can refuse such calls.

151. On August 13, 2003, the *Petition* was placed on public
     notice.[^435] In response to the Public Notice, two parties filed
     comments, one party (CSD) filed reply comments, and three parties
     filed *ex parte* comments.[^436] All commenters support CSD's
     *Petition* and agree that VRS is inappropriate for depositions or
     other legal interpreting that will be on the record in a court
     proceeding. At the same time, some commenters note that there are
     some calls concerning legal matters that are appropriate for
     VRS.[^437] In its reply comments, CSD clarifies that it is not
     seeking to exclude calls that involve routine legal matters such as
     those between an attorney and a client or witness.[^438] Rather,
     CSD explains that it is seeking a waiver that would excuse its VRS
     CAs from relaying calls involving depositions and other legal
     proceedings that are typically covered by state interpreter
     statutes governing civil and criminal proceedings, such as
     pre-trial and status conferences with judges, hearings, police
     interrogations, and other on-the-record proceedings that become
     part of a civil or criminal proceeding.[^439]

### Discussion

152. The Commission has frequently reiterated the applicable waiver
     standard: the Commission will adhere strictly to its rules unless a
     party can demonstrate that "in the public interest the rule should
     be waived."[^440] Furthermore, the Commission may only waive a
     provision of its rules for "good cause shown."[^441] The Commission
     must take a "hard look" at applications for waiver[^442] and must
     consider all relevant factors when determining if good cause
     exists.[^443] The party petitioning the Commission for a waiver
     bears the heavy burden of showing good cause: "\[an\] applicant
     \[for waiver\] faces a high hurdle even at the starting
     gate."[^444] 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."[^445] Under these standards we do not find that a
     waiver is appropriate in this situation, and therefore we deny the
     request.

153. The gist of CSD's *Petition* appears to be this: if a VRS call
     coming into a VRS facility happens to be in the context of a legal
     proceeding, our rules that do not permit a VRS CA to refuse the
     call[^446] may result in the VRS CA handling a call for which the
     CA is not qualified under state law governing the qualifications of
     interpreters in legal settings. As a result, compliance with our
     TRS rules may put the individual VRS CA at risk of civil or
     criminal liability under state law for "interpreting" in a legal
     proceeding without the proper credentials. Further, given the
     nature of TRS, the VRS CA would not be able to adequately prepare
     for the call, and therefore would not be able to accurately
     facilitate communication between the parties to the legal
     proceeding. Finally, the VRS CA would be precluded by our rules
     from testifying in court about the relayed call, or about the
     accuracy of his or her interpretation. CSD's proposed solution is
     that we waive the requirement that the VRS CA must handle these
     types of calls. We conclude that this request misunderstands the
     role of a VRS CA (or any TRS CA) under section 225 and our
     regulations.[^447]

154. In enacting Title IV of the ADA, and creating the federally
     regulated TRS scheme, Congress intended that persons with hearing
     and speech disabilities be provided with a means of communicating
     with hearing individuals through a third party -- the CA -- who
     relays the conversation between the parties. To this end, as we
     have frequently explained, the TRS scheme is intended to ensure
     that persons with hearing and speech disabilities have
     *functionally* *equivalent access* to the telephone system.[^448]
     This guidepost for the provision of TRS -- that the relay service
     should be "functionally equivalent" to voice telephone service --
     means, as we have stated, that the CA "serves as a *transparent
     conduit* between two people communicating through disparate
     modes."[^449] In other words, the CA's role is simply to convert
     typed (or signed) messages into voice messages, and vice versa, so
     that the parties to the call can communicate back and forth, as any
     parties to a telephone call would do. It is because of this
     limited, transparent role of the CA that we have frequently stated
     that completion of the initial call to the TRS facility, and
     connecting to a CA, is equivalent to receiving a dial tone.[^450]

155. Because the intended role of a TRS CA is to be a transparent
     conduit that serves as a link in a telephone conversation, the TRS
     mandatory minimum standards include the requirement that CAs shall
     be prohibited from refusing calls and must handle any type of
     call.[^451] It would simply not be consistent with the purpose of
     TRS, and the statutory prohibition against "relay operators \...
     failing to fulfill the obligations of common carriers,"[^452] to
     permit TRS CAs to handle only certain types of calls, and therefore
     to refuse to handle some calls. A hearing person has the ability to
     use the telephone to call anyone he or she chooses without a third
     party determining whether the call is one that should not be
     permitted to be completed. The TRS scheme is intended to give
     consumers who use relay services this same fundamental opportunity.

156. Therefore, the role of VRS CAs facilitating relay calls (under
     section 225 and the implementing TRS regulations) is different from
     that of interpreters in legal settings under state laws. Unlike
     interpreters in legal settings, VRS CAs are only responsible for
     relaying the information transmitted to them. They bear no
     responsibility for whether the information they relay is received,
     or received accurately.[^453] Interpreters in legal settings, by
     contrast, may intercede on behalf of the court, counsel, or client
     to help ensure that full and accurate comprehension of the
     proceeding is taking place. They may also be asked to attest to
     their ability to accurately interpret the legal proceeding in
     question. Interpreters in legal settings are also obliged to
     evaluate the assignment (*i.e*., the proceedings at hand) to
     determine if they are appropriately qualified, and are expected to
     recuse themselves or refuse the assignment if they feel they are
     not the appropriate interpreter. Such expectations are not -- and
     cannot be -- placed on VRS (or TRS) CAs. VRS consumers -- and VRS
     (and TRS) providers -- should clearly understand that VRS CAs do
     not assume such responsibilities when relaying a call.

157. The fundamental differences between the roles of a VRS CA and an
     interpreter in a legal setting should not be confused simply
     because both circumstances involve interpreting. When a call comes
     into a VRS facility, and is handled by a VRS CA, that CA must
     follow the regulatory scheme set forth in section 225 and the
     implementing regulations. Indeed, there is no reason that the CA
     should even know that the call is part of a legal proceeding that
     requires interpreters to meet certain qualifications; again, the
     CA's role is simply to relay to the hearing person by voice what
     was said to the CA either via text or sign language (for VRS), and
     to relay to the person with a hearing disability via text or sign
     language what the hearing person said to the CA. It follows that
     there is no basis to waive the requirement that VRS (or TRS) CAs
     may not refuse any type of call and therefore permit CAs to refuse
     to handle certain calls involving legal proceedings. Such a
     conclusion would plainly be at odds with the functional equivalency
     mandate and the notion that TRS facilities (and hence TRS CAs) must
     handle any type of call normally provided by common carriers.

158. We also note that granting the requested waiver would likely place
     the TRS provider and CA in a difficult situation. First, the CA
     would have to determine whether any particular TRS call involves a
     proceeding that *might* implicate laws concerning interpreting in a
     legal setting in the state where the call originates or terminates.
     If the CA determined that the call in fact was part of a legal
     proceeding, and that the CA was expected to act as an interpreter
     under state law, and not merely as a CA (a determination that may
     often be difficult to make), the CA would have to be permitted to
     refuse to complete the call. As discussed above, such a scheme
     would plainly run afoul of the purpose of TRS and the role of the
     TRS CA, and would greatly reduce the functional equivalency of TRS
     and violate the Congressional mandate set forth in section 225.
     Moreover, the reasoning underlying CSD's *Petition* could similarly
     apply in numerous other contexts. States could pass laws requiring
     that interpreters facilitating discussions involving, *e.g.,*
     engineering, architectural, or medical issues, have state
     certifications indicating that they are "qualified" to interpret
     conversations on such subjects in specified circumstances. Under
     CSD's reasoning, TRS CAs would have to be excused from handling
     relay calls in those circumstances as well.

159. For these reasons, if a caller attempts to use a VRS CA in a legal
     proceeding conducted over the telephone, the caller is simply
     making a TRS facilitated telephone call. Such a caller should not
     expect to receive "interpreting services" typical of interpreters
     providing services in legal settings. Rather, if a party wants or
     needs an interpreter for a legal proceeding, it is more
     appropriately the responsibility of the parties to the legal
     proceeding to secure the services of such a legally qualified
     interpreter if they believe such an interpreter is necessary under
     applicable state law.

160. Similar reasoning applies to the concern that state law that might
     be applied to require a TRS CA to testify at a state court hearing
     concerning a relayed call. When a VRS CA is acting as such and
     relaying a TRS call, state laws governing legal interpreting in
     state proceedings have no bearing on the duties and obligations of
     the CA. Further, section 225 and our implementing rules prohibit
     the CA from disclosing the content of the relayed conversation, and
     from keeping records of the content of any conversation beyond the
     duration of the call. Section 225(d)(1)(F) requires the Commission
     to prescribe rules that "prohibit relay operators from disclosing
     the content of any such relayed conversation and from keeping
     records of the content of any such conversation beyond the duration
     of the call."[^454] To comply with this mandate, the Commission
     adopted rules that prohibit relay operators from "disclosing the
     content of any relay conversation regardless of the content ...
     even if to do so would be inconsistent with state or local
     law."[^455] In adopting this rule, the Commission noted that issues
     of confidentiality and liability were raised by states and common
     carriers in cases where common carriers were required by state or
     federal law to report obscenity, harassment, child abuse, or
     criminal conversations. The Commission further noted that relay
     services are unique in that, "in the present technological
     environment, they utilize human CAs who see and hear private
     conversations while acting as transparent conduits relaying
     conversations without censorship or monitoring functions."[^456]
     The Commission added that the ADA does not expressly address the
     relationship between its prohibition of disclosure and other
     statutes that permit or require disclosure.[^457] The Commission
     ultimately concluded that "confidentiality is essential to
     \[relay\] service, and that users of TRS can have confidence in the
     basic privacy of their conversations,"[^458] and therefore except
     for the very limited law enforcement exceptions contained in
     section 705 of the Act,[^459] CAs are "prohibited from divulging
     the content or existence of any relay conversations."[^460]

161. Finally, with regard to CSD's and commenters' concern that a VRS CA
     may be exposed to civil or criminal liability under state laws
     regulating legal interpreting, we again note that when a VRS CA is
     relaying a TRS call the CA is not acting as a "legal interpreter"
     under state law, regardless of the substance of the call. In any
     event, to the extent the VRS (or TRS) CA may be accused of being a
     witting or unwitting party to any unlawful scheme to circumvent
     state requirements for interpreters in legal settings, we note that
     the Commission has previously found that "Congress, in adopting
     section 225(d)(1)(E), intended relay operators to have the same
     service obligations as common carriers generally."[^461] In this
     regard, the Commission noted that although courts have determined
     that a common carrier's obligation to provide service upon request
     as set forth in section 201(a) of the Act is not absolute and does
     not necessarily apply to service for illegal purposes,[^462] as a
     practical matter common carriers generally will not be criminally
     liable "absent knowing involvement in unlawful
     transmissions."[^463] The Commission further explained that "there
     must be a high degree of involvement or actual notice of an illegal
     use and failure to take steps to prevent such transmissions before
     any liability is likely to attach."[^464] The Commission concluded
     that "CAs, in the normal performance of their duties, would
     generally not be deemed to have a 'high degree of involvement or
     actual notice of illegal use' or be 'knowingly' involved in such
     illegal use."[^465] This same reasoning can be applied in this
     instance. Therefore, absent proof that the CA knowingly
     participated in an illegal scheme while relaying a TRS call, the CA
     could not be civilly or criminally liable for relaying a TRS call
     that happened to involve parties in a legal proceeding.

162. In sum, we agree with CSD and various commenters that VRS is not
     appropriate in circumstances where state law governing legal
     proceedings requires the services of interpreters qualified under
     state law. We also appreciate CSD's concern that relaying calls
     that involve on-the-record legal proceedings via TRS facilities
     places CAs in jeopardy of violating state interpreting laws.[^466]
     We do not believe, however, that it is necessary or appropriate to
     waive our rule requiring CAs to handle all types of calls normally
     handled by common carriers to resolve this matter. VRS (and TRS)
     CAs, acting as such, are acting pursuant to a congressionally
     mandated scheme requiring certain entities to offer relay services
     in compliance with federal standards, and the fact that other
     parties may seek to use them for other purposes cannot alter this
     fact. Therefore, such CAs are not acting as "legal interpreters"
     under any state law. For this reason, as well as those discussed
     above, we deny CSD's *Petition*.

# ORDER ON RECONSIDERATION

## THE JUNE 30, 2003, *BUREAU TRS ORDER* 

### Background

163. On June 30, 2003, the Commission's Consumer & Governmental Affairs
     Bureau released the *Bureau TRS Order* adopting, on an interim
     basis, TRS compensation rates for traditional TRS, IP Relay, STS,
     and VRS, as well as a carrier contribution factor and Interstate
     TRS Fund size.[^467] As discussed in that order, our rules require
     the TRS fund administrator to file "with the Commission on May 1 of
     each year, to be effective for a one-year period beginning the
     following July 1," its "TRS payment formulas and revenue
     requirements."[^468] The *Bureau TRS Order* adopted, on an interim
     basis, the proposed TRS compensation rates for traditional TRS and
     IP Relay, as well as for STS. The *Bureau TRS Order* modified,
     however, the proposed \$14.023 per-minute compensation rate for
     VRS, establishing instead an interim compensation rate of \$7.751
     per-minute. As a result of modifying the VRS compensation rate, the
     Bureau also modified the proposed carrier contribution factor and
     the proposed fund size.[^469]

164. As the Bureau explained in the *Bureau TRS Order,* the reduction in
     the per-minute VRS compensation rate resulted from the Bureau's
     disallowance of certain costs submitted by the providers, which the
     TRS fund administrator had included in setting the proposed VRS
     compensation rate. These costs fell into the categories of profits,
     taxes, labor costs, and engineering costs.[^470] The total amount
     of disallowed costs was \$25,920,402, which the Bureau subtracted
     from the TRS fund administrator's projected total costs of
     providing VRS of \$52,659,750. As a result, dividing the total
     *allowable* projected costs (\$26,739,348) by the total projected
     minutes of use (3,449,938),[^471] the Bureau arrived at a
     per-minute VRS compensation rate of \$7.751, which it established
     as the interim VRS compensation rate in the *Bureau TRS
     Order*.[^472] The Bureau stated that "\[t\]his rate will remain in
     force until we complete our examination of actual and projected
     cost data submitted by VRS providers, after which time we will
     produce the final VRS cost recovery rate for the July 1, 2003,
     through June 30, 2004, TRS fund year."[^473]

165. On July 30, 2003, five parties filed petitions for
     reconsideration.[^474] Each of these parties challenges the
     adoption of the VRS compensation rate of \$7.751 per minute, and
     requests that the Commission accept NECA's proposed compensation
     rate of \$14.023, retroactive to July 1, 2003. The parties'
     arguments can be summarized as follows. First, some of the parties
     argue that the *Bureau TRS Order* was beyond the authority of the
     Consumer & Governmental Affairs Bureau under its delegated
     authority. Second, the parties make various arguments in asserting
     that the *Bureau TRS Order* was not based on a reasoned analysis,
     and therefore is arbitrary and capricious. Third, several parties
     make various arguments that the *Bureau TRS Order* was inconsistent
     with Section 225 of the Communications Act. Finally, one provider
     makes specific arguments with respect to the treatment of certain
     of its costs and expense data.

166. We have reviewed the arguments made by the various parties
     challenging the Bureau's adoption of an interim VRS per-minute
     compensation rate of \$7.751, rather than the \$14.023 proposed by
     NECA, the comments filed in response to these petitions,[^475] as
     well as supplemental cost data submitted by some of the providers.
     For the reasons set forth below, we affirm the interim TRS
     compensation rates set forth in the *Bureau TRS Order*. With
     respect to the compensation rates for traditional TRS and IP Relay,
     and STS, we adopt the interim compensation rates as the final
     compensation rates for those services for the July 1, 2003, through
     June 30, 2004, period.[^476] With respect to VRS, however, our
     review of the more complete cost data submitted by the providers,
     which was not available to the Bureau when the *Bureau TRS Order*
     was issued, leads us to modify the VRS compensation rate. For the
     reasons set forth below, we increase the per-minute compensation
     rate for Video Relay Service from the interim compensation rate of
     \$7.751 per minute to \$8.854 per minute. Because the modified
     compensation rate of \$8.854 is based on data we received after the
     *Bureau TRS Order* was released, the new compensation rate shall
     apply to the provision of eligible VRS services effective September
     1, 2003.[^477]

### The Bureau's Authority to Adopt the *Bureau TRS Order*

167. Two parties assert that the Consumer & Governmental Affairs Bureau
     exceeded its delegated authority in rejecting NECA's proposed VRS
     compensation rate and adopting the substantially lower interim VRS
     compensation rate.[^478] Sprint asserts that "the Bureau cannot
     decide '\[m\]atters that present novel questions of law, fact or
     policy that cannot be resolved under existing precedents and
     guidelines.'"[^479] Sprint states that the Commission has never
     before established interim compensation rates for TRS service,
     although Sprint admits that the Commission has in the past
     prescribed retroactive rate increases. Sprint argues that in the
     *Bureau TRS Order* the Bureau departs from past practice with no
     discussion of its authority to establish interim compensation
     rates, or of the procedures it will use or the timetable it will
     follow to establish final compensation rates.[^480] Sprint further
     argues that the Bureau's approach to setting the interim VRS
     compensation rate is unprecedented, particularly the use of rate of
     return on investment rather than cost-plus profit markup in the
     interim VRS compensation rate calculation.[^481] Sprint asserts
     that the Bureau's claim that markup over expenses is not authorized
     by the Commission's rules is not supported by any rule proscribing
     this method, and states that the cost-plus markup has been the
     Commission's consistent past practice. Sprint concludes that
     although the Commission does have the authority to subject VRS
     providers to rate-of-return regulation, it must do so by
     rulemaking, and that the Bureau may not apply a rate-of-return on
     investment calculation to VRS without a prior Commission
     rulemaking.[^482]

168. Hands On argues that the Commission's rules on the functions of the
     Consumer & Governmental Affairs Bureau "contain\[\] no provision
     relating to the setting of interim rates" and, "\[i\]ndeed, \...
     contain\[\] no reference to rate making at all, either generally or
     in connection with the Bureau's functions relating to persons with
     disabilities."[^483] Further, Hands On agrees with Sprint that the
     Bureau lacks the authority to decide matters that present novel
     questions.[^484] Hands On asserts that "\[i\]t is plainly apparent
     from the Bureau's statements in the *Order* that novel questions of
     law fact \[sic\] and policy are presented here. ...The most glaring
     is that of the denial of profit and the proscription \[sic\] of
     a\[n\] 11.25\[%\] rate of return on investment only. As the Bureau
     admits\[,\] the FCC's rules are silent on these matters. Thus,
     these matters should not have been decided under delegated
     authority."[^485]

169. As a threshold matter, pursuant to Section 225 and the implementing
     regulations the Commission does not engage in "rate making" in
     determining the compensation that will be paid from the Interstate
     TRS Fund for providers' "reasonable costs" of providing TRS. The
     Commission's rules state that "TRS Fund payments shall be
     distributed ... based on formulas approved or modified by the
     Commission. Such formulas shall be designed to compensate TRS
     providers for reasonable costs of providing interstate TRS, and
     shall be subject to Commission approval."[^486] Therefore, the
     Commission has the authority to modify the payment formulas of
     NECA.

170. The Commission, by this *Order*, affirms the cost recovery
     methodology for VRS established in the *Bureau TRS Order.*
     Relatedly, we note that our TRS regulations presently refer to the
     authority of the Chief of the Wireline Competition Bureau (WCB)
     over certain matters concerning the Interstate TRS Fund and state
     certification.[^487] Consistent with section 0.141(f) of our rules,
     as noted above, the Consumer & Governmental Affairs Bureau actually
     performs this function. Consequently, we amend our TRS regulations
     to replace the three references to the "Wireline Competition
     Bureau" with the "Consumer & Governmental Affairs Bureau."[^488]

### The *Bureau TRS Order* is Based on Reasoned Analysis

171. Petitioners make several arguments that fall under the rubric that
     the *Bureau TRS Order* is not based on reasoned analysis, and
     therefore is arbitrary and capricious and in violation of the
     Administrative Procedure Act.[^489] We address these arguments in
     turn.

#### The comparison of the costs of VRS with the costs of Video Remote Interpreting (VRI)

172. All of the petitioners note that the Bureau compared the costs of
     VRS with the costs of Video Remote Interpreting (VRI),[^490] and
     assert that VRS and VRI are not, contrary to the *Bureau TRS
     Order*, "essentially the same" service.[^491] Sprint, for example,
     points out that VRI is available only during normal business hours,
     where VRS is on-demand for extended hours, in some cases 24 hours
     per day.[^492] Further, petitioners state that there are
     technological, regulatory, and security issues involved in VRS that
     do not apply to VRI.[^493] Petitioners therefore either assert or
     suggest that that comparing VRS with VRI is not a proper basis for
     reducing the VRS interim compensation rate.[^494]

173. Petitioners and commenters misread the *Bureau TRS Order* in
     asserting that the comparison between VRS and VRI was a basis for
     the reduction of the VRS compensation rate. The Bureau did compare
     the compensation rates of these two services, noting that the cost
     of VRS is more than five times that of VRI.[^495] The Bureau also
     stated that "the Commission recognizes that there may be several
     factors that justify a VRS compensation rate that is higher than
     that for VRI."[^496] But the Bureau made clear that this comparison
     was not the basis (or even "a" basis) for its modification of the
     compensation rate proposed by NECA. Rather, the Bureau stated that
     "we have examined the providers' cost data underlying NECA's
     proposed rate ... \[and\] we conclude that the providers' cost data
     cannot support the proposed compensation rate of \$14.023
     per-minute."[^497] Further, the Bureau "identified a variety of
     areas that warrant adjustment to the proposed costs."[^498]
     Finally, the Bureau found "that adjustments made in a number of
     areas -- most significantly, profit calculations, taxes, and labor
     costs -- taken in aggregate, warrant our adjustment to the VRS
     compensation rate."[^499]

174. These statements make clear that the sole basis of the Bureau's
     modification of the proposed VRS compensation rate was a review of
     the cost data provided by VRS providers. Indeed, the *Bureau TRS
     Order* makes clear that the comparison of VRS with VRI was simply
     presented as one factor that lead to concern over the proposed VRS
     compensation rate, and therefore lead the Bureau to examine NECA's
     proposed compensation rate and the providers' underlying cost
     data.[^500] Moreover, as we have noted, the Commission has the
     authority to approve or modify proposed payment formulas,[^501] as
     well as the obligation to ensure that "\[s\]uch formulas ...
     \[are\] designed to compensate TRS providers for *reasonable* costs
     of providing interstate TRS."[^502] A fair reading of the *Bureau
     TRS Order* makes clear that the basis for the Bureau's modification
     of the VRS compensation rate was the Bureau's evaluation of the
     actual cost data and projections submitted by VRS providers, and
     its conclusion that some of the costs submitted were not
     "reasonable."

#### The comparison of the proposed VRS compensation rate to historical VRS compensation rates

175. Petitioners similarly assert that, in reducing the compensation
     rate for VRS to \$7.751 per minute, the Bureau incorrectly relied
     on the fact that the per-minute compensation rate for TRS more than
     tripled in a two-year period. Petitioners assert that the reasons
     for this increase are readily explainable and do not provide any
     basis to reduce the compensation rate proposed by NECA.[^503] For
     example, Hands On notes that VRS service was not provided until the
     compensation rate rose to \$9.614 in August 2001.[^504] CSD asserts
     that when VRS was recognized as a form of TRS in March 2000 the
     service was considerably different from current VRS service, and
     that costs were lower in the early days of VRS because the service
     was offered for more limited hours and from fewer locations.[^505]

176. Petitioners again misread the *Bureau TRS Order* to the extent they
     suggest that the history of increasing VRS compensation rates was
     the principal reason, or even a reason, that the Bureau modified
     the VRS compensation rate that NECA had proposed. On the contrary,
     the Bureau's discussion of the trend of the VRS compensation rates
     was not a basis for the modification of the VRS compensation rate.
     In the *Bureau TRS Order*, the Bureau noted that in initially
     authorizing cost recovery for all VRS calls from the Interstate TRS
     Fund, and in subsequently granting waivers of certain TRS mandatory
     minimum standards as applied to VRS, the Commission intended to
     reduce the costs of providing VRS as VRS technology developed and
     the service was refined.[^506] In sum, while the high compensation
     rate for VRS led the Bureau to demand cost data from the providers,
     it was the provider's cost data -- not the trends in compensation
     rates -- that led the Bureau to modify NECA's proposed VRS
     compensation rate.

#### The disallowance of profit and use of 11.25% rate of return on investment 

177. In reviewing the providers' cost data, the Bureau noted that the
     "profits and tax allowances claimed by all VRS providers equal a
     markup of 27.2% of the total underlying VRS expenses," and that the
     "basis for these profit claims is a percentage of total estimated
     VRS expenses."[^507] The Bureau stated that "\[t\]his basis is
     neither described nor authorized under our rules," and therefore
     applied the 11.25 % rate of return on investment the Commission has
     established in related contexts, plus applicable tax
     allowances.[^508]

178. Petitioners argue that the exclusion of profits as a legitimate
     cost for purposes of determining the VRS reimbursement rate was
     improper. Sprint asserts that the Bureau cited no basis for
     rejecting the VRS providers' profit markup, and cited no Commission
     authority proscribing the "cost-plus" methodology used by VRS
     providers to calculate profit.[^509] Sprint further asserts that
     NECA has never required VRS providers to furnish it with data under
     Part 32 of the Commission's rules that would enable the Bureau to
     calculate an investment base to which to apply a rate of
     return.[^510] Sprint and other petitioners also argue that the
     11.25% return on investment allowance that the Bureau adopted is
     inappropriate because it is the return on investment allowed for
     local exchange carriers (LECs), and the nature and costs of VRS
     providers are very different from those of LECs.[^511] Hamilton and
     Hands On also argue that the 11.25% rate of return on investment
     calculation is inapplicable to the providers' costs of providing
     VRS and an improper basis for reducing the NECA proposed
     rate.[^512] Hands On states that the 11.25% rate of return on
     investment allowance was prescribed for dominant carriers in a
     capital-intensive industry, and is not appropriate for a "labor
     intensive enterprise such as VRS."[^513] Hands On also suggests
     that government contracting provides a better analogy, where "a
     reasonable profit is an expected component of a contract
     price."[^514]

179. We do not find petitioners' arguments persuasive. As an initial
     matter, we note that what the parties mean by "profit" is a markup
     on expenses; *i.e.*, a return based upon a percentage of total TRS
     costs that is not itself a cost of providing TRS service. We reject
     that methodology in this context, *i.e.,* when a TRS provider is
     seeking payment from the Interstate TRS Fund. First, and most
     fundamentally, this methodology ignores the role of TRS as an
     accommodation under Title IV of the ADA for persons with
     disabilities. It is in this context that Congress provided that TRS
     providers could recover their "costs."[^515] In other words,
     because Title IV places the obligation on carriers providing voice
     telephone services to *also* offer TRS to, in effect, remedy the
     discriminatory effects of a telephone system inaccessible to
     persons with disabilities, the costs of providing TRS are really
     just another cost of doing business generally, *i.e.,* of providing
     voice telephone service. For this reason, the annual determination
     of the TRS compensation rates is not akin to a rate-making process
     that determines the charges a regulated entity may charge its
     customers. Rather, it is a determination of a per-minute
     compensation rate that will cover the reasonable costs incurred in
     providing the TRS services mandated by Congress and our
     regulations.

180. Further, Sprint's assertion that nothing in the Commission's rules
     prohibits "cost-plus" profit calculations is beside the point.
     Sprint raises this argument in response to the Bureau's statement
     that the Commission's rules do not authorize profits as part of TRS
     costs.[^516] Sprint's argument amounts to a statement that any cost
     not expressly prohibited by the Commission's rules is a permissible
     VRS cost. In view of the history and purpose of Title IV, we cannot
     adopt such a position. Moreover, such a position would require us
     to set forth in the rules a laundry list of prohibited costs. The
     rules, of course, take a different course by providing that TRS
     payment "formulas shall be designed to compensate TRS providers for
     reasonable costs" of providing service.[^517] We follow that
     guidance in concluding that, in the context of Title IV of the ADA,
     "reasonable costs" do not include a mark-up on the reasonable costs
     claimed.

181. In this context, therefore -- *i.e.,* when Congress has instructed
     that certain regulated entities must provide an accommodation for
     persons with disabilities and may seek compensation for their costs
     of doing so -- we believe "reasonable costs" must be construed to
     be those direct and indirect costs necessary to provide the service
     consistent with all applicable regulations governing the provision
     of the service, *i.e.,* the TRS mandatory minimum standards.[^518]
     We therefore find that such "reasonable costs" do not include an
     additional sum that represents a markup on those costs. Reasonable
     costs may include, however, a return on capital investment.

182. With regard to the rate of return on capital investment, in
     applying an 11.25% rate of return on investment to the TRS scheme
     we are not prescribing a separate rate of return specifically for
     TRS. Rather, we are using the Commission's current rate of return
     on investment that the Commission has applied in a wide range of
     telecommunications contexts.[^519] Therefore, it is irrelevant
     whether the provider solely provides TRS (or VRS) or provides it
     along with other telecommunications services. Providers claiming
     this rate of return on net VRS assets, plus an appropriate tax
     allowance, will not be challenged. As we have noted, providers are
     permitted to recover all used and useful direct *costs* relating to
     VRS, as well as all reasonable overhead costs.[^520] We also allow
     this rate of return on capital investment as a means of ensuring
     that providers are not left to finance reasonable investment in VRS
     assets out-of-pocket.[^521] It therefore represents, in a very real
     sense, the cost of capital, and as a cost-based item it is
     compensable under the TRS scheme. We affirm, therefore, the
     Bureau's finding that an average markup of 27.2% on all VRS costs
     incurred is inconsistent with the intent of the statutorily
     mandated TRS cost recovery scheme; such a markup is plainly not
     cost-based. Moreover, it discourages prudent cost control, and is
     largely accountable for the excessive cost of VRS that was proposed
     to us in May prior to the Bureau's release of the *Bureau TRS
     Order*. [^522] Finally, contrary to Sprint's assertion, it is not
     incumbent upon the Commission to conduct studies to establish an
     appropriate markup for VRS when it clear from Title IV that TRS
     providers are entitled to be compensated only for their costs of
     providing the service.

#### The adjustments to the providers' cost data

##### The Bureau's explanation of its adjustments to the cost data

183. In adjusting the VRS per-minute compensation rate, the Bureau
     reviewed the cost data submitted by the VRS providers and
     identified three areas in which some or all of the costs reported
     were not reasonable: profit calculations, taxes, and labor
     costs.[^523] The Bureau therefore excluded some of these costs in
     calculating the interim VRS compensation rate. The Bureau also
     rejected certain engineering costs submitted by one of the
     providers. Petitioners make several generalized arguments in
     challenging these adjustments and the adoption of the interim
     compensation rate.

184. Sorenson asserts that the *Bureau TRS Order* does not provide a
     sufficient explanation of the analysis used to determine the
     interim compensation rate. Sorenson asserts that, in contrast to
     the *Bureau TRS Order,* the compensation rate proposed by NECA was
     based on straightforward analysis of cost data, and suggests that
     instead of adopting an interim compensation rate the Bureau should
     have sought further data after providing more specific guidance to
     the providers.[^524] Sorenson further asserts that the Bureau's
     offer to meet with the VRS providers to discuss the adjustments to
     their cost data is insufficient to meet the Commission's obligation
     to engage in reasoned decision making.[^525] AT&T similarly
     contends that although the Bureau stated that it excluded some data
     because it was predicated on incorrect assumptions, the Bureau did
     not explain the "nature or the magnitude of the erroneous
     information."[^526] Both petitioners request that we adopt the
     NECA-proposed compensation rate of \$14.023 per minute for
     VRS.[^527]

185. We agree that the Bureau had an obligation to provide sufficient
     information in the *Bureau TRS Order* to allow the public to
     understand the reasoning behind the Bureau's modification of the
     VRS compensation rate. We find, however, that the information
     provided by the Bureau is sufficient to allow such an
     understanding. First, we note that petitioners do not challenge the
     methodology by which NECA arrived at its proposed TRS compensation
     rates, and that the Bureau followed the same methodology but simply
     disallowed some of the underlying cost submitted by the providers.
     That methodology requires the totaling of all of the providers'
     submitted costs, and the division of that number by the total
     number of projected VRS minutes.[^528] The Bureau explained that it
     reviewed the cost data submitted by NECA, and disallowed tax
     allowances,[^529] replaced the VRS providers' profit markups with
     an 11.25% rate of return on capital investment, and adjusted labor
     costs to account for inefficiencies in the labor cost submissions
     of some VRS providers.[^530] The Bureau then divided the resultant
     total by the projected number of VRS minutes, and arrived at the
     modified VRS compensation rate of \$7.751 per minute.

186. Specific dollar amounts for each VRS provider were not given in the
     *Bureau TRS Order* because the VRS providers requested confidential
     treatment for their cost data. Therefore, cost figures and
     projected minutes were calculated in the aggregate.[^531] This,
     however, is not a variation from NECA's method of determining a
     proposed VRS compensation rate, which also uses aggregate amounts.
     Moreover, the Bureau offered to meet with each VRS provider to
     explain precisely which costs submitted by that provider were
     disallowed.[^532] Because no party other than one of the VRS
     providers has requested a specific numerical breakdown of the
     disallowed costs, and because VRS providers were given ample
     opportunity to discuss which specific cost categories and dollar
     figures were disallowed, we find that the explanation given by the
     Bureau of its reasoning in the *Bureau TRS Order* is sufficient. We
     note that no petitioner chose to dispute the exact calculation of
     each cost adjustment to its cost data, but rather challenged the
     replacement of profit markups with a figure of 11.25% rate of
     return on capital investment,[^533] the comparison of VRS with
     VRI,[^534] and the reference to historical VRS compensation rates
     in the *Bureau TRS Order.*[^535] We therefore find that, in the
     circumstances of this proceeding, the Bureau's description of the
     costs disallowed was sufficient explanation of its reasoning to
     support its conclusion.

187. Finally, AT&T notes that none of the commenters to the Public
     Notice issued by the Commission requesting comment on NECA's
     proposed compensation rates suggested that the VRS compensation
     rate was excessive,[^536] and that six of the ten VRS providers,
     accounting for 93% of all VRS traffic, submitted cost data
     supporting very similar VRS compensation rates (ranging from
     \$13.5233 per minute to \$14.6917 per minute). AT&T therefore
     suggests that a figure of approximately \$14 per minute is the
     correct compensation rate for VRS.[^537] The fact that the
     providers' cost data supported a VRS compensation rate within a
     narrow range, however, does not mean that that compensation rate is
     necessarily the appropriate one. This is especially true where, as
     here, the providers' compensation rates were each based on costs
     that the Bureau concluded were unreasonable and at odds with the
     purpose and intent of section 225 and the TRS compensation rules.

#####  Engineering costs

188. In adjusting the underlying cost data, the Bureau disallowed
     certain engineering and operations support costs. These costs are
     directed at such matters as improving picture quality, developing
     software that would be proprietary, and achieving what the
     providers believe would be full compliance with the Commission's
     TRS mandatory minimum standards and the functional equivalency
     mandate.[^538] Although the Bureau did find that some of the
     engineering and software development costs could be properly
     compensated as capital investment, the Bureau explained to the
     providers that such costs directed at providing advanced VRS
     features that fall outside the functional equivalency mandate of
     section 225 are not compensable from the Interstate TRS Fund as a
     "reasonable" cost.[^539]

189. We find that the Bureau was correct in disallowing engineering
     expenses directed at research and development, including software
     development, relating to VRS enhancements that go beyond the
     applicable TRS mandatory minimum standards. There are limits --
     inherent in the Title IV scheme -- to a provider's costs of
     developing and implementing TRS enhancements that are compensable
     from the Interstate TRS Fund. Title IV is intended to ensure that
     entities that offer telephone voice transmission services *also*
     offer TRS so that persons with certain disabilities have access to
     the *functionality* of a voice telephone call. That functionality
     is defined by the applicable mandatory minimum standards, so that
     when a provider offers eligible services that meet these standards
     it may recover its costs of doing so from the Interstate TRS
     Fund.[^540] Although these standards have not been static, and will
     continue to change as technology develops and the forms and types
     of TRS change, there are not gradations of functional equivalency.
     For a particular provider, the requirement of functional
     equivalency is met when the service complies with the mandatory
     minimum standards applicable to the specific service. In this way,
     the Interstate TRS Fund does not become an unbounded source of
     funding for enhancements that go beyond these standards, but which
     a particular provider nevertheless wishes to adopt. This is
     particularly important because the funding for such enhancements
     would have to come from our adoption of a higher carrier
     contribution factor applicable to providers of all interstate
     telecommunications services -- costs ultimately passed on to all
     consumers.

190. We believe that this conclusion best reconciles the Commission's
     interest in avoiding placing undue burdens on the Interstate TRS
     Fund with the statutory mandate that the Commission's regulations
     "do not discourage or impair the development of improved
     technology."[^541] Covered entities are encouraged to use and
     develop new technologies to meet these standards -- *i.e.,* to
     provide the functionality mandated by the statute. But at the same
     time, we do not believe that the Interstate TRS Fund was intended
     to be a source of funding for the development of TRS services,
     features, and enhancements that, although perhaps desirable, are
     not necessary for the provision of functionally equivalent TRS
     service as an accommodation for persons with certain
     disabilities.[^542] Indeed, such a result would be especially
     problematic with respect to the provision of forms of TRS -- such
     as VRS -- that we have permitted but have not mandated.[^543]

##### The providers' supplemental data 

191. In the *Bureau TRS Order,* the Bureau explained that the VRS
     compensation rate it was adopting was an "interim" compensation
     rate that would remain in force until the Bureau completed its
     examination of the cost data submitted by the providers and other
     supplemental submissions.[^544] We have reviewed all of the
     supplemental cost data submitted by the providers.[^545] As noted
     above, because all of the providers filed for confidential
     treatment, the adjustments made are described in the aggregate. We
     note that the quality of the supplementary data we received varied
     considerably, and that this significantly affected our
     determinations. While we found that some of the supplemental data
     submitted by providers successfully resolved specific concerns
     described in the *Bureau TRS Order,* other submissions were
     inadequate to address the concerns raised*.* First, the Bureau
     found that interpreter salaries submitted by certain providers
     appeared to be overstated relative to the number of reimbursable
     minutes budgeted based on actual occupancy and utilization data
     received from selected providers.[^546] Upon review of the
     supplementary materials submitted by these providers, we sustain
     the prior disallowances made by the Bureau because budgeted and
     actual experience continue to be at odds, and in some instances the
     specific inefficiencies that the Bureau communicated to providers
     were not addressed. Second, the Bureau disallowed some data as
     unreliable because it contained various errors or was predicated on
     incorrect assumptions.[^547] In response to the Bureau's action,
     several providers submitted supplemental information to correct
     this data, which included revised staffing plans to establish a
     reasonable consistency between labor costs and reimbursable service
     time.[^548] Upon review of this supplemental data, we have allowed
     additional salary reimbursements based on data that established
     reasonable consistency between budgeted salaries, budgeted
     reimbursable minutes, and actual experience.

192. We also restored some costs that related to engineering support.
     Although, as noted above, engineering costs that are incurred at
     the election of a provider in order to exceed the mandatory minimum
     standards, or that lead to the development of proprietary products,
     are not permitted, we find that some recurring costs are necessary
     to ensure that VRS assets are properly maintained and to allow
     providers to meet the minimum technical standards that we
     prescribe.[^549] Upon review of the supplemental data, we have
     permitted additional reimbursements on this basis. In addition,
     some providers submitted supplemental data related to capital costs
     that the providers had not claimed previously. We are accepting
     this data and, consistent with our discussion above, are allowing
     the 11.25% rate of return plus corresponding tax allowances to be
     applied to the newly submitted capital costs.[^550] Finally, one
     provider, whose data was previously excluded in its entirety,
     provided significantly improved supplementary data that we have
     included in our final calculations.

193. In sum, we have determined overall that the supplementary filings
     justified the recovery of an additional \$9,503,801 in VRS costs,
     with a corresponding increase of 213,415 in net reimbursable
     minutes. Total allowable VRS costs and reimbursable minutes
     increased to \$62,982,497 and 7,113,290 respectively, resulting in
     a final VRS per-minute compensation rate of \$8.854. As we have
     noted, because this compensation rate is based on information that
     was submitted after we adopted the *Bureau TRS Order,* the new
     compensation rate of \$8.854 shall apply commencing September 1,
     2003, through the 2003-2004 fund year.

### The *Bureau TRS Order* and the mandates of Section 225

194. Petitioners assert that the *Bureau TRS Order* is inconsistent with
     section 225. First, Sorenson notes that Section 225(b)(1) directs
     the Commission to make TRS, including VRS, available "to the extent
     possible and in the most efficient manner."[^551] Sorenson also
     notes that Congress required that TRS providers be permitted to
     recover their "fair costs" for providing VRS.[^552] Sorenson argues
     that the interim VRS compensation rate of \$7.751 per minute will
     not allow VRS providers to recover their fair costs, and that
     therefore they will not be able to provide service to "the extent
     possible."[^553] CSD similarly argues that the interim compensation
     rate will not provide sufficient flexibility for VRS providers to
     research and invest in new VRS technologies, thus discouraging or
     impairing the development of new VRS technology in contravention of
     section 225.[^554]

195. Section 225 provides that "the Commission shall ensure that
     interstate and intrastate telecommunications relay services are
     available, to the extent possible and in the most efficient manner,
     to hearing-impaired and speech-impaired individuals in the United
     States."[^555] Section 225 also provides, as we have noted, that
     the Commission's implementing regulations shall "encourage ... the
     use of existing technology and ... not discourage or impair the
     development of improved technology."[^556] These provisions cannot
     be read in isolation, and do not mean that we must compensate VRS
     providers for whatever costs they choose to submit, either as a
     general matter or in pursuit of enhancements that go beyond what is
     required under the mandatory minimum standards. The guiding
     principle, as we have noted, is the recovery of "reasonable" costs,
     and the Commission (and hence the Bureau) has the authority to
     decide what costs are reasonable. In this proceeding, the Bureau
     determined, for example, that markups on costs are not reasonable
     for a service that is an accommodation for persons with
     disabilities, and that certain labor inefficiencies resulted in
     labor costs that could not be considered to be reasonable. The
     Bureau also determined that it was unreasonable for the Interstate
     TRS Fund to pay for software development for services that would go
     beyond our mandatory minimum standards, or that would be
     proprietary in nature. We find that these conclusions were
     reasonable and supported by the data submitted, and we therefore
     affirm them. Section 225's broader pronouncements concerning
     ensuring the broad availability of TRS and the use of improved
     technology do not negate the more specific requirement that
     providers may be compensated for their costs of providing TRS, and
     that those costs must be fair and reasonable. Otherwise, the
     universe of recoverable costs would be unbounded.

196. Petitioners make a variety of related policy arguments in support
     of their petitions for reconsideration. Hands On, for example,
     states that its costs of providing VRS exceed the interim
     compensation rate.[^557] Sorenson asserts that it is not
     economically feasible to add more VRS interpreters under the
     interim compensation rate, and that therefore because of high
     demand, callers are subject to long call waiting times.[^558] CSD
     argues that uncertainty about compensation rates leads to risk
     about whether costs can be recovered, and that possible downturns
     in demand could further hurt its ability to continue to provide VRS
     by reducing revenues.[^559] Sprint asserts that if the interim
     compensation rate is abandoned and NECA's proposed compensation
     rate of \$14.023 is adopted, the risks associated with providing
     VRS will be reduced, service will improve, and an increased use of
     VRS will result in efficiencies of scale and a decline in VRS costs
     that will, in turn, ultimately drive the compensation rate
     lower.[^560] All petitioners agree that the adoption of NECA's
     proposed compensation rate of \$14.023 will allow the continuation
     and growth of high-quality VRS, to the benefit of persons with and
     without hearing and speech disabilities who use VRS.

197. We do not doubt that, from a provider's perspective, a relatively
     higher VRS compensation rate, rather than a lower compensation
     rate, would be more beneficial to the provider's ability (and
     desire) to offer VRS. But *all* TRS compensation rates are based on
     the providers' projected costs of providing the service consistent
     with the mandatory minimum standards and their projected minutes of
     use, and are intended to ensure, as we have repeatedly noted, that
     the providers recover their costs of providing the service. In
     other words, the process of setting "reasonable" compensation rates
     is, by its very nature, intended to ensure the continuation of the
     service. Further, most of the forms of TRS currently available are
     required services. To the extent petitioners are arguing that
     without a higher compensation rate they cannot pursue further
     enhancements to the non-mandatory VRS service, we note that the
     providers are not entitled to unlimited financing from the
     Interstate TRS Fund to enable them to further develop a service
     that is not even required, under a statute that requires providers
     to offer TRS as an accommodation for persons with certain
     disabilities.

198. NAOBI and RID raise another concern. They assert that the interim
     VRS compensation rate could lead to cuts in the interpreter
     workforce, the use by VRS providers of non-certified interpreters,
     and greater interpreter workload with attendant health and safety
     concerns.[^561] While we share these commenters' desire to ensure
     that competent interpreters act as VRS CAs, we have not mandated
     particular interpreter certifications.[^562] We trust that any VRS
     provider that employs CAs who are not able to interpret effectively
     and accurately will rapidly lose business to VRS providers that
     employ VRS CAs who can do so, and therefore this issue is
     self-correcting. Further, we have not set specific standards for
     the daily operations of TRS centers; at the same time, we note that
     we raise in the *FNPRM* below issues concerning the interpreters'
     working conditions and the likelihood of repetitive motion injuries
     for interpreters should VRS be made a mandatory service. In short,
     the Bureau's adjustment of labor costs was based on its
     calculations of reasonable efficiency, including reasonable
     occupancy and utilization rates, and we have no basis on which to
     disturb that decision.

199. Finally, TDI, Hamilton, and NorCal assert that the interim
     compensation rate has led to a decline in the quality and
     availability of VRS.[^563] We note, however, that since the *Bureau
     TRS Order* was adopted, a new provider has commenced offering VRS,
     and it appears that hours of operation were reduced only slightly
     by some providers.[^564] Further, we are in possession of no data
     that reflects a meaningful decline in the quality of VRS. More
     broadly, as we stated above, our mandatory minimum standards are
     intended to define what constitutes, at a given point in time,
     functionally equivalent TRS service. Further, the same standards to
     do not apply to each form of TRS. The Commission specifically
     waived certain requirements for VRS providers, including speed of
     answer, and also has not required non-mandatory services (like VRS
     and IP Relay) to be offered 24 hours per day, 7 days a week.[^565]
     These waivers reflect the fact that in authorizing the provision of
     a new non-mandatory service as a form of TRS, it may not be
     appropriate to require providers to meet all of the mandatory
     minimum standards.[^566] Therefore, for purposes of determining the
     "reasonable" costs that may be recovered for providing such a
     service, the costs must relate to the provision of the service in
     compliance with the applicable non-waived mandatory minimum
     standards. In other words, although the principle of functional
     equivalency necessarily applies to the provision of all forms of
     TRS, the parameters of functional equivalency are specific to each
     form of TRS. And as we have noted, although providers are entitled
     to recover their costs for providing functionally equivalent
     service, they are not entitled to recover their costs of providing
     what they may think is the best possible service they can offer
     without regard to cost.

### Conclusion

200. For the reasons set forth above, we affirm, except as otherwise
     specifically provided herein, the cost recovery methodology for VRS
     established in the *Bureau TRS Order.* We adjust the VRS
     compensation rate to a per-minute compensation rate of \$8.854.
     Because this adjustment is based on our review of the supplemental
     data submitted by the providers after we issued the *Bureau TRS
     Order,* the \$8.854 compensation rate will be effective commencing
     September 1, 2003.[^567]

## THE OCTOBER 25, 2002, FIFTH REPORT AND ORDER ON "COIN SENT-PAID" TRS CALLS FROM PAYPHONES (CC DOCKET 90-571)

### Background

201. On October 25, 2002, we issued the *Coin Sent-Paid Fifth Report &
     Order*,[^568] which adopted measures to ensure the availability of
     payphone services for TRS users that are functionally equivalent to
     traditional payphone services provided to non-TRS users.[^569] We
     noted that we had construed our requirement that TRS providers
     offer "any type of call"[^570] to include coin sent-paid calls,
     which are calls made by depositing coins in a coin-operated public
     payphone.[^571] At the same time, we noted long-standing concerns
     about the technical difficulties associated with providing coin
     sent-paid calls through TRS facilities.[^572] We therefore
     addressed whether a solution for processing coin sent-paid calls
     had been developed, as well as other means by which individuals
     with hearing and speech disabilities could make TRS calls from
     payphones without using coins but instead using calling cards,
     prepaid cards, and collect or third-party billing.

202. We concluded that a technological solution to processing coin
     sent-paid calls was not available, and that the coin sent-paid
     functionality was not necessary to achieve functional
     equivalency.[^573] We therefore eliminated the requirement that TRS
     carriers and providers be capable of providing coin sent-paid TRS
     service from payphones.[^574] With regard to local (non-toll)
     calls, we mandated that carriers provide free TRS local calls from
     payphones.[^575] With regard to toll calls, we required carriers to
     allow the use of calling cards, prepaid cards, and collect or third
     party billing for TRS calls from payphones.[^576] We also declined
     to codify an element of the "Alternative Plan" that provided that,
     for TRS toll calls from payphones, common carriers may not charge
     more than the lower of the coin sent-paid rate or the rate for the
     calling card, collect, or third-party billing.[^577] We noted that
     for the charges to be the lower of the coin sent-paid rate or the
     rate of the caller's preferred billing mechanism, a comparison must
     be made, and concluded that "a requirement to compare the coin
     sent-paid rate and a calling card rate would be unworkable."[^578]
     We also concluded that a "requirement that a TRS provider assure
     the user \[the\] lower rate for long distance calls is not required
     for functional equivalency."[^579] Finally, we encouraged specific
     outreach and education programs to inform TRS users of their
     options to coins when placing toll calls from payphones.[^580]

203. On November 25, 2002, four consumer groups filed a joint petition
     for reconsideration of the *Coin Sent-Paid Fifth Report and
     Order*,[^581] raising two central issues. First, the Joint CSP
     Petitioners assert that the Commission eliminated the requirement
     of "cost parity" for toll calls via payphones by TRS users and such
     calls by non-TRS users, and request that the Commission restore the
     requirements that carriers charge "the lower of the coin sent-paid
     rate or the rate for calling card and/or prepaid card payment
     methods for TRS payphone toll calls."[^582] Joint CSP Petitioners
     maintain that the requirement of functional equivalency "requires
     TRS providers to allow consumers to make and receive TRS calls with
     the same benefits that are available to non-TRS users, including
     ... choice of payment option."[^583] They also assert that if
     "alternative payment mechanisms result in higher rates for TRS
     users, the ... mandate of functional equivalency will not be
     met."[^584] Further, Joint CSP Petitioners assert that
     implementation issues should not preclude the requirement of cost
     parity.[^585]

204. Second, the Joint CSP Petitioners assert that the Commission should
     have implemented a national outreach program under the purview of
     an entity such as the TRS Fund Administrator, rather than leave
     outreach to the voluntary efforts of the carriers.[^586] The Joint
     CSP Petitioners note that some of the voluntary efforts noted by
     the Commission were required by earlier Commission orders, and
     assert that the outreach efforts were nevertheless
     problematic.[^587] The Joint CSP Petitioners assert that by now
     making outreach obligations voluntary, the outreach will not be
     effective and, as a result, the Commission is essentially
     abdicating its responsibilities and legal obligations to provide
     TRS users with a functionally equivalent service.[^588]

205. In response to the Joint CSP Petition, only one comment was
     filed.[^589] The CSP Industry Team opposes Joint CSP Petitioners'
     assertion that additional regulation is needed to ensure
     functionally equivalent rates for toll TRS calls made from
     payphones.[^590] The CSP Industry Team asserts that there is no
     evidence that cost parity is a real problem.[^591] According to the
     CSP Industry Team, "robust competition in the market for calling
     cards and prepaid cards provides a number of options available for
     TRS users to make the functional equivalent of coin sent-paid
     payphone calls, at rates that are usually lower than coin sent-paid
     rates, without the necessity of Commission regulation."[^592] The
     CSP Industry Team further asserts that functional equivalency does
     not require the Commission to ensure that all common carriers
     charge TRS users making toll calls rates that are lower than the
     coin sent-paid toll rate.[^593]

206. The CSP Industry Team also asserts that the "Commission should not
     impose mandatory outreach obligations or national outreach efforts
     designed solely to address payphone calls."[^594] The CSP Industry
     Team notes that the issue of outreach for TRS generally was raised
     in the March 2000 *Improved TRS Order & NPRM,*[^595] and asserts
     that outreach regarding TRS calls from payphones should be included
     in a national program addressing all TRS programs. The CSP Industry
     Team concludes that "\[u\]ntil the Commission determines whether to
     create a comprehensive, national outreach program designed for all
     TRS programs, and what the proper scope of that outreach program
     will be, it would be inappropriate for it to adopt a national
     program, or mandatory outreach requirements, designed to deal
     solely with payphones and coin sent-paid TRS issues."[^596]

### Discussion

207. We deny the Joint CSP Petitioners' petition for reconsideration of
     the *Coin Sent-Paid Fifth Report & Order*. First, we decline to
     impose additional regulation on TRS calls made from payphones,
     including the notion of "cost parity." The Joint CSP Petitioners
     essentially argue that unless the Commission mandates that TRS
     consumers using payphones pay rates no higher than a non-TRS user
     would pay using coins, we have violated the functional equivalency
     mandate of section 225. We disagree. The principle of functional
     equivalency does not require such rigid equality, particularly
     where it is not technologically feasible to reach such a result. As
     we noted in the *Coin Sent-Paid Fifth Report and Order*, to
     determine if a TRS consumer using, *e.g.*, a calling card, is
     receiving a long distance rate at least as low as the coin
     sent-paid rate, a comparison has to be made between the coin
     sent-paid rate for the particular payphone (since such rates vary
     by phone) and the rate for the calling card.[^597] We further noted
     that the record in this proceeding does not show that it is
     feasible to make this comparison.[^598] No persuasive arguments
     have been presented to cause us to alter this conclusion. At most,
     the Joint CSP Petitioners suggest that *it is possible* that TRS
     users may on occasion pay higher rates than non-TRS users would pay
     using coins, and that it is *possible* that carriers can implement
     a method for ensuring that rates arising from other payment methods
     be the same or lower than coin rates from payphones.[^599] Such
     speculation does not provide a basis upon which we can alter the
     conclusions set forth in the *Coin Sent-Paid Fifth Report and
     Order,* which are amply supported by the record.

208. We reiterate that toll rates for the payphone industry are not
     regulated.[^600] We also reiterate that calling cards, prepaid
     cards, and collect and third party billing are payment options for
     placing TRS toll calls from payphones, and that the calling card
     and prepaid phone card markets are very competitive.[^601] We also
     again note that the CSP Industry Team advised in their comments in
     the *Coin Sent-Paid Fifth Report and Order* proceeding that their
     common carrier members of the Industry Team complied with the
     Alternative Plan by keeping their prepaid and calling card rates
     below the coin rate for all of their customers.[^602] We again
     "encourage all long distance carriers to continue this practice or
     we may intervene to require it for TRS calls."[^603] Finally, with
     regard to outreach, in the *Second Improved TRS Order & NPRM* we
     declined to mandate a nationwide uniform outreach campaign,[^604]
     and, for the reasons discussed above, we have again declined to do
     so in this *Report and Order*.

## THE JUNE 17, 2003, SECOND IMPROVED TRS REPORT AND ORDER (CC DOCKET 98-67)

### Background

209. In the *Second Improved TRS Order & NPRM*, the Commission concluded
     that, consistent with the functional equivalency mandate, emergency
     calls made through TRS must be routed to an "appropriate" PSAP, not
     necessarily the "nearest" PSAP.[^605] In doing so, we "reject\[ed\]
     proximity as the primary criterion for determining to which PSAP an
     emergency TRS call should be routed."[^606] We defined
     "*appropriate"* PSAP as the designated PSAP to which a direct call
     from the particular number would be delivered.[^607]

210. We also addressed the need for TRS providers to have a reliable and
     accurate PSAP database in order to ensure that an emergency TRS
     call will be routed to the appropriate PSAP.[^608] We noted that,
     according to commenters, PSAP databases are available from a
     variety of resources, suggesting that TRS facilities may
     expeditiously implement a system to route emergency calls to the
     appropriate PSAP.[^609] Therefore, we required that all TRS
     facilities be able to pass emergency callers to the appropriate
     PSAP within twelve months of publication of the *Second Improved
     TRS Order* in the *Federal Register.*[^610] Under the functional
     equivalency mandate, we required that TRS facilities "ensure that
     any database used to route a TRS emergency call to a PSAP be
     updated on the same schedule that PSAP routing databases are
     updated for 911 calls placed by voice telephone users."[^611]

211. On September 24, 2003, Verizon and AT&T filed petitions for
     reconsideration of the *Second Improved TRS Order & NPRM* with
     respect to issues concerning the routing of emergency calls to the
     "appropriate" PSAP.[^612] First, Verizon asserts that the
     "appropriate" PSAP should not be defined to be the *same* PSAP that
     would have been reached if the caller had dialed 911, but rather to
     be "*either* a PSAP that the caller would have reached if he had
     dialed 911 directly, or a PSAP that is capable of enabling the
     dispatch of emergency services to the caller in an expeditious
     manner."[^613] Verizon notes that directly dialing 911 via a TTY or
     other device is the preferred method of reaching emergency
     services, and that dialing 711 to reach a TRS CA "should be
     understood as the functional equivalent of a voice call to '0' --
     it should provide a 'backup' for callers who, for whatever reason,
     did not dial 911 directly."[^614]

212. Second, Verizon seeks reconsideration of the requirement that the
     TRS emergency PSAP database be updated on the same schedule as 911
     "routing databases."[^615] Verizon explains that because of the way
     in which 911 calls are routed, it would take several years and be
     very costly to create a system that would ensure that the TRS
     provider could direct emergency calls to the same PSAP that would
     have been reached had the TRS user dialed 911.[^616] Verizon adds
     that, in any event, this is unnecessary because if a TTY user calls
     911 the call will be routed automatically to the same PSAP as a
     call by a voice telephone user.[^617] Verizon therefore maintains
     that TTY users already have functionally equivalent 911 service
     because PSAPs must be able to receive 911 calls directly from a
     TTY.[^618]

213. In its Petition, AT&T also seeks reconsideration of the requirement
     that databases used to route TRS emergency calls to a PSAP be
     updated on the same schedule that PSAP routing databases are
     updated for 911 calls placed by voice telephone users, asserting
     that such a requirement will impose significant compliance burdens
     on AT&T and other TRS providers.[^619] AT&T explains that this
     obligation would require that its third party vendor establish new
     arrangements with each state public agency that maintains and
     updates the list of PSAPs in its jurisdiction to assure that the
     list of PSAPs used for routing TRS traffic is concurrently modified
     to reflect changes for routing traditional voice callers' emergency
     traffic.[^620] AT&T further asserts that if this requirement is
     kept in place, the Commission should exercise its authority over
     the LECs that serve wireline 911 callers and require them, as they
     update their own PSAP databases, to concurrently make the same
     information available to TRS providers.[^621] AT&T also proposes
     the establishment of a single database available for all TRS
     providers to use for routing an emergency TRS call to a PSAP.[^622]
     AT&T believes that such a system would greatly simplify those
     carriers' task by eliminating unnecessary duplication of effort and
     lack of uniformity in formats and procedures for furnishing such
     information.[^623]

214. With respect to the first issue, most commenters support Verizon's
     proposed modification of the definition of "appropriate
     PSAP."[^624] Commenters note the technical difficulties involved in
     routing to "the" appropriate PSAP as well as the onerous financial
     burden that would be required to achieve that ability.[^625]
     Commenters also note that upgrading the TRS system to meet this
     requirement is essentially duplicating the 911 system because TTY
     callers already have the functional equivalent service of a 911
     call because PSAPs are required to be able receive TTY calls
     directly.[^626] TDI, however, opposes any modification to the
     definition of "appropriate PSAP," and urges the Commission to
     retain the requirement that TRS users that dial 711 in emergencies
     be able to reach the same PSAP that would have received the call if
     the caller had direct-dialed 911.[^627]

215. With respect to the second issue, Verizon opposes AT&T's proposal
     that the Commission require LECs to make the same information
     available to TRS providers whenever the LECs update their PSAP
     databases.[^628] Verizon contends that AT&T's request for access to
     PSAP databases misunderstands the complicated nature of the 911
     routing system.[^629] Verizon states that the 911 routing
     information is not in a "database" that can be read or used by a
     TRS provider or national database manager; instead, it is in a
     format designed to interact with the 911 routers.[^630] Verizon
     also opposes AT&T's suggestion that the Commission mandate the
     development and deployment of a single database jointly by all TRS
     providers.[^631] Verizon argues that requiring the creation of one
     single, federally mandated nationwide system would only impose a
     burdensome and extremely expensive requirement that could distract
     from and compromise the already effective methods for handling
     emergency calls.[^632] Verizon also suggests that a better course
     of action than a national database is to educate TRS users to dial
     911 directly in the event of an emergency.[^633] Many commenters
     agree with Verizon and note the difficulties and burden of
     complying with the requirement of updating databases used to route
     a TRS emergency call to a PSAP on the same schedule that PSAP
     routing databases are updated for 911 calls placed by voice
     telephone users.[^634]

### Discussion

216. *"Appropriate PSAP."* We conclude that the requirement we
     established in the *Second Improved TRS Order & NPRM --* that the
     "appropriate" PSAP to which an emergency TRS call should be routed
     is the *same* PSAP to which a direct call from the particular
     number would be delivered -- creates an unnecessary and undue
     burden on providers, and therefore we reject it. We now adopt the
     definition of "appropriate" PSAP as "*either* a PSAP that the
     caller would have reached if he had dialed 911 directly, or a PSAP
     that is capable of enabling the dispatch of emergency services to
     the caller in an expeditious manner," and we amend rule
     64.604(a)(4) accordingly. Our ultimate guidepost is whether a TRS
     user calling a TRS facility with an emergency call will have his or
     her call directed to a PSAP that can respond to the emergency. As
     Verizon notes, even if the TRS provider routes the emergency call
     to a PSAP that is not the same one that the caller would have
     reached if he had dialed 911, the PSAP that receives the emergency
     call should be able to use the customer's telephone number to
     determine which PSAP the caller would have reached if he had dialed
     911, and transfer the call to that PSAP.[^635] We also agree that
     to require routing to the *same* PSAP would be nearly impossible
     unless the entire TRS system taps into the 911 routing system,
     including the E911 system. The overhaul of such a system that
     essentially duplicates the 911 system would create substantial
     expense.

217. *Updating PSAP database*. Because we have revised the definition of
     the "appropriate" PSAP to remove the requirement that emergency TRS
     calls be routed to the *same* PSAP that would have received the
     call had the caller dialed 911, we believe that TRS providers
     should be able to satisfy the requirement in the *Second Improved
     TRS Order* *& NPRM* that all TRS facilities be able to pass
     emergency callers to the appropriate PSAP prior to August 24, 2004
     (the effective date of the rule adopted in the *Second Improved TRS
     Order* *& NPRM*[^636]). We also believe that this change makes it
     unnecessary to require TRS facilities to ensure that any database
     used to route a TRS emergency call to a PSAP be updated on the same
     schedule that PSAP routing databases are updated for 911 calls
     placed by voice users, or to require LECs to provide PSAP updates
     to TRS facilities as they update their own facilities with PSAP
     information. At the same time, we note that TRS providers have been
     maintaining their PSAP databases since the Commission amended the
     Handling of Emergency Calls rule in the *Improved TRS Order &
     FNPRM*.[^637] We continue to require providers to maintain and
     update their databases to the extent possible, and we encourage TRS
     providers to continue to work with state public agencies to
     establish a process whereby PSAP data is provided to TRS providers
     on a timelier basis.

218. We also deny AT&T's request for a single national PSAP database
     that is available to all TRS providers. We agree with Verizon that,
     because no national database exists for routing 911 calls, a
     similar database for TRS emergency calls is not required to satisfy
     the functional equivalent mandate.

219. Finally, we agree with commenters that placing emergency calls
     through TRS facilities might never be as effective or reliable as
     placing direct 911 TTY calls; for this reason, we have already
     stated that the recommended method for persons with hearing
     disabilities to reach assistance in an emergency is by dialing
     911.[^638] In this regard, we agree with Verizon and other
     commenters that more education and outreach is needed to educate
     TTY users to dial 911 directly, instead of dialing a TRS facility,
     in an emergency.[^639] We therefore strongly encourage TRS
     providers and common carriers to include educational materials
     addressing this matter with their advertisements and mailings to
     all customers, and in their other outreach efforts. At the same
     time, however, we stress that these outreach activities do not
     relieve TRS providers of their obligation to handle emergency calls
     under our rules. Our rules require that if an emergency call is
     made via TRS, TRS providers must ensure that the call is directed
     to an appropriate PSAP.[^640] Therefore, we reiterate that in the
     event a TRS user places an emergency call through TRS, by either
     dialing 711 or a 10-digit TRS number, the CA must immediately
     handle the emergency call and route it to *an appropriate* PSAP. It
     is not permissible, as some commenters suggest, for TRS providers
     to instruct TRS users to hang up and dial 911 in case of an
     emergency.

# FURTHER NOTICE OF PROPOSED RULEMAKING (CG DOCKET NO. 03-123)

220. In this *FNPRM*, we address a number of outstanding issues with
     respect to VRS and IP Relay including: (1) the appropriate cost
     recovery methodology for VRS; (2) what type of mechanism we might
     adopt to determine which IP Relay and VRS calls are interstate and
     which are intrastate; (3) whether IP Relay and/or VRS should become
     mandatory forms of TRS; (4) whether IP Relay and/or VRS should be
     required to be offered 7 days a week, 24 hours a day; and (5)
     whether we should adopt a speed of answer requirement for VRS, and
     if so, what should it be and how should it be phased-in. We also
     raise the issues of whether there should be separate compensation
     rates for traditional TRS and IP Relay, and whether the
     compensation payments for VRS should be established for a two-year
     period instead of a one-year period. Further, we seek additional
     comment on issues concerning the certification and oversight of IP
     Relay and VRS providers. We also seek comment on the TRS Advisory
     Council, including its composition and the role it plays in
     advising the TRS Fund Administrator on TRS issues. Finally, we
     raise issues with regard to recurring problems with the abuse of
     CAs by callers who seek to either harass the CA, or harass a called
     party, behind the apparent anonymity of an IP Relay call. As in the
     past, our goal is to continue to ensure that functionally
     equivalent TRS services are available to consumers, and to ensure
     the ongoing integrity of the Interstate TRS Fund.[^641]

## IP RELAY

### Determining which IP Relay Calls are Interstate and which are Intrastate

221. As we have noted, we believe that Title IV and its legislative
     history make plain that Congress intended that the states be
     responsible for the cost recovery for intrastate relay services
     provided under their jurisdiction. Therefore, although we
     previously raised the issue of what mechanism will ensure that the
     Interstate TRS Fund pays only for IP Relay calls that are in fact
     interstate, we now seek further comment on this issue. We
     acknowledge the technical difficulties in determining the location
     of the party to an IP Relay call who is using the Internet to
     communicate with the CA. As we have noted, the Internet has no
     equivalent to the PSTN's ANI, which allows the automatic
     determination of each caller's location in a traditional TRS call.
     We also acknowledge that, to the extent IP Relay is not a mandatory
     service under our rules, not every state may wish to enter into a
     contract with one or more of the current or future IP Relay
     providers.[^642]

222. Because the record does not indicate that a technological mechanism
     presently exists that can provide for the automatic identification
     of the location of an IP Relay caller, we must look to other
     methods by which the Commission might determine which IP Relay
     calls are intrastate and which calls are interstate. Two
     alternatives have previously been suggested -- use of a fixed
     allocator (as a proxy for the actual identification of a particular
     call as intrastate or interstate) or registration.[^643]

223. Although commenters generally asserted that the use of an allocator
     would be unworkable,[^644] we seek further comment on this approach
     and the following considerations. First, we recognize that to the
     extent IP Relay is and remains a non-mandatory service, we do not
     have the authority to require all states to offer IP Relay service.
     As a result, if we were to establish an allocator for apportioning
     IP Relay calls between the Interstate TRS Fund and the states, the
     refusal of one or more states to offer IP Relay, or any change in
     the number of states that offer IP Relay, might render the
     determination of the proper allocation *among* the states unduly
     burdensome.[^645] Second, we seek comment on how we would determine
     what the allocator should be in this context. Although it is
     possible to use traditional TRS and STS as a guide, NECA noted in
     May 2003 that there has been a significant shift in interstate
     minutes from traditional TRS to IP Relay, which, because it is not
     possible to jurisdictionally identify IP Relay calls, has made
     developing a factor for allocating toll-free calls less
     accurate.[^646] For the same reason, then, using traditional TRS
     and STS minutes to create a factor for allocating IP Relay calls
     may not necessarily result in an accurate factor; indeed, we would
     be using statistics derived from a smaller pool of minutes to
     determine the appropriate allocation of a larger pool of minutes.
     Finally, commenters previously asserted that use of an allocator
     may cause states whose residents rarely use IP Relay to refuse to
     fund intrastate IP Relay, and would be administratively
     burdensome.[^647] We therefore seek further comment on whether use
     of an allocator could be a reasonable approach to determining which
     IP Relay calls are (or could be considered) intrastate and which
     are (or could be considered) interstate, and if so, how such a
     scheme should be designed and implemented.

224. The other alternative proposed in the *IP Relay Declaratory Ruling
     & FNPRM* is the use of mandatory customer profiles to determine
     caller location, *i.e.*, registration of IP Relay customers.[^648]
     We recognize that some commenters have previously expressed
     opposition to registration.[^649] We now seek further comment on
     whether registration should be used to determine whether an IP
     Relay call is interstate or intrastate, and on the particular
     concerns we note below.

225. First, with regard to the possible reluctance of TRS users to
     submit personal information via the Internet, we note that IP Relay
     providers currently use voluntary profiles to assist regular
     callers and expedite their calls.[^650] Further, in order for
     consumers to have Internet access at all, they are often required
     to give personal information, at least to the extent of a credit
     card number, or address and telephone number, to an ISP. Moreover,
     any fears that customers might have of giving personal information
     via the Internet in this context should be considerably alleviated
     by our strict TRS confidentiality rules,[^651] and by the fact that
     we are encouraging all IP Relay providers to offer to their
     customers encryption of calls. In view of these factors, we seek
     further comment on whether TRS consumers would view registration as
     an excessive burden in this context.[^652]

226. More specifically, we seek comment on whether we should adopt a
     registration scheme as follows: To be eligible for compensation
     from the Interstate TRS Fund, IP Relay providers would be required
     to ensure that users of their IP Relay service register and have on
     file with the provider a profile that indicates the geographic
     location from which they are placing the IP Relay call. Calls could
     then be handled as follows, depending on the particular
     circumstances of the call: (1) if the caller is already registered
     with the provider, and is calling from the location indicated on
     the registration, the caller would need only to confirm that fact
     when asked by the CA during the call set up; (2) if the caller is
     already registered with the particular IP Relay provider, but is
     calling from a location different from that indicated on the
     registration, the caller would need to provide either the telephone
     number of the line through which they are contacting the IP Relay
     provider or, if the customer's internet connection is not via
     telephone line (*e.g.*, through the Internet via cable modem or
     other non-PSTN connection), the location or address from which he
     or she is calling; and (3) if the caller is *not* already
     registered with the IP Relay provider that he or she is using
     (*e.g.,* a first time user of that provider's service), the caller
     would be required to register with the IP Relay provider before the
     call is placed. Consumers would not be precluded from registering
     with more than one provider, and could even be encouraged to do so.

227. In such a manner, an IP Relay provider would be able to identify
     the location of a party using IP Relay -- either from the caller
     profile of a registered user, the ANI of the Internet connection
     number, or directly from the caller, depending on the circumstances
     -- and then be able to determine by reference to the telephone
     number of the other party to the call whether the call is
     intrastate or interstate. The IP Relay provider would then
     determine which calls are interstate and which calls are
     intrastate, and would receive reimbursement from the Interstate TRS
     Fund only for the interstate calls. We note that if such a scheme
     were adopted, we would also have to provide that IP Relay providers
     could not request or require other information from IP Relay users
     beyond that which would be necessary to determine the customer's
     location as part of the registration process. IP Relay providers
     could be required to clearly inform customers that any information
     they provide beyond telephone number or address for the purpose of
     determining interstate or intrastate jurisdiction is provided on a
     purely voluntary basis, as is the case currently with caller
     profiles.[^653] We seek comment on this issue as well.

228. We recognize that a registration requirement would affect the
     current structure of IP Relay. Currently, IP Relay providers
     operate on a national basis. These providers would likely have to
     establish a contract relationship with any state in which they
     desire to offer intrastate service in order to receive compensation
     for providing intrastate calling within that state.[^654] We would
     hope and expect that states would enter into contracts with one or
     more IP Relay provider for service to that state, although that
     concern would at least be partly satisfied if IP Relay were made a
     mandatory service, as addressed below. We seek comment on this
     concern and the issue of multi-vendoring in this context. We also
     recognize the possibility that some IP Relay users might falsify
     their registration information or, if they are calling from a
     location other where they are registered, might not so inform the
     provider, and therefore the call would be incorrectly viewed as
     intrastate instead of interstate (or vice versa). We note, however,
     that if IP Relay providers were able to continue their policies of
     not charging for long-distance calls,[^655] there will be little
     incentive for customers to falsify their registrations. Should IP
     Relay providers begin charging for long-distance calls, customers
     who have given false registration information to avoid long
     distance charges would risk the substantial penalties that can
     result from such illegal action. We also seek comment on this
     concern, and whether it might be necessary to also adopt procedures
     for the verification of registration information.[^656]

229. We also seek comment on whether, as an alternative to adopting a
     mechanism by which IP Relay calls might be identified as either
     interstate or intrastate for purposes of cost reimbursement under
     section 225, such calls should be deemed inherently interstate and,
     if so, under what rationale such a conclusion could be based. We
     also seek comment on whether this conclusion would be consistent
     with the TRS scheme as intended by Congress. We further seek
     comment of what impact such a conclusion would have on the
     Interstate TRS Fund and, more broadly, on the provision of TRS
     services generally.

230. Finally, we seek comment on any other approaches to determining
     which IP Relay calls are interstate and which are intrastate. Since
     this issue was first raised, IP Relay providers, state TRS
     programs, IP Relay consumers, and others may have new ideas or
     concerns regarding the various approaches to the this
     determination. We also seek comment on, if adopted, when the
     particular approach should be required to be implemented. We
     recognize that implementation any new compensation recovery scheme
     for IP Relay will take time and that, in particular, state TRS
     programs will need some time to plan for their assumption of the
     costs of the intrastate service. We emphasize that the alternatives
     we propose in this *FNPRM* with respect to determining whether an
     IP Relay call is interstate or intrastate are limited solely to
     this proceeding for the purpose of attempting to determine which IP
     Relay calls are interstate and which are intrastate, so that the
     Interstate TRS Fund compensates only the provision of interstate IP
     Relay calls.[^657]

### IP Relay as a Mandatory Form of TRS and Offered 24/7

231. Closely related to the issue of how to determine which IP Relay
     calls are interstate and which are intrastate is whether IP Relay
     should become a mandatory form of TRS service. We believe that
     since its inception in April 2002, the provision of IP Relay has
     sufficiently matured, and is sufficiently widespread, such that
     making IP Relay a mandatory service may not pose new burdens on IP
     Relay providers or state TRS programs.[^658] We also recognize that
     if IP Relay is not a mandatory service and states are required to
     assume the costs of intrastate IP Relay, there would be some risk
     that some states would elect not to offer the service.

232. We therefore seek comment on whether we should require IP Relay to
     be a mandatory form of TRS service and, if so, whether the
     effective date should be the same date as the implementation of a
     mechanism that determines which calls are interstate and which are
     intrastate. We also seek comment on any other issues that may be
     implicated by the decision to require IP Relay as a mandatory TRS
     service. In particular, we seek comment on whether IP Relay should
     be required to be offered 7 days a week, 24 hours a day either as a
     mandatory service or even if not made a mandatory service.[^659]

### Separate Rates for IP Relay and Traditional TRS

233. Currently, the Interstate TRS Fund administrator requests and
     analyzes separate data for the costs of providing IP Relay and
     traditional TRS, but these services are compensated at the same
     per-minute rate.[^660] We understand, however, that the cost of
     providing IP Relay may be less than the cost of providing
     traditional TRS; if that is true, providers of IP Relay may be
     overcompensated, and providers of traditional TRS may be under
     compensated. Because the TRS Fund Administrator already separately
     analyzes the cost data for these services, there would be no
     administrative burden to the Fund administrator in determining and
     proposing separate per-minute compensation rates for each service.
     Therefore, we seek comment on whether we should require the TRS
     Fund administrator to determine and propose, and the Commission to
     adopt, separate compensation rates for IP Relay and traditional
     TRS. We also seek comment on any other issues that may be relevant
     to determining whether these compensation rates should remain the
     same or should be separately determined for each service.

## VIDEO RELAY SERVICE

### Cost Recovery Methodology

234. As discussed above in the *Report and Order*, the Commission has
     not yet adopted a final cost recovery methodology for VRS. In the
     *Report and Order,* we extended the interim arrangement set forth
     in the *TRS Cost Recovery MO&O & FNPRM* that permits the
     compensation of eligible VRS providers using the average per minute
     compensation methodology used for traditional TRS. Given that only
     two parties filed comments to the *FNPRM* raising this issue, and
     that these comments were filed more than two years ago, we believe
     that the record should be refreshed on this issue.[^661] We
     therefore request additional comment on the appropriate cost
     recovery methodology for VRS. In so doing, we acknowledge the
     unique characteristics of VRS, and recognize that since the
     Commission recognized VRS as a form of TRS in March 2000 providers
     have now had several years' experience in delivering this service,
     during which time this service has grown to its present usage of
     more than 700,000 minutes per month (a more than tripling in just
     the past year). In this light, we urge commenters to address in
     detail how the nature of VRS supports the cost recovery methodology
     they advocate, and how it is consistent with the cost reimbursement
     scheme set forth in section 225 and the Commission's rules.

235. Specifically, we seek comment on whether we should permanently
     adopt the current per minute compensation methodology for VRS, or
     whether that approach may be inappropriate for VRS. Particularly,
     we seek comment on what safeguards might be necessary to adopt if
     we permanently adopted the per minute compensation methodology,
     given that the volume of minutes of VRS calls has been rapidly
     growing and our concern that, given the likelihood of future
     volatile demand levels for this service, a compensation methodology
     that is based on predicted future demand levels may not result in a
     fair and reasonable compensation rate.

236. We also invite proposals for alternative cost recovery
     methodologies, which might include a lump sum payment or periodic
     payments of estimated actual costs with a "true-up" at the end of
     the fund year. With respect to the latter approach, we note the
     Commission has adopted such measures to "true up," or adjust, a
     carrier's per-line Interstate Common Line Support to account for
     differences between projected and actual cost data.[^662] In that
     context, we expect that such a true up arrangement might minimize
     incentives for carriers to overstate projected interstate common
     line revenue requirements, and provide support that reflects their
     actual costs.[^663] We seek comment on whether, and if so, how to
     apply such true up measures to VRS cost recovery.

237. Further, we seek comment on whether, under whatever cost recovery
     methodology we might adopt, we should clarify the data collection
     guidelines -- set forth in 47 C.F.R. Parts 32 and 36[^664] --
     currently being used by the TRS fund administrator and the TRS
     providers, or whether we should adopt additional guidelines or
     rules, so that the reasonable costs incurred in the provision of
     VRS, given its unique characteristics, and for which providers are
     entitled to reimbursement, may be better ascertained for purposes
     of data submission to the fund administrator, and the calculation
     of the compensation rate. For example, although we have concluded
     that VRS is a "functionally equivalent" form of TRS service, it
     remains a relatively new technology, and some providers may choose
     to develop and provide advanced features which may go beyond
     "functional equivalency." We therefore seek comment on what
     clarifications, or further guidelines or rules, we might adopt to
     assist both providers in submitting data reflecting the costs of
     providing the service, and the administrator and the Commission in
     reviewing such submissions, in identifying permissible engineering
     costs and determining reasonable levels of such costs for inclusion
     in the VRS compensation rate. In this way, we seek to give
     providers greater certainty that they will be compensated for the
     reasonable costs of providing VRS consistent with our rules.

238. Similarly, we note that, because of its unique characteristics, the
     labor costs of VRS constitute a significantly greater proportion of
     the overall costs of providing the service, as compared to the
     other forms of TRS. Therefore, we seek comment on ways by which we
     might clarify the guidelines, or adopt additional guidelines or
     rules, to ensure that providers are fairly compensated for the
     reasonable labor costs incurred in the provision of VRS, and also
     that providers are compensated for labor costs that represent an
     efficient utilization of labor and the provision of functionally
     equivalent VRS. Further, we seek comment on whether we should
     clarify the guidelines, or adopt additional guidelines or rules, to
     identify other cost elements incurred in the provision of VRS, and
     to determine reasonable levels of such costs, for which VRS
     providers are entitled to compensation under section 225 and the
     Commission's rules. In providing such comment, we urge commenters
     to recommend methods to guide the allocation of costs incurred in
     the provision of service where necessary and appropriate to the
     provision of VRS to ensure that providers are compensated for the
     reasonable costs of providing VRS.

239. We also seek comment on whether we should continue to use, in
     determining the reasonable VRS compensation rate, the rate of
     return on capital investment developed by the Commission and
     applied in a wide range of other telecommunications contexts, or
     whether a different approach should be adopted in this context to
     compensate providers for their costs of capital. To the extent
     commenters suggest an alternative approach, we seek comment on the
     justification for such an approach and the departure from the
     present norm. Relatedly, we also seek comment on the appropriate
     treatment of tax allowances in connection with the determination of
     the VRS compensation rate.

240. In addition, as noted above, the Commission directed the
     administrator to fashion a form consistent with Parts 32 and 36 for
     purposes of obtaining the providers' costs of providing eligible
     TRS services, so that the compensation rates for the various forms
     of TRS can then be determined based on these costs. We invite
     commenters to address the appropriateness of this approach as
     applied to the development of a permanent cost reimbursement
     methodology for VRS, and in response to the issues raised above
     concerning the further clarification of these guidelines, or the
     adoption of additional guidelines or rules, to identify the costs,
     and amounts of such costs, that should be used as inputs for a
     particular methodology in calculating a compensation rate for the
     providers' reasonable costs of offering the service. To the extent
     that commenters propose that VRS should be treated differently from
     other TRS services with respect to cost compensation, we seek
     comment on the justification for such a departure. More broadly, we
     also seek comment on whether additional cost recovery guidelines or
     rules developed for VRS should also apply to the other forms of TRS
     eligible for compensation from the Interstate TRS Fund. In this
     regard, we remind commenters that although responses to these
     inquiries should be made in the context of the development of a
     permanent cost reimbursement methodology for VRS, such
     recommendations should also consider the universal applicability of
     proposed clarifications, or additional guidelines or rules, in the
     development of cost data to be factored into the development of an
     overall VRS compensation rate.

### Determining which VRS Calls are Interstate and which are Intrastate

241. As we noted in the March 2000 *Improved TRS Order & FNPRM*, we
     authorized VRS providers to be compensated from the Interstate TRS
     Fund on an interim basis for all VRS calls (*i.e.,* whether
     intrastate or interstate).[^665] The driving factor behind that
     funding decision was the desire to promote the growth of VRS usage
     and technological development. We stated that compensation of all
     VRS calls from the Interstate TRS Fund "is a temporary arrangement"
     and that "\[w\]hen \[VRS\] develops to the point where it can be
     required, as we expect it will, we intend\[ed\] to revert to the
     traditional cost recovery mechanism."[^666] As we have noted, VRS
     has flourished; minutes of use have risen from 7,215 minutes per
     month in January 2002, to 159,469 minutes per month in May 2003, to
     381,783 minutes per month in December 2004, to 534,536 minutes per
     month in February 2004, and, most recently, to 709,718 minutes per
     month in March 2004.

242. We have raised above with respect to IP Relay the issue of whether
     and how to determine which calls are interstate and which calls are
     intrastate, so that the Interstate TRS Fund compensates only for
     the provision of interstate calls, and have sought comment on
     various approaches to doing so. We also seek comment on this same
     issue with respect to the provision of VRS. With VRS, like IP
     Relay, there is presently no means available to automatically
     determine the geographic location of the Internet-based leg of the
     call, and therefore there is no way to determine if a particular
     call is intrastate or interstate. A registration requirement,
     discussed above with respect to IP Relay, is one possible solution
     to that problem. Requiring the party to the call that is using the
     Internet to register and have a profile on file with the provider
     indicating the geographic location of that end of the call (or to
     otherwise inform the provider of his or her location) permits the
     TRS provider to determine whether the call is interstate or
     intrastate for cost recovery purposes. We also seek comment,
     however, on other approaches, including use of an allocator or
     other means of determining which VRS calls are interstate and
     therefore compensable from the Interstate TRS Fund. We also seek
     comment on whether it is appropriate or necessary that the same
     approach should be used for both IP Relay and VRS. Finally, as we
     also have with IP Relay above, we seek comment on whether VRS calls
     should be deemed inherently interstate for purposes of cost
     reimbursement under section 225 and, if so, under what rationale
     such a conclusion could be based. We also seek comment on whether
     this conclusion would be consistent with the TRS scheme as intended
     by Congress, and on its likely impact on the Interstate TRS Fund
     and, more broadly, on the provision of TRS services generally.

### VRS as a Mandatory Form of TRS and Offered 24/7

243. We also seek comment on whether we should require VRS as a
     mandatory form of TRS, an issue we have also raised with respect to
     IP Relay, and, if so, what effect such an arrangement might have on
     our TRS rules.[^667] The rapidly growing minutes of use of VRS
     demonstrates that consumers increasingly prefer this service over
     traditional TRS. Further, as the Commission embarks on a broader
     initiative to stimulate the deployment of broadband services, we
     are mindful that VRS can improve existing services for persons with
     disabilities and can be a demand driver for broadband connections.

244. Relatedly, we seek comment on how this issue relates to the
     adoption of a mechanism to determine whether a particular VRS call
     is interstate or intrastate. As with IP Relay, we are mindful that
     if we adopt a mechanism to determine which calls are interstate and
     which are intrastate, and require the states to compensate
     providers for the intrastate calls, but the service is not
     mandatory, some states may elect not to fund intrastate VRS, so
     that consumers in those states would not have access to intrastate
     VRS. We therefore seek comment on whether we should require VRS as
     a mandatory service if, and when, a jurisdictional separation of
     cost scheme becomes effective for VRS, or whether these two issues
     need not necessarily be linked.

245. In addition, we seek comment on the potential implications of
     making VRS mandatory on: state TRS programs; the available labor
     pool of qualified interpreters; and the interpreters' working
     conditions, specifically the increased likelihood of repetitive
     motion injuries for interpreters. We are particularly concerned
     about whether there are sufficient numbers of interpreters in the
     labor pool such that if the provision of VRS were made mandatory,
     providers could hire a sufficient number of interpreters to handle
     the call volume.[^668] In this regard, we also seek comment on
     whether VRS should be required to be offered 7 days a week, 24
     hours a day either as a mandatory service or even if not made a
     mandatory service,[^669] and in view of possible labor shortage
     issues. Finally, we seek comment on any other issues that may be
     relevant to adopting and implementing a mechanism to determine
     which VRS calls are interstate and which are intrastate and the
     possible mandatory provision of this service.

### Speed of Answer

246. In the December 31, 2001, *VRS Waiver Order* various TRS mandatory
     minimum standards were waived for providers of VRS, including the
     speed of answer requirement.[^670] Although, as set forth above, we
     have extended these waivers and required the filing of annual
     reports, as part of this *FNPRM* seeking comment on a number of VRS
     issues we also seek comment on whether a particular speed of answer
     requirement should be adopted for VRS. We are aware that consumers
     have expressed some frustration over long wait times in placing VRS
     calls, a result at least in part due to the rapidly growing use of
     VRS by consumers. We recognize that long wait times undermine the
     notion of functional equivalency, mandated by Congress. We
     therefore seek further comment on what an appropriate speed of
     answer rule for VRS might be, whether it should be the same as the
     present rule for traditional TRS calls, when such a rule should
     become effective, whether there are a sufficient number of
     interpreters available to ensure that providers could meet a
     particular speed of answer rule, and how a particular rule might
     affect the cost of providing VRS. More generally, we seek comment
     on any other matters relating to the intent of the speed of answer
     rule in the context of VRS.

### Data Reporting Period

247. Currently, our rules require that the Interstate TRS Fund
     administrator file with the Commission on May 1 of each year its
     proposed compensation rates for the various forms of TRS, which
     rates are to be effective for a one-year period beginning the
     following July 1.[^671] With respect to VRS, the annual per-minute
     compensation rate has varied sharply from year to year, beginning
     at \$5.143 in July 2000, jumping to \$17.044 in July 2002, and then
     \$7.751 in 2003. We understand that this lack of consistency may
     make it difficult for VRS providers to plan and budget for the
     provision of this service, particularly with regard to labor costs
     and staffing. Moreover, as a general matter, the operating expenses
     for VRS are more complex than with the other forms of TRS, and
     overall the costs are higher. We therefore seek comment on whether
     the VRS compensation rate should be set for a two-year period,
     rather than a one-year period. We seek comment on whether such an
     arrangement would enable VRS providers to offer this service more
     effectively and efficiently over time, which might result in a
     downward pressure on the compensation rate. We also invite related
     proposals that might result in the more efficient provision of VRS.

### Other VRS issues

248. Currently, our rules require that CAs, including VRS CAs, remain on
     the line with the caller for at least 10 minutes.[^672] The purpose
     of this rule is to minimize any disruption to a TRS call.[^673] We
     note, however, that with VRS calls in some instances the caller
     using ASL and the VRS CA may not be able to understand each other
     because, *e.g.,* each uses a different style of sign language. In
     these circumstances, it may be that the VRS call can be more
     efficiently and effectively handled by a VRS CA other than the one
     who answered or initially handled the call, and therefore that the
     10 minute rule should not apply in this context. We seek comment on
     whether we should adopt a different standard for the in-call
     replacement of CAs that applies to VRS calls and, if so, what that
     standard should be.[^674]

249. We also seek comment on whether VRS CAs should be permitted to ask
     questions to the VRS user during call set-up so that the VRS CA can
     gain an understanding of the nature of the call before the CA
     begins relaying the call. As the Commission has explained, because
     of the limited, transparent role of a CA the completion of the
     initial call to the TRS facility, and the connection with a CA, is
     equivalent to receiving a dial tone.[^675] For this reason, and
     because the role of the CA is to relay the call back and forth
     between the parties as a transparent entity, CAs generally may not
     ask questions to the initiating party about the call. VRS, however,
     presents different challenges for CAs who have to deal with the
     complexities of sign language, including the fact that one sign can
     mean different things depending on the context. We therefore seek
     comment on whether our rules should be amended to expressly permit
     VRS CAs to ask the caller questions about the nature of the call
     during call set-up so that the CA has a basic understanding of the
     context of the call in order to better relay the call. We also seek
     comment on how, if such questions are permitted, we may ensure that
     the VRS CA does not interfere with the independence of the caller
     should the caller choose to not answer the questions.

## CERTIFICATION AND OVERSIGHT OF IP RELAY AND VRS PROVIDERS 

250. As noted above, in the *Second Improved TRS Order & NPRM* we asked
     for comment on whether we should adopt rules whereby the Commission
     "certifies" providers as eligible to receive compensation from the
     Interstate TRS Fund. We have declined above to adopt any such new
     procedures at this time. Nevertheless, in view of the fact that we
     raise numerous issues in this *FNPRM* relating to the provision and
     compensation of IP Relay and VRS, we seek additional comment on
     whether the Commission, rather than the states, should "certify"
     and/or oversee providers of IP Relay and VRS to the extent they are
     eligible for compensation from the Interstate TRS Fund. We note
     that because for both of these services there are presently only a
     handful of national providers, which consumers can access via
     computer without regard to geographic location, it may be either
     unnecessary or unworkable to have all 50 states oversee these
     providers. We therefore seek comment on how the certification and
     oversight of IP Relay and VRS providers might fit with proposals
     for determining which calls are interstate and which are
     intrastate, as well as the possibility that they become mandatory
     services. We also seek comment on any other matters relating to the
     oversight and compensation of IP Relay and VRS providers under
     particular schemes we might adopt whereby states are responsible
     for the costs of intrastate IP Relay and VRS

## TRS ADVISORY COUNCIL

251. In the 1993 *Third TRS Report & Order*, in which the Commission
     adopted the TRS cost recovery rules and appointed NECA as the
     interim Interstate TRS Fund administrator, the Commission also
     mandated the creation of an advisory committee to monitor cost
     recovery issues.[^676] The Commission directed NECA to "establish a
     non-paid, voluntary advisory committee of persons from the hearing
     and speech disability community, TRS users (voice and text
     telephone), interstate service providers, state representatives,
     and TRS providers."[^677] The Commission further directed that each
     group will select its own representative to the committee, and the
     committee will "meet at reasonable intervals (at least
     semi-annually) in order to monitor TRS cost recovery
     matters."[^678] The Commission stated that this committee would be
     a safeguard in view of comments noting that NECA was associated
     with one specific industry group, local exchange carriers.[^679]
     The Commission's creation of this advisory committee is reflected
     in the TRS regulations.[^680] This committee is known as the TRS
     Advisory Council. Its bylaws state that its mission is to "advise
     the interstate TRS Fund Administrator on interstate TRS cost
     recovery matters."[^681]

252. Since its inception, the TRS Advisory Council (Council) has met
     twice a year[^682] to address matters concerning cost recovery and
     the Interstate TRS Fund. In addition, on several occasions the
     Commission has directed the Council, along with the TRS Fund
     Administrator, to develop cost recovery guidelines for various
     forms of TRS.[^683] Further, the Council plays a role in the TRS
     Fund administrator's annual proposal of the compensation rates for
     traditional TRS, IP Relay, STS, and VRS. As a general practice,
     after receiving and analyzing the cost data provided by the TRS
     providers, the TRS Fund administrator consults with the Council for
     final review and approval of the proposed compensation rates before
     submitting them to the Commission on May 1^st^ of each year.[^684]

253. We now recognize the need to reevaluate the appropriate mission of
     the Council. First, we note that over a several year period the VRS
     compensation rate rose dramatically from \$5.143 per minute to
     \$17.044 per minute,[^685] and that for the 2003-2004 fund year the
     VRS rate proposed by NECA was modified in the *Bureau TRS
     Order*.[^686] We are cognizant of our fiduciary responsibility to
     ensure the integrity of the Interstate TRS Fund, and note that
     although the Council has members that are TRS users and TRS
     providers, it does not have any members that represent the TRS Fund
     or the consumers of interstate telecommunications services from
     whom the "costs of interstate \[TRS\] shall be recovered."[^687] We
     therefore seek comment on whether the composition of the Council
     should be changed or expanded to include parties that represent the
     TRS Fund or any other relevant interests not currently represented
     on the Council.

254. More generally, we also seek comment on what the appropriate
     composition of the Council should be to ensure that all interested
     parties are fairly represented, and whether our rules should be
     amended in this regard. Further, we seek comment on whether a
     different nomination procedure should be adopted, instead of the
     current practice of self-nomination, to ensure that even among the
     identified groups there is broader opportunity for persons to be on
     the Council. Finally, we invite general comment on other ways in
     which the Council may play a more productive role in connection
     with the interstate TRS cost recovery scheme or, indeed, whether
     the Council is simply no longer necessary. We note that our rules
     do not elaborate the role of the Council other than to "monitor TRS
     cost recovery matters,"[^688] and we ask whether the Council's role
     should be expanded to include advising the fund administrator and
     the Commission on other TRS issues.[^689]

## ABUSE OF COMMUNICATIONS ASSISTANTS (CAs)

255. In recent years, the Commission has been made aware of various
     instances where TRS calls -- particularly IP Relay and VRS calls --
     are made that are either directly abusive to the CAs or involve
     abusive, sexually explicit, or threatening language directed to the
     called party that the CA is asked to relay. An example of the first
     scenario is where the TRS user, instead of calling the TRS facility
     to "speak" to the called party, calls the TRS facility and makes
     abusive remarks directed at the CA. Another example is when both
     parties to the TRS call engage in sexually explicit and abusive
     language solely to hear the CA repeat the language or to read the
     words as typed by the CA. In the second scenario, the CA may be
     asked to relay a call that is essentially an "obscene" call
     directed at the called party, a call that threatens the called
     party, or a call that discusses past or future criminal conduct.
     There are also relay calls that present other scenarios, such as
     inappropriate conduct or language that the CA either sees as the
     call is relayed (with VRS) or must relay.[^690] As a general
     matter, we seek comment on the scope of this problem, the extent to
     which existing laws may apply to the various scenarios, and whether
     there are any steps the Commission might take, consistent with
     section 225, our regulations, and other applicable laws (including
     the First Amendment) to ensure that CAs are not subject to abusive
     conduct or language, and to preclude, or minimize to the extent
     possible, abusive, harassing, or obscene TRS calls directed at the
     called party.

256. This issue, of course, is framed by the role of a CA as a
     transparent entity who relays calls between the TRS users to
     provide functionally equivalent telephone service. Central to the
     goal of functional equivalency are our rules prohibiting CAs from
     "intentionally altering a relayed conversation" and, to the extent
     that "it is not inconsistent with federal, state, or local law
     regarding the use of telephone facilities for illegal purposes,"
     requiring CAs to "relay all conversations verbatim."[^691] In view
     of these rules, TRS providers have generally understood that they
     must relay all calls regardless of content, and that it is not the
     role of the TRS provider or the CA to act as a censor for calls
     they may deem inappropriate. These rules, however, were enacted
     before a large percentage of TRS calls migrated to IP Relay and
     VRS, platforms that provide anonymity to the user because the
     initial leg of the call to the CA is via the Internet.

257. We initially addressed this matter in our *TRS I* order released in
     July 1991.[^692] In addressing TRS "Confidentiality and
     Conversation Content," we noted that some commenters asserted that
     CAs should not be required to participate in "obscene or harassing
     calls."[^693] We stated, however, that CAs are intended to be
     "transparent conduits relaying conversations without censoring or
     monitoring functions," and that section 225 provides that CAs may
     not divulge the content of any relayed conversation.[^694] We noted
     that it is essential "that users of TRS can have confidence in the
     basic privacy of their conversations."[^695] At the same time, we
     also noted other statutes permit or require disclosure in certain
     circumstances, citing section 705(a), which prohibits disclosure of
     any telephone conversation except under limited circumstances
     related to law enforcement. [^696] The Commission concluded that
     the limited law enforcement exceptions to nondisclosure in section
     705 applied to TRS, but emphasized that "except for these very
     limited exceptions, CAs are prohibited from divulging the content
     or existence of any relayed conversation."[^697]

258. We also note that a TRS call, like any telephone call, is covered
     by section 223, which prohibits obscene or harassing telephone
     calls.[^698] The fact that a TRS call directed to a called party is
     obscene (and therefore illegal), however, does not directly address
     the obligation the TRS facility or CA may have to handle such call
     in confidence, or whether the TRS facility or CA should be able to
     terminate or decline to handle such calls. We therefore seek
     comment on whether existing laws adequately address this issue, or
     whether the Commission should adopt TRS rules directed at curbing
     abusive calls directed at the CA or the called party. In
     particular, we seek comment on what types of calls might be deemed
     to fall outside the scope of a TRS call so that TRS providers
     could, consistent with our rules, refuse to handle such calls. We
     also seek comment on whether the TRS provider or CA should, in any
     particular context, be given the discretion to make the
     determination that a call is abusive and can be terminated. With
     regard to VRS in particular, we also seek comment on appropriate CA
     conduct during idle time, confidentiality with respect to what is
     seen on the screen, and any other issues concerning the appropriate
     behavior and language of VRS CAs. Finally, we seek comment or other
     suggestions on how abusive calls can appropriately and effectively
     be handled by the TRS providers, the CAs, and the state TRS
     programs.[^699]

# PROCEDURAL MATTERS

## *Ex parte* Presentations

259. This *FNPRM* is a permit-but-disclose notice and comment rulemaking
     proceeding. *Ex parte* presentations are permitted, in accordance
     with the Commission\'s rules, provided that they are
     disclosed.[^700]

## Regulatory Flexibility Act

260. As required by the Regulatory Flexibility Act (RFA),[^701] the
     Commission has prepared a Final Regulatory Flexibility Analysis
     (FRFA), which is set forth in Appendix B. Also as required by the
     RFA,[^702] the Commission has prepared an Initial Regulatory
     Flexibility Analysis (IRFA) of the possible significant economic
     impact on a substantial number of small entities by the policies
     and rules proposed in the *FNPRM*. The IRFA is set forth in
     Appendix C. Written public comments are requested on the IRFA.
     These comments must be filed by the deadlines for comment on the
     *FNPRM*, and should have separate and distinct headings designating
     them as responses to the IRFA. The Commission will send a copy of
     the *Second Report and Order, Order on Reconsideration, and Further
     Notice of Proposed Rulemaking* (*Order*), including the FRFA and
     IRFA, to the Chief Counsel for Advocacy of the Small Business
     Administration.

## Paperwork Reduction Act

261. The *Report and Order* contains new, modified or proposed
     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 item.

## Comment and Reply Dates for FNPRM in CG Docket No. 03-123

262. Pursuant to Sections 1.415 and 1.419 of the Commission\'s rules, 47
     C.F.R.\
     §§ 1415, 1.419, interested parties may file comments on or before
     45 days after *Federal Register* publication, and reply comments on
     or before 75 days after *Federal Register* publication. Comments
     may be filed using the Commission\'s Electronic Comment Filing
     System (ECFS) or by filing paper copies. *See* Electronic Filing of
     Documents in Rulemaking Proceedings, 63 FR 24,121 (1998).

263. Comments filed through the ECFS can be sent as an electronic file
     via the Internet to http://www.fcc.gov/e-file/ecfs.html. Generally,
     only one copy of an electronic submission must be filed. If
     multiple docket or rulemaking numbers appear in the caption of this
     proceeding, however, commenters must transmit one electronic copy
     of the comments to each docket or rulemaking number referenced in
     the caption. In completing the transmittal screen, commenters
     should include their full name, Postal Service mailing address, and
     the applicable docket or rulemaking number. Parties may also submit
     an electronic comment by Internet e-mail. To get filing
     instructions for e-mail comments, commenters should send an e-mail
     to ecfs@fcc.gov, and should include the following words in the body
     of the message, \"get form \<your e-mail address\>.\" A sample form
     and directions will be sent in reply. Parties who choose to file by
     paper must file an original and four copies of each filing. If more
     than one docket or rulemaking number appears in the caption of this
     proceeding, commenters must submit two additional copies for each
     additional docket or rulemaking number. Filings can be sent by hand
     or messenger delivery, by commercial overnight courier, or by
     first-class or overnight U.S. Postal Services mail (although we
     continue to experience delays in receiving U.S. Postal Service
     mail). The Commission's contractor, NATEK, Inc., will receive
     hand-delivered or messenger-delivered paper filings for the
     Commission's Secretary at 236 Massachusetts Avenue, NE, Suite 110,
     Washington, DC 20002. The filing hours at this location are 8:00
     a.m. to 7:00 p.m. All hand deliveries must be held together with
     rubber bands or fasteners. Any envelopes must be disposed of before
     entering the building. Commercial overnight mail (other than U.S.
     Postal Service Express Mail and Priority Mail) must be sent to 9300
     East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service
     first-class mail, Express Mail, and Priority Mail should be
     addressed to 445 12^th^ Street, SW, Washington, DC 20554. All
     filings must be addressed to the Commission\'s Secretary,
     Marlene H. Dortch, Office of the Secretary, Federal Communications
     Commission, 445 12^th^ Street, SW, Room TW-A325 Washington, DC
     20554.

264. Parties who choose to file by paper should also submit their
     comments on diskette. These diskettes should be submitted to: Dana
     Jackson, Federal Communications Commission, 445 12^th^ Street,
     S.W., Room 6-C410, Washington DC 20554. Such a submission should be
     on a 3.5 inch diskette formatted in an IBM compatible format using
     Word 97 or compatible software. The diskette should be accompanied
     by a cover letter and should be submitted in \"read only\" mode.
     The diskette should be clearly labeled with the commenter\'s name,
     proceeding (including the lead docket number in this case, CG
     Docket No. 03-123, type of pleading (comment or reply comment),
     date of submission, and the name of the electronic file on the
     diskette. The label should also include the following phrase \"Disk
     Copy - Not an Original.\" Each diskette should contain only one
     party\'s pleadings, preferably in a single electronic file. In
     addition, commenters must send diskette copies to the Commission\'s
     copy contractor, Best Copy and Printing, Inc. (BCPI), Portals II,
     445 12^th^ Street, S.W., Room CY-B402, Washington, D.C. 20554.

# ordering clauses

265. Accordingly, IT IS ORDERED that, pursuant to the authority
     contained in Sections 1,2, 4(i), 4(j), 201-205, 218, and 225 of the
     Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 152,
     154(i), 154(j), 201-205, 218, and 225, this REPORT AND ORDER, ORDER
     ON RECONSIDERATION, AND FURTHER NOTICE OF PROPOSED RULEMAKING are
     ADOPTED, and Part 64 of Commission's rules is AMENDED as set forth
     in the attached Appendix D, except that the requirements concerning
     the filing of annual reports subject to the PRA are not effective
     until approved by OMB. The Commission will publish a document in
     the *Federal Register* announcing the effective date of the
     reporting requirements

266. IT IS FURTHER ORDERED that Hamilton's Petition for Waiver Extension
     IS GRANTED to the extent indicated herein.

267. IT IS FURTHER ORDERED that Hands On's Petition for Waiver IS
     GRANTED to the extent indicated herein.

268. IT IS FURTHER ORDERED that Sprint's Petition for Declaratory
     Ruling, CC Docket No. 98-67 (filed May 27, 2003) (*711 Petition*)
     is GRANTED as provided herein.

269. IT IS FURTHER ORDERED that Hands On's Application for Certification
     as an Eligible VRS Provider (filed August 30, 2002) (*Hands On
     Application*) is DISMISSED without prejudice.

270. IT IS FURTHER ORDERED that Communication Services for the Deaf,
     Petition for Limited Waiver and Request for Expedited Relief, CC
     Docket 98-67 (filed June 12, 2003) (*CSD Petition*) is DENIED as
     provided herein.

271. IT IS FURTHER ORDERED that the petitions of AT&T, CSD, Hands On,
     Sorenson, and Sprint for reconsideration of the *Bureau TRS Order*
     are DENIED.

272. IT IS FURTHER ORDERED that the Interstate TRS Fund shall compensate
     VRS providers at the rate of \$8.854 per completed interstate or
     intrastate conversation minute, which rate shall apply to the
     provision of eligible VRS services by eligible VRS providers
     effective September 1, 2003.

273. IT IS FURTHER ORDERED that interim per-minute compensation rates
     set forth in the *Bureau TRS Order* for traditional TRS, IP Relay,
     and STS are hereby adopted as the final compensation rates for such
     services for the period July 1, 2003, through June 30, 2004. These
     rates are \$1.368 per completed interstate conversation minute for
     traditional TRS and per completed interstate or intrastate
     conversation minute for IP Relay; and \$2.445 per completed
     interstate conversation minute for STS.

274. IT IS FURTHER ORDERED that, except as otherwise specifically
     provided herein, the *Bureau TRS Order* is AFFIRMED.

275. IT IS FURTHER ORDERED that petitions for reconsideration of
     *Telecommunication Relay Services and the Americans with
     Disabilities Act of 1990*, Fifth Report and Order, CC Docket No.
     90-571, FCC 02-269, 17 FCC Rcd 21233 (Oct. 25, 2002) (*Coin
     Sent-Paid Fifth Report & Order*) are DENIED as provided herein.

276. IT IS FURTHER ORDERED that petitions for reconsideration of
     *Telecommunication Relay Services and Speech-to-Speech Services for
     Individuals with Hearing and Speech Disabilities*, Second Report
     and Order, CC Docket No. 98-67, FCC 03-112, 18 FCC Rcd 12379 (June
     17, 2003) (*Second Improved TRS Order*) are GRANTED to the extent
     indicated herein.

277. IT IS FURTHER ORDERED that the amendments to sections 64.601
     through 64.605 of the Commission's rules as set forth in Appendix D
     ARE ADOPTED, effective thirty days from the date of publication in
     the *Federal Register*.

278. IT IS FURTHER ORDERED that the Commission's Consumer & Governmental
     Affairs Bureau, Reference Information Center, SHALL SEND a copy of
     this REPORT AND ORDER, ORDER ON RECONSIDERATION, AND FURTHER NOTICE
     OF PROPOSED RULEMAKING, including the Final Regulatory Flexibility
     Analysis and Initial Regulatory Flexibility Analysis, to the Chief
     Counsel for Advocacy of the Small Business Administration.

279. 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) 418-0531 (voice) or (202) 418-7365 (TTY). This *Order* can
     also be downloaded in Word and Portable Document (PDF) formats at
     http://www.fcc.gov/cgb.dro.

     FEDERAL COMMUNICATIONS COMMISSION

     Marlene H. Dortch Secretary

# Appendix A

#  List of parties {#list-of-parties .unnumbered}

**List of Commenters to the *TRS Cost Recovery MO&O &
FNPRM***[^703]**:**

MCI (WorldCom)

Sprint Corporation

**List of Commenters to the *IP Relay Declaratory Ruling &
FNPRM***[^704]**:**

AT&T

Hamilton Relay, Inc.

Public Service Commission of the State of Missouri

Sprint Corporation

Telecommunications for the Deaf, Inc. (with National Association for the
Deaf and Association of Late Deafened Adults)

Verizon

MCI (WorldCom)

**List of Commenters to the *Second Improved TRS Order &
FNPRM***[^705]**:**

AT&T

AT&T Wireless

California Public Utility Commission

Communication Services for the Deaf

Florida Telecommunications Relay, Inc.

Hamilton Relay, Inc.

Hands On Video Relay Service, Inc.

Iowa Utilities Board (IA UB)

Public Service Commission of the State of Missouri

National Exchange Carrier Association

Relay Nevada Administrator

SBC

Sorenson

Sprint Corporation

Telecommunications for the Deaf, Inc.

Verizon

Verizon Wireless

MCI (WorldCom)

**Reply Comments filed by:**

Hands On Video Relay Service, Inc.

Telecommunications Access of Maryland

Maryland Department of Budget and Management

National Exchange Carrier Association

OneWorld Communication

Oregon Public Utility Commission

SBC

Telecommunications for the Deaf, Inc.

T-Mobile

Verizon

Wireless RERC

MCI (WorldCom)

**List of Commenters to the petitions for extension of the VRS
Waivers**[^706]**:**

Communication Services for the Deaf, Inc.

Sorenson Media, Inc.

Sprint Corporation

**List of Commenters to *711 Petition***[^707]**:**

AT&T

Telecommunications for the Deaf, Inc.

MCI (WorldCom)

**Reply Comments were filed by:**

Sprint

Telecommunications for the Deaf, Inc.

**List of Commenters to the *CSD Petition***[^708]**:**

Telecommunications for the Deaf, Inc.

Hands On Video Relay Service, Inc.

**Reply Comments filed by:**

Communication Services for the Deaf

Registry of Interpreters for the Deaf

Chicago Hearing Society

Texas Commission for the Deaf and Hard of Hearing (TCDHH)

**List of Commenters to petition for reconsideration of the *Bureau TRS
Order***[^709]**:**

Hamilton Relay, Inc.

Telecommunications for the Deaf, Inc.

National Alliance of Black Sign Language Interpreters

Hands On Video Relay Services, Inc.

NorCal Center on Deafness

Registry of Interpreters for the Deaf

Avila, Fern

Babbitt, John

Baccus, Lori

Baker, Virgina

Barr, William V.

Borkowski, John A.

Bousseloub, Lyes

Byrnes, David R.

Clark, Margaret

Clark, Richard

Crouse, Daryl

Cudmore, Brenda

Dahan, Suzanne

Darden, Vicki L.

Dominy, Aurora

Duncan, Theodora

Dunn, Robert

Foreman, Angela Lee

Foshee, Eleanor R.

Freeman, John

Gerlis, Sean

Goff, James R.

Gonzalez, Randy

Gunderson, Jason

Gutsch, Ellizabeth

Hafer, Sarah

Hall, Shari

Hughes, Patricia

Jacob, Philip

Jordan, I. King

Kelly, Ed

Kishpaugh, Brian

Klinefelter, Alvena

Klinefelter, Larry

Koch, Robert

Kostrubala, Christine

Koukoutakis, Pete

Kovacs, Ty

Kucharski, Andrew

LeBeau, G. Phillip

Lindgren, Victor

Lukacs, Saul

Lukowicz, Rick

Lytle, John T.

Mace, Mark

Malzkuhn, Brian

Manning, Steven

Michalik, Dana

Mikasa, Karl K.

Moccia, Kim

Moers, Betty Lou

Morrison, David Alan

Murray, Patrick M.

Myers, Mark and Alyssa

O'Toole, Diana

Oshman, Betty

Otani, Angela

Pellerin, Rene G.

Porter, Adeline

Posner, Erick H.

Quillen, Steven

Rabb, Thelma

Radonich, Charles

Radonich, Judy

Roth, Ellen

Roush, Dina Marie

Roush, Gary

Rudolf, Richard H.

Scheir, Eric

Schulz, Regina

Slater, Sandra

Stecker, Etta

Stecker, Rusty

Urness, Tiffany

White, Barry

Woodward, William

**List of Commenters to petition for reconsideration of the *Coin
Sent-Paid Fifth Report & Order***[^710]**:**

Coin Sent-Paid Industry Team (AT&T, BellSouth Telecommunications, Inc.,
Qwest, SBC, Verizon, and Hamilton)

**List of Commenters to petitions for reconsideration of *Second
Improved TRS Order & FNPRM***[^711]**:**

The Frontier and Citizens Telephone Companies

Hamilton

MCI (WorldCom)

New York State Telecommunications Association, Inc.

SBC

Sprint

TDI Coalition

Ultratec

Verizon

#  {#section .unnumbered}

# Appendix B 

#  Final Regulatory Flexibility Analysis (CG Docket No. 03-123) {#final-regulatory-flexibility-analysis-cg-docket-no.-03-123 .unnumbered}

1.  As required by the Regulatory Flexibility Act of 1980, as amended
    (RFA),[^712] an Initial Regulatory Flexibility Analysis (IRFA) was
    incorporated in the notice of proposed rulemaking (NPRM) to which
    this *Report and Order* responds.[^713] The Commission sought
    written public comment on the proposals in the NPRM section of the
    *Second* *Improved TRS Order* & *NPRM,* including comment on the
    IRFA incorporated in that proceeding. The comments we have received
    discuss only the general recommendations, not the IRFA. This present
    Final Regulatory Flexibility Analysis (FRFA) conforms to the
    RFA.[^714]

**Need for, and Objective of, this *Report and Order***

280. This proceeding was generally initiated to establish technological
     advancements that could improve the level and quality of service
     provided through TRS for the benefit of the community of TRS users.
     This proceeding would ensure compliance with the requirement that
     telecommunications relay services (TRS) users have access to
     telephone services that are functionally equivalent to those
     available to individuals without hearing or speech disabilities.
     The intent of the proposed rules is to improve the overall
     effectiveness of TRS, and to improve the Commission's oversight of
     certified state TRS programs and our ability to compel compliance
     with the federal mandatory minimum standards for TRS.

281. The Commission issued the NPRM in the *Second* *Improved TRS Order
     & NPRM* to seek public comment on technological advances that could
     improve the level and quality of service provided through TRS for
     the benefit of TRS users. In doing so, the Commission sought to
     enhance the quality of TRS and broaden the potential universe of
     TRS users, consistent with Congress's direction under 47 U.S.C. §
     225(d)(2) that TRS regulations encourage the use of existing
     technology and not discourage or impair the development of improved
     technology. The Commission sought comment on: (1) whether, in times
     of emergency, TRS services should be made available on the same
     basis as telephone services for the general public, and whether the
     Commission's rules should be amended to provide for continuity of
     operation for TRS facilities in the event of an emergency; (2)
     whether additional requirements were necessary for ensuring the
     security of IP Relay transmissions; (3) how TRS facilities might
     determine the appropriate PSAP to call when receiving an emergency
     711 call via a wireless device; (4) whether wireless carriers
     should be required to transmit Phase I or Phase II E-911
     information to TRS facilities; (5) whether certain additional
     features, services, or requirements should be required, namely
     non-shared language TRS, speed of answer and call set-up times for
     the various forms of TRS, use of communication access real-time
     translation (CART), interrupt functionality, LEC offerings, talking
     return call, speech recognition technology, improved transmission
     speeds, and additional TTY protocols; (6) issues concerning
     increasing public access to information and outreach; and (7)
     procedures for determining eligibility payments from the Interstate
     TRS Fund. The intent of the proposed rules is to improve the
     overall effectiveness of TRS, and to improve the Commission's
     oversight of certified state TRS programs and our ability to compel
     compliance with the federal mandatory minimum standards for TRS.

282. In this *Report and* *Order*, the Commission establishes new rules
     and amends existing rules governing TRS to further advance the
     functional equivalency mandate of section 225. First, the
     Commission adopts the per minute reimbursement methodology for IP
     Relay.[^715] Second, the Commission requires that TRS providers
     offer anonymous call rejection, call screening, and preferred
     call-forwarding to the extent that such features are provided by
     the subscriber's LEC and the TRS facility possesses the necessary
     technology to pass through the subscriber's Caller ID information
     to the LEC.[^716] Third, the Commission grants VRS waiver
     requests[^717] of the following TRS mandatory minimum
     requirements: (1) types of calls that must be handled; (2)
     emergency call handling; (3) speed of answer; (4) equal access to
     interexchange carriers; (5) pay-per-call services; (6) voice
     initiated calls --VCO and HCO; (7) provision of STS and Spanish
     Relay.[^718] Fourth, the Commission amends the definition of "711"
     by deleting the words "all types of" from the definition, in order
     to clarify its meaning.[^719] Fifth, in the *Order on
     Reconsideration*, the Commission adopts the interim TRS
     compensation rates for traditional TRS, IP Relay and STS that were
     established in the *Bureau TRS Order*.[^720] The Commission also
     adopts a compensation rate for VRS that increases the interim rate
     established in the *Bureau TRS Order*. Sixth, the Commission has
     amended the definition for an "appropriate" PSAP to be either a
     PSAP that the caller would have reached if he had dialed 911
     directly, or a PSAP that is capable of enabling the dispatch of
     emergency services to the caller in an expeditious manner.[^721]
     These amended and new rules will improve the overall effectiveness
     of TRS to ensure that persons with hearing and speech disabilities
     have access to telecommunications networks that is consistent with
     the goal of functional equivalency mandated by Congress.[^722]

**Summary of Significant Issues Raised by Public Comments in Response to
the IRFA**

283. No comments were filed directly in response to the IRFA in this
     proceeding. Furthermore, no small business issues were raised in
     the comments . The Commission has nonetheless considered the
     potential significant economic impact of the rules on small
     entities and, as discussed below, has concluded that the rules
     adopted may impose some economic burden on at least one small
     entity that is a TRS provider. Accordingly, in consideration of
     this small entity and other small entities that may be similarly
     situated, we issue this final regulatory flexibility analysis
     rather than issue a final regulatory flexibility certification.

**Description and Estimate of the Number of Small Entities to Which the
Rules Will Apply**

284. The RFA directs agencies to provide a description of and, where
     feasible, an estimate of the number of small entities that may be
     affected by the rules adopted herein.[^723] The RFA defines the
     term \"small entity\" as having the same meaning as the terms
     \"small business,\" \"small organization,\" and \"small
     governmental jurisdiction.\"[^724] In addition, the term \"small
     business\" has the same meaning as the term \"small business
     concern\" under the Small Business Act.[^725] 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).[^726] A small organization is generally \"any
     not-for-profit enterprise which is independently owned and operated
     and is not dominant in its field.\"[^727]

285. Below, we further describe and estimate the number of small entity
     licensees and regulatees that, in theory, may be affected by these
     rules.[^728] For some categories, the most reliable source of
     information available at this time is data the Commission publishes
     in its *Trends in Telephone Service* Report.[^729]

286. *Incumbent Local Exchange Carriers*. Neither the Commission nor the
     SBA has developed a size standard specifically directed toward
     providers of incumbent local exchange service. The closest
     applicable size standard under the SBA rules is for Wired
     Telecommunications Carriers.[^730] This provides that such a
     carrier is small entity if it employs no more than 1,500
     employees.[^731] Commission data from 2001 indicate that there are
     1,337 incumbent local exchange carriers, total, with approximately
     1,032 having 1,500 or fewer employees.[^732] The small carrier
     number is an estimate and might include some carriers that are not
     independently owned and operated; we are therefore unable at this
     time to estimate with greater precision the number of these
     carriers that would qualify as small businesses under SBA's.
     Therefore, the majority of entities in these categories are small
     entities.

287. *Small Incumbent Local Exchange Carriers*. We have included small
     incumbent local exchange carriers in this present RFA analysis. As
     noted above, a "small business" under the RFA is one that, *inter
     alia*, meets the pertinent small business size standard (*e.g.,* a
     telephone communications business having 1,500 or fewer employees),
     and "is not dominant in its field of operation."[^733] The SBA's
     Office of Advocacy contends that, for RFA purposes, small incumbent
     local exchange carriers are not dominant in their field of
     operation because any such dominance is not "national" in
     scope.[^734] We have therefore included small incumbent local
     exchange carriers in this RFA analysis, although we emphasize that
     this RFA action has no effect on Commission analyses and
     determinations in other, non-RFA contexts.

288. *Interexchange Carriers*. Neither the Commission nor the SBA has
     developed a small business size standard specifically directed
     toward providers of interexchange service. The closest applicable
     size standard under the SBA rules is for Wired Telecommunications
     Carriers.[^735] This provides that such a carrier is small entity
     if it employs no more than 1,500 employees.[^736] Commission data
     from 2001 indicate that there are 261 interexchange carriers,
     total, with approximately 223 having 1,500 or fewer
     employees.[^737] The small carrier number is an estimate and might
     include some carriers that are not independently owned and
     operated; we are therefore unable at this time to estimate with
     greater precision the number of these carriers that would qualify
     as small businesses under SBA\'s size standard. Consequently, we
     estimate that there are no more than 223 interexchange carriers
     that are small businesses possibly affected by our action.

289. *TRS Providers.* Neither the Commission nor the SBA has developed a
     definition of "small entity" specifically directed toward providers
     of telecommunications relay services (TRS). Again, the closest
     applicable size standard under the SBA rules is for Wired
     Telecommunications Carriers.[^738] Currently, there are 10
     interstate TRS providers, which consist of interexchange carriers,
     local exchange carriers, state-managed entities, and non-profit
     organizations. The Commission estimates that at least one TRS
     provider is a small entity under the applicable size standard. The
     FCC notes that these providers include several large interexchange
     carriers and incumbent local exchange carriers. Some of these large
     carriers may only provide TRS service in a small area but they
     nevertheless are not small business entities.[^739] Consequently,
     the FCC estimates that at least one TRS provider is a small entity
     that may be affected by our action.

**Description of Projected Reporting, Recordkeeping and Other Compliance
Requirements**

290. *Reporting and Recordkeeping.* This *Report and Order* may involve
     new mandatory reporting requirements. First, the Commission
     requires that TRS providers offer anonymous call rejection, call
     screening, and preferred call-forwarding to the extent that such
     features are provided by the subscriber's LEC and the TRS facility
     possesses the necessary technology to pass through the subscriber's
     Caller ID information to the LEC.[^740] However, the Commission
     does not adopt specific requirements for the functionality of these
     features. We anticipate that TRS providers will offer these
     features to the extent, and in a manner, that is best suited to
     their facilities. Second, the Commission granted waiver requests of
     the Commission's mandatory minimum standards for VRS, providing
     that VRS providers submit annual reports to the Commission.[^741]
     The report must be in narrative form detailing; (1) the provider's
     plan or general approach to meeting the waiver standards; (2) any
     additional costs that would be required to meet the standards; (3)
     the development of any new technology that may affect the
     particular waivers; (4) the progress made by the provider to meet
     the standard; (5) the specific steps taken to resolve any technical
     problems that prohibit the provider from meeting the standards;
     and (6) any other factors relevant to whether the waivers should
     continue in effect. The report may be combined with the existing
     VRS/IP Relay reporting requirements scheduled to be submitted
     annually to the Commission on April 16^th^ of each year. All such
     compliance requirements will affect small and large entities
     equally, with no arbitrary, unfair or undue burden for small
     entities.

291. *Other Compliance Requirements*. The rules adopted in this *Report
     and Order* require that TRS facilities route emergency TRS calls to
     either a PSAP that the caller would have reached if he had dialed
     911 directly, or a PSAP that is capable of enabling the dispatch of
     emergency services to the caller in an expeditious manner to the
     designated PSAP to which a direct voice call from a non-TRS number
     would be delivered.[^742] Furthermore, the rules require that TRS
     facilities provide certain technological features including:
     anonymous call rejection, call screening, and preferred
     call-forwarding.[^743] These rules will affect TRS providers. All
     such compliance requirements will affect small and large entities
     equally, with no arbitrary, unfair or undue burden for small
     entities.

> **Steps Taken to Minimize Significant Economic Impact on Small
> Entities, and Significant Alternatives Considered**

292. The RFA requires an agency to describe any significant alternatives
     that it has considered in reaching its proposed approach, which may
     include the following four alternatives (among others): (1) the
     establishment of differing compliance or reporting requirements or
     timetables that take into account the resources available to small
     entities; (2) the clarification, consolidation, or simplification
     of compliance or reporting requirements under the rule for small
     entities; (3) the use of performance, rather than design,
     standards; and (4) an exemption from coverage of the rule, or any
     part thereof, for small entities.[^744]

293. One of the main purposes of this *Report and* *Order* and *Order on
     Reconsideration* is to clarify many of the current requirements for
     TRS providers. The *Report and Order* and *Order on
     Reconsideration* impose new and/or modified reporting requirements
     for TRS providers. In addition, they impose new service
     requirements. Because these new service requirements are similar to
     services currently being offered, the Commission expects a minimal
     impact on small business. First, the Commission permanently adopts
     the per minute reimbursement methodology for IP Relay. The per
     minute reimbursement methodology simplifies the compliance and
     reporting requirements for small entities by permanently adopting
     the interim methodology. Second, the Commission requires that TRS
     providers offer anonymous call rejection, call screening, and
     preferred call-forwarding to the extent that such features are
     provided by the subscriber's LEC and to the extent that the TRS
     facility will possess the necessary technology to pass through the
     subscriber's Caller ID information to the LEC. This new requirement
     does not adversely impact small business entities because these
     features are only required where it is technologically feasible to
     do so; the Commission does not require providers to purchase new
     equipment or upgrade their equipment to accommodate these new
     requirements. Third, the Commission grants waiver requests of
     several TRS mandatory minimum requirements for VRS service. These
     standards were waived because the Commission determined that they
     were either technologically infeasible, extremely difficult to
     comply with given the infancy of the service, or they were more
     closely related to verbal communication, as opposed to a visual
     service. Furthermore, these waivers consolidate the reporting
     requirements for providers, and ensure that VRS facilities are only
     responsible for those rules that are technologically feasible.
     Therefore, these waivers have no adverse impact on small
     businesses. Fourth, the Commission amends the definition of "711"
     by deleting the words "all types of" from the definition, in order
     to clarify its meaning. This rule clarifies the definition of 711,
     thereby simplifying the application of the rule for TRS providers.
     This clarification has no adverse impact on small entities but, on
     the contrary, will benefit all entities equally. Fifth, in the
     *Order on Reconsideration*, the Commission adopts the interim TRS
     compensation rates for traditional TRS, IP Relay, and STS for the
     2003-2004 fund year that were established in the *Bureau TRS
     Order,* and are effective from June 30, 2003, through the June 30,
     2004, end of fund year. The Commission also adopts a compensation
     rate for VRS that increases the interim rate established in the
     *Bureau TRS Order;* the new rate is effective from September 1,
     2003, through June 30, 2004. The new VRS compensation rate was
     established after review of supplemental expense and service data
     filed with the TRS administrator. The per minute reimbursement
     methodology takes into account the projected cost and demand data
     of all TRS providers for a given service. Therefore, it does not
     unduly burden small businesses. Sixth, the Commission has amended
     the definition for an "appropriate" PSAP to be either a PSAP that
     the caller would have reached if he had dialed 911 directly, or a
     PSAP that is capable of enabling the dispatch of emergency services
     to the caller in an expeditious manner. The revision of this rule
     simplifies the ability of TRS providers to comply with the
     Commission's emergency call handling requirement for TRS. The
     revision has no adverse impact on small entities.

294. Currently, most TRS providers are not small entities, and are
     either interexchange carriers or incumbent local exchange carriers,
     with very few exceptions.[^745] The Commission refrained from
     requiring features such as interrupt functionality and talking
     return call because commenters expressed concern that such features
     might be cost prohibitive, and might be unduly burdensome to the
     TRS provider and the TRS user.[^746] This *Report and Order* adopts
     rules that will improve the effectiveness of TRS and ensure access
     to telecommunications networks for persons with hearing and speech
     disabilities while imposing the least necessary regulation. Because
     such cost-prohibitive and unduly burdensome measures were rejected
     by the Commission, no arbitrary and unfair burdens are thereby
     imposed on smaller entities.

**Report to Congress**

295. The Commission will send a copy of the *Report and Order* and
     *Order on Reconsideration*, including this FRFA, in a report to be
     sent to Congress pursuant to the Congressional Review Act.[^747] In
     addition, the Commission will send a copy of the *Report and
     Order,* including this FRFA, to the Chief Counsel for Advocacy of
     the Small Business Administration. A copy of the *Report and
     Order,* *Order on Reconsideration* and FRFA (or summaries thereof)
     will also be published in the *Federal Register*.[^748]

# XI. Appendix C {#xi.-appendix-c .unnumbered}

#  Initial Regulatory Flexibility Analysis (CG Docket No. 03-123) {#initial-regulatory-flexibility-analysis-cg-docket-no.-03-123 .unnumbered}

1.  As required by the Regulatory Flexibility Act (RFA),[^749] the
    Commission has prepared this present Initial Regulatory Flexibility
    Analysis (IRFA) of the possible significant economic impact on small
    entities by the policies and rules proposed in this *FNPRM.*[^750]
    Written public comments are requested on this IRFA. Comments must be
    identified as responses to the IRFA and must be filed by the
    deadlines for comments on the *FNPRM*. The Commission will send a
    copy of the *FNPRM*, including this IRFA, to the Chief Counsel for
    Advocacy of the Small Business Administration. *See* 5 U.S.C. §
    603(a). In addition, the *FNPRM* and IRFA (or summaries thereof)
    will be published in the *Federal Register*.

**Need for, and Objectives of, the *FNPRM***

296. The Commission is issuing this *FNPRM* to seek public comment on
     the cost recovery methodology for VRS, what type of mechanism the
     Commission might adopt to determine which IP Relay and VRS calls
     are interstate and which are intrastate, whether IP Relay and VRS
     should become mandatory forms of TRS and offered 24/7; the
     appropriate composition and role of the TRS Advisory Council;
     certification and oversight of IP Relay and VRS providers; and the
     issue of abuse and harassment of TRS CAs. In doing so, the
     Commission hopes to enhance the quality of TRS, and broaden the
     potential universe of TRS users in a manner that will be consistent
     with Congress' mandate under 47 U.S.C. § 225(d)(2) that TRS
     regulations encourage the use of existing technology and not
     discourage or impair the development of improved technology.

297. Specifically, the *FNPRM* seeks comment on several IP Relay related
     issues[^751], including: (1) what type of mechanism the Commission
     may adopt to determine whether IP Relay calls are intrastate or
     interstate (so that states would be required to pay for intrastate
     IP Relay calls and the Interstate TRS Fund would continue to
     reimburse interstate IP Relay calls); (2) whether IP Relay should
     be a mandatory service and be offered 24/7; and (3) whether there
     should be separate compensation rates for traditional TRS and IP
     Relay. The Commission also seeks comment on several VRS related
     issues[^752] including: (1) the appropriate cost recovery
     methodology for VRS; (2) what type of mechanism the Commission
     might adopt to determine which VRS calls are interstate and which
     are intrastate, (3) whether VRS should be a mandatory form of TRS
     and be offered 24/7; (4) whether a speed of answer rule specific to
     VRS should be adopted, and (5) whether the data reporting period
     for VRS should be different from the present one-year period.
     Additionally, the FNPRM seeks comment on certification and
     oversight of IP Relay and VRS providers.[^753] The Commission also
     seeks comment on whether the composition of the TRS Advisory
     Council should be changed or expanded to include parties that
     represent the Interstate TRS Fund or any relevant interests not
     currently represented by the Council.[^754] Finally, the FNPRM
     seeks comment on whether the Commission should adopt TRS rules to
     curb abusive calls directed at the CA or the called party.[^755]

     **Legal Basis**

298. The authority for actions proposed in this *FNPRM* may be found in
     sections 1, 4(i) and (j), 201-205, 218 and 225 of the
     Communications Act of 1934, as amended, 47 U.S.C. sections 151,
     154(i), 154(j), 201-205, 218 and 225.

> **Description and Estimate of the Number of Small Entities to Which
> the Proposed Rules Will Apply**

299. The RFA directs agencies to provide a description of and, where
     feasible, an estimate of the number of small entities that may be
     affected by the rules adopted herein.[^756] The RFA defines the
     term \"small entity\" as having the same meaning as the terms
     \"small business,\" \"small organization,\" and \"small
     governmental jurisdiction.\"[^757] In addition, the term \"small
     business\" has the same meaning as the term \"small business
     concern\" under the Small Business Act.[^758] 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).[^759] A small organization is generally \"any
     not-for-profit enterprise which is independently owned and operated
     and is not dominant in its field.\"[^760]

300. Below, we further describe and estimate the number of small entity
     licensees and regulatees that, in theory, may be affected by these
     rules.[^761] For some categories, the most reliable source of
     information available at this time is data the Commission publishes
     in its *Trends in Telephone Service* Report.[^762]

301. *Incumbent Local Exchange Carriers*. Neither the Commission nor the
     SBA has developed a size standard specifically directed toward
     providers of incumbent local exchange service. The closest
     applicable size standard under the SBA rules is for Wired
     Telecommunications Carriers.[^763] This provides that such a
     carrier is small entity if it employs no more than 1,500
     employees.[^764] Commission data from 2001 indicate that there are
     1,337 incumbent local exchange carriers, total, with approximately
     1,032 having 1,500 or fewer employees.[^765] The small carrier
     number is an estimate and might include some carriers that are not
     independently owned and operated; we are therefore unable at this
     time to estimate with greater precision the number of these
     carriers that would qualify as small businesses under SBA\'s size
     standard. Consequently, we estimate that there are no more than
     1,032 ILECS that are small businesses possibly affected by our
     action.

302. *Small Incumbent Local Exchange Carriers*. We have included small
     incumbent local exchange carriers in this present RFA analysis. As
     noted above, a "small business" under the RFA is one that, *inter
     alia*, meets the pertinent small business size standard (e.g., a
     telephone communications business having 1,500 or fewer employees),
     and "is not dominant in its field of operation."[^766] The SBA's
     Office of Advocacy contends that, for RFA purposes, small incumbent
     local exchange carriers are not dominant in their field of
     operation because any such dominance is not "national" in
     scope.[^767] We have therefore included small incumbent local
     exchange carriers in this RFA analysis, although we emphasize that
     this RFA action has no effect on Commission analyses and
     determinations in other, non-RFA contexts.

303. *Interexchange Carriers*. Neither the Commission nor the SBA has
     developed a small business size standard specifically directed
     toward providers of interexchange service. The closest applicable
     size standard under the SBA rules is for Wired Telecommunications
     Carriers.[^768] This provides that such a carrier is small entity
     if it employs no more than 1,500 employees.[^769] Commission data
     from 2001 indicate that there are 223 interexchange carriers,
     total, with approximately 223 having 1,500 or fewer
     employees.[^770] The small carrier number is an estimate and might
     include some carriers that are not independently owned and
     operated; we are therefore unable at this time to estimate with
     greater precision the number of these carriers that would qualify
     as small businesses under SBA\'s size standard. Consequently, we
     estimate that there are no more than 181 interexchange carriers
     that are small businesses possibly affected by our action.

304. *TRS Providers.* Neither the Commission nor the SBA has developed a
     definition of "small entity" specifically directed toward providers
     of telecommunications relay services (TRS). Again, the closest
     applicable size standard under the SBA rules is for Wired
     Telecommunications Carriers.[^771] Currently, there are 10
     interstate TRS providers, which consist of interexchange carriers,
     local exchange carriers, state-managed entities, and non-profit
     organizations. Approximately five or fewer of these entities are
     small businesses.[^772] The FCC notes that these providers include
     several large interexchange carriers and incumbent local exchange
     carriers. Some of these large carriers may only provide TRS service
     in a small area but they nevertheless are not small business
     entities.[^773] The FCC estimates that there is at least one TRS
     provider that is a small entity that may be affected by our action.

**Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements**

305. This *FNPRM* seeks comment on the adoption of a cost recovery
     methodology for VRS, and the possible means for determining which
     IP Relay and VRS calls are interstate and which are intrastate. The
     adoption of a cost recovery methodology for VRS other than the
     current per minute compensation methodology may require VRS
     providers to maintain different records, although there would be no
     new reporting requirements. The adoption of a mechanism to
     determine which IP Relay and VRS calls are interstate and which are
     intrastate would require providers to keep records of interstate
     and intrastate calls; it may also change the type of reports and
     recordkeeping that IP Relay and VRS providers maintain, depending
     upon how IP Relay and VRS providers are currently maintaining their
     records. Presently, IP Relay and VRS providers report their costs
     for all calls and their record of minutes provided to the
     Interstate TRS Fund Administrator.[^774] If a mechanism were
     adopted to determine which IP Relay and VRS calls were interstate
     and which were intrastate, IP Relay and VRS providers would need a
     database to keep a record of calls and minutes of use that
     differentiate between interstate and intrastate calls.

> **Steps Taken To Minimize Significant Economic Impact on Small
> Entities, and Significant Alternatives Considered**

306. The RFA requires an agency to describe any significant alternatives
     that it has considered in reaching its proposed approach, which may
     include the following four alternatives: (1) the establishment of
     differing compliance or reporting requirements or timetables that
     take (among others) into account the resources available to small
     entities; (2) the clarification, consolidation, or simplification
     of compliance or reporting requirements under the rule for small
     entities; (3) the use of performance, rather than design,
     standards; and (4) an exemption from coverage of the rule, or any
     part thereof, for small entities.[^775]

307. The proposals in the *FNPRM*, and the comments the Commission seeks
     regarding them, result from the Commission's role with respect to
     the implementation and operation of nationwide TRS for persons with
     hearing and speech disabilities.[^776] The guiding principles
     shaping these proposals come from Congress's requirement that TRS
     keep pace with advancing technology and that the Commission's rules
     should not discourage the implementation of technological advances
     or improvements, as well as the mandate that TRS services be
     functionally equivalent to voice telephone services.

308. The majority of TRS service is provided by large interexchange
     carriers and large incumbent local exchange carriers. Because we
     believe that few small business entities would be impacted by these
     proposals, and that the impact, if any, would be minor, it is
     premature to propose specific alternatives that would minimize
     significant economic impact on small businesses. Further, since we
     believe the essence of the rules we may adopt pursuant to this
     proceeding will confer the benefits of a more streamlined approach
     to administering TRS on all entities, including small entities, we
     are further persuaded that it would be premature to consider
     alternatives to the conferral of such benefits. However, we invite
     comment on specific alternatives that may minimize the economic
     impact of the proposed rules on small businesses.

**Federal Rules That May Duplicate, Overlap, or Conflict with the
Proposed Rules**

309. None.

# XII. APPENDIX D {#xii.-appendix-d .unnumbered}

#  FINAL RULES {#final-rules .unnumbered}

For the reasons discussed above, the Commission amends 47 C.F.R., Part
64, Subpart F as follows:

**1. In Part 64, Subpart F, remove the words "Wireline Competition
Bureau" and add, in their place, "Consumer & Governmental Affairs
Bureau."**

**2. Section 64.601(1) is amended to delete the words "all types of"
from the definition of *711.***

**3. Section 64.604(a)(4) is amended to delete the second sentence and
in its place to insert: "An appropriate PSAP is either a PSAP that the
caller would have reached if he had dialed 911 directly, or a PSAP that
is capable of enabling the dispatch of emergency services to the caller
in an expeditious manner."**

# XIII. appendix e  {#xiii.-appendix-e .unnumbered}

#  summary of ip relay and vrs waivers {#summary-of-ip-relay-and-vrs-waivers .unnumbered}

**[IP Relay]{.underline}** Expiration Address in **[VRS]{.underline}**
Expiration Address in

**[Providers]{.underline}** Date Annual Rep. **[Providers]{.underline}**
Date Annual Rep.

+--------------+--------+-------+----------+--------+--------+--------+
| **1. STS**   | Waived | 1     | Yes, due | Waived | Inde   | No     |
|              | **^    | /1/08 | 4/16     | **^(   | finite |        |
| **2. Spanish | (3)^** |       |          | 17)^** |        | No     |
| Relay**      |        | 1     | Yes, due |        | Inde   |        |
|              | Waived | /1/08 | 4/16     | Waived | finite | Yes,   |
| **3. Types   | **^    |       |          | **^(   |        | due    |
| of Calls**   | (4)^** | Indef | No       | 18)^** | 1/1/08 | 4/16   |
|              |        | inite |          |        |        |        |
| **4.         | Waived |       | Yes, due | Waived | 1/1/06 | Yes,   |
| Emergency**  | **^    | 1     | 4/16     | **^(   |        | due    |
|              | (5)^** | /1/08 |          | 19)^** | e      | 4/16   |
| **Call**     |        |       | Yes, due |        | arlier |        |
|              | Waived | 1     | 4/16     | Waived | of     | Yes,   |
| **Handling** | **^    | /1/08 |          | **^(   | 1/1/06 | due    |
|              | (6)^** |       | Yes, due | 20)^** | or     | 4/16   |
| **5. Speed   |        | 1     | 4/16     |        | when   |        |
| of**         | Waived | /1/08 |          | Waived | new    | Yes,   |
|              | **^    |       | Yes, due | **^(   | rule   | due    |
| **Answer**   | (7)^** | 1     | 4/16     | 21)^** | a      | 4/16   |
|              |        | /1/08 |          |        | dopted |        |
| **6. Equal   | Waived |       | Yes, due | Waived |        | Yes,   |
| Access to**  | **^    | 1     | 4/16     | **^(   | 1/1/08 | due    |
|              | (8)^** | /1/08 |          | 22)^** |        | 4/16   |
| **Int        |        |       | Yes, due |        | 1/1/08 |        |
| erexchange** | Waived | 1     | 4/16     | Waived |        | Yes,   |
|              | **^    | /1/08 |          | **^(   | 1/1/08 | due    |
| **Carrier**  | (9)^** |       | Yes, due | 23)^** |        |        |
|              |        | 1     | 4/16     |        | 1/1/08 | 4/16   |
| **7.         | Waived | /1/08 |          | Waived |        |        |
| Pa           | **^(   |       | Yes, due | **^(   | 1/1/08 | Yes,   |
| y-per-call** | 10)^** | 1     | 4/16     | 24)^** |        | due    |
|              |        | /1/08 |          |        | 1/1/08 |        |
| **(900)      | Waived |       | Yes, due | Waived |        | 4/16   |
| Service**    | **^(   | 1     | 4/16     | **^(   | 1/1/08 |        |
|              | 11)^** | /1/08 |          | 25)^** |        | Yes,   |
| **8. Voice   |        |       | Yes, due |        | 1/1/08 | due    |
| Carry**      | Waived | 1     | 4/16     | Waived |        | 4/16   |
|              | **^(   | /1/08 |          | **^(   | 1/1/08 |        |
| **Over       | 12)^** |       | No       | 26)^** |        | Yes,   |
| (VCO)**      |        |       |          |        | 1/1/08 | due    |
|              | Waived |       |          | Waived |        | 4/16   |
| **(one-line) | **^(   |       |          | **^(   | 1/1/08 |        |
| ^(1)^**      | 13)^** |       |          | 27)^** |        | Yes,   |
|              |        |       |          |        |        | due    |
| **9. Hearing | Waived |       |          | Waived |        | 4/16   |
| Carry**      | **^(   |       |          | **^(   |        |        |
|              | 14)^** |       |          | 28)^** |        | Yes,   |
| **Over       |        |       |          |        |        | due    |
| (HCO)**      | Waived |       |          | Waived |        | 4/16   |
|              | **^(   |       |          | **^(   |        |        |
| **(one-line) | 15)^** |       |          | 29)^** |        | Yes,   |
| ^(2)^**      |        |       |          |        |        | due    |
|              | Not    |       |          | Waived |        |        |
| **10. VCO    | re     |       |          | **^(   |        | 4/16   |
| --to-TTY**   | quired |       |          | 30)^** |        |        |
|              | **^(   |       |          |        |        | Yes,   |
| **11.        | 16)^** |       |          | Waived |        | due    |
| HCO-to-TTY** |        |       |          | **^(   |        | 4/16   |
|              |        |       |          | 31)^** |        |        |
| **12.        |        |       |          |        |        | Yes,   |
| VCO-to-VCO** |        |       |          | Waived |        | due    |
|              |        |       |          | **^(   |        | 4/16   |
| **13.        |        |       |          | 32)^** |        |        |
| HCO-to-HCO** |        |       |          |        |        | No     |
|              |        |       |          | Not    |        |        |
| **14. Call   |        |       |          | re     |        |        |
| Release**    |        |       |          | quired |        |        |
|              |        |       |          | **^(   |        |        |
| **15. 3-way  |        |       |          | 33)^** |        |        |
| Calling**    |        |       |          |        |        |        |
|              |        |       |          |        |        |        |
| **16. Speed  |        |       |          |        |        |        |
| Dialing**    |        |       |          |        |        |        |
|              |        |       |          |        |        |        |
| **17.        |        |       |          |        |        |        |
| Providing**  |        |       |          |        |        |        |
|              |        |       |          |        |        |        |
| **Service    |        |       |          |        |        |        |
| 24/7**       |        |       |          |        |        |        |
+--------------+--------+-------+----------+--------+--------+--------+

\(1\) We note that we have not waived the requirement to provide
two-line VCO for either IP Relay or VRS. *See Second Improved TRS Order
& NPRM* at ¶¶ 35-36.

\(2\) We note that we have not waived the requirement to provide
two-line HCO for either IP Relay or VRS. *See id.*

\(3\) *IP Relay Order On Reconsideration* at ¶¶ 1, 13-14, 28.

\(4\) *Id.* at ¶¶ 7-12

\(5\) *IP Relay Declaratory Ruling & FNPRM* at ¶31.

\(6\) *IP Relay Order On Reconsideration* at ¶¶ 19-22.

\(7\) *Id.* at ¶¶ 1, 13-14, 28.

\(8\) *Id.* at ¶¶ 15-18.

\(9\) *Second Improved TRS Order & NPRM* at ¶¶ 35-36.

\(10\) *Id.* at ¶¶ 35-36.

\(11\) *Id.*

\(12\) *Id.*

\(13\) *Id.* at ¶ 76.

\(14\) *Id.*

\(15\) *Id.*

\(16\) *See* 47 C.F.R. § 64.604(b)(4) ("Relay services that are not
mandated by this Commission are not required to be provided every day,
24 hours a day."). IP Relay is not a mandatory TRS service.

\(17\) *See TRS Cost Recovery MO&O* at ¶¶ 25-27; clarified *supra* at ¶¶
138-139.

\(18\) *Id.*; clarified *supra* at ¶¶ 138-139.

\(19\) *VRS Waiver Order* at ¶¶ ­­ 9-10; extended *supra* at ¶¶ 113-115.

\(20\) *Id.* at ¶¶ ­­11-13; extended *supra* at ¶¶ 116-118.

\(21\) *Id.* at ¶¶ ­­15-16; extended *supra* at ¶¶ 119-123. The waiver of
the speed of answer requirement for VRS will terminate at the time the
Commission adopts a new speed of answer rule for this form of VRS, or
January 1, 2006, whichever is sooner.

\(22\) *Id.* at ¶¶ ­­ 17-18; extended *supra* at ¶¶ 124-129.

\(23\) *Id.* at ¶¶ ­­ 19-20; extended *supra* at ¶¶ 130-132.

\(24\) *See supra* at ¶¶ ­­134-135.

\(25\) *Id.*

\(26\) *Second Improved TRS Order & NPRM* at ¶¶ 35-36.

\(27\) *Id.*

\(28\) *Id.*

\(29\) *Id.*

\(30\) *Id.* at ¶ 76.

\(31\) *Id.*

\(32\) *Id.*

\(33\) *See* 47 C.F.R. § 64.604(b)(4) ("Relay services that are not
mandated by this Commission are not required to be provided every day,
24 hours a day."). VRS is not a mandatory TRS service.

**STATEMENT OF**

**CHAIRMAN MICHAEL K. POWELL**

> *Re: Telecommunications Relay Services and Speech-to-Speech Services
> for Individuals with Hearing and Speech Disabilities (CC Docket
> 90-571, CC Docket 98-67) Order on Reconsideration; (CG Docket 03-123)
> Report and Order and Further Notice of Proposed Rulemaking*.

Section 225 of the Act seeks to ensure access to communications
facilities for all Americans. Today's Order empowers people with
disabilities to participate in the information economy and reap its
benefits equally with their neighbors.

Today's item takes another step toward fulfilling the goals of Title IV
of the Americans with Disabilities Act by further refining the rules
governing the provision of Telecommunications Relay Service (TRS). In so
doing, we take a first step toward expanding the forms of TRS that will
become mandatory TRS services. In addition, this Order gives relay
providers the freedom to adapt their offerings to the needs of their
customers. Features that they might offer such as automatic call-back,
higher transmission speeds, and tighter security for IP Relay calls
should represent value added benefits to consumers. At the same time,
this Commission must exercise its oversight responsibilities to ensure
that our TRS reimbursement mechanism does not become an unbounded source
of funding for features that go well-beyond the TRS connectivity that so
many people with disabilities depend upon.

Moreover, Video Relay Service (VRS) is an application spurring demand
for broadband facilities. I am encouraged by this industry's ability to
innovate and provide solutions for customers. The availability of these
services reflects the vital role that broadband technology plays in
improving consumers' lives, satisfying important social policy
objectives, and driving our nation's economy. The possible expansion of
TRS funding to include VRS will present difficult questions of federal
authority as well as unique reimbursement questions. I look forward to
hearing from the disability community as well as other stakeholders, as
we tackle these issues together. Our Consumer and Governmental Affairs
Bureau will continue to open their doors to interested parties who are
legitimately concerned about issues that are vital to the daily lives of
people with disabilities.

We are proud of the decade of expanded opportunity and enhanced
communications that TRS has fostered. Support for Americans with
disabilities is central to the FCC's agenda. Our efforts, however, are
in no way complete. I look forward to the continued growth of TRS as
well as policies that increase access to the information economy.

**SEPARATE STATEMENT OF**

**COMMISSIONER KATHLEEN Q. ABERNATHY**

> *Re: Telecommunications Relay Services and Speech-to-Speech Services
> for Individuals with Hearing and Speech Disabilities, Report and Order
> (CG Docket No. 03-123), Order on Reconsideration (CC Docket No. 98-67,
> CC Docket Nos. 90-571).*

Telecommunications relay services have long played a vital role in
enabling consumers with hearing or speech disabilities to communicate by
telephone. In addition, Internet-Protocol technologies have led to vast
service improvements for these consumers in recent years. In particular,
video relay services enable deaf consumers to enjoy the sort of seamless
conversations that hearing consumers take for granted. So I am pleased
to support this Order, which addresses a number of outstanding questions
regarding TRS providers' regulatory obligations, cost-recovery, and
related matters.

I am especially pleased that the Order directs the Consumer and
Governmental Affairs Bureau to step up its outreach efforts associated
with TRS services. The Commission can play a critical role in informing
both the deaf community and the public at large about the availability
of TRS services and how these services function. I understand that
people sometimes confuse relay calls with telemarketing calls and hang
up based on a lack of awareness. We can and should address such problems
by developing fact sheets and web-based resources, participating in
conferences, and taking a variety of other steps. As the Order notes,
the Commission does not have the authority or resources to fund a
national television campaign, but we can nevertheless make great strides
in improving public awareness.

All of us at the Commission fully support the TRS program and want to
ensure that it provides the best possible experience for consumers. At
the same time, we have a statutory obligation to ensure that providers
recover their "costs" ― and this entails not only an assurance of
compensation but also a limitation on the amount of recovery from the
government. Specifically, while providers are entitled to recover all of
their direct costs plus a reasonable return on investment, the statute
does not appear to permit mark-ups on ordinary expenses. I recognize
that some TRS providers have continuing concerns regarding the
cost-recovery methodology adopted by the Bureau and the fund
administrator, and I hope that the Further Notice of Proposed Rulemaking
we adopt today will help generate more clarity on this issue.

Finally, I am encouraged that we are seeking comment on whether VRS
should become a mandatory service. Introducing the service on a
voluntary basis made perfect sense given the state of the technology,
but VRS usage may surpass traditional TRS in the not-too-distant future.
Parties have raised significant questions as to whether there is a
sufficient number of qualified interpreters to support a mandatory
24-hour service and whether relay providers will be able to comply with
reasonable speed-of-answer requirements and other mandates. I look
forward to addressing these and other issues in the further rulemaking.

**STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS,**

**APPROVING IN PART, DISSENTING IN PART**

Re: *Telecommunications Relay Services and Speech-to-Speech Services for
Individuals*

*with Hearing and Speech Disabilities (CC Docket Nos. 90-57 & 98-67,*

*CG Docket No. 03-123)*

Fourteen years ago, when Congress passed the Americans with Disabilities
Act, it directed the Commission to do everything we could to ensure that
those with disabilities have access to functionally equivalent services.
That concept---functional equivalency---may sound inelegant, but it
translates into equal opportunity, equal rights and a fuller
participation in our society. It translates into 54 million Americans
having more of the tools they need to be fully productive citizens.

In most ways, today's Order and Notice embraces this mandate of
functional equivalency. It updates our rules, resolves open questions
and clarifies the obligations of TRS providers. We also seek comment on
how to address thorny jurisdictional questions that accompany new
Internet services. And we ask if the time is right for VRS to become a
mandatory service. These are good and positive steps. But in a few ways,
today's Order falls short of the spirit and purpose of the Americans
with Disabilities Act. For this reason, I support this Order, but not in
two key respects.

I am disappointed with the position the Order takes affirming the
Bureau's abrupt decision last year to slash in half the VRS compensation
rate with less than twenty-four hours notice. As a general principle,
people intuitively endorse lower rates, but here the providers of VRS
were left wondering what costs were allowed and what costs were
disallowed by a methodology that was employed with too little in the way
of rules, standards or prior guidance from the Commission. More
importantly, VRS consumers were stuck with the consequences. Service
hours were cut without warning and long waits for communications
assistants became common. As a result, the service missed the functional
equivalency mark by a too wide margin. There are also issues of
authority and notice that we do not straighten out and settle in this
item. This is unfortunate. It leaves in legal limbo the
"know-it-when-I-see-it" VRS cost standard used one year ago. I am
pleased we ask questions about adopting guidelines and standards for
reasonable costs in the Notice. This is the right thing to do. It will
enhance our oversight and ensure the program functions with the
integrity it must have. Nonetheless, I believe that what was done last
year was without precedent and not right. On this issue, I respectfully
dissent.

I also find troubling the conclusion that some forms of non-shared
language TRS are not eligible for reimbursement. Latinos are now the
largest minority group in the United States. There are thousands of deaf
children from Spanish-speaking homes in this country. In fact, they are
the fastest growing minority group in the deaf school age population in
the United States. For this population to communicate in a functionally
equivalent manner with their Spanish-speaking parents, we should be
authorizing non-shared language VRS reimbursement. On this issue, I also
dissent.

Finally, though I will support the position this decision takes on
outreach, I remain concerned that we really need to do more to explain
this service. Callers using relay service experience an unacceptably
large number of hang-ups because people receiving TRS calls are not
familiar with the service. Employment opportunities are not extended to
individuals with hearing disabilities because some employers are
uncomfortable using TRS for business transactions. This is unacceptable.
In this Order, we expressly task the Consumer and Governmental Affairs
Bureau to take concrete steps to improve public awareness. I believe
that the Bureau is working to do a good job of outreach based on the
resources available to it. Nevertheless, we task the Bureau very
specifically here and I look to Chief Snowden and his team to do a
banner job reaching out to familiarize the population at large with TRS.
If these efforts fail to produce the kind of wide-spread understanding
we must have to ensure true functional equivalency, I will push hard for
us to revisit this issue.

Thank you to the Consumer and Governmental Affairs Bureau for your hard
work on this item. I look forward to working with the staff of the
Disabilities Rights Office on the TRS issues we have teed-up in this
Notice and other outstanding issues concerning handset hearing aid
compatibility, digital captioning and IP services.

**SEPARATE STATEMENT OF**

**COMMISSIONER JONATHAN S. ADELSTEIN**

**APPROVING IN PART, DISSENTING IN PART**

*Re: Telecommunications Relay Services and Speech-to-Speech Services for
Individuals with Hearing and Speech Disabilities*, CC Docket Nos. 90-571
and 98-67, CG Docket No. 03-123.

Congress directed this Commission in section 225 of the Act to ensure
that telecommunications services are available to hearing-impaired and
speech-impaired Americans. To implement this directive, the FCC
established the Telecommunications Relay Service (TRS) program, which
requires telephone companies to provide relay services throughout the
area in which they offer service so that persons with disabilities will
have access to telecommunications services. Without federal and state
TRS services, millions of Americans would be left out of the
communications revolution that is reshaping our economy and society.

This Order makes two promises of future action that are particularly
notable. First, the Order commits our Consumer and Governmental Affairs
Bureau to launch a "comprehensive outreach plan" to make the
availability of TRS services more widely known, not only to Americans
with disabilities but to the public-at-large. Outside parties have
repeatedly told us, and our own Consumer Advisory Council has concurred,
that we must improve our efforts to inform and educate the public about
the availability of TRS. Our commitment to take on this challenge is an
important promise that we must live up to.

In this Order, we also commit to sponsor the applications of TRS service
providers that seek priority status for restoration in emergency
situations. Obtaining that status would be an important step towards
ensuring that Americans with disabilities have access to communications
services in times of crisis.

I cannot support this Order, however, to the extent that it declares all
non-shared language TRS services to be "value-added" and ineligible for
funding, particularly in the case of Video Relay Services (VRS). Our
country is growing increasingly multi-ethnic and multi-cultural. A study
by the Pew Hispanic Center reports that 40% of the 40 million Latinos in
this country -- or 15.5 million people -- speak and understand "just a
little" or "no" English. I believe the FCC and communications policy has
got to keep up with this change and be more responsive to these
communities.

I also must dissent in part with respect to our treatment of cost
recovery issues for VRS. VRS is an increasingly important tool for those
portions of the deaf community who rely on American Sign Language (ASL).
This includes individuals who cannot type on a TTY phone easily, such as
children and senior citizens, and those who do not speak English. VRS
allows ASL and hearing individuals to have real time conversations that
more closely mirror the speed and natural flow of voice-to-voice
conversations.

In June 2003, the Consumer and Governmental Affairs Bureau reduced our
TRS Administrator's proposed VRS compensation rate by almost
fifty-percent. That action left many VRS providers with no choice but to
cut service or employees, elicited an outcry from many members of the
deaf and heard of hearing community, and raised legitimate questions of
substance and process. This Order falls short in addressing these
concerns and issues.

It is absolutely critical that the Commission provide oversight to
ensure that our VRS compensation rate is limited to "reasonable costs,"
the standard articulated in our rules. We also have an obligation,
however, to ensure that providers have adequate notice of how we will
apply this standard, so that they can plan their operations accordingly.

I am pleased that the Further Notice attached to this Order seeks
comment on how we can improve our rules and process for setting the VRS
compensation rate. That is movement in the right direction. More
broadly, the Further Notice also opens an important dialogue about
whether VRS and Internet Protocol (IP) Relay Services should now qualify
as mandatory services. The rapid increase in usage of VRS demonstrates
the value of this service and hastens the day when this Commission will
need to address technical issues about emergency call handling and the
speed of answer for VRS calls.

I look forward to working with my colleagues, members of the TRS
Advisory Committee, and the many members of the disabilities community
on these issues as we move forward.

[^1]: The term *telecommunications relay service* means "telephone
    transmission services that provide the ability for an individual who
    has a hearing or speech disability to engage in communication 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." 47 U.S.C. § 225(a)(3). As
    discussed further below, TRS "includes services that enable two‑way
    communication between an individual who uses a \[TTY\] or other
    nonvoice terminal device, and an individual who does not use such a
    device," *id.*, as well as non-English relay services,
    Speech-to-Speech services (STS), and Video Relay Services (VRS),
    *see* 47 C.F.R. § 64.601 (9), (12), & (17), respectively. TRS also
    includes what is called IP Relay, whereby a user may connect to a
    TRS facility via a computer (or other similar device) through the
    Internet.

[^2]: Pub. L. No. 101-336, § 401, 104 Stat. 327, 336-69 (1990), adding
    section 225 to the Communications Act of 1934 (Act), as amended, 47
    U.S.C. § 225; implementing regulations at 47 C.F.R. § 64.601 *et
    seq.* In Title IV, Congress announced that "\[i\]n order to carry
    out the purposes established under section 1 \[of the Communications
    Act of 1934\], to make available to all individuals in the United
    States a rapid, efficient nationwide communication service, and to
    increase the utility of the telephone system of the Nation, the
    Commission shall ensure that interstate and intrastate
    telecommunications relay services are available, to the extent
    possible and in the most efficient manner, to hearing-impaired and
    speech-impaired individuals in the United States." 47 U.S.C. §
    225(b)(1).

[^3]: *Telecommunications Services for Individuals with Hearing and
    Speech Disabilities -- Recommended TRS Cost Recovery
    Guidelines/Request by Hamilton Telephone Company for Clarification
    and Temporary Waivers,* Memorandum Opinion and Order and Further
    Notice of Proposed Rulemaking, CC Docket No. 98-67, FCC 01-371, 16
    FCC Rcd 22948 (Dec. 21, 2001) (*TRS Cost Recovery MO&O & FNPRM)*.

[^4]: *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, FCC 02-121, 17 FCC Rcd
    7779 (April 22, 2002) (*IP Relay Declaratory Ruling & FNPRM*).

[^5]: *Telecommunication Relay Services and Speech-to-Speech Services
    for Individuals with Hearing and Speech Disabilities,* Second Report
    and Order, Order on Reconsideration, and Notice of Proposed
    Rulemaking, CC Docket No. 98-67, CG Docket No. 03-123, FCC 03-112,
    18 FCC Rcd 12379 (June 17, 2003) (*Second Improved TRS Order &
    NPRM*).

[^6]: *See Telecommunications Relay Services and Speech-to-Speech
    Services for Individuals with Hearing and Speech Disabilities*,
    Order, CC Docket No. 98-67, DA 01-3029, 17 FCC Rcd 157 (Dec. 31,
    2001) (*VRS Waiver Order).*

[^7]: Sprint, Petition for Declaratory Ruling, CC Docket No. 98-67
    (filed May 27, 2003) (*711 Petition*) (addressing access to 900
    pay-per-call services via 711 dialing).

[^8]: Hands On Sign Language Services, Inc., Application for
    Certification as an Eligible VRS Provider, Request for Expedited
    Processing and Request for Temporary Certification During Processing
    (filed Aug. 30, 2002) (*Hands On Application*).

[^9]: Communication Services for the Deaf, Petition for Limited Waiver
    and Request for Expedited Relief, CC Docket 98-67 (filed June 12,
    2003) (*CSD Petition*).

[^10]: *Telecommunications Relay Services and Speech-to-Speech Services
    for Individuals with Hearing and Speech Disabilities*, Order, CC
    Docket No. 98-67, DA 03-2111, 18 FCC Rcd 12823 (June 30, 2003)
    (*Bureau TRS Order*).

[^11]: *Telecommunication Relay Services and the Americans with
    Disabilities Act of 1990*, Fifth Report and Order, CC Docket No.
    90-571, FCC 02-269, 17 FCC Rcd 21233 (Oct. 25, 2002) (*Coin
    Sent-Paid Fifth Report & Order*).

[^12]: *See generally* 47 C.F.R. § 64.604(c)(5)(iii)(H).

[^13]: *Cf. Second Improved TRS Order & NPRM* at ¶1 & n.5 (addressing
    several proceedings involving related issues in same Report and
    Order).

[^14]: *See generally Second Improved TRS Order & NPRM* at ¶ 6 n.26
    (listing TRS orders).

[^15]: In this regard, we emphasize that TRS is intended to benefit not
    just persons with particular disabilities, but all persons as the
    availability of TRS eliminates telecommunications barriers that also
    prevent, for example, hearing individuals from initiating telephone
    calls to persons with hearing disabilities. *See* H.R. Rep. No. 485,
    Pt. 2, 101st Cong., 2d Sess. 135 (1990) (House Report) (noting that
    TRS benefits all society); S. Rep. No. 116, 101st Cong., 1st Sess.
    83 (1989) (Senate Report) (same).

[^16]: *See* 42 U.S.C. § 12101(b)(1).

[^17]: *See, e.g.,* House Report at 129; Senate Report at 77-78. The ADA
    is aimed at eliminating discrimination against persons with
    disabilities in nearly all facets of society, including access to
    the telephone system. As an anti-discrimination statute, it is the
    logical outgrowth of civil rights legislation dating back at least
    to the landmark Civil Rights Act of 1964 (*see* 42 U.S.C. § 2000a
    *et seq.*), as well as the federal civil rights protections for
    individuals with disabilities first established by the
    Rehabilitation Act of 1973 (*see* 29 U.S.C. §706 *et seq*.). The
    congressional "Findings and Purposes" section of the ADA confirms as
    much, stating that "individuals with disabilities continually
    encounter various forms of *discrimination*, including ... the
    *discriminatory* effects of architectural, transportation, and
    *communication* barriers," and therefore that it is the purpose of
    the ADA to provide a "national mandate for the elimination of
    *discrimination* against individuals with disabilities." 42 U.S.C. §
    12101 (emphasis added). The legislative history of the ADA also
    reflects both the statute's place in the long line of federal civil
    rights laws and, more particularly, Title IV's goal of ending
    discrimination against persons with disabilities that results from
    communications barriers. The House Report states, for example, that
    "\[t\]he \[ADA\] completes the cycle begun in 1973 \[with the
    Rehabilitation Act\] with respect to persons with disabilities by
    extending to them the same civil rights protections provided to
    women and minorities beginning in 1964." House Report at 25. With
    respect to telecommunications, the House Report notes the need for
    "Federal prohibition of discrimination on the basis of disability in
    ... telecommunications." *Id.* at 28. The ADA and its legislative
    history, therefore, squarely present the problem at which Title IV
    is directed: millions of Americans cannot use the nation's telephone
    system because it does not accommodate their hearing, speech, or
    other disability.

[^18]: TRS enables an individual with a hearing or speech disability to
    communicate by telephone or other device with a person without such
    a disability. This is accomplished through TRS facilities that are
    staffed by specially trained communications assistants (CAs) using
    special technology. The CA relays conversations between persons
    using various types of assistive communication devices and persons
    who do not require such assistive devices. We have explained the
    paradigm of a "traditional" (*e.g.,* TTY text-based) TRS call this
    way: When a person with a hearing or speech disability makes a TRS
    call, the user dials a telephone number for a TRS facility using a
    text-telephone (TTY). In this context, the first step for the TRS
    user, the completion of the outbound call to the TRS facility, is
    functionally equivalent to receiving a \"dial tone.\" The caller
    then types the number of the party he or she desires to call. The
    CA, in turn, places an outbound voice call to the called party. The
    CA serves as the \"link\" in the conversation, converting all TTY
    messages from the caller into voice messages, and all voice messages
    from the called party into typed messages for the TTY user. The
    process is performed in reverse when a voice telephone user
    initiates a traditional TRS call to a TTY user. *See generally
    Telecommunications Relay Services and Speech-to-Speech Services for
    Individuals with Hearing and Speech Disabilities,* Report and Order
    and Further Notice of Proposed Rulemaking, CC Docket No. 98-67, FCC
    00-56, 15 FCC Rcd 5140 at ¶ 2 (March 6, 2000) (*Improved TRS Order &
    FNPRM).*

[^19]: *See, e.g.,* House Report at 129-130 (Section 225 "imposes on all
    common carriers providing interstate or intrastate telephone
    service\[\] an obligation to provide to hearing and speech-disabled
    individuals telecommunications services that enable them to
    communicate with hearing individuals. These services must be
    functionally equivalent to telephone service provided to hearing
    individuals."); 47 U.S.C. § 225(a)(3). The statute also provides,
    however, that common carriers can meet their obligation to provide
    TRS "individually, through designees, through a competitively
    selected vendor, or in concert with other carriers." 47 U.S.C. §
    225(c). Therefore, every common carrier required to offer TRS need
    not necessarily do so individually.

[^20]: 47 U.S.C. § 225(b)(1); *see also* House Report at 129.

[^21]: 47 U.S.C. § 255(a)(3).

[^22]: 47 U.S.C. § 255(d)(2).

[^23]: 47 U.S.C. § 255(d)(3). The costs of TRS are not directly
    recovered from TRS users. Congress expressly made clear that TRS
    users cannot be required to pay for the costs of TRS. Section
    225(d)(1)(D) provides that our regulations must "require that users
    of \[TRS\] pay rates no greater than the rates paid for functionally
    equivalent voice communication services with respect to such factors
    as the duration of the call, the time of day, and the distance from
    point of origination to point of termination." 47 U.S.C. §
    225(d)(1)(D). In enacting such a regulation, *see* 47 C.F.R. §
    64.604(c)(4), we explained that the functional equivalency mandate
    required us to ensure that carriers' charges for TRS "not exceed
    charges of functionally equivalent voice service between the same
    end points, without regard to how the call is routed."
    *Telecommunication Services for Hearing-Impaired and Speech-Impaired
    Individuals,* Notice of Proposed Rulemaking, CC Docket No. 90-571,
    FCC 90-376, 5 FCC Rcd 7187 ¶ 14 (Nov. 16, 1990) (*TRS I NPRM*). The
    Interstate TRS Fund is addressed further below.

[^24]: *IP Relay Declaratory Ruling & FNPRM* at ¶ 1 (noting that "there
    is currently no automatic means for determining whether a call made
    via IP Relay is intrastate or interstate").

[^25]: 47 U.S.C. §§ 225(c) & (f) set forth the state certification
    framework. *See also* 47 C.F.R. § 64.605. As a general matter, the
    state must show that its program meets or exceeds all operational,
    technical, and functional mandatory minimum standards contained in
    47 C.F.R. § 64.604. Although states are not required to have a
    certified state program, currently all 50 states Puerto Rico and the
    District of Columbia have certified TRS programs. The legislative
    history of Title IV makes clear that Congress "hope\[d\] and
    expect\[ed\]" that all states would promptly adopt a certified state
    program. House Report at 130.

[^26]: House Report at 131.

[^27]: House Report at 130-131. The House Report further explains that
    although section 225 grants the Commission authority to reach TRS,
    "\[t\]he grant of jurisdiction to the FCC is limited ... by the
    state certification procedures required to be established \[under
    Title IV\]." House Report at 131. The House Report states that it is
    the Committee's intention that "these procedures operate to preserve
    initiatives" by states to implement TRS programs, and therefore
    Title IV "provides that any state may regulate intrastate
    telecommunications relay services provided by intrastate carriers
    once the state is granted certification by the FCC." *Id.* The House
    Report emphasizes that the "certification procedures and review
    process should afford the least possible intrusion into state
    jurisdiction." *Id.*

[^28]: *Improved TRS Order & FNPRM* at ¶ 3. As we have noted, carriers
    may choose to offer TRS individually, through designees, through a
    competitively selected vendor, or in concert with other carriers. 47
    U.S.C. § 225(c). This provision allows all of the common carriers
    providing voice telephone service in a state to meet their section
    225 obligation to provide *intra*state TRS through a centralized
    state program. Generally, the state selects a competitively selected
    vendor, and by so doing the other common carriers in the state that
    offer local telephone service are deemed to have met their
    obligation to provide *intra*state TRS. In this way, the state
    certification mechanism, in addition to giving states jurisdiction
    over *intra*state TRS, also advances the statutory mandate that TRS
    be provided in "the most efficient manner." 47 U.S.C. § 225(b)(1).

[^29]: *See* 47 U.S.C. § 225(d)(3); 47 C.F.R. § 64.604(c)(5). The
    regulations, addressing these matters separately, characterize the
    former as "cost recovery," *see* 47 C.F.R.§§ 64.604(c)(5)(ii) &
    (iii)(A) -- (D), and the latter as "payments to TRS providers," 47
    C.F.R. §§ 64.604(c)(5)(iii)(E) & (F).

[^30]: 47 U.S.C. § 225(d)(3)(B); *see also* 47 C.F.R. §
    64.604(c)(5)(ii).

[^31]: As discussed further below, the costs of providing certain types
    of *intra*state TRS, including VRS and IP Relay, are currently not
    recovered from the states, but are recovered pursuant to the rules
    governing the recovery of the costs of *inter*state TRS. *See
    Improved TRS Order& FNPRM* at ¶ 15; *IP Relay Declaratory Ruling &
    FNPRM* at *¶* 20.

[^32]: In a state with a certified TRS program, the state "shall permit
    a common carrier to recover the costs incurred in providing
    intrastate telecommunications relay services by a method consistent
    with the requirements of \[section 225\]." 47 U.S.C. § 225(c)(3)(B).

[^33]: We take this opportunity to reiterate that carriers obligated to
    contribute to the Interstate TRS Fund (*e.g.*, carriers providing
    interstate telecommunications services) may not specifically
    identify a charge on their consumers' bill as one for relay
    services. *See* *TRS Second Report & Order* at ¶ 22;
    *Telecommunication Services for Individuals with Hearing and Speech
    Disabilities*, *and the Americans With Disabilities Act of 1990,*
    Report and Order and Request for Comments, CC Docket No. 90-571, FCC
    91-213, 6 FCC Rcd 4657 at ¶ 34 (July 26, 1991) (*TRS I)* ("in order
    to provide universal telephone service to TRS users as mandated by
    the ADA, carriers are required to recover interstate TRS costs as
    part of the cost of interstate telephone services and not as a
    specifically identified charge on the subscribers' lines").

[^34]: The amount of each carrier's contribution is the product of the
    carrier's interstate end-user telecommunications revenue and a
    contribution factor determined annually by the Commission. 47 C.F.R.
    § 64.604(c)(5)(iii). On February 24, 2004, the Consumer &
    Governmental Affairs Bureau issued an Order increasing the fund size
    from approximately \$115 million to \$170 million for the 2003-2004
    fund year as a result of the use of IP Relay and VRS beyond the
    initial projections of the Fund Administrator. *See
    Telecommunications Relay Services and Speech-to-Speech Services for
    Individuals with Hearing and Speech Disabilities,* Order, CC Docket
    No. 98-67, DA 04-465 (Feb. 24, 2004).

[^35]: 47 C.F.R. § 64.604(c)(5)(iii)(E) & (F) (setting forth, among
    other things, the eligibility requirements for TRS providers seeking
    to receive compensation from the Interstate TRS Fund).

[^36]: 47 C.F.R. § 64.604(c)(5)(iii). The regulations provide that "TRS
    Fund payments shall be distributed to TRS providers based on
    formulas approved or modified by the Commission. ... Such formulas
    shall be designed to compensate TRS providers for *reasonable* costs
    of providing interstate TRS, and shall be subject to Commission
    approval." 47 C.F.R. § 64.604(c)(5)(iii)(E); *see, e.g.,
    Telecommunications Services for Individuals with Hearing and Speech
    Disabilities, and the Americans with Disabilities Act of 1990,*
    Order, CC Docket No. 90-571, DA 02-1166, 17 FCCR 8840 (2002);
    *Telecommunications Services for Individuals with Hearing and Speech
    Disabilities, and the Americans with Disabilities Act of 1990,*
    Order, CC Docket No. 90-571, DA 01-1502, 16 FCCR 12895 (2001); s*ee
    generally Bureau TRS Order* at ¶ 13 n.44 (citing all orders adopting
    compensation rates for traditional TRS); ¶ 15 n.47 (citing all
    orders adopting compensation rates for STS); and ¶ 18 n.52 (citing
    all orders adopting compensation rates for VRS).

[^37]: *See generally Telecommunications Services for Individuals with
    Hearing and Speech Disabilities, and the Americans with Disabilities
    Act of 1990*, Order, CC Docket No. 90-571, DA 02-1166, 17 FCC Rcd
    8840 at ¶ 2 (May 16, 2002) (order modifying compensation rates of
    various TRS services).

[^38]: The Commission determined that the compensation rate for IP Relay
    would be at the same rate as for traditional TRS because there is
    little difference in the costs of providing these services. *See IP
    Relay Declaratory Ruling & FNPRM* at ¶ 22. Likewise, eligible
    non-English language relay service minutes fall within the
    traditional TRS rate. *See Improved TRS Order & FNPRM* at ¶¶ 28-31;
    *TRS Cost Recovery MO&O* at ¶ 13. We raise in the *FNPRM* below
    whether we should adopt separate compensation rates for traditional
    TRS and IP Relay.

[^39]: In order for the TRS administrator to make the necessary
    calculations to determine the per-minute compensation rates, TRS
    providers are required to submit to the administrator "true and
    adequate data necessary to determine TRS fund revenue requirements
    and payments." 47 C.F.R. § 64.604(c)(5)(iii)(C). Specifically, TRS
    providers must provide the administrator with "total TRS minutes of
    use, total interstate TRS minutes of use, total TRS operating
    expenses and total TRS investment," as well as "other historical or
    projected information reasonably requested by the administrator for
    purposes of computing payments and revenue requirements." *Id.*
    Using the projected cost and projected minutes of use information it
    receives from the TRS providers, the TRS administrator determines
    the per-minute compensation rate for the various forms of TRS.

[^40]: *See TRS I.*

[^41]: 47 U.S.C. § 225(b)(1). Section 225 requires common carriers
    providing telephone voice transmission services to provide TRS
    throughout the areas they serve. The statute mandated an
    implementation date of no later than July 26, 1993. *See* 47 U.S.C.
    § 225(c). Prior to the enactment of Title IV, some states offered
    relay services, but the services offered differed from state to
    state, were subject to many limitations, and were generally limited
    to intrastate calls. *See Second Improved TRS Order & NPRM* at ¶ 6
    n.24..

[^42]: 47 C.F.R. § 64.604. The purpose of the mandatory minimum
    standards is to ensure that TRS is offered, consistent with the
    functional equivalency mandate set forth in section 225, *TRS I* at
    ¶ 1, in an efficient and consistent manner throughout the United
    States. The Commission*,* as directed by section 225, established
    mandatory minimum operational, technical, and functional standards.
    *See* 47 U.S.C. § 225(d)(1)(B); 47 C.F.R. § 64.604(a)-(c). The House
    Report explains that "Section (d)(1)(B) \[of Title IV\] requires the
    Commission to establish minimum federal standards to be met by all
    providers of \[TRS\] including ... standards that will define
    functional equivalence between telecommunications relay services and
    voice telephone transmission services." House Report at 133. The
    Commission has also made clear that the mandatory minimum standards
    are intended to ensure that TRS is provided in a manner that is
    functionally equivalent to the ability of persons who do not have
    hearing or speech disabilities to communicate using voice
    communication services. *See, e.g.,* *TRS I* at ¶ 1.

[^43]: *See Second Improved TRS Order & NPRM* at ¶ 6 n.26 (listing many
    of the Commission's TRS orders)*.*

[^44]: The Commission also stated that because VRS "will be offered on a
    voluntary basis, we will not require it to operate every day, 24
    hours a day." *Id.* at ¶ 42 (citing 47 C.F.R. § 64.604(b)(4), which
    states that "\[r\]elay services that are not mandated by this
    Commission are not required to be provided every day, 24 hours a
    day.").

[^45]: *Improved TRS Order* & FNPRM at ¶¶ 23-27.

[^46]: *Id.* at ¶ 26.

[^47]: *TRS Cost Recovery MO&O & FNPRM* at ¶ 35.

[^48]: Formerly, the Common Carrier Bureau.

[^49]: *VRS Waiver Order*.

[^50]: These waivers were extended to June 30, 2004, by an Order dated
    December 19, 2003. *Telecommunications Relay Services and
    Speech-to-Speech Services for Individuals with Hearing and Speech
    Disabilities*, Order, CC Docket 98-67, DA 03-4029 (Dec. 19, 2003)
    (*VRS Waiver Extension Order*).

[^51]: *See generally* *IP Relay Declaratory Ruling & FNPRM* at ¶¶
    15-26. Further, on March 14, 2003, the Commission extended or
    granted waivers of mandatory minimum standards requiring the
    provision of voice carry over (VCO), hearing carry over (HCO),
    emergency call handling, and 900-number services over IP Relay until
    January 01, 2008. *Provision of Improved Telecommunications Relay
    Services and Speech-to-Speech Services for Individuals with Hearing
    and Speech Disabilities,* Order on Reconsideration, CC Docket No.
    98-67, FCC 03-46, 18 FCC Rcd 4761 (March 14, 2003) (*IP Relay Order
    on Reconsideration*).

[^52]: *Coin Sent-Paid Fifth Report & Order* at ¶¶ 2, 17.

[^53]: *Id.* at ¶ 17.

[^54]: *Id.* at ¶¶ 18-21.

[^55]: *Id.* at ¶ 22.

[^56]: *Id.* at ¶ 23.

[^57]: *Id.* at ¶¶ 2, 28-39.

[^58]: *Second Improved TRS Order & NPRM* at ¶¶ 21, 25, 29, 32, 34.

[^59]: *Id.* at ¶ 36.

[^60]: *Id.* at ¶ 40.

[^61]: *See id.* at ¶¶ 63-76. The Commission required the offering of
    answering machine message retrieval, automatic call forwarding, call
    release, speed dialing, and three-way calling for TRS, but waived
    these requirements for IP Relay and VRS. On February 24, 2004, an
    Order was issued that waived for one year (*i.e.,* until February
    24, 2005) the rule requiring TRS providers to offer three-way
    calling functionality. *See Telecommunications Relay Services and
    Speech-to-Speech Services for Individuals with Hearing and Speech
    Disabilities,* Order, CC Docket No. 98-67, DA 04-465 (Feb. 24,
    2004).

[^62]: *Id.* at ¶¶ 105, 107-109, 114, 130-133.

[^63]: *Id.* at ¶¶ 115-127.

[^64]: *Id.* at ¶¶ 136-137.

[^65]: *Bureau TRS Order*. *See generally id.* at ¶¶ 5-22, summarizing
    the cost recovery scheme for providers of TRS and the annual review
    and adoption of the per-minute TRS compensation rates for services
    eligible for compensation from the Interstate TRS Fund.

[^66]: *Id.* at ¶ 26.

[^67]: *Id.* at ¶ 28.

[^68]: *Id.* at ¶ 38.

[^69]: The Commission concluded that TRS is not limited to services
    involving TTYs but that, given the language of section 225, applies
    to any "telephone transmission service" that allows a person with a
    hearing or speech disability to "communicat\[e\] by wire or radio"
    with a person without such a disability. *Improved TRS Order &
    FNPRM* at ¶ 13.

[^70]: *Id.* at ¶ 22.

[^71]: *Id*.

[^72]: *Id.* at ¶¶ 26-27.

[^73]: *Id.* at ¶ 33. The Commission required these guidelines to be
    submitted within six months. *Id.*

[^74]: *Recommended TRS Cost Recovery Guidelines*, CC Docket No 98-67
    (filed Nov. 9, 2000) (*Recommendations*).

[^75]: The TRS Center Data Request is a spreadsheet form prepared by
    NECA that the TRS providers use to itemize their submitted cost
    data.

[^76]: *Recommendations* at 7-8.

[^77]: *Interstate TRS Fund Advisory Council and TRS Fund
    Administrator's Recommended TRS Cost Recovery Guidelines,* Public
    Notice, CC Docket No. 98-67, DA 00-2739, 15 FCC Rcd 23987 (Dec. 6,
    2000).

[^78]: *Id.*

[^79]: Throughout this *Order,* we refer to comments by WorldCom, Inc,
    or MCI as "MCI (WorldCom)."

[^80]: *See TRS Cost Recovery MO&O & FNPRM* at ¶ 3.

[^81]: *Id.*

[^82]: *Id.* at ¶ 22. The Commission adopted all of the recommendations
    with respect to traditional TRS and STS.

[^83]: *Id.* at ¶ 23.

[^84]: *Id.*

[^85]: *Id.*

[^86]: *Id.* at ¶ 24.

[^87]: *Id.* at ¶ 35.

[^88]: *Id.*

[^89]: *Id.* at ¶ 36.

[^90]: MCI (WorldCom) Comments at 2-4.

[^91]: Sprint Comments at 2. Sprint was referring to NECA's proposal of
    a compensation rate of \$9.614 per minute. In February 2002, there
    were approximately 13,000 minutes of VRS reimbursed from the
    Interstate TRS Fund.

[^92]: Currently, there are seven VRS providers: Sprint (in conjunction
    with CSD); MCI (WorldCom) (in conjunction with Hands On); AT&T (in
    conjunction with Hands On); Sorenson; Communication Access Center
    (CAC); Hamilton Relay, Inc. (Hamilton); and Hands On. As NECA has
    reported, the minutes of use for VRS has increased from 7,215 in
    January 2002 to 159,469 in May 2003, to 381,783 in December 2003, to
    534,536 in February 2004, and to 709,718 minutes in March 2004..

[^93]: *See generally* *Telecommunications Relay Services and
    Speech-to-Speech Services for Individuals with Hearing and Speech
    Disabilities,* Order, CC Docket No. 98-67, DA 03-2111, 18 FCC Rcd
    12823 (June 30, 2003) (*Bureau TRS Order*).

[^94]: 47 U.S.C. § 225(d)(3)(B).

[^95]: The Commission concluded that IP Relay falls within the
    definition of TRS because Congress broadly defined TRS to be a
    "telephone transmission service" that is constrained only by the
    requirement that the service provide a particular functionality, and
    that IP Relay provides the functionality of permitting a person with
    a hearing or speech disability to communicate by wire or radio with
    a person without such disabilities. *IP Relay Declaratory Ruling &
    FNPRM at ¶* 10. The Commission also noted that this conclusion was
    consistent with the statutory admonitions that TRS be made available
    to the extent possible and in the most efficient manner, and that
    the Commission encourage the use of existing technology and not
    discourage the development of new technology. *Id.* Finally, the
    Commission expressly rejected the notion that TRS is limited to
    "telecommunication services," noting that TRS was specifically
    defined. *Id.* at ¶¶ 12-14. The Commission noted that in view of
    that definition it was "not required to, and consequently \[did\]
    not, make a finding whether IP Relay constitutes telecommunications,
    telecommunications service, or information service." *Id.* at ¶ 14.

[^96]: *IP Relay Declaratory Ruling & FNPRM at ¶* 1; *see also id.* at
    ¶¶ 20-22.

[^97]: *Id. at ¶* 1.

[^98]: By contrast, traditional TRS calls are placed via the public
    switched telephone network (PSTN), which allows the TRS facility or
    provider to determine the location of the caller from the Automatic
    Number Identification (ANI) transmitted with the call. This
    information, along with the called number, allows the TRS facility
    or provider to determine whether the call is interstate or
    intrastate, and establishes whether the TRS provider is compensated
    for the call from the Interstate TRS Fund or from the state.

[^99]: *IP Relay Declaratory Ruling & FNPRM at ¶*¶ 17-18.

[^100]: *Id.* at ¶ 17.

[^101]: *Id.* at ¶ 18.

[^102]: *Id.* at ¶ 20.

[^103]: *Id.*

[^104]: *Id.* at ¶ 23.

[^105]: *Id.* at ¶ 41.

[^106]: *Id.* at ¶ 42.

[^107]: *Id.* at ¶ 43.

[^108]: *Id.*

[^109]: *Id.*

[^110]: The Commission stated: "We emphasize that the scope of our
    inquiry is confined to IP Relay only and to the recovery of TRS
    costs from the Interstate TRS Fund. This inquiry is not intended to
    regulate the Internet, nor to establish standards for the separation
    of Internet traffic in general, but to regulate IP Relay as a means
    of functionally equivalent access to the voice telephone network,
    and to specify how TRS providers may recover the costs for IP Relay.
    This regulation is pursuant to the authority granted to the
    Commission by Congress in the Americans with Disabilities Act,
    codified in Section 225 of the Communications Act." *Id.* at ¶ 45.

[^111]: *Commission Seeks Comment on Classifying Internet Protocol
    Telecommunications Relay Service Calls as Intrastate or Interstate
    for Compensation*, Public Notice*,* CC Docket 98-67, DA 02-1426, 17
    FCC Rcd 11255 (June 17, 2002).

[^112]: Comments on the *IP Relay Declaratory Ruling and FNPRM* were
    filed by AT&T, the Public Service Commission of the State of
    Missouri (MO PSC), Sprint, Telecommunications for the Deaf, Inc.
    (TDI), the Verizon telephone companies (Verizon), MCI (WorldCom),
    and private individuals. Reply comments were filed by Hamilton and
    TDI.

[^113]: *See* TDI Comments at 5-6; *see also* Verizon Comments at 2-3;
    MO PSC Comments at 2.

[^114]: *See* TDI Comments at 5-6; *see also* MO PSC Comments at 3;
    Hamilton Reply Comments at 3; MCI (WorldCom) Comments at 6. TDI
    asserts, in part, that the plain language of section 225, as well as
    its overriding policy objectives, provides the Commission with
    discretion to fund IP Relay from the Interstate TRS Fund on a
    long-term basis. TDI also asserts if an allocation of costs scheme
    were adopted, IP Relay providers would have to undergo a
    time-consuming and burdensome competitive bidding process in 50
    separate states to provide nationwide IP Relay. MO PSC argues, in
    part, that the Commission has previously found that Internet traffic
    is interstate in nature, and that Missouri and other states do not
    regulate ISPs. Therefore, MO PSC questions the ability of state
    commissions to determine the eligibility of IP Relay providers for
    compensation. MCI (WorldCom) states that allocation of costs would
    require IP Relay providers to establish compensation relationships
    with every state, and that the administrative burden to both the
    states and to IP Relay providers will discourage the development of
    IP Relay. Hamilton's arguments echo those noted above, and emphasize
    that the Commission has the authority to provide long-term
    compensation for IP Relay providers from the Interstate TRS Fund,
    and that requiring an allocation of costs would lead to excessive
    costs and burdens and create obstacles to providing and using IP
    Relay.

[^115]: *See* Sprint Comments at 2; TDI Comments at 11; Hamilton Reply
    Comments at 4.

[^116]: *See e.g.,* MCI (WorldCom) Comments at 5, TDI Reply Comments at
    4-5.

[^117]: *See* AT&T Comments at 4.

[^118]: *See* Verizon Comments at 3-4.

[^119]: *See* AT&T Comments at 2-3 (linking determination of appropriate
    allocater with parties' location).

[^120]: *See* MO PSC Comments at 3. Toll-free calls, like IP Relay
    calls, cannot be identified as intrastate or interstate; however, in
    the case of toll-free calls, it is the recipient, rather than the
    caller, whose location is unknown. For this reason, the Interstate
    TRS Fund developed a methodology based on statistical studies for
    all providers to use to determine their interstate toll-free calls.
    For the July 2003 to June 2004 fund year, NECA used a factor of 51
    percent interstate to be applied to total toll-free traditional TRS
    and STS. NECA applies the same principle to calls placed to 900
    numbers. *See* NECA, *Interstate Telecommunications Relay Services
    Fund Payment Formula and Fund Size Estimate*, CC Docket No. 98-67
    (filed May 1, 2003) at 6-7.

[^121]: *See* MCI (WorldCom) Comments at 7; TDI Comments at 12.

[^122]: *See* Sprint Comments at 2.

[^123]: NECA, *Recommended Internet Protocol (IP) Cost Recovery
    Guidelines*, CC Docket No 98-67 (filed Oct. 9, 2002) (*IP Relay Cost
    Recovery Recommendations*).

[^124]: *Id.* at 12.

[^125]: *Id.*

[^126]: *Id.* at 13.

[^127]: *Id.*

[^128]: *Id.*

[^129]: *Id.* at 14.

[^130]: *Id.*

[^131]: *Interstate Telecommunications Relay Service (TRS) Fund Advisory
    Council Files Proposed Guidelines for the Recovery of Costs
    Associated with Internet Protocol Relay Services*, Public Notice, CC
    Docket No. 98-67, DA 02-3409, 17 FCC Rcd 24812 (Dec. 13, 2002).

[^132]: Comments were filed by AT&T, NECA, Sprint, and MCI (WorldCom).
    Reply comments were filed by AT&T, Hamilton, Verizon, and MCI
    (WorldCom).

[^133]: *See, e.g.,* Hamilton Reply at 2-3; MCI (WorldCom) Reply
    Comments at 2; AT&T Reply Comments at 2.

[^134]: *See, e.g.,* AT&T Comments at 4; MCI (WorldCom) Comments at 2.

[^135]: *See, e.g.,* AT&T Comments at 3-4; MCI (WorldCom) Comments at 2.

[^136]: According to NECA, in March 2004 there were approximately 2.2
    million minutes of traditional interstate TRS and 5.2 million
    minutes of IP Relay.

[^137]: With an IP Relay TRS call, one party to the call is connected to
    the CA via the Internet and communicates with CA via text; the other
    party to the call communicates with the CA via the PSTN. Therefore,
    the CA is simultaneously engaged in a PSTN telephone call with one
    party, and an Internet-based text conversation with the other party.
    The nature of a TRS call, however, is not dependent on how the two
    legs to the call are completed or by the type of transport that is
    used. Rather, the interstate or intrastate nature of a TRS call is
    based on the physical location of the parties to the call; in that
    way, each TRS call can be categorized as either interstate or
    intrastate.

[^138]: *IP Relay Declaratory Ruling & FNPRM* at ¶¶ 20-21.

[^139]: *Second Improved TRS Order & NPRM* at ¶ 104; *see also* 47
    C.F.R. § 64, Appendix A (Telecommunications Service Priority (TSP)
    System for National Security Emergency Preparedness (NSEP)) at 5.

[^140]: National security and emergency preparedness telecommunications
    services (or NSEP services) are defined to be those
    "telecommunications services which are used to maintain a state of
    readiness or to respond to and manage any event or crisis (local,
    national, or international), which causes or could cause injury or
    harm to the population, damage to or loss of property, or degrades
    or threatens the NSEP posture of the United States." *See* 47 C.F.R.
    § 64, Appendix A (Telecommunications Service Priority (TSP) System
    for National Security Emergency Preparedness (NSEP)) at 3.f.

[^141]: Telecommunications services in the Emergency NSEP category are
    those "new services so critical as to be required to be provisioned
    at the earliest possible time, without regard to costs of obtaining
    them." Telecommunications services in the Essential NSEP category
    are those services "required to be provisioned by the due dates
    specified by service users, or restored promptly, normally without
    regard to associated overtime or expediting costs." There are four
    subcategories to the Essential NSEP: (1) National Security
    Leadership; (2) National Security Posture and U.S. Population Attack
    Warning; (3) Public Health, Safety, and Maintenance of Law and
    Order; or (4) Public Welfare and Maintenance of National Economic
    Posture. The third subcategory noted above includes, for example,
    services necessary to support population warnings, weather crisis,
    hospitals, and distributions of medical supplies. *See* 47 C.F.R. §
    64, Appendix A (Telecommunications Service Priority (TSP) System for
    National Security Emergency Preparedness (NSEP)) at 12.

[^142]: Priority levels of 1 through 5 may be assigned to services
    within the categories and subcategories. *See id.* at 3.i.

[^143]: *See generally* Telecommunications Services Priority Fact Sheet
    at http://www.fcc.gov/hspc/factsheets/telecom-priority.pdf.

[^144]: 47 C.F.R. § 64, Appendix A (Telecommunications Service Priority
    (TSP) System for National Security Emergency Preparedness (NSEP)) at
    6.b.(2).

[^145]: *See generally* Telecommunications Services Priority Fact Sheet
    at http://www.fcc.gov/hspc/factsheets/telecom-priority.pdf.
    Sponsoring federal organizations decide whether to sponsor foreign,
    state, and local governments and private industry (including
    telecommunications service vendors) requests for priority actions.
    Federal organizations forward sponsored requests with
    recommendations for disposition to the NCS, basing their
    recommendations on the NSEP TSP system categories described in the
    TSP regulations. 47 C.F.R. § 64, Appendix A (Telecommunications
    Service Priority (TSP) System for National Security Emergency
    Preparedness (NSEP)) at 6.c.

[^146]: *Id*. at 6.a.

[^147]: *Second Improved TRS Order & NPRM* at ¶ 104.

[^148]: *Id*. We also noted that TRS providers are already required to
    ensure that TRS facilities have redundancy features, including
    uninterruptible power sources for emergency use, that are
    functionally equivalent to those in the central switching office in
    the public switched telephone network (PSTN), as described in 47
    C.F.R. § 64.604(b)(4). *Id.*

[^149]: *Id.* at ¶ 105.

[^150]: *Id.*

[^151]: *Id*. We also sought comment on other means by which we might
    ensure equal treatment of LEC facilities and TRS facilities in this
    context. Lastly, we sought comment on whether TRS providers and
    state TRS programs must provide an operational plan, beyond that
    already required in our rules, to ensure the survivability and
    continued operation of TRS facilities in case of an emergency. *Id.*

[^152]: *See, e.g.,* AT&T Comments at 2-3; California Public Service
    Commission (CA PUC) Comments at 4; Hamilton Comments at 2; Hands On
    Comments at 2-3; Iowa Utilities Board (Iowa UB) Comments at 2; MCI
    (WorldCom) Reply Comments at 2; Maryland Department of Budget and
    Management (MD DBM) Comments at 2; Sprint Comments at 1-2; TDI
    Coalition Comments at 5-7. A few commenters also suggest that the
    costs associated with the Commission's sponsorship of TRS facilities
    be recovered from the Interstate TRS Fund. *See* MCI (WorldCom)
    Reply Comments at 2; Sprint Comments at 2.

[^153]: For example, Verizon questions whether the proposal means that
    TRS facilities will have the same priority as LEC facilities in the
    sense that both will have a super priority over all five priority
    levels, and if TRS service is considered part of the LEC network
    that is able to supersede the five NSEP levels, does that mean that
    telephone companies would be required to give priority to restoring
    service to TRS facilities *before* restoring such service to the
    President of the United States, the Department of Defense, and 911
    providers. Verizon Comments at 8.

[^154]: Verizon Comments at 6. Verizon notes that basic
    telecommunication services to the general public are prioritized
    below the top 5 levels, so they are addressed only after all other
    priority services have been dealt with. *See also* MCI (WorldCom)
    Comments at 2; SBC Comments at 2.

[^155]: Verizon Comments at 7. Verizon notes that telecommunications
    carriers must get their own systems up and running before they can
    begin to restore service to the five priority levels established by
    the NSEP priority system. *See also* SBC Reply Comments at 2 (the
    5-priority system does *not* address basic telecommunications
    service to the general public and a more extensive record should be
    developed prior to assigning NSEP priority status to TRS to
    determine the impact such assignment would have on existing NSEP
    priorities).

[^156]: Verizon Comments at 3.

[^157]: *See, e.g.,* Verizon Comments at 6; Verizon Reply Comments at
    2-3; SBC Reply Comments at 2. *But see, e.g.,* AT&T Comments at 2-3;
    MCI (WorldCom) Comments at 1-3; TDI Coalition Comments at 5-7.

[^158]: *See* MD DBM Comments at 2; TDI Coalition Comments at 6-7.

[^159]: MD DBM Comments at 2.

[^160]: TDI Coalition Comments at 6-7. According to TDI, such a report
    should include, *inter alia*, identification of regional facilities
    to take over handling incoming TRS calls for TRS facilities located
    in close proximity to an emergency and FCC encouragement to state
    TRS program administrators to work with their respective Homeland
    Security or Emergency Preparedness agencies to designate their
    state's TRS facilities for priority restoration in the event of
    state emergencies.

[^161]: *See, e.g.,* MCI (WorldCom) Comments at 2-3; SBC Comments at 2;
    Verizon Comments at 3.

[^162]: *See, e.g.,* MCI (WorldCom) Comments at 1-3; Verizon Comments at
    3.

[^163]: To the extent that the NPRM suggested that LECs and the general
    public enjoy a priority in the TSP system, we clarify that NSEP TSP
    priority does not typically apply to the local exchange carriers
    (LECs) or other common carriers or to the general public.

[^164]: We note that the "Public health, safety, and maintenance of law
    and order" category states that it covers "the minimum number of
    telecommunications services necessary" to support this function.
    Therefore, it may be that not all of the circuits connecting the TRS
    facility to the switch would be entitled to priority restoration.

[^165]: *See* http://www.fcc.gov/hspc/emergencytelecom.html. As note
    above, several commenters suggest that the Interstate TRS Fund pay
    the costs associated with TRS facilities obtaining TSP assignment
    (there is a cost, *e.g.*, for enrolling each line in the program).
    We agree that such costs are a "reasonable cost" of providing TRS
    that may be submitted to the TRS fund administrator and included in
    the determination of the appropriate provider compensation rates. We
    note, for example, that section 64.604(b)(4) of our rules requires
    TRS facilities to take certain steps to be able to continue to
    operate in the event of an emergency.

[^166]: *Second Improved TRS Order & NPRM* at ¶¶ 106-107.

[^167]: *Id.*

[^168]: *See, e.g.,* CA PUC Comments at 5.

[^169]: *See, e.g.,* AT&T Comments at 4; CA PUC Comments at 5; MCI
    Comments at 8; Sprint Comments at 2. MCI (WorldCom) and Sprint note
    that their Internet-based TRS (*i.e.,* IP Relay and VRS) are
    encrypted with secure socket layer (SSL) security up to 128 bits,
    depending on the capability of the end-user's web-browser

[^170]: *See, e.g.,* MD DBM Comments at 3-4; MO PSC Comments at 2; TDI
    Coalition Comments at 7, Reply Comments at 3; *see also* CA PUC
    Comments at 5-6; MCI (WorldCom) Reply Comments at 3 (not opposed to
    the Commission mandating a minimum level of transmission security
    equal to the level utilized in commercial Internet transactions).

[^171]: Iowa UB Comments at 2; CA PUC Comments at 5.

[^172]: CA PUC Comments at 5-6.

[^173]: MO PSC Comments at 2.

[^174]: MCI (WorldCom) Comments at 4.

[^175]: MCI (WorldCom) Comments at 4.

[^176]: *See, e.g*., AT&T Comments at 4; Sprint Comments at 2.

[^177]: *Second Improved TRS Order & NPRM* at ¶ 37.

[^178]: We clarify below in the *Order on Reconsideration* what we meant
    by the "appropriate" PSAP in the wireline context.

[^179]: *Second Improved TRS Order & NPRM* at ¶¶ 43-45.

[^180]: *Id.* at ¶¶ 108-109.

[^181]: Phase I Enhanced 911 (E911) calls automatically report the
    telephone number and the location of the antenna that received the
    wireless call. Phase II requires wireless carriers to provide for
    more precise location information (*e.g.*, within 50-300 meters).
    *See*, *e.g.,* *Revision of the Commission's Rules to Ensure
    Compatibility with Enhanced 911 Emergency Calling Systems, Phase II
    Compliance Deadlines for Non-Nationwide CMRS Carriers,* Order to
    Stay, CC Docket No. 94-102, FCC 02-210, 17 FCC Rcd 14841 (July 26,
    2002).

[^182]: *See, e.g.,* AT&T Comments at 6; AT&T Wireless Comments at 2-5;
    SBC Reply Comments at 3-4; Sprint Comments at 3-7; T-Mobile Reply
    Comments at 2-4. *See also* T-Mobile Reply Comments at 4, n.15; DOJ,
    Access for 9-1-1, Section I.B. (Telephone relay services are not as
    effective for emergencies, because they are far more time-consuming
    than calls between two TTYs).

[^183]: The record demonstrates that the receipt of Phase I/Phase II
    location information is a condition precedent to any requirement
    that TRS facilities be capable of routing wireless emergency calls
    to a PSAP, and that the amount of time required to implement
    automatic emergency call handling for wireless calls will be
    contingent on when wireless carriers are capable of providing TRS
    facilities with necessary Phase I and Phase II information. *See,
    e.g.,* Hamilton Comments at 3; Hands On Comments at 3; Wireless RERC
    (Research Engineering and Rehabilitation Center) (Wireless RERC)
    Reply Comments at 3.

[^184]: *See, e.g.,* MCI (WorldCom) Reply at 3; Sprint Comments at 3-4;
    Verizon Wireless Comments at 5. *But see, e.g.,* TDI Coalition Reply
    Comments at 3-4 (TDI argues that, because it has not been a
    requirement to do so, it is currently not technically feasible to
    route emergency TRS calls to the same PSAP that would receive an
    emergency call if it were placed directly by a wireless carrier).

[^185]: *See* T-Mobile Reply Comments at 4. fn 14.

[^186]: *See* TDI Coalition at 7-8; *see also* Wireless RERC (wireless
    providers should be required to provide the same 911/E911
    information to TRS users that they provide for speaking/hearing
    subscribers).

[^187]: *See, e.g.,* MCI (WorldCom) Comments at 5-6; SBC Comments at
    3-4.

[^188]: SBC Comments at 4.

[^189]: The record demonstrates that wireless E911 capability is limited
    to the E911 network deployed between wireless carriers, LECs, and
    PSAPs that is accessed only by dialing 911. *See, e.g.,* Verizon
    Wireless Comments at 3. We emphasize that the paramount focus and
    concern must be placed on training and development of PSAP
    facilities to provide functionally equivalent service to persons
    with hearing and speech disabilities when they dial 911, even over
    wireless networks. In addition, Wireless RERC also suggests that
    current technology is sufficiently developed that it would be
    reasonable for us to consider investigating the feasibility of
    requiring that pagers with Internet browsers be able to connect with
    IP Relay in order to contact hearing parties and other emergency
    services. *See* Wireless RERC Reply Comments at 3. We will defer
    consideration of that issue to a future proceeding.

[^190]: 47 C.F.R. § 64.601(13). By relaying a conversation in a "shared
    language" we mean that both the calling and called party use the
    same language; therefore, in relaying the conversation the CA does
    not translate what is typed or voiced from one language to another.

[^191]: *Telecommunications Services for Hearing-Impaired and Speech
    Impaired Individuals, and the Americans with Disabilities Act of
    1990,* Notice of Proposed Rulemaking, CC Docket No. 90-571, FCC
    98-90, 13 FCC Rcd 14187 (May 20, 1998) (*1998 TRS NPRM*).

[^192]: *1998 TRS NPRM* at ¶ 39.

[^193]: *Id*.

[^194]: *Id*.

[^195]: *Improved TRS Order* & FNPRM at ¶¶ 44-46. With the exception of
    ASL-English translation, the Order did not address non-shared
    language TRS.

[^196]: Public Utilities Commission of Texas (TX PUC), Petition for
    Reconsideration, CC Docket No. 98-67 (filed March 24, 2000). This
    service would require TRS providers to offer translation services
    for those non-English languages common in their area, for example,
    Spanish-to-English conversations through a CA/translator.

[^197]: Hispanics are the fastest growing minority group in the deaf
    school age population in the United States. This is particularly
    true in Texas. Schildroth & Hotto, [Changes In Student And Program
    Characteristics. American Annals Of The Deaf,]{.underline} 141(2),
    68-71 (1996), Published in Hispanic Outlook in Higher Education, May
    2000, Jean F. Andrews, Ph.D. & Donald L. Jordan, Ph.D. Lamar
    University, Beaumont, TX.

[^198]: There are more than 7,000 deaf children from Spanish-speaking
    homes in the U.S. ASL becomes the first language for many of these
    Hispanic youths because it is the first language that is fully
    accessible to them, even though ASL is not the primary language used
    in their home. Schildroth & Hotto, [Changes In Student And Program
    Characteristics. American Annals Of The Deaf,]{.underline} 141(2),
    68-71 (1996).

[^199]: *Id.* at ¶ 113. In particular, we noted that in states with
    large Hispanic populations there are often a large number of
    Hispanic children who are deaf and, as a result, do not learn
    Spanish. Because these children are educated in ASL and English,
    many deaf children of Spanish speaking families cannot communicate
    with their relatives through shared-language TRS.

[^200]: *See, e.g.,* CSD Comments at 5-6; Hands On Comments at 2; Sprint
    Comments at 8-9; TDI Coalition Reply Comments at 5-6; MD DBM at 4.

[^201]: *See, e.g.,* AT&T Comments at 9; Iowa UB Comments at 3; MO PSC
    Comments at 3; SBC Reply Comments at 4; Verizon Comments at 12-13;
    also see, e.g., CA PUC Comments at 6, Verizon Reply Comments at 5,
    (states should be allowed to voluntarily provide intra-state
    non-shared language VRS).

[^202]: *1998 TRS NPRM* at ¶39.

[^203]: *See* AT&T Comments at 7; Iowa UB Comments at 3; MO PSC Comments
    at 3; SBC Reply Comments at 4; Verizon Comments at 12.

[^204]: With regard to non-English relay service, we have stated in the
    *Improved TRS Order* that we urge states to \[...\] be sensitive to
    changes in local demographics that may warrant the addition of
    non-English relay services. *Improved TRS Order& FNPRM* at ¶31.

[^205]: 47 C.F.R. § 64.605(b)(1) (certified state programs must meet or
    exceed all operational, technical, and functional TRS mandatory
    minimum standards).

[^206]: *See, e.g.,* CA PUC Comments at 6; MCI (WorldCom) Comments at
    6-7; *see also* SBC Reply Comments at 4; Verizon Reply Comments at
    5.

[^207]: We note that while ASL-Spanish VRS has been voluntarily offered,
    it is not reimbursable from the Interstate TRS Fund.

[^208]: Sprint Comments at 9.

[^209]: *Second Improved TRS Order & NPRM* at ¶ 115-117 (citing 47
    C.F.R. § 64.604(b)(2)).

[^210]: *Id* at ¶ 117.

[^211]: *See, e.g.,* AT&T Comments at 11; CSD Comments at 6; MCI
    (WorldCom) Comments at 7; SBC Comments at 5; CA PUC Comments at 7;
    Sprint Comments at 10; MCI (WorldCom) Reply Comments at 5.

[^212]: *See, e.g.,* AT&T Comments at 10-12; CSD Comments at 6; MCI
    (WorldCom) Comments at 7.

[^213]: TDI Coalition Reply Comments at 8-9. TDI Coalition states that
    this approach would alleviate the concern expressed in the comments
    that each TRS call may have different set-up requirements that could
    increase or decrease the normal set-up time.

[^214]: *Second Improved TRS Order & NPRM* at ¶¶ 118-119. Communication
    access real-time translation (CART) is an instant translation of the
    spoken word into written English using a stenotype machine, notebook
    computer, and real-time software. *See* National Court Reporter's
    Association, CART, http://cart.ncraonline.org/index.html (visited
    March 26, 2004). With CART, a stenographer can type speech verbatim
    at a significantly higher word per minute (wpm) rate than is
    possible with typing on a standard keyboard. As a result, the
    conversation pace proceeds at a much higher rate (150 to 200 wpm)
    during a call.

[^215]: *See, e.g.,* Hamilton Comments at 5; MO PSC Comments at 4.

[^216]: *See, e.g.,* CA PUC Comments at 8; MCI (WorldCom) Comments at
    8-9; SBC Reply Comments at 4; Sprint Comments at 11-12.

[^217]: MO PSC Comments at 4; MCI (WorldCom) Reply Comments at 6.

[^218]: *Id* at 12. Sprint claims that the existing voice recognition
    software has about a 92 percent accuracy rate.

[^219]: MD DBM Reply Comments at 5. We note that presently Federal Relay
    Service is offering a CART based service called Relay Conference
    Captioning. *See* http://www.fedrcc.us/info/VRC.aspx. Because it
    remains relatively new, we will monitor its use and reliability.

[^220]: TDI Coalition Reply at 6.

[^221]: *See, e.g.,* Hamilton Comments at 5; Sprint Comments at 12.

[^222]: *Second Improved TRS Order & NPRM* at ¶ 120.

[^223]: *Id.*

[^224]: Sprint Relay service offers Ultratec Turbo Code to relay users.
    *See* http://www.sprintbiz.com/government/relay/services.html**.**

[^225]: TurboCode is a proprietary protocol for Baudot code based TTYs
    that enables interrupt functionality. *See* Ultratec's website
    www.ultratec.com. Ameriphone's Q140 protocol also enables the
    interrupt functionality. *See*
    http://www/clarityproducts.com/store/Downloads/Q-90DU.pdf; *see
    also* MO PSC Comments at 4-5.

[^226]: *See, e.g.,* AT&T Comments at 12; CA PUC Comments at 8; Sprint
    Comments at 13; MCI (WorldCom) Reply Comments at 6-7.

[^227]: Text telephones transmit and receive coded messages. The primary
    code in which text telephones transmit information is known as
    Baudot. The code consists of tones -- a different one for each
    character and command on the keyboard. The device both generates
    tones and translates them into characters and commands. *See*
    Franklin H. Silverstein, Ph.D., Telecommunications Relay Service
    (TRS) Handbook, Empowering the Hearing and Speech Impaired (1999).

[^228]: *See* AT&T Comments at 12 n.26; MD DBM Reply Comments at 5-6.

[^229]: *See* e.g., www.ip-relay.com; www.relaycall.com;
    www.sprintrelayonline.com; and www.hiprelay.com.

[^230]: *Second Improved TRS Order & NPRM* at ¶¶ 121-122. Anonymous call
    rejection is a feature that automatically rejects calls to the
    user's number when the calling party has blocked his or her Caller
    ID information. Call screening (or selective call blocking) allows a
    user to create a list of telephone numbers (no-call list) from which
    the user does not wish to accept calls. Calls from numbers on the
    no-call list receive an announcement that informs the caller that
    the called party is not receiving calls at this time. All calls not
    on the no-call list are placed to the called party. Preferred
    call-forwarding allows a user to create and maintain a list of
    "special" telephone numbers where, if a call is received from one of
    those numbers, the call will be forwarded to another number.

[^231]: *See, e.g.,* AT&T Comments at 12; Hamilton Comments at 5; MCI
    (WorldCom) Comments at 9; Sprint Comments at 13-14.

[^232]: *See, e.g.,* MCI (WorldCom) Comments at 9; SBC Reply Comments at
    5; Sprint at 13-14.

[^233]: Sprint Comments at 13-14; CA PUC Comments at 9.

[^234]: *Second Improved TRS Order* *& NPRM* at ¶ 23-25.

[^235]: *Id.* at ¶ 25.

[^236]: *Id.* at ¶ 22.

[^237]: *Second Improved TRS Order & NPRM* at ¶22-25.

[^238]: *See, e.g.,* 47 C.F.R. §64.604(b)(3).

[^239]: *See Second Improved TRS Order & NPRM* at ¶¶ 123-124.

[^240]: *See id.* at ¶ 123.

[^241]: *Id.* at ¶¶ 123-124.

[^242]: *See, e.g.,* CA PUC Comments at 10; Hamilton Comments at 6-7;
    Iowa UB Comments at 3; MCI (WorldCom) Comments at 9-10 (this feature
    will work only if the LECs make the voice announcements associated
    with \*69 accessible via TTY); Sprint Comments at 15 (the build-up
    requires a separate line to monitor the busy line and that such
    "monitor lines" would not be used for the provision of other TRS
    services that would be underutilized).

[^243]: Sprint Comments at 14. Sprint adds that they are unaware of any
    demand within the deaf and hard-of-hearing community for this type
    of functionality. *See also* MCI Comments at 9-10.

[^244]: *See, e.g.,* Hamilton Comments at 5; MO PSC Comments at 5.

[^245]: Hamilton Comments at 7.

[^246]: TDI Coalition Comments at 12. *See also* MO PSC Comments at 5;
    Sprint Comments at 14; CA PUC Comments at 10. CA PUC recommends the
    Commission allow for a sufficient amount of time for testing and
    research to see if offering such a feature is feasible in a TRS
    environment. Iowa PUC Comments at 3. Iowa PUC supports mandating
    such feature if it is technologically feasible.

[^247]: *See, e.g.,* Hamilton Comments at 7; Sprint Comments at 14; MCI
    (WorldCom) Comments at 9-10.

[^248]: Sprint Comments at 15.

[^249]: *Second Improved TRS Order & NPRM* at ¶ 125*.* With VTT or
    speech recognition technology, the CA, instead of typing, re-voices
    the voice caller's message into a specialized speech recognition
    device that translates the speech into text.

[^250]: *See, e.g.,* Hamilton Comments at 4-5; Relay Nevada
    Administrator Comments at 1-2; TDI Coalition Comments at 13.

[^251]: Relay Nevada Administrator Comments at 1-2; TDI Coalition
    Comments at 12.

[^252]: *See, e.g.,* SBC Reply Comments at 5; Sprint Comments at 15-16.

[^253]: CA PUC Comments at 10. Ultratec's CapTel service uses its
    proprietary SRT.

[^254]: Several TRS providers have undergone SRT trials, using
    technology such as Ultratec's FasTran.

[^255]: *Second Improved TRS Order & NPRM* at ¶ 126.

[^256]: *See, e.g.,* Hamilton Comments at 4; MO PSC Comments at 6; TDI
    Coalition Comments at 12-13.

[^257]: *Second Improved TRS Order & NPRM at* ¶ 127.

[^258]: 47 C.F.R. § 64.604(b)(1).

[^259]: *See, e.g.,* Sprint Comments at 15-16; TDI Coalition Comments at
    13; SBC Reply Comments at 5.

[^260]: TDI Coalition Comments at 9.

[^261]: *Second Improved TRS Order & NPRM* at ¶ 127.

[^262]: 47 C.F.R. § 64.604(c)(3).

[^263]: *Second Improved TRS Order & NPRM* at ¶¶ 128-133.

[^264]: *Id.* at ¶¶ 129-133.

[^265]: 47 C.F.R. § 64.604(c)(5)(iii)(E).

[^266]: *Second Improved TRS Order & NPRM* at ¶ 133.

[^267]: 47 U.S.C. § 225(d)(3).

[^268]: *Second Improved TRS Order & NPRM* at ¶ 79. The mission of the
    Consumer Advisory Committee is to make recommendations to the
    Commission regarding consumer issues within the jurisdiction of the
    Commission and to facilitate the participation of consumers
    (including people with disabilities and underserved populations), in
    proceedings before the Commission. *See* Comments of the Consumer
    Advisory Committee.

[^269]: For example, Hands On supports an outreach program being
    targeted to the hearing community to publicize how to reach deaf and
    hard of hearing persons via TRS, and believes that the TRS Advisory
    Council should have a role in coordinating a nationwide outreach
    effort. Hands On Comments at 6-10. The MD DBM asserts that a
    national non-branded (not provider or state specific) outreach
    effort would allow for consistency in providing information to the
    general public, benefiting all relay users, and that providers are
    reluctant to incur outreach and education costs that could benefit a
    competitor. MD DBM Reply Comments at 7. Verizon notes that the
    Commission has allowed the use of the Interstate TRS Fund to pay for
    outreach efforts by TRS Providers according to the N11 Order, and
    that because the Commission has allowed TRS providers' outreach
    expenses to be paid by the TRS fund, it also has the ability to fund
    outreach efforts that are conducted by the TRS Fund Administrator.
    Verizon Comments at 10-11. Verizon suggests that the Commission
    should instruct the TRS Fund Administrator to implement a national
    outreach program, and to synchronize its efforts with successful
    outreach programs that are already being administered in many
    states. Verizon Reply Comments at 3-4; *see also* CSD Comments at
    11; Sprint Comments at 17.

[^270]: TDI Coalition Comments at 10.

[^271]: *Id.* at 10.

[^272]: *Id.* at 11.

[^273]: AT&T Comments at 13-14.

[^274]: CA PUC Comments at 12.

[^275]: CSD Comments at 9.

[^276]: *Id.* at 10. CSD states that a directive for a comprehensive TRS
    outreach campaign would be consistent with the Commission's actions
    in its Report and Order on 711 access where the Commission laid out
    what it said it believed to be necessary to achieve a successful
    campaign: dissemination of "information through the mainstream
    media, including newspaper, radio, and television advertisements and
    articles, which can more effectively reach substantial portions of
    the American public."

[^277]: CAC Comments at 1.

[^278]: CAC Comments at 1.

[^279]: For example, the CAC points out that in 1992 the Commission
    decided that AT&T should not be permitted to receive all calling
    card calls dialed from payphones on a 0+ basis and devised a
    regulatory plan that permitted coin phone subscribers to select the
    long distance carrier or operator services provider of choice
    (*i.e.,* coin phone presubscription). Therefore, the Commission
    directed AT&T to "educate its cardholders to check payphone notices
    and to use 0+ access only at public phones identified as
    presubscribed to AT&T. CAC Comments at 3, *referencing, Billed Party
    Preference for 0+ InterLATA Calls*, CC Docket No. 92-77, Phase I,
    Report and Order and Request for Supplemental Comment, FCC 92-465
    (Oct. 8, 1992).

[^280]: *See* 47 C.F.R. § 64.604(c)(3).

[^281]: Although the statute and our rules provide that all common
    carriers providing telephone voice transmission services are
    obligated to provide TRS, our rules allow carriers to provide TRS
    individually, through designees, through a competitively selected
    vendor or in concert with other carriers. *See* 47 C.F.R. § 64.603.
    As such, most states have selected one or two carriers to provide
    TRS.

[^282]: 47 C.F.R. § 64.605(b).

[^283]: *See, e.g., Second Improved TRS Order & NPRM* at ¶ 80.

[^284]: *Improved TRS Order & FNPRM* at ¶ 105; *see also* *TRS I* at ¶
    28.

[^285]: *Second Improved TRS Order & NPRM* at ¶ 133.

[^286]: *Id.* at ¶ 136.

[^287]: 47 C.F.R. § 64.605.

[^288]: 47 C.F.R. § 64.604(c)(5)(iii)(E)(1).

[^289]: 47 C.F.R. § 64.604(c)(5)(iii)(E)(2).

[^290]: 47 C.F.R. § 64.604(c)(5)(iii)(E)(3).

[^291]: *Second Improved TRS Order & NPRM* at ¶¶ 134-140.

[^292]: *Id.* at ¶¶ 136-140.

[^293]: *Id.* at ¶ 139.

[^294]: *Id.* at ¶ 140.

[^295]: *See, e g.,* CA PUC Comments at 13; Hamilton Comments at 8;
    Hands On Comments at 12-14, Hamilton Reply Comment at 4-5; MCI
    (WorldCom) Comments at 12-14, MCI (WorldCom) Reply Comments at 8; MD
    DBM Reply Comments at 14; Sorenson Comments at 2-4; TDI Coalition
    Comments at 14.

[^296]: MO PSC Comments at 7.

[^297]: Sorenson Comments at 4.

[^298]: SBC Comments at 6-7. *But see* Hands On Comments at 13-14 (a
    federal certification program would promote competition and
    innovation and decrease the cost of service by allowing the
    providers actually delivering the service to bill the Interstate TRS
    Fund directly).

[^299]: Sorenson Comments at 2.

[^300]: *Id.*

[^301]: TDI Coalition Comments, at 14.

[^302]: TDI Coalition Comments at 10.

[^303]: 47 C.F.R. § 64.604(c)(5)(iii)(F).

[^304]: There is a third eligibility category: "\[i\]nterstate common
    carriers offering TRS pursuant to § 64.604." This category applies
    to common carriers offering telephone voice transmission services
    that are obligated to provide TRS in a state that does not have a
    certified TRS program. The three eligibility categories, therefore,
    are modeled upon the ways in which common carriers may be deemed to
    be in compliance with their underlying obligation, as set forth in
    or at sections 225(c)(1) -- (2) of the Act, to provide TRS.

[^305]: Again, circumstances where a state does not have a TRS program
    certified under our rules presents other issues. We note that
    presently all states Puerto Rico and the District of Columbia have
    certified TRS programs.

[^306]: 47 C.F.R. § 64.604(c)(6).

[^307]: *VRS Waiver Order.*

[^308]: *VRS Waiver Order* at ¶¶ 9-20; see 47 C.F.R. §§ 64.604(a)(3),
    (a)(4), (b)(2), (b)(3) & (b)(6). We note that previously, in the
    *Improved TRS Order & FNPRM* that recognized VRS as a form of TRS,
    we concluded that certain other mandatory minimum standards did not
    apply to VRS. *See Improved TRS Order & FNPRM* at ¶ 42. In addition,
    in the *TRS Cost Recovery MO&O* we clarified that providers of VRS
    need not also provide video-based STS or Spanish relay. *See TRS
    Cost Recovery MO&O* at ¶¶ 25-27. Further, VRS -- like all
    non-mandatory forms of TRS -- need not be offered every day, 24
    hours a day. *See* 47 C.F.R. § 64.604(b)(4).

[^309]: We note that Hands On also seeks clarification that VRS
    providers may immediately terminate calls where: (1) the VRS
    communications assistant is subjected to harassment or indecency,
    and (2) calls directed to third parties appear to be designed to
    harass or annoy such parties, either as a result of obscenity or
    other threatening or annoying conduct. We raise issues concerning
    the abuse of CAs handling TRS calls in the *FNPRM* below. We also
    note that CSD seeks clarification that American Sign Language (ASL)
    to Spanish Relay is not currently a form of VRS reimbursable from
    the Interstate TRS Fund. CSD Comments at 6. That is correct. In the
    *Improved TRS Order & NPRM* we stated TRS includes "any non-English
    language relay services which relay conversations in a *shared*
    language." *Improved TRS Order & FNPRM* at ¶¶ 28-31 (emphasis
    added). We subsequently sought comment on this issue in the generic
    context of TRS in the *Second Improved TRS Order & FNPRM* in
    response to a petition filed by the Texas PUC that urged the
    Commission to find that multi-lingual translation relay services
    (*i.e.,* non-shared language TRS) provided by an interstate TRS
    providers are compensable from the Interstate TRS Fund. *See Second
    Improved TRS Order & NPRM* at ¶¶ 98, 110-114. We resolved that issue
    in the *Report and Order* above.

[^310]: Hamilton Relay, Inc., *Petition for Waiver Extension*, filed
    September 15, 2003; Hands On Video Relay Service, Inc., *Petition
    for Waiver,* filed September 22, 2003, AT&T Corp., *Petition for
    Limited Reconsideration and for Waiver*, filed September 23, 2003.

[^311]: Voice carry over (VCO) is a form of TRS used by persons with
    hearing disabilities who are able to speak directly to another 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).

[^312]: Hamilton *Petition* at 10-11.

[^313]: Hearing carry over (HCO) is a form of TRS used by persons with
    speech disabilities who are able to listen to the other end user.
    The communications assistant speaks the text as typed by the person
    with the speech disability. *See* 47 C.F.R. § 64.601(7).

[^314]: Hamilton *Petition* at 9-10.

[^315]: *Id.* at 9. This request for clarification refers to our
    discussion of this issue in the *TRS Cost Recovery MO&O* at ¶¶
    25-27.

[^316]: *Hamilton Relay, Inc. and Hands On Video Relay Service, Inc.
    Petitions for Waiver Extension, Permanent Waiver, and Clarification
    of Video Relay Service Requirements*, Public Notice, CC Docket No.
    98-67, DA 03-3036 (Oct. 6, 2003).

[^317]: *AT&T Corp. and Verizon File Petitions for Reconsideration of
    Telecommunications Relay Service Requirements from the Second
    Improved TRS Order & NPRM, FCC 03-112*, Public Notice, CC Docket No.
    98-67, CG Docket No. 03-123, DA 03-3109 (Oct. 8, 2003).

[^318]: *See e.g.* Comments and Request for Clarification, filed by
    Communication Services for the Deaf, Inc. (CSD), October 20, 2003;
    Comments of Sorenson Media, Inc., filed by Sorenson Media, Inc.,
    October 20, 2003; Comments of Sprint Corporation, filed by Sprint
    Corporation, October 20, 2003.

[^319]: Hands On *Amendment to Waiver Request,* filed December 12, 2003.

[^320]: *Id.* at 5.

[^321]: CSD *Ex Parte Amendment to Comments on Petitions for VRS
    Waivers* at 1, filed November 25, 2003. As we note further below,
    the question whether VRS should be a mandatory type of TRS has only
    recently been raised, and therefore it would be premature to address
    it at this time. We seek comment on that issue in the *FNPRM* below.

[^322]: *See* 47 C.F.R. § 64.604.

[^323]: *See Improved TRS Order & FNPRM* at ¶ 39.

[^324]: *FPC v Texaco, Inc.,* 377 U.S. 33, 39 (1964).

[^325]: 47 C.F.R. § 1.3.

[^326]: *Citizens to Preserve Overton Park, Inc. v. Volpe*, 401 U.S.
    402, 416 (1971).

[^327]: *WAIT Radio v. FCC*, 418 F.2d 1153, 1157 (D.C. Cir. 1969).

[^328]: *Northeast Cellular Telephone Company, L.P. v FCC,* 897 F.2d
    1164, 1166 (D.C. Cir. 1990).

[^329]: *See* 47 C.F.R. § 1.3; *Part 68 Waiver Request of Alameda
    Engineering, Inc.,* Order, 10 FCC Rcd 12135, 12139 (Sept. 28, 1995).

[^330]: *See Second Improved TRS Order & NPRM* at ¶ 76 & n.249; *IP
    Relay Order on Reconsideration* at ¶ 28 (annual reports required for
    waivers set forth in the *IP Relay Order on Reconsideration* and the
    *Second Improved TRS Order & NPRM* are due twelve months after date
    the *IP Relay Order on Reconsideration* was published in the Federal
    Register, which was April 16, 2003).

[^331]: *See* 47 C.F.R. § 64.604(a)(3).

[^332]: *VRS Waiver Order* at ¶ 10.

[^333]: *Id.*

[^334]: Hamilton *Petition* at 8; Hands On *Petition* at 5-6.

[^335]: Hamilton *Petition* at 8; Hands On *Petition* at 5-6; Sorenson
    Comments at 5; CSD Comments at 2.

[^336]: Hands On *Petition* at 2; Hamilton *Petition* at 8; CSD Comments
    at 2.

[^337]: *See* 47 C.F.R. § 64.604(a)(4); *see also Second Improved TRS
    Order & NPRM* at ¶¶ 37-42.

[^338]: *VRS Waiver Order* at ¶ 14.

[^339]: CSD Comments at 3; Sorenson Comments at 3.

[^340]: CSD Comments at 3.

[^341]: *See* 47 C.F.R. § 64.604(b)(2). This rule is often referred to
    as the 85/10 rule.

[^342]: *VRS Waiver Order* at ¶ 16.

[^343]: *Id.*

[^344]: *Id.*

[^345]: Hamilton *Petition* at 6; Hands On *Petition* at 5.

[^346]: Hands On *Petition* at 5; Hamilton *Petition* at 6; Sorenson
    Comments at 3.

[^347]: In its initial comments, CSD asserted that prior to the
    reduction of the VRS compensation rate in the *Bureau TRS Order,* it
    had success in complying with this rule for VRS, but that as a
    result of the lower rate it has not been able to staff adequate
    positions to meet the rule during peak periods of demand. CSD
    therefore supported extension of the waiver "at this time" because
    "uncertainty in the rate prevents CSD from being able to commit to
    any service level requirements without significant financial risk."
    CSD Comments at 4-5. In its *Petition for Waiver*, Hands On asserted
    that the original basis for the waiver of this requirement
    continues, and that with increased call volume staffing may not be
    sufficient to handle all demand during busy hours. Hands On
    *Petition* at 4-5.

[^348]: *See* CSD *Ex Parte Amendment to Comments on Petitions for VRS
    Waivers* at 1; Hands On *Amendment to Waiver Request*.

[^349]: CSD *Ex Parte Amendment to Comments on Petitions for VRS
    Waivers* at 6.

[^350]: *Id.*

[^351]: *Id.* at 6-7. As we have noted above, CSD also requests in its
    Ex Parte filing that we consider making VRS a mandatory service that
    must be provided 24 hours a day, seven days a week. CSD suggests
    that "\[o\]nly if this service is mandated and provided twenty-four
    hours a day/seven days a week will it truly provide the functionally
    equivalent service contemplated in the ADA." *Id.* at 7. Because
    comment has not been sought on this issue, it would be inappropriate
    to address it at this time. We raise that issue in the *FNPRM*
    below.

[^352]: Hands On's *Amendment to Waiver Request* at 2.

[^353]: *Id.* at 4. Hands On, like CSD, also addresses the question
    whether VRS should be a mandatory service that is required to be
    offered twenty-hours a day, seven days a week . Hands On asserts
    that after July 1, 2004, VRS should be a mandatory service that must
    be offered 24/7. *Ibid.* Again, because we have not previously
    sought comment on whether VRS should be a mandatory service, we
    cannot address that issue at this time, but we raise it in the
    *FNPRM* below. We note, however, that our regulations provide that
    non-mandatory services (like VRS) need not be offered 24/7;
    therefore, this is not a requirement that has been "waived" for a
    given period of time and is subject to extension. 47 C.F.R. §
    64.604(b)(4).

[^354]: Hands On *Petition* at 5.

[^355]: *See* Hamilton *Petition* at 6-7.

[^356]: *See* 47 C.F.R. § 64.604(b)(3); *see also Second Improved TRS
    Order & NPRM* at ¶¶ 54-61.

[^357]: *VRS Waiver Order* at ¶¶ 17-18.

[^358]: Hamilton *Petition* at 8; Hands On *Petition* at 5-6.

[^359]: CSD Comments at 2; Sorenson Comments at 6.

[^360]: Hamilton *Petition* at 8; CSD Comments at 2; Sorenson Comments
    at 6.

[^361]: Hamilton *Petition* at 8; *see IP Relay Declaratory Ruling* &
    FNPRM at ¶ 31.

[^362]: *Id.*

[^363]: CSD Comments at 2-3.

[^364]: In other words, as with IP Relay, VRS providers cannot bill the
    user for any long distance charges if they do not offer carrier of
    choice; conversely, VRS providers that offer carrier of choice may
    charge for the call (*e.g.,* via a calling card).

[^365]: Hands On *Petition* at 6.

[^366]: *Id.*

[^367]: CSD Comments at 9. We note that such an arrangement would be
    contrary to our rules concerning carrier of choice and traditional
    TRS calls; *i.e.,* in those circumstances, a long distance TRS call
    is billed from the location of the calling party to the location of
    the called party, without regard to the location of the TRS facility
    and CA. *See generally* 47 U.S.C. § 225(d)(1)(D);
    *Telecommunications Services for Hearing-Impaired and Speech
    Impaired Individuals, and the Americans with Disabilities Act of
    1990,* Notice of Proposed Rulemaking, CC Docket No. 90-571, FCC
    90-376, 5 FCC Rcd 7187 at ¶ 14 (Nov. 16, 1990)

[^368]: *See Bureau TRS Order* at ¶ 26 n.73.

[^369]: The Interstate TRS Fund administrator has informally indicated
    that at this time very few international VRS calls are made.

[^370]: *IP Relay Declaratory Ruling & FNPRM* at ¶ 31.

[^371]: We recognize, and expect, that as a practical matter a
    provider's inability to receive compensation from the Interstate TRS
    Fund for international IP Relay call minutes will operate as a
    strong disincentive to handle such calls.

[^372]: *See* 47 C.F.R. § 64.604(c)(6).

[^373]: *VRS Waiver Order* at ¶¶ 19-20.

[^374]: Hamilton *Petition* at 7; Hands On *Petition* at 6-7.

[^375]: *See IP Relay Order on Reconsideration* at ¶¶ 19-22.

[^376]: Hands On Comments at 7.

[^377]: CSD Comments at 3-4; Sorenson Comments at 6-7.

[^378]: Hamilton *Petition* at 9-10.

[^379]: *Id.* at 9-10.

[^380]: *Id.* at 9.

[^381]: Hamilton *Petition* at 10. We note that Hamilton's request that
    we waive STS for 5 years (as we did for IP Relay providers)
    conflicts with its request that we clarify that we have previously
    determined that VRS providers need not provide STS and Spanish
    Relay. *See id.* at 9-10. We address the application of STS to VRS
    below.

[^382]: *Id.* at 10-11; *see IP Relay Order on Reconsideration* at ¶¶
    13-18.

[^383]: CSD Comments at 7.

[^384]: We note that we have also waived the requirement that IP Relay
    and VRS providers must provide VCO-to-TTY, HCO-to-TTY, VCO-to-VCO,
    and HCO-to-HCO. *See* *Second Improved TRS Order & NPRM* at ¶¶
    35-36. Contrary to Hamilton's assertion, however, *see* Hamilton
    *Petition* at 11 n.30, we have not waived the requirement that VRS
    providers must provide two-line VCO and two-line HCO. Those types of
    TRS calls do not present the same problem of using voice over the
    Internet because the voice call is made on a separate telephone
    line. *See generally Second Improved TRS Order & NPRM* at ¶¶ 28-30.

[^385]: Automatic call forwarding "permits calls placed by a TTY or
    other TRS user to another party's telephone number through a CA to
    be automatically forwarded to that other party's forwarded telephone
    number as previously designated by that other user." *Second
    Improved TRS Order & NPRM* at ¶ 66.

[^386]: *Id.* at ¶ 67.

[^387]: Hamilton *Petition* at 9-10.

[^388]: *Id.* at 10.

[^389]: *Id.*

[^390]: CSD Comments at 7.

[^391]: Hamilton *Petition* at 9; *see* 47 C.F.R. § 64.603.

[^392]: *See TRS Cost Recovery MO&O* at ¶¶ 25-27.

[^393]: CSD states that it "understands STS to be indefinitely waived
    for VRS providers, and \[therefore\] does not see the need to seek
    extension of this waiver at this time." CSD *Petition* at 7 n.11.

[^394]: *TRS Cost Recovery MO&O* at ¶ 26.

[^395]: *Id.* at ¶ 27.

[^396]: As we have indicated above, because this issue is expressly
    raised in the *FNPRM* below, the waiver of the speed of answer
    requirement for VRS will terminate on January 1, 2006, or at the
    time the Commission issues an order adopting a speed of answer rule
    for VRS, whichever is earlier. The VRS waiver for emergency call
    handling will expire on January 1, 2006.

[^397]: Sprint, *Petition for Declaratory Ruling*, CC Docket No. 98-67
    (filed May 27, 2003) (*711 Petition*).

[^398]: *Improved TRS Order & FNPRM* at ¶ 98; *see also* 47 C.F.R. §
    64.604 (b)(6).

[^399]: 47 C.F.R. § 64.603.

[^400]: *See* 47 C.F.R. § 64.1508 "(Blocking access to 900 service").

[^401]: Sprint Reply Comments at 1-2.

[^402]: *711 Petition* at 1-2.

[^403]: *Id.*

[^404]: *711 Petition* at 2 (citing *Improved TRS Order & FNPRM* at ¶ 98
    n.200).

[^405]: *Id.*

[^406]: *Id.*

[^407]: *Id.*

[^408]: AT&T Comments at 2.

[^409]: *Id.* at 2-3.

[^410]: *Id.* at 3.

[^411]: *Id.*

[^412]: *Id.* at 2-3.

[^413]: TDI Reply Comments at 2.

[^414]: *Id*.

[^415]: *Id.*

[^416]: *Id.*

[^417]: MCI (WorldCom) Comments at 1-2.

[^418]: *Id.* at 2.

[^419]: Sprint Reply Comments at 4.

[^420]: 47 C.F.R. § 64.601(1) (emphasis added).

[^421]: Hands On's filing is captioned: "Application for Certification
    as an Eligible VRS Provider, Request for Expedited Processing and
    Request for Temporary Certification Pending Processing."

[^422]: 47 U.S.C. § 225(c) requires that "telecommunications relay
    services" be provided in compliance with regulations developed by
    the Commission as mandated by 47 U.S.C. § 225(b). As we have noted,
    to date the Commission has required traditional TTY-based TRS, STS,
    and interstate Spanish Relay Services as mandatory TRS Services.
    *See, e.g*.*,* *Improved TRS Order & FNPRM* at ¶¶ 13-20 (requiring
    STS) & ¶¶ 28-30 (requiring interstate Spanish Relay Services).

[^423]: *See* 47 C.F.R. § 64.604(c)(5)(iii)(F).

[^424]: *Hands On Application* at *5.*

[^425]: *Id*.

[^426]: We note that Hands On is presently eligible for compensation
    from the Interstate TRS Fund both because it operates under contract
    with a common carrier offering interstate TRS, and because it
    operates as part of a certified state TRS program. *See* 47 C.F.R. §
    64.604(c)(5)(iii)(F).

[^427]: *See* 47 C.F.R. § 64.605.

[^428]: *Second Improved TRS Order & NPRM* at ¶¶ 137-140.

[^429]: Communication Services for the Deaf, Petition for Limited Waiver
    and Request for Expedited Relief, CC Docket No. 98-67 (filed June
    12, 2003) (*CSD Petition).*

[^430]: *CSD* *Petition* at 1. CSD notes that when it has knowledge that
    all parties to such proceedings are located in the same room, CSD
    declines to provide relay service because such calls are video relay
    interpreting (VRI), and not VRS calls.

[^431]: *Id*. at 3. As CSD notes, a summary of state interpreting laws
    has been prepared by the National Association for the Deaf and can
    be found at
    http://www.nad.org/infocenter/infotogo/asl/InterpStateLaws.html.
    *See also* Hands On Comments at 2-5; TDI Comments at 1-2; Texas
    Commission for the Deaf and Hard of Hearing (TCDHH) Comments at 1-2,
    5; Registry of Interpreters for the Deaf (RID) Comments at 2;
    Chicago Hearing Society Comments at 1. RID's Standard Practice Paper
    on Interpreting in Legal Settings states that "\[a\]n interpreter's
    first responsibility is to weigh the information regarding the
    circumstances judiciously to determine whether or not she/he is
    qualified for the particular situation. Some reasons for declining
    the assignment could be related to the communication mode of the
    deaf people involved or personal knowledge or bias in the case. Once
    the interpreter has accepted an assignment, he or she has the
    responsibility to facilitate communication accurately and
    impartially between the parties." *See* www.rid.org/125.pdf. Because
    RID maintains that interpreting in a legal setting is such a
    specialized and complex field, they have developed a specialty
    certification for this topic with very strict eligibility
    requirements. *See* RID Comments at 2-5.

[^432]: *CSD Petition* at 3-10.

[^433]: CSD also notes that state legal interpreting requirements vary
    from state to state, and that interpreters qualified to provide
    legal interpreting in one state are not automatically qualified to
    interpret in legal proceedings in another state. Because VRS is
    provided in centralized locations around the United States, and is
    provided via the Internet, it is not possible to determine the
    origination of the VRS calls. CSD asserts that even if its CAs are
    qualified to provide legal interpreting in the state in which the
    VRS facility is located, the CAs may not be qualified to provide
    such services in either the state in which the call originates or
    terminates. As a result, CAs could potentially be in violation of
    state interpreting laws in two states. *CSD* *Petition* at 2-4.

[^434]: *Id.* at *1-2.*

[^435]: *Communication Services for the Deaf (CSD)* *Petition for
    Limited Waiver and Request for Expedited Relief Regarding the
    Provision of Video Relay Services (VRS) for Depositions and Other
    Legal Proceedings*, Public Notice, CC Docket 98-67, DA 03-2644
    (August 13, 2003) (*CSD Petition Public Notice*).

[^436]: *See e.g.,* TDI Comments; Hands On Comments; CSD Reply Comments;
    RID Comments; Chicago Hearing Society Comments; TCDHH Comments.

[^437]: *See, e.g.,* TDI Comments at 2; Hands On Comments at 1.

[^438]: CSD Reply Comments at 1.

[^439]: *Id.*

[^440]: *FPC v. Texaco, Inc.,* 377 U.S. 33, 39 (1964).

[^441]: 47 C.F.R. § 1.3.

[^442]: *Id.*

[^443]: *Citizens to Preserve Overton Park, Inc. v. Volpe*, 401 U.S.
    402, 416 (1971).

[^444]: *WAIT Radio v. FCC*, 418 F 2d 1153, 1157 (D.C. Cir. 1969).

[^445]: *Northeast Cellular Telephone Company, L.P. v. FCC,* 897 F 2d
    1164, 1166 (D.C. Cir. 1990).

[^446]: As noted above, we have granted a waiver of this requirement in
    two circumstances -- operator assisted calls and long distance calls
    billed to the end user. *See VRS Waiver Order* at ¶ 10.

[^447]: We note that CSD also asserts that the misuse of VRS for legal
    interpreting in state legal proceedings may result in violating the
    legal rights of deaf individuals. Although this may present a
    legitimate concern, we believe it is one that falls outside the
    Commission's purview. That concern is more appropriately addressed
    to the states.

[^448]: *See* House Report at 129 (1990); *Notice of Inquiry*, CC Docket
    No. 90-571, FCC 97-7, 12 FCC Rcd 1152 ¶2 (Jan. 14, 1997) ("TRS
    provides access to the voice telephone network for over 30 million
    Americans with hearing and speech disabilities").

[^449]: *TRS I* at ¶ 13 (emphasis added); *see also Telecommunications
    Relay Services, and Speech-to-Speech Services for Individuals with
    Hearing and Speech Disabilities,* Declaratory Ruling, CC Docket No.
    98-67, FCC 03-190**,** 18 FCC Rcd 16121 at ¶¶ 4, 33, 42 (August 1,
    2003); House Report at 133 ("\[TRS\] services are to be governed by
    standards that ensure that telephone service for hearing- and
    speech-impaired individuals is functionally equivalent to voice
    services offered to hearing individuals.").

[^450]: *See, e.g., Improved TRS Order & FNPRM* at ¶ 2.

[^451]: 47 U.S.C. § 225(d)(1)(E).

[^452]: *Id.*

[^453]: We note that a VRS CA must be a qualified interpreter, "who is
    able to interpret effectively, accurately, and impartially, both
    receptively and expressively, using any necessary specialized
    vocabulary" 47 C.F.R § 64.601(10).

[^454]: *See TRS I* at ¶ 13.

[^455]: 47 C.F.R. § 64.604(a)(2).

[^456]: *TRS I* at ¶ 13.

[^457]: *Id.*

[^458]: *Id.*

[^459]: 47 U.S.C. § 705.

[^460]: *TRS I* at ¶ 14. We note that apart from the practical matter
    that a VRS CA does not act as a legal interpreter when relaying a
    TRS call, CSD's concerns raise a serious issue concerning
    preemption, *i.e.,* whether enactment of Title IV preempts
    conflicting state law, at least with respect to the role of the CA
    in relaying TRS calls. Given our discussion above, we need not
    address that issue.

[^461]: *Id.* at ¶ 15. In adopting the final version of section
    225(d)(1)(E), the Conference Committee indicated that the provision
    "specifies that a relay operator is subject to the same standards of
    conduct that operators are subject to under the Communications Act
    of 1934." House Report at 78. As indicated in the Conference Report,
    the Senate acceded to the House amendment. That amendment added the
    words "failing to fulfill the obligations of common carriers by" to
    the Senate version of section 225 (d)(1)(E).

[^462]: *Id.* at ¶ 15 & n.16 (citing cases).

[^463]: *Id.* at ¶ 15.

[^464]: *Id.*

[^465]: *Id.*

[^466]: *Id.* We are further concerned about reports that VRS is being
    used as a substitute for sign language interpreting services. *See
    CSD* *Petition* at 1; TDI Comments at 1; Hands On Comments at 3. We
    have received anecdotal information that some entities (both public
    and private) have used VRS instead of VRI, or instead of hiring an
    interpreter as a reasonable accommodation, as a means of passing the
    costs to the Interstate TRS Fund. We remind that VRS, like all forms
    of TRS, is intended to be a means of giving access to the telephone
    system. Therefore, in any given situation, if the party using VRS
    would be making a telephone call but for person's hearing or speech
    disability, then the use of VRS would be appropriate. In other
    circumstances, the party should hire an "in-person" sign language
    interpreter or use VRI. We will closely monitor alleged instances of
    the wrongful use of VRS in this regard, and take whatever
    enforcement action is necessary and appropriate against such misuse.

[^467]: See *Bureau TRS Order.*

[^468]: 47 C.F.R. § 64.604(c)(5)(iii)(H).

[^469]: *See Bureau TRS Order* at ¶ 1.

[^470]: *Id.* at ¶ 34.

[^471]: Because the Bureau excluded certain providers' data in its
    entirety in setting the interim VRS compensation rate, it also
    excluded 305,385 minutes of projected VRS use. *See id.* at ¶ 37 &
    n.96.

[^472]: *Id.* at ¶ 37.

[^473]: *Id.* (footnote omitted).

[^474]: These petitions were filed by Sprint, AT&T, Sorenson Media, Inc.
    (Sorenson), Hands On, and CSD.

[^475]: Six parties filed comments in response to the petitions for
    reconsideration. Comments were filed by Hamilton, TDI (joined by
    several "supporting parties"), the National Alliance of Black Sign
    Language Interpreters (NAOBI), Hands On, NorCal Center on Deafness
    (NorCal), and the Registry of Interpreters for the Deaf (RID). Of
    these comments, four support adopting NECA's proposed compensation
    rate of \$14.023 per minute for VRS. Additionally, 76 individuals
    filed brief comments. Of these, 69 supported reconsidering the
    *Bureau TRS Order* and adopting the NECA proposed VRS compensation
    rate (20 of these comments are identical), five expressed general
    support for VRS but did not address VRS compensation rates, and one
    recommended lowering the VRS compensation rate. We address the
    relevant comments further below. No reply comments were filed.

[^476]: We note that no parties challenged the interim compensation
    rates for those TRS services.

[^477]: We note that we address below in the *FNPRM* the open question
    of the appropriate cost recovery *methodology* for VRS, *i.e.,*
    whether VRS providers should continue to be compensated on a
    per-minute basis, as is the case with the other types of TRS, or on
    some other basis (*e.g.,* lump sum).

[^478]: *See* Sprint *Petition* at 9-12; Hands On *Petition* at 10.

[^479]: Sprint *Petition* at 9 (quoting 47 C.F.R. § 0.361(c)).

[^480]: *Id.* at 9.

[^481]: *Id.* at 9-10.

[^482]: *Id.* at 11-12.

[^483]: Hands On *Petition* at 10.

[^484]: *Id*.

[^485]: *Id.*

[^486]: 47 C.F.R. § 64.604(c)(5)(iii)(E).

[^487]: *See* 47 C.F.R. §§ 64.604(c)(5)(iii)(B) & (I); 64.605(a).

[^488]: *See* Appendix D; *see also* 5 U.S.C. § 553(b) (notice and
    comment rulemaking requirements do not apply to rules of agency
    organization, procedure, or practice).

[^489]: "\[T\]he reviewing court shall ... hold unlawful and set aside
    agency actions, findings, and conclusions found to be ... arbitrary,
    capricious, an abuse of discretion, or otherwise not in accordance
    with the law; ... in excess of statutory jurisdiction, authority, or
    limitations, or short of statutory right." 5 U.S.C. § 706(2)(A) &
    (C).

[^490]: Although sometimes also referred to as "Video Relay
    Interpreting," we use the phrase "Video Remote Interpreting" (VRI),
    as we believe it more actually describes this service. *Cf. Bureau
    TRS Order* at ¶ 30 & n.78. As we have explained, VRI is used "to
    conduct in-person communications through sign language interpreters
    that are located in remote locations." *Bureau TRS Order* at ¶ 30
    (quoting *Telecommunications Relay Service and Speech-to-Speech
    Services for Individuals with Hearing and Speech Disabilities*,
    Order on Reconsideration, CC Docket No. 98-67, FCC 00-200, 16 FCC
    Rcd 4054 at ¶ 10 (June 5, 2000)). For example, at a business
    meeting, VRI can be used to enable a hearing person to communicate
    with a deaf person when they are in the same room and an interpreter
    is not available. In this instance, for example, the hearing person
    would call a remote VRI service (*i.e.,* a sign language
    interpreter), set up a video connection, and communicate with the
    deaf person through the sign language interpreter who is at a remote
    location; the deaf person and the interpreter would see each other
    and communicate in sign language through the video connection. By
    contrast, VRS, as a form of relay service, is a means by which a
    person with a hearing disability, who absent the hearing disability
    would make a voice telephone call, makes a call through a relay
    center using a VRS communications assistant to communicate with
    another person (or vice versa).

[^491]: *Bureau TRS Order* at ¶ 30; *see* AT&T *Petition* at 4-5; CSD
    *Petition* at 9; Hands On *Petition* at 8-9; Sorenson *Petition* at
    5; Sprint *Petition* at 14-15.

[^492]: *See* Sprint *Petition* at 15; *see also* Hands On *Petition* at
    8; AT&T *Petition* at 7; CSD *Petition* at 9-10; Sorenson *Petition*
    at 5.

[^493]: *See* Sprint *Petition* at 15; CSD *Petition* at 10-11; AT&T
    *Petition* at 8; Hands On *Petition* at 8-9, Exh. 1.

[^494]: *See* TDI Comments at 11-13; NorCal Comments at 1; Hamilton
    Comments at 2-3; *see also* Hands On Comments at 2.

[^495]: *See Bureau TRS Order* at ¶ 30.

[^496]: *Id.*

[^497]: *Id.* at ¶ 32.

[^498]: *Id.* at ¶ 34.

[^499]: *Id.*

[^500]: *Id.* at ¶ 32.

[^501]: *See* 47 C.F.R. § 64.604(c)(5)(iii)(E).

[^502]: *Id.*

[^503]: *See* AT&T *Petition* at 6-7; CSD *Petition* at 7-8; Hands On
    *Petition* at 7-8; Sorenson *Petition* at 3; Sprint *Petition* at
    16.

[^504]: *See* Hands On *Petition* at 7.

[^505]: *See* CSD *Petition* at 8; *see also* Sprint *Petition* at 16.

[^506]: *Bureau TRS Order* at ¶ 31. In this regard, we also note that in
    NAD's comments to the May 1998 NPRM preceding the March 2000
    *Improved TRS Order & FNPRM,* it asserted that as the use of VRS
    increased, the costs of providing this service would be "drive\[n\]
    down." Comments of the National Association of the Deaf and the
    Consumer Action Network, CC Docket Nos. 90-571 & 98-67 (filed July
    20, 1998). That has not been the case.

[^507]: *Id.* at ¶ 35. We note that of the \$25,920,402 in total VRS
    costs we disallowed (of NECA's projected costs of \$52,659,750),
    almost \$11 million was for the adjustment to profits and tax
    allowances.

[^508]: *Id*.

[^509]: *See* Sprint *Petition* at 9-10.

[^510]: *Id.*

[^511]: *See* AT&T *Petition* at 8; CSD *Petition* at 7; Hands On
    *Petition* at 10-13; Sprint *Petition* at 11-12. Sprint contrasts,
    for example, the application of rate of return regulation to
    dominant LECs providing service for which there is stable demand,
    with its application to VRS providers facing the risks of offering
    the service in a competitive market with unpredictable demand.
    Sprint *Petition* at 11.

[^512]: *See* Hamilton Comments at 3-4; Hands On Comments at 3.

[^513]: Hands On *Petition* at 11.

[^514]: *Id.* at 12.

[^515]: *See* 42 U.S.C. § 12101(a)(3) & (5); 47 U.S.C. § 225(d)(3); *see
    also* H.R. Rep. No. 485, Pt. 2, 101^st^ Cong., 2d Sess. at 129-131
    (1990) (House Report).

[^516]: *See* Sprint *Petition* at 10.

[^517]: 47 C.F.R. § 64.604(c)(5)(iii)(E).

[^518]: This conclusion is consistent with the Commission's treatment of
    the recovery of costs in other contexts. For example, pursuant to
    Section 251(e)(2) of the Communications Act, the Commission is
    required to "ensure that carriers bear the costs of providing
    long-term number portability \[LNP\] on a competitively neutral
    basis," and to provide for the recovery of these costs. 47 U.S.C. §
    251(e)(2); *see Telephone Number Portability and Cost Classification
    Proceeding*, Memorandum Opinion and Order, CC Docket No. 95-116, DA
    98-2534, 13 FCC Rcd 24495 (Dec. 14, 1998) (*LNP MO&O)*; *Telephone
    Number Portability*, Third Report and Order, CC Docket No. 95-116,
    FCC 98-82, 13 FCC Rcd 11701 (May 12, 1998) (*LNP Third Report &
    Order*). We have adopted a two-part test "for identification of the
    carrier-specific costs that are directly related to the
    implementation and provision of telephone number portability, that
    is, eligible LNP costs." *LNP MO&O* at ¶ 10. Under this test, "to
    demonstrate that costs are eligible for recovery \... a carrier must
    show that these costs: (1) would not have been incurred by the
    carrier but for the implementation of number portability; and (2)
    were incurred for the provision of number portability service."
    *Id.* (internal quotation marks omitted); *see also LNP Third Report
    & Order* at ¶¶ 72-77.

[^519]: In this regard, we note that petitioners are not correct in
    suggesting that the 11.25% rate of return allowance applies only in
    the context of dominant local exchange carriers. *See Represcribing
    the Authorized Rate of Return for Interstate Services of Local
    Exchange Carriers*, Order, CC Docket No. 89-624, FCC 90-315, 5 FCC
    Rcd 7507 at ¶ 13 (Dec. 7, 1990). *See* *Implementation of the Pay
    Telephone Reclassification and Compensation Provisions of the
    Telecommunications Act of 1996*, Third Report and Order, and Order
    on Reconsideration of the Second Report and Order, CC Docket 96-128,
    FCC 02-39, 14 FCC Rcd 2545 at n.410 (Feb. 21, 2002) (appropriate
    rate of return for capital investment in coinless pay phones);
    *Multi-Association Group (MAG) Plan for Regulation of Interstate
    Services of Non-Price Cap Incumbent Local Exchange Carriers and
    Interexchange Carriers; Federal-State Joint Board on Universal
    Service; Access Charge Reform for Incumbent Local Exchange Carriers
    Subject to Rate-of-Return Regulation; Prescribing the Authorized
    Rate of Return for Interstate Services of Local Exchange Carriers
    (LEC Universal Service),* Second Report and Order and Further Notice
    of Proposed Rulemaking in CC Docket No. 00-256, Fifteenth Report and
    Order in CC Docket No. 96-45, and Report and Order in CC Docket Nos.
    98-77 and 98-166, FCC 01-304, 16 FCC Rcd 19613 at ¶ 206 (Nov. 28,
    2001) (rate of return for Universal Service); *Inquiry Concerning
    the Deployment of Advanced Telecommunications Capability to All
    Americans in a Reasonable and Timely Fashion, and Possible Steps to
    Accelerate Such Deployment Pursuant to Section 706 of the
    Telecommunications Act of 1996,* Third Report, CC Docket No. 98-146,
    FCC 02-33,17 FCC Rcd 2844 at ¶ 140 (Feb. 6, 2002) (rate of return
    for telephone service providers in small and rural communities);
    *Telephone Number Portability*, Third Report and Order, CC Docket
    No. 95-116, FCC 98-82, 13 FCC Rcd 11701 at ¶ 143 (May 12, 1998)
    (rate of return on capital outlays for number portability); 47
    C.F.R. § 76.922(e)(3)(i) (cable rate adjustments to compensate for
    earlier underestimates entitled to 11.25% interest); 47 C.F.R. §
    76.942(f) (refund of fees from cable local franchise authority
    includes 11.25% interest rate).

[^520]: We note that although recoverable costs may include those
    corporate overhead costs directly attributable to the provision of
    TRS, we are concerned about the extent to which some salaries of
    corporate officers and executives have been included in submitted
    costs. We therefore will instruct the TRS fund administrator to
    request that providers identify the corporate officers and
    executives whose salaries have been included in the submitted
    overhead costs, and delineate the percentage of such persons'
    salaries that the provider maintains is attributable to the
    provision of TRS.

[^521]: Hands On argues that we should analogize to government
    contracting, where reasonable profit is an expected component of a
    contract price, in determining whether TRS providers are entitled to
    recover "profit." *See* Hands On *Petition* at 12. We do not believe
    that such an analogy is appropriate. First, the government does not
    contract with VRS providers to provide the service; to the contrary,
    Congress mandated the provision of TRS as a condition of voice
    telephone providers being permitted to begin or continue in that
    business. Second, we have explained the nature of TRS as an
    accommodation that is required of telecommunications providers, just
    as other accommodations for persons with disabilities are required
    by the ADA of businesses and local and state governments. With
    respect to TRS, Congress chose to adopt a mechanism for compensation
    of TRS providers that allows them to be paid by all subscribers for
    interstate services. *See* 47 U.S.C. § 225(d)(3)(B). A more
    appropriate analogy, therefore, would be that businesses increase
    the price of all goods or services sold in order to pay for the
    accommodations required by law, or that a state or local government
    increases taxes for all taxpayers to fund necessary accommodations.

[^522]: We are aware that some common carriers use a subcontractor
    arrangement to provide VRS. To the extent the argument is suggested
    that a common carrier would be unable to engage a subcontractor
    without ensuring that the subcontractor receives some "profit" for
    its services, that argument has no bearing on our conclusion that
    the Interstate TRS Fund compensates TRS providers only for the
    reasonable costs of the providing the service. If subcontractors
    were an exception to the rule that TRS providers are only entitled
    to their reasonable costs in providing the service, the exception
    would likely ultimately swallow the rule and present the recurring
    issue whether the subcontract arrangement was an arms-length
    transaction or instead a means by which a provider can obtain
    markups indirectly that it is precluded from obtaining directly.
    Further, with particular respect to VRS, we note that it is not a
    required service, and therefore the providers' initial decision to
    offer the service, like their decision to then subcontract out the
    service, is entirely of their own choosing.

[^523]: *See Bureau TRS Order* at ¶ 34.

[^524]: *See* Sorenson *Petition* at 4.

[^525]: *See* Sorenson *Petition* at 5 (citing *Brookings Municipal
    Telephone Co. v. FCC*, 822 F.2d 1153, 1165 (D.C. Cir. 1987)).

[^526]: *See* AT&T *Petition* at 9.

[^527]: *See* Sorenson *Petition* at 9-10; AT&T *Petition* at 11.

[^528]: *See Bureau TRS Order* at ¶¶ 8-10.

[^529]: *Id.* at ¶ 35-37.

[^530]: *See id.* The Bureau also disallowed certain engineering costs
    it found unreasonable (discussed below), and excluded some data from
    providers entirely, based on its assessment that the data were
    erroneous or unreliable.

[^531]: *See id.* at ¶ 33.

[^532]: *See id.* at ¶ 33 n.91. Several such meetings took place at the
    request of the providers.

[^533]: *See* AT&T *Petition* at 8; CSD *Petition* at 7; Hands On
    *Petition* at 10-13; Sprint *Petition* at 11-12.

[^534]: *See* AT&T *Petition* at 4-5; CSD *Petition* at 9; Hands On
    *Petition* at 8-9; Sorenson *Petition* at 5; Sprint *Petition* at
    14-15.

[^535]: *See* AT&T *Petition* at 6-7; CSD *Petition* at 7-8; Hands On
    *Petition* at 7-8; Sorenson *Petition* at 3; Sprint *Petition* at
    16.

[^536]: *See* AT&T *Petition* at 3.

[^537]: *See* *id.* at 9-10.

[^538]: We address this category of costs only generally because the
    specific arguments made rely on confidential supplemental data.

[^539]: As noted further below, all VRS providers were invited to
    request a meeting with the Bureau to discuss the *Bureau TRS Order*
    and its exclusion of costs specific to their submission. Because all
    providers requested confidential treatment of their data, each
    meeting was conducted separately.

[^540]: *See* House Report at 133. The House Report explains that
    section 225 "requires the FCC to establish minimum federal standards
    to be met by all providers of intrastate and interstate
    telecommunications relay services, including technical standards,
    quality of service standards, and the *standards that will define
    functional equivalence* between telecommunications relay services
    and voice telephone transmission services. Telecommunications relay
    services are to be governed by standards that ensure that telephone
    service for hearing- and speech-impaired individuals is functionally
    equivalent to voice services offered to hearing individuals. In
    determining factors necessary to establish functional equivalency,
    the FCC should include, for example, the requirement that
    telecommunications relay services transmit messages between the TDD
    \[TTY\] and voice caller in real time, as well as the requirement
    that blockage rates for telecommunications relay services be no
    greater than standard industry blockage rates for voice telephone
    services. Other factors that should be included are the opportunity
    for telecommunications relay services users to choose an interstate
    carrier whenever possible. The FCC should enumerate other such
    measurable standards to ensure that hearing and non-hearing
    individuals have equivalent access to the Nation\'s telephone
    networks." *Id.* (emphasis added)*; see also* 136 Cong Rec. H2421-02
    at H2431, 1990 WL 65024 (May 17, 1990) (testimony indicating that
    the mandatory minimum standards will define functional equivalency).

[^541]: 47 U.S.C. § 225(d)(2).

[^542]: Of course, TRS providers are not *prohibited* from offering
    service enhancements that exceed these standards; the costs for
    those enhancements are just not reimbursable from the fund.

[^543]: In addition, we note that, as a general matter, engineering
    costs cannot be reported as immediate expenses in the year they are
    incurred. Costs relating to multi-year capital acquisitions, whose
    benefits clearly last more than one year, should be capitalized,
    just as the hardware and software they support are capitalized.
    Treatment of these costs as period costs for a single year results
    in overstating the VRS costs for that year.

[^544]: *Bureau TRS Order* at ¶ 37 & n.97.

[^545]: Supplemental cost data was submitted by Hamilton, Hands On,
    Sorenson, Sprint, and CSD.

[^546]: *Bureau TRS Order* at ¶ 36. The "occupancy" rate is the portion
    of time during a work period that a VRS CA spends at a workstation,
    available to relay VRS calls, and excludes breaks, meals, vacations,
    training, and other non-relaying duties. The "utilization" rate
    represents the portion of occupancy time in which the VRS CA is
    actually relaying calls for which the provider can be compensated
    from the Interstate TRS Fund.

[^547]: *Id.*

[^548]: We note that labor costs have been a concern for VRS since its
    inception, since a provider's costs attributable to VRS CAs are
    generally substantially more than those attributable to traditional
    TRS CAs. In this regard, in the *VRS Waiver Order* the Bureau waived
    for VRS providers the TRS mandatory minimum standard that 85% of all
    calls must be answered within 10 seconds. *VRS Waiver Order* at ¶¶
    15-16; 47 C.F.R.§ 64.604(b)(2). The Bureau noted that one provider
    had asserted that application of this rule to VRS would "result in
    such heavy and costly staffing needs that a prudent TRS operator
    would be seriously deterred from offering voluntary VRS." *VRS
    Waiver Order* at ¶ 15 (citing Hamilton *Waiver Request* at 8).
    Therefore, the waiver allows VRS providers to add new VRS CAs to
    their workforce only when justified by the volume of VRS calls.
    *Id.* at ¶ 16. For this reason, providers' arguments seeking to
    justify labor costs based on the staffing necessary to meet the
    speed of answer requirement -- a requirement waived for VRS -- are
    not well-taken. We also note that we have extended in this *Order,*
    above, this waiver for VRS of the speed of answer requirement, but
    the same time we have raised the issue of speed of answer and the
    provision of VRS in the *FNPRM* below.

[^549]: *See* 47 C.F.R. §64.604.

[^550]: We would also consider arguments relating to allowances for net
    working capital, *i.e.,* allowing a return to be earned on funds
    required to be retained to finance expenditures until reimbursed
    (since payments from the TRS fund administrator are paid two months
    in arrears). Because, however, we did not receive critical
    information that we requested on this matter, we do not determine at
    this time whether such an allowance should be permitted under the
    regulations and, if so, the appropriate amount of such an allowance.

[^551]: *See* Sorenson *Petition* at 6 (quoting 47 U.S.C. § 225(b)(1)).

[^552]: *See id.* at 7.

[^553]: *Id.*

[^554]: *See* CSD *Petition* at 3 (citing 47 U.S.C. § 225(d)(3)).

[^555]: 47 U.S.C. § 225(b)(1).

[^556]: 47 U.S.C. § 225(d)(2).

[^557]: *See* Hand On *Petition* at 12.

[^558]: *See* Sorenson *Petition* at 3.

[^559]: *See* CSD *Petition* at 13-14.

[^560]: *See* Sprint *Petition* at 17.

[^561]: *See* NAOBI Comments at 1; RID Comments at 1-2.

[^562]: *Cf.* 47 C.F.R. 64.601(14) (defining "Qualified interpreter").

[^563]: *See* TDI Comments at 10-11; Hamilton Comments at 2; NorCal Aug.
    1, 2003, Comments at 1.

[^564]: Hamilton commenced its VRS service on October 20, 2003. Hamilton
    Relay, Inc. Press Release, dated Oct. 20, 2003. We understand that
    Sprint slightly reduced their operating hours for VRS after the
    *Bureau TRS Order,* but that Sorenson and CAC have now expanded
    their hours*.* *See generally* www.cacvrs.org and
    www.sorensonvrs.com. At the same time, we note that, as the TRS fund
    administrator has reported, the minutes of use for VRS increased
    from 211,529 in June 2003; to 290,724 in September 2003; to 381,783
    in December 2003; to 534,536 in February 2004; and to 709,718 in
    March 2004. This recent growth in the minutes of use of VRS is
    reflected in the Consumer & Governmental Affairs Bureau *Order*
    released February 24, 2004, which, as a result of the significant
    growth in the minutes of use of VRS and IP Relay this fund year,
    increased the Interstate TRS Fund size from approximately \$115
    million to \$170 million. *Telecommunications Relay Services and
    Speech-to-Speech Services for Individuals with Hearing and Speech
    Disabilities,* Order, CC Docket No. 98-67, DA 04-465 (Feb. 24,
    2004).

[^565]: *See VRS Waiver Order* at ¶¶ 15-16; *Improved TRS Order & FNPRM*
    at ¶ 42; *see also* 47 C.F.R. § 64.604(b)(4).

[^566]: The Bureau granted waivers both to assist the growth of VRS as a
    new technology and service, and because some of the TRS mandatory
    minimum standards, developed for a text- and telephone-based
    service, simply do not apply to a video- and Internet-based service.

[^567]: We note that the fund administrator's proposed compensation
    rates for the July, 2004, through June, 2005, fund year were filed
    on May 3, 2004, and that the Commission is reviewing them and will
    adopt new compensation rates that will be effective July 1, 2004.

[^568]: *Telecommunication Relay Services and the Americans with
    Disabilities Act of 1990*, Fifth Report and Order, CC Docket No.
    90-571, FCC 02-269, 17 FCC Rcd 21233 (Oct. 25, 2002) (*Coin
    Sent-Paid Fifth Report & Order*).

[^569]: *See id.* at ¶ 17; *see also id.* at ¶¶ 23-27.

[^570]: *See* 47 C.F.R. § 64.604(a)(3).

[^571]: *See TRS I* at ¶ 18 n.18.

[^572]: *See Coin Sent-Paid Fifth Report & Order* at ¶¶ 2, 4; *see
    generally id.* at ¶¶ 1-15 for the background and history of our
    various coin sent-paid orders. As we have noted, handling TRS calls
    made with coins from payphones is technically difficult because a
    relay call is really two separate calls -- one from the customer to
    the relay facilities, and a second call from the relay facilities to
    the called party. TRS facilities are not equipped to handle the
    necessary call processing functions (*e.g.*, assessing the proper
    charge and handling coin collection and return functions) for the
    second leg of the call. *Id.* at ¶ 22 n.69.

[^573]: *See id.* at ¶¶ 2, 17.

[^574]: *E.g., id.* at ¶ 17.

[^575]: *See id.* at ¶¶ 18-21. Even before adoption of the *Coin
    Sent-Paid Fifth Report & Order*, the first leg of a toll free call
    to a TRS facility was free of charge to the caller. *See also* 47
    CFR § 64.1330 (b) (requiring that TRS calls for persons with hearing
    and speech disabilities be available from all payphones at no charge
    to the caller). In the *Coin Sent-Paid Fifth Report & Order* we
    noted that each state telecommunications relay facility may be
    reached toll free by using the state's 800 dialing number or the TRS
    711 dialing code. *Coin Sent-Paid Fifth Report & Order* at ¶ 18
    n.54. We further noted that as of October 1, 2001, all
    telecommunications carriers were required to implement the 711 code
    for access to TRS calls; that code enables TRS users to reach the
    local TRS facility from wherever they are placing the call by
    dialing 711. *Id.* (citing *Use of N11 Codes and other Abbreviated
    Dialing Arrangements,* Second Report and Order, CC Docket No.
    92-105, FCC 00-257, 15 FCC Rcd 15188 (Aug. 9, 2000) (*N11 Second
    Report and Order*).

[^576]: *Id.* at ¶ 22.

[^577]: *Id.* at ¶ 23. The Alternative Plan was an interim plan to
    enable individuals to make TRS calls from payphones using payment
    methods other than coins while the Commission, industry, and
    consumers studied the technology of payphones to determine a
    feasible coin sent-paid solution. The Alternative Plan required
    carriers to: (1) allow TRS users to make local TRS payphone calls
    free of charge; (2) enable TRS users to make toll calls by using
    calling or prepaid (debit) cards; and (3) develop programs to
    educate TRS users about alternative payment methods and to make
    calling or prepaid cards available to TRS users. *See Coin Sent-Paid
    Fifth Report and Order* at ¶¶ 6-7. Under this plan, carriers were
    required to offer *either* calling cards *or* prepaid cards at rates
    not to exceed those that would apply to a similar non-TRS call made
    using coin sent-paid service. *See Telecommunications Relay Services
    and the Americans with Disabilities Act of 1990,* Memorandum Opinion
    and Order, CC Docket No. 90-571, DA 95-1874, 10 FCC Rcd 10927 at ¶
    18 (Aug. 25, 1995).

[^578]: *Coin Sent-Paid Fifth Report & Order* at ¶¶ 23-24 & n.80.

[^579]: *Id.* at ¶ 24.

[^580]: *See id.* at ¶¶ 2, 28-39.

[^581]: The Joint CSP Petition was filed by TDI, The Consumer Action
    Network, The National Association of the Deaf, and Self-Help for
    Hard of Hearing People (Joint CSP Petitioners or Joint CSP
    Petition).

[^582]: Joint CSP Petition at 7; *see also id.* at ii (TRS consumers
    should not have to "pay more for a toll TRS payphone call under a
    calling card or prepaid card call payment method than a non-TRS user
    would have to pay under a coin sent-paid payment method"); *Coin
    Sent-Paid Fifth Report & Order* at ¶¶ 2, 7-11.

[^583]: Joint CSP Petition at 8.

[^584]: *Id.* at 9.

[^585]: *Id.* at 9-10.

[^586]: *Id.* at 11-21.

[^587]: *Id.* at 18.

[^588]: *Id.* at 11.

[^589]: Comments of the CSP Industry Team filed April 30, 2003. Members
    of the CSP Industry Team participating in this filing are: AT&T,
    Sprint, MCI (WorldCom), BellSouth Telecommunications, Inc., Qwest,
    SBC, Verizon, and Hamilton Telephone ("CSP Industry Team").

[^590]: CSP Industry Team Comments at 3-4.

[^591]: *Id.* at 3.

[^592]: *Id.*

[^593]: *Id.* at 4.

[^594]: *Id.*

[^595]: Citing *Improved TRS Order & NPRM* at ¶ 134.

[^596]: CSP Industry Team Comments at 3. We note that these comments
    were filed before the Commission released the *Second Improved TRS
    Order & NPRM*, which, as we note below, declined to make a
    determination on various outreach issues and sought further comment
    on outreach issues. *See Second Improved TRS Order & NPRM* at ¶¶
    77-80, 128-133.

[^597]: *Coin Sent-Paid Fifth Report and Order* at ¶ 24.

[^598]: *Id.* at ¶ 24 & n.80.

[^599]: Joint CSP Petition at 10.

[^600]: *Coin Sent-Paid Fifth Report and Order* at ¶ 24.

[^601]: *Id.* at ¶ 25.

[^602]: *See* *id.* at ¶ 26.

[^603]: *Id.*

[^604]: *See Second Improved TRS Order & NPRM* at ¶ 79.

[^605]: *Id.* at ¶ 40.

[^606]: *Id.* As we also noted, the *Improved TRS Order & FNPRM*
    required that such calls be routed to the "appropriate" PSAP, but
    our rules codified the requirement as being the "nearest" PSAP.
    *Id*. at ¶ 38; *see also* 47 C.F.R. § 64.604(a)(4).

[^607]: *Id.* at ¶ 41; *see* 47 C.F.R. § 64.3000(c) (defining the Public
    Safety Answering Point (PSAP) as a facility that has been designated
    to receive 911 calls and route them to emergency services
    personnel). *See also* 47 C.F.R. § 20.3 (defining "designated PSAP"
    to be the PSAP designated by the local or state entity that has the
    authority and responsibility to designate the PSAP to receive
    wireless 911 calls.").

[^608]: *Second Improved TRS Order & NPRM* at ¶ 42.

[^609]: *Id*.

[^610]: *Id.* (making requirement effective twelve months from Federal
    Register publication date of August 25, 2003 (68 FR 50973). We noted
    that many TRS facilities have been relaying TTY calls to the
    appropriate PSAP since the publication of the *Improved TRS Order*.
    *Id*. at n.161.

[^611]: *Id* at ¶ 42.

[^612]: *See* Verizon *Petition for Reconsideration of Verizon,* filed
    September 24, 2003 (*Verizon Petition*); AT&T *Petition for Limited
    Reconsideration and for Waiver,* filed September 24, 2003 (*AT&T
    Petition*). *See generally Second Improved TRS Order* *& NPRM* at ¶
    37-42. In its Petition, AT&T also requested that the Commission
    waive the deadline for the implementation of the three-way calling
    requirement in the *Second Improved TRS Order & FNPRM. AT&T
    Petition* at 10. That issue was addressed in an Order released by
    the Consumer & Governmental Affairs Bureau on February 24, 2004 (DA
    04-465).

[^613]: *Verizon Petition* at 1-2.

[^614]: *Id.* at 2-3.

[^615]: *Id.* at 1.

[^616]: *Id.* at 5-7.

[^617]: *Id.* at 2.

[^618]: *Id.* at 2-3.

[^619]: *AT&T Petition* at 4.

[^620]: *Id.* at 4-5.

[^621]: *Id.* at 5*.*

[^622]: *Id.* at 7.

[^623]: *Id.*

[^624]: *See, e.g.,* The Frontier and Citizens Telephone Companies
    (Frontier) Reply Comments at 1; Hamilton Comments at 3; MCI
    (WorldCom) Comments at 3-4.

[^625]: Frontier Reply Comments at 2; SBC Reply Comments at 3-4; Sprint
    Comments at 2-3.

[^626]: Frontier Reply Comments at 1-2; New York State
    Telecommunications Association, Inc. (NYSTA) Reply Comments at 2-3.

[^627]: TDI Reply Comments at 3 (citing *Second Report and Order* at ¶
    41).

[^628]: Verizon Comments at 1.

[^629]: *Id.* at 2.

[^630]: Verizon Comments at 2-3. In Verizon's territory, the 911
    selective routers generally do not interact with other selective
    routers; thus information about PSAPs served by one selective router
    generally is not available to any other selective routers.

[^631]: Verizon Reply Comments at 2.

[^632]: *Id.* at 3-4.

[^633]: *Id.* at 3-4. Hamilton and Ultratec support Verizon's suggestion
    that TRS users be educated about dialing 911 directly. They refer to
    this as an outreach campaign. Hamilton Recon Comments at 4; Ultratec
    Recon Comments at 7. To the extent certain PSAPs are not complying
    with their obligation to handle TTY calls, SBC suggests the
    Commission take action to remedy this. SBC Comments at 3. Several
    commenters emphasize that an emergency call made via TRS facilities
    and with the assistance of a third-party relay operator (the CA) can
    never be as efficient as dialing 911 directly. *See, e.g.,* NYSTA
    Reply Comments at 4; *see also* Frontier Reply Comments at 2 (if the
    call is terminated prematurely, the TRS operator will certainly not
    have location information and may not have a callback number. These
    issues are solved if the caller dials 911 where there is an E-911
    system); Ultratec Recon Reply at 7 (direct calling ensures that a
    caller's most appropriate PSAP will always receive the caller's
    automatic number identification (ANI) and automatic location
    identification (ALI) via 911 system capabilities.) *But see* TDI
    Coalition Reply Comments at 6. TDI contends that there always will
    be TRS users who dial 711 in the case of emergency, because that is
    the number they routinely dial for service, just as dial tone users
    routinely dial 411 for directory assistance. TDI also notes that not
    all users of relay services call relay by TTY. Some users call via
    Voice Carry Over (VCO), Hearing Carry Over (HCO) or Speech-to-Speech
    (STS), and these services are not directly compatible with TTYs.
    Therefore, callers utilizing these services would be unable to call
    a PSAP directly, even if the PSAP is TTY capable. TDI Coalition
    Recon Reply at 5-6.

[^634]: *AT&T Petition* at 4; Sprint Comments at 4. Sprint reports that,
    although Sprint's PSAP database vendor does not receive real-time
    updates, there have not been any adverse effects. Sprint supports a
    further study of AT&T's proposal.

[^635]: *See Verizon Petition* at 3-4.

[^636]: *I.e.,* 12 months after the *Second Improved TRS Order* *& NPRM*
    was published in the Federal Register. *See Second Improved TRS
    Order* *& NPRM* at ¶ 42.

[^637]: *Improved TRS Order* *& FNPRM* at ¶¶ 99-102.

[^638]: *Second Improved TRS Order* *& NPRM* at ¶ 37.

[^639]: To the extent that any PSAPs are not accessible by TTY, we note
    that this requirement is governed by Title II of the ADA, which is
    overseen by the Department of Justice.

[^640]: We note, however, that this requirement has been waived for IP
    Relay and VRS. *See* Appendix E below. We also note above that it is
    premature to implement guidelines for TRS facilities routing
    wireless emergency TRS calls.

[^641]: To the extent we are asking for additional comment on matters
    raised in previous NPRMs or FNPRMs, we will consider the comments
    filed in those proceedings along with the comments filed in response
    to this *FNPRM*.

[^642]: We note, however, that we raise below in the *FNPRM* whether IP
    Relay should be made a mandatory service. Depending on the
    resolution of that issue, it is conceivable that IP Relay could be
    made a mandatory service effective at the same time the Interstate
    TRS Fund will pay for only interstate IP Relay calls.

[^643]: No method other than use of a fixed allocator or registration
    was previously suggested by any commenter.

[^644]: *See* Sprint Comments at 2; MCI (WorldCom) Comments at 6; TDI
    Comments at 12; Hamilton Reply at 3.

[^645]: This is in contrast to the allocator used for toll-free calls,
    because that allocator merely apportions costs between each state
    and the Interstate TRS Fund, not among the several states.

[^646]: NECA May 1, 2003 filing at 7. As we have noted, IP Relay minutes
    now substantially exceed traditional TRS minutes. *See id.* at Ex.
    2.

[^647]: *See e.g.,* Sprint Comments at 2; MCI (WorldCom) Comments at 6.
    We raise below, however, the related issue of whether IP Relay
    should become a mandatory form of TRS.

[^648]: *See IP Relay Declaratory Ruling and FNPRM* at ¶ 43.

[^649]: Commenters have asserted, for example, that the use of profiles,
    or mandatory registration of callers, is unpopular with users of IP
    Relay, and could discourage the use of IP Relay or lead callers to
    provide false registration information. *See* TDI Comments at 11;
    MCI (WorldCom) Comments at 4; Sprint Comments at 2-3; Hamilton Reply
    Comments at 4.

[^650]: *See, e.g.,* www.iptrs.com/profile.html (Hamilton Relay's
    website).

[^651]: *See* 47 C.F.R. § 64.604(a)(2).

[^652]: We also acknowledge that a registration system may permit
    providers to charge for the long-distance portion of an IP Relay
    call, where currently consumers are not charged for such calls. We
    do not believe that this is a reason to reject registration as a
    means of determining which calls are interstate and which are
    intrastate. Free long-distance calls are not, and were never
    intended to be, an essential feature of IP Relay, but merely
    reflected a *quid pro quo* for the carrier-of-choice waiver.

[^653]: *See Improved TRS Order & FNPRM* at ¶¶ 77-84 (addressing TRS
    providers' use of customer information).

[^654]: We note, for example, that in addition to its nationwide IP
    Relay, AT&T provides IP Relay via the Maryland Relay website. *See*
    www.relaycall.com/maryland/relay.html (Maryland Relay's IP Relay
    website).

[^655]: In the *IP Relay Declaratory Ruling & FNPRM*, we waived the
    carrier-of-choice mandatory minimum requirement, *see* 47 C.F.R. §
    64.604(b)(3), for IP Relay, noting the difficulty in determining
    whether or not a given IP Relay call was long-distance and the
    policy of providers to not charge for long distance. *See IP Relay
    Declaratory Ruling and FNPRM* at ¶ 31. We conditioned that waiver,
    however, on IP Relay providers continuing to offer free
    long-distance calls. *Id.* If we adopted a means of determining
    whether a particular IP Relay call is interstate or intrastate via a
    method that allows the determination of the customer's location, and
    therefore providers were able to determine whether a particular call
    is long distance, the carrier-of-choice waiver granted previously to
    IP Relay providers would likely no longer be necessary.

[^656]: In this regard, we note that a registration scheme may have the
    collateral benefit of assisting in the prevention of credit card
    fraud and other illegal uses of IP Relay.

[^657]: In this regard, we also emphasize that TRS calls are unique in
    that they are really two calls being handled simultaneously by the
    CA -- for IP Relay calls, this means that one party (*i.e.,* the
    person with a hearing disability) is communicating with the CA via
    text and the Internet, and the other party is communicating with the
    CA via a PSTN telephone call. The CA is handling both calls at the
    same time, and relaying what was said by the voice caller by text to
    the person with the hearing disability, and relaying what was typed
    as text by the person with the hearing disability by voice to the
    hearing party. This is the accommodation required by Title IV of the
    ADA so that persons with hearing (and speech) disabilities have
    access to the telephone system. Therefore, our consideration of
    whether and how to determine which IP Relay calls are interstate and
    which are intrastate in this context in no way predisposes how the
    Commission may proceed with respect to issues relating to the
    jurisdictional nature of other IP-Enabled services, which are
    currently the subject of another proceeding. *See* *IP-Enabled
    Services*, Notice of Proposed Rulemaking, WC Docket No. 04-36, FCC
    04-28 (March 10, 2004).

[^658]: According to NECA's May 2004 TRS Status Report, the total
    minutes of IP Relay usage in March 2004 was 5,234,048, which is more
    than double the 2,167,955 minutes of traditional TRS.

[^659]: *See* 47 C.F.R. § 64. 604(b)(4)(i) ("Relay services that are not
    mandated by this Commission need not be provided every day, 24 hours
    a day.").

[^660]: *IP Relay Declaratory Ruling & FNPRM* at ¶¶ 20-22. Every year
    the Interstate TRS Fund administrator sends a request for data to
    all interstate TRS providers, seeking costs and demand data for
    traditional TRS, IP Relay, STS and VRS. The cost data reported
    consists of annual actual costs, annualized actual costs, and
    estimated costs. From this data, the TRS Fund administrator develops
    the relevant projections for the costs, demand, and fund requirement
    for these forms of TRS for the next compensation cycle, as well as
    the proposed compensation rates. Although the Interstate TRS Fund
    administrator requests and analyzes separate data for IP Relay and
    traditional TRS, presently the services are compensated at the same
    rate.

[^661]: Sprint Comments to *TRS Cost Recovery MO&O & FNPRM,* filed
    January 29, 2002; MCI Comments to *TRS Cost Recovery MO&O & FNPRM*,
    filed January 29, 2002.

[^662]: *See, e.g.* *Multi-Association Group (MAG) Plan for Regulation
    of Interstate Services of Non-Price Cap Incumbent LEC and IXCs*,
    Second Report and Order and Further Notice of Proposed Rulemaking in
    CC Docket No. 00-256, Fifteenth Report and Order in CC Docket No.
    96-45, and Report and Order in CC Docket Nos. 98-77 & 98-166, 16 FCC
    Rcd 19613 at ¶¶ 120-178 (Nov. 8, 2001) (*MAG Order*).

[^663]: *Id.* at ¶ 166.

[^664]: *See See Telecommunications Relay Services, and the Americans
    with Disabilities Act of 1990,* Third Report and Order, CC Docket
    No. 90-571, 8 FCC Rcd 5300 at ¶ 30 (July 20, 1993) (directing TRS
    fund administrator to fashion form consistent with Parts 32 and 36).

[^665]: *Improved TRS Order & FNPRM* at ¶ 22.

[^666]: *Id.* at ¶ 27.

[^667]: We note that on May 27, 2004, the California Coalition of
    Agencies Serving the Deaf and Hard of Hearing (CCASDHH) filed a
    "Petition for Rulemaking" (Docket No. 98-67) requesting that the
    Commission make VRS a mandatory form of TRS. Because we are raising
    this same issue in this *FNPRM*, we hereby invite comment to the
    CCASDHH petition at the same time that we seek comment to the issues
    raised in this *FNPRM.*

[^668]: We note that even in the March 2000 *Improved TRS Order &
    FNPRM,* which recognized VRS as a form of TRS but did not mandate
    that it be provided, we noted the "potentially inadequate supply of
    qualified \[VRS\] interpreters." *Id.* at ¶ 24. That, of course, was
    before the service was actually being provided, and now VRS usage
    has reached more than 700,000 minutes of usage a month.

[^669]: *See* 47 C.F.R. § 64.604(b)(4)(i) ("Relay services that are not
    mandated by this Commission need not be provided every day, 24 hours
    a day.").

[^670]: *See* 47 C.F.R. § 64.604(b)(2) (requiring that 85 percent of all
    calls must be answered within 10 seconds). This rule is also
    referred to as the 85/10 rule.

[^671]: 47 C.F.R. § 64.604(c)(5)(iii)(H).

[^672]: *See* 47 C.F.R. 64.604((a)(1)(v) ("CAs answering and placing a
    TTY-based TRS or VRS call must stay with the call for a minimum of
    ten minutes."). This requirement is sometimes referred to as the
    "in-call replacement of CAs." *See Improved TRS Order & FNPRM* at ¶
    67.

[^673]: *See* *Improved TRS Order & FNPRM* at ¶¶ 67-69.

[^674]: We noted that we adopted a different standard for STS because of
    concerns unique to that service; in that case, it was to adopt a
    *longer* period of time. *See Improved TRS Order & FNPRM* at ¶ 70
    (adopting a 15 minute period for STS CAs because "changing CAs can
    be particularly disruptive to users with speech disabilities").

[^675]: *See, e.g., Improved TRS Order & FNPRM* at ¶ 2; *Second Improved
    TRS Order & NPRM* at ¶ 5.

[^676]: *Telecommunications Relay Services and the Americans with
    Disabilities Act of 1990,* Third Report and Order, CC Docket No.
    90-571, FCC 93-357, 8 FCC Rcd 5300 at ¶ 8 (July 20, 1993) (*Third
    TRS Report & Order*).

[^677]: *Id.*

[^678]: *Id.*

[^679]: *Id.; see also id.* at ¶ 5.

[^680]: 47 C.F.R. § 64.604(c)(5)(iii)(H).

[^681]: *By-Laws of the Interstate TRS Fund Advisory Council*, adopted
    March 1995. In addition to monitoring the fund, the council has
    worked with the administrator to propose funding mechanisms for the
    various forms of TRS.

[^682]: 47 C.F.R. § 64.604(c)(5)(iii)(H).

[^683]: *See, e.g., TRS Cost Recovery Recommendations,* filed November
    9, 2000; *IP Relay Cost Recovery Recommendations,* filed October 9,
    2002.

[^684]: *See generally* 47 C.F.R. § 64.604(c)(5)(iii)(H).

[^685]: *See, e.g.,* *Bureau TRS Order* at *¶*29. The Commission noted
    that the VRS compensation rate jumped from approximately \$5
    per-minute to \$17 per-minute in a two-year period.

[^686]: *Id.* at ¶ 32.

[^687]: 47 U.S.C. § 225(d)(3)(B).

[^688]: 47 C.F.R. § 64.604(c)(5)(iii)(H).

[^689]: *See generally Improved TRS Order & FNPRM* at ¶¶ 123-124 (noting
    discussion of quality issues).

[^690]: For example, a VRS CA may witness offensive and sexually graphic
    acts, or illegal acts (*e.g.,* domestic violence or child abuse),
    either by the VRS caller or by individual(s) in the VRS caller's
    background.

[^691]: *See* 47 U.S.C. § 225(d)(1)(F); 47 C.F.R. § 64.604(a)(2)(ii).

[^692]: *TRS I* at ¶¶ 11-15.

[^693]: *Id*. at ¶ 12.

[^694]: *Id*. at ¶ 13.

[^695]: *Id.*

[^696]: *See* 47 U.S.C. § 705 (Unauthorized Publication of
    Communications). Section 705(a) provides, in pertinent part, that
    "\[e\]xcept as authorized by chapter 119, title 18, United States
    Code, no person receiving, assisting in receiving, transmitting, or
    assisting in transmitting, any interstate or foreign communication
    by wire or radio shall divulge or publish the existence, contents,
    substance, purport, effect, or meaning thereof, except through
    authorized channels of transmission or reception, (1) to any person
    other than the addressee, his agent, or attorney, (2) to a person
    employed or authorized to forward such communication to its
    destination, (3) to proper accounting or distributing officers of
    the various communicating centers over which the communication may
    be passed, (4) to the master of a ship under whom he is serving, (5)
    in response to a subpoena issued by a court of competent
    jurisdiction, or (6) on demand of other lawful authority." *Id.*
    (footnote omitted). Section 705 notes that 18 U.S.C. § 2511(2)
    authorizes certain interception of communications by communications
    common carriers and by the Commission. *Id.* at n.1.

[^697]: *TRS I* at ¶ 14.

[^698]: 47 U.S.C. § 223.

[^699]: In *TRS I,* we also addressed the potential liability of CAs
    during the use of TRS for illegal purposes. *TRS I* at ¶ 15. We
    analogized to the service obligations of common carriers, noting
    that as a general matter "common carriers will not be criminally
    liable absent knowing involvement in unlawful transmissions." *Id.*
    We stated that "CAs, in the normal performance of their duties,
    would generally not be deemed to have a 'high degree of involvement
    or actual notice of an illegal use' or be 'knowingly' involved in
    such illegal use." *Id.* Commenters may also wish to address how the
    issue of potential CA liability might affect the adoption of new
    rules governing the TRS provider's and CA's obligation to handle, or
    discretion not to handle, all calls regardless of content.

[^700]: *See generally* 47 C.F.R. §§ 1.1200, 1.1202, 1.1204, 1.1206.

[^701]: *See* 5 U.S.C. §§ 604. The RFA, *see* 5 U.S.C. §§ 601--612, has
    been amended by the Small Business Regulatory Enforcement Fairness
    Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857
    (1996).

[^702]: *See* 5 U.S.C. § 603.

[^703]: *Telecommunications Services for Individuals with Hearing and
    Speech Disabilities -- Recommended TRS Cost Recovery
    Guidelines/Request by Hamilton Telephone Company for Clarification
    and Temporary Waivers,* Memorandum Opinion and Order and Further
    Notice of Proposed Rulemaking, CC Docket No. 98-67, FCC 01-371, 16
    FCC Rcd 22948 (Dec. 21, 2001) (*TRS Cost Recovery MO&O & FNPRM)*.

[^704]: *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, FCC 02-121, 17 FCC Rcd
    7779 (April 22, 2002) (*IP Relay Declaratory Ruling & FNPRM*).

[^705]: *Telecommunication Relay Services and Speech-to-Speech Services
    for Individuals with Hearing and Speech Disabilities*, Second Report
    and Order, Order on Reconsideration, and Notice of Proposed
    Rulemaking, CC Docket No. 98-67, CG Docket No. 03-123, FCC 03-112,
    18 FCC Rcd 12379 (June 17, 2003) (*Second Improved TRS Order &
    NPRM*).

[^706]: Hamilton Relay, Inc., *Petition for Waiver Extension*, filed
    September 15, 2003; Hands On Video Relay Service, Inc., *Petition
    for Waiver,* filed September 22, 2003, AT&T Corp., *Petition for
    Limited Reconsideration and for Waiver*, filed September 23, 2003.

[^707]: Sprint, Petition for Declaratory Ruling, CC Docket No. 98-67
    (filed May 27, 2003) (*711 Petition*).

[^708]: Communication Services for the Deaf, Petition for Limited Waiver
    and Request for Expedited Relief, CC Docket No. 98-67 (filed June
    12, 2003) (*CSD Petition).*

[^709]: *Telecommunications Relay Services and Speech-to-Speech Services
    for Individuals with Hearing and Speech Disabilities*, Order, CC
    Docket No. 98-67, DA 03-2111, 18 FCC Rcd 12823 (June 30, 2003)
    (*Bureau TRS Order*).

[^710]: *Telecommunication Relay Services and the Americans with
    Disabilities Act of 1990*, Fifth Report and Order, CC Docket No.
    90-571, FCC 02-269, 17 FCC Rcd 21233 (Oct. 25, 2002) (*Coin
    Sent-Paid Fifth Report & Order*).

[^711]: *Telecommunication Relay Services and Speech-to-Speech Services
    for Individuals with Hearing and Speech Disabilities,* Second Report
    and Order, Order on Reconsideration, and Notice of Proposed
    Rulemaking, CC Docket No. 98-67, CG Docket No. 03-123, FCC 03-112,
    18 FCC Rcd 12379 (June 17, 2003) (*Second Improved TRS Order &
    NPRM*).

[^712]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. §§ 601-612, has
    been amended by the Small Business Regulatory Enforcement Fairness
    Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857
    (1996).

[^713]: *Telecommunication Relay Services and Speech-to-Speech Services
    for Individuals with Hearing and Speech Disabilities*, Second Report
    and Order, Order on Reconsideration, and Notice of Proposed
    Rulemaking, CC Docket No. 98-67, CG Docket No. 03-123, FCC 03-112,
    18 FCC Rcd 12379 (June 17, 2003) (*Second Improved TRS Order &
    NPRM*).

[^714]: *See* 5 U.S.C. § 604. We also expect that we could certify the
    *Report and Order* under 5 U.S.C. § 605 because it appears that only
    one TRS provider is likely a small entity (because it is a
    non-profit organization). Therefore, there is not a substantial
    number of small entities that may be affected by our action.

[^715]: *See supra* section IV(B)(2).

[^716]: *See supra* section IV(C)(3)(b)(iii).

[^717]: *See* Appendix E, below.

[^718]: *See supra* section IV(D)(2).

[^719]: *See supra* section IV(E)(2).

[^720]: *See Bureau TRS Order*.

[^721]: *See supra* section V(C)(2).

[^722]: ^?^ No changes were made to the following items proposed in the
    *NPRM*: (1) whether, in times of emergency, TRS services should be
    made available on the same basis as telephone services for the
    general public, and whether the Commission's rules should be amended
    to provide for continuity of operation for TRS facilities in the
    event of an emergency; (2) whether additional requirements are
    necessary for ensuring the security of IP Relay transmissions; (3)
    whether wireless carriers should be required to transmit Phase I or
    Phase II E-911 information to TRS facilities; (4) whether certain
    additional features, services or requirements should be required for
    non-shared language TRS, speed of answer and call set-up times for
    the various forms of TRS, use of communication access real-time
    translation (CART), interrupt functionality, talking return call,
    speech recognition technology, improved transmission speeds, and
    additional TTY protocols; (5) issues concerning increasing public
    access to information and outreach; and (6) procedures for
    determining eligibility payments form the Interstate TRS Fund.

[^723]: 5 U.S.C. § 604(a)(3).

[^724]: 5 U.S.C. § 601(6).

[^725]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    \"small business concern\" in 15 U.S.C. 632). Pursuant to the 5
    U.S.C. 601(3), the statutory definition of a small business applies
    \"unless an agency, after consultation with the Office of Advocacy
    of the Small Business Administration and after opportunity for
    public comment, establishes one or more definitions of such term
    which are appropriate to the activities of the agency and publishes
    such definition(s) in the Federal Register.\"

[^726]: 15 U.S.C. § 632.

[^727]: 5 U.S.C. § 601(4).

[^728]: *But see* note 3, *supra.*

[^729]: FCC, Wireline Competition Bureau, Industry Analysis and
    Technology Division, "Trends in Telephone Service" at Table 5.3,
    Page 5-5 (Aug. 2003) (*Trends in Telephone Service)*. This source
    uses data that are current as of December 31, 2001.

[^730]: 13 C.F.R. § 121.201, NAICS Code 517110.

[^731]: *Id*.

[^732]: *Trends in Telephone Service* at Table 5.3.

[^733]: 15 U.S.C. § 632.

[^734]: Letter from Jere W. Glover, Chief Counsel for Advocacy, SBA, to
    William E. Kennard, Chairman, FCC (May 27, 1999). The Small Business
    Act contains a definition of "small-business concern," which the RFA
    incorporates into its own definition of "small business." See 15
    U.S.C. § 632(a) (Small Business Act); 5 U.S.C. § 601(3) (RFA). SBA
    regulations interpret "small business concern" to include the
    concept of dominance on a national basis. 13 C.F.R. § 121.102(b).

[^735]: 13 C.F.R. § 121.201, NAICS Code 517110.

[^736]: *Id.*

[^737]: *Trends in Telephone Service* at Table 5.3.

[^738]: 13 C.F.R. § 121.201, NAICS Code 517110.

[^739]: MCI (WorldCom), for example, provides TRS in only a few states
    but is not a small business.

[^740]: *See supra* section IV(C)(3)(b)(iii).

[^741]: *See supra* section IV(D)(2).

[^742]: *See supra* section V(B)(2).

[^743]: *See supra* section IV(C)(3)(b)(iii).

[^744]: *See* 5 U.S.C. § 603(c)(1)-(c)(4).

[^745]: *See* ¶ 11, *supra.*

[^746]: *See supra* section IV(C)(3)(b)(iv).

[^747]: *See* 5 U.S.C. § 801(a)(1)(A).

[^748]: *See* 5 U.S.C. § 604(b).

[^749]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. §§ 601-612, has
    been amended by the Small Business Regulatory Enforcement Fairness
    Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857
    (1996).

[^750]: *See* 5 U.S.C. § 603. We also expect that we could certify this
    action under 5 U.S.C. § 605 because it appears that only one TRS
    provider is likely a small entity (because it is a non-profit
    organization). Therefore there are not a substantial number of small
    entities that may be affected by our action.

[^751]: *See supra* section VI(A).

[^752]: *See supra* section VI(B).

[^753]: *See supra* section VI(C).

[^754]: *See supra* section VI(D).

[^755]: *See supra* section VI(E).

[^756]: 5 U.S.C. § 604(a)(3).

[^757]: 5 U.S.C. § 601(6).

[^758]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    \"small business concern\" in 15 U.S.C. 632). Pursuant to the 5
    U.S.C. 601 (3), the statutory definition of a small business applies
    \"unless an agency, after consultation with the Office of Advocacy
    of the Small Business Administration and after opportunity for
    public comment, establishes one or more definitions of such term
    which are appropriate to the activities of the agency and publishes
    such definition(s) in the Federal Register.\"

[^759]: 15 U.S.C. § 632.

[^760]: 5 U.S.C. § 601(4).

[^761]: *But see* note 2, *supra.*

[^762]: FCC, Wireline Competition Bureau, Industry Analysis and
    Technology Division, "Trends in Telephone Service" at Table 5.3,
    Page 5-5 (Aug. 2003) (*Trends in Telephone Service)*. This source
    uses data that are current as of December 31, 2001.

[^763]: 13 C.F.R. § 121.201, NAICS Code 517110.

[^764]: *Id.*

[^765]: *Trends in Telephone Service* at table 5.3.

[^766]: 15 U.S.C. § 632.

[^767]: Letter from Jere W. Glover, Chief Counsel for Advocacy, SBA, to
    William E. Kennard, Chairman, FCC (May 27, 1999). The Small Business
    Act contains a definition of "small-business concern," which the RFA
    incorporates into its own definition of "small business." See 15
    U.S.C. § 632(a) (Small Business Act); 5 U.S.C. § 601(3) (RFA). SBA
    regulations interpret "small business concern" to include the
    concept of dominance on a national basis. 13 C.F.R. § 121.102(b).

[^768]: 13 C.F.R. § 121.201, NAICS Code 517110.

[^769]: *Id.*

[^770]: *Trends in Telephone Service* at Table 5.3.

[^771]: 13 C.F.R. § 121.201, NAICS Code 517110.

[^772]: *See* National Association for State Relay Administration
    (NASRA) Statistics. These numbers are estimates because of recent
    and pending mergers and partnerships in the telecommunications
    industry.

[^773]: MCI (WorldCom), for example, provides TRS in approximately only
    a few states but is not a small business.

[^774]: *See supra* section VI(A) and (B).

[^775]: 5 U.S.C. § 603.

[^776]: *See, e.g.,* 47 U.S.C. § 225.