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 Federal  Communications  Commission  FCC  06-  58 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of 


 Telecommunications  Relay  Services  and  Speech-  to-  Speech  Services  for 
 Individuals  with  Hearing  and  Speech  Disabilities 
 Misuse  of  Internet  Protocol  (IP)  Relay  Service  And  Video  Relay  Service 


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 CG  Docket  No.  03-  123 


 FURTHER  NOTICE  OF  PROPOSED  RULEMAKING 
 Adopted:  May  03,  2006  Released:  May  08,  2006 


 Comment  Date:  (30  days  after  publication  in  the  Federal  Register)  Reply  Comment  Date:  (45  days  after  publication  in  the  Federal  Register) 
 By  the  Commission: 
 I.  INTRODUCTION 
 1.  In  this  Further  Notice  of  Proposed  Rulemaking  (Notice)  we  address  the  misuse  of  the  two  Internet-  based  forms  of  telecommunications  relay  service  (TRS),  1  Internet  Protocol  (IP)  Relay  Service 


 and  Video  Relay  Service  (VRS),  and  seek  comment  on  possible  changes  to  the  TRS  regulations  to  curtail  their  misuse. 


 II.  BACKGROUND 
 2.  IP  Relay  is  a  form  of  text-  based  TRS  that  uses  the  Internet,  rather  than  the  Public  Switched  Telephone  Network  (PSTN).  2  VRS  is  a  form  of  TRS  that  allows  communication  via  American 


 Sign  Language  (ASL)  using  video  equipment.  3  Currently,  if  IP  Relay  and  VRS  are  offered  in  compliance 


 1  TRS,  created  by  Title  IV  of  the  Americans  with  Disabilities  Act  of  1990  (ADA),  enables  an  individual  with  a 
 hearing  or  speech  disability  to  communicate  by  telephone  or  other  device  through  the  telephone  system  with  a  person  without  such  a  disability.  See  47  U.  S.  C.    225(  a)(  3)  (defining  TRS);  47  C.  F.  R.    64.  601(  14);  see  generally 


 Telecommunications  Relay  Services  and  Speech-  to-  Speech  Services  for  Individuals  with  Hearing  and  Speech  Disabilities,  CC  Dockets  90-  571  and  98-  67  and  CG  Docket  03-  123,  Report  and  Order,  Order  on  Reconsideration, 
 and  Further  Notice  of  Proposed  Rulemaking,  19  FCC  Rcd  12475,  at  12479-  12480,  para.  3  n.  18  (June  30,  2004)  (2004  TRS  Report  and  Order  &  FNPRM)  (discussing  how  TRS  works). 


 2  Provision  of  Improved  TRS  and  Speech  to  Speech  Services  for  Individuals  with  Hearing  and  Speech  Disabilities, 
 CC  Docket  No.  98-  67,  Declaratory  Ruling  and  Second  Further  Notice  of  Proposed  Rulemaking,  17  FCC  Rcd  7779  (April  22,  2002)  (IP  Relay  Declaratory  Ruling)  (recognizing  IP  Relay  as  a  form  of  TRS). 
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 with  the  TRS  mandatory  minimum  standards,  4  the  costs  of  providing  the  services  are  reimbursed  from  the  Interstate  TRS  Fund  (Fund),  which  is  overseen  by  the  Commission.  5 
 A.  Telecommunications  Relay  Service 
 3.  Title  IV  of  the  Americans  with  Disabilities  Act  of  1990  (ADA),  6  which  added  Section  225  to  the  Communications  Act  of  1934,  as  amended  (the  Act),  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.  7  The  statute  requires  that  TRS  offers  persons  with  hearing  and 
 speech  disabilities  access  to  the  telephone  system  that  is  functionally  equivalent  to  voice  telephone  services.  8  Congress  recognized  that  persons  with  hearing  and  speech  disabilities  have  long  experienced 
 barriers  in  their  ability  to  access,  utilize,  and  benefit  from  telecommunications  services.  9  Congress  found  TRS  necessary  to  bridge  the  gap  between  the  communications-  impaired  telephone  user  and  the 
 community  at  large,  and  emphasized  that  to  participate  actively  in  society,  one  must  have  the  ability  to  call  friends,  family,  business[  es]  and  employers.  10  Since  the  implementation  of  a  uniform  nationwide 
 system  of  TRS  in  1993,  the  Commission  has  addressed  issues  relating  to  its  provision,  regulation,  and  compensation.  11 


 4.  When  Section  225  was  enacted,  and  TRS  was  implemented,  TRS  calls  were  placed  using  a  text  telephone  device  (TTY)  connected  to  the  PSTN.  In  March  2000,  however,  the  Commission 
 recognized  VRS  as  a  form  of  TRS,  providing  an  additional  means  for  persons  with  hearing  disabilities  who  use  ASL  to  have  access  to  the  telephone  system.  12  VRS  requires  the  use  of  a  broadband  Internet 
 connection  between  the  VRS  user  and  the  communications  assistant  (CA),  which  allows  communication 


 3  Telecommunications  Relay  Services  and  Speech-  to-  Speech  Services  for  Individuals  with  Hearing  and  Speech 
 Disabilities,  CC  Docket  No.  98-  67,  Report  and  Order  and  Further  Notice  of  Proposed  Rulemaking,  15  FCC  Rcd  5140,  5152-  5154,  paras.  21-  27  (March  6,  2000)  (Improved  TRS  Order  &  FNPRM)  (recognizing  VRS  as  a  form  of 


 TRS);  47  C.  F.  R.    64.  601(  17)  (defining  VRS).  4 
 See  47  C.  F.  R.    64.  604;  2004  TRS  Report  and  Order  &  FNPRM,  19  FCC  Rcd  at  12547,  para.  189. 
 5  Improved  TRS  Order  &  FNPRM,  15  FCC  Rcd  at  5152-  5154,  paras.  23-  27.  Generally,  the  Interstate  TRS  Fund 
 compensates  providers  for  providing  interstate  TRS  services,  and  the  states  compensate  providers  for  providing  intrastate  TRS  services.  Id.,  15  FCC  Rcd  at  5154,  para.  26.  Presently,  however,  all  VRS  and  IP  Relay  calls  are 


 compensated  from  the  Interstate  TRS  Fund.  The  question  of  whether  the  Commission  should  adopt  a  mechanism  for  the  jurisdictional  separation  of  costs  for  these  services  is  pending.  2004  TRS  Report  and  Order  &  FNPRM,  19 
 FCC  Rcd  at  12561-  12564,  paras.  221-  230  (IP  Relay),  at  12567,  paras.  241-  242  (VRS).  6 
 Pub.  L.  No.  101-  336,    401,  104  Stat.  327,  336-  69  (1990). 
 7  47  U.  S.  C.    225(  b)(  1). 


 8  47  U.  S.  C.    225(  a)(  3). 
 9  See  generally  2004  TRS  Report  and  Order  &  FNPRM,  19  FCC  Rcd  at  12479-  12480,  para.  3  (discussing 
 legislative  history  of  Title  IV  of  the  ADA). 
 10  See  H.  R.  Rep.  No.  485,  Pt.  2,  101st  Cong.,  2d  Sess.  at  129  (1990)  (House  Report). 


 11  See  generally  2004  TRS  Report  and  Order  &  FNPRM,  19  FCC  Rcd  at  12479-  12486,  paras.  2-  13  (overview  of 
 past  TRS  orders). 
 12  Improved  TRS  Order  &  FNPRM,  15  FCC  Rcd  at  5152-  5154,  paras.  21-  27. 
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 in  ASL  via  a  video  link.  The  CA,  in  turn,  places  an  outbound  telephone  call  to  a  hearing  person.  During  the  call,  the  CA  communicates  in  ASL  with  the  person  with  a  hearing  disability  and  by  voice  with  the 
 hearing  person.  As  a  result,  the  conversation  between  the  two  end  users  flows  in  near  real  time  and  in  a  faster  manner  than  with  a  TTY  or  text-  based  TRS  call.  VRS  therefore  provides  a  degree  of  functional 
 equivalency  that  is  not  attainable  with  text-  based  TRS,  by  allowing  those  persons  whose  primary  language  is  ASL  to  communicate  in  sign  language,  just  as  a  hearing  person  communicates  in,  e.  g.,  spoken 
 English.  Although  the  Commission  has  not  made  VRS  a  mandatory  service,  13  it  has  encouraged  its  development.  14  In  the  past  few  years,  use  of  VRS  has  grown  tremendously.  15 


 5.  In  April  2002,  the  Commission  recognized  IP  Relay.  16  IP  Relay  calls  are  text-  based  calls.  Rather  than  using  a  TTY  and  the  PSTN,  the  user  connects  to  the  TRS  facility  via  the  Internet  using  a 
 computer,  web  phone,  personal  digital  assistant  (PDA),  or  any  other  IP-  capable  device.  When  the  IP  Relay  user  is  connected  to  the  IP  Relay  service  provider,  the  user  is  immediately  routed  to  a  CA,  who 
 then  makes  the  outbound  call  to  the  hearing  person  and  relays  the  call  between  the  parties  in  the  same  way  that  TTY-  based  calls  are  handled.  17  IP  Relay,  like  VRS,  has  become  very  popular  because  the  user 
 can  make  a  relay  call  with  any  computer  (or  similar  device)  connected  to  the  Internet,  rather  than  only  with  a  dedicated  TTY. 


 B.  Misuse  of  IP  Relay 
 6.  The  Commission  continues  to  receive  complaints  and  anecdotal  evidence  that  IP  Relay  is  being  misused  by  persons  without  a  hearing  or  speech  disability  to  defraud  merchants  by  making 


 purchases  over  the  telephone  using  stolen,  fake,  or  otherwise  invalid  credit  cards,  and  to  make  harassing  calls.  18  Although  such  conduct  may  be  illegal,  because  IP  Relay  calls  reach  the  relay  center  via  the 
 Internet,  and  the  calling  party  and  the  CA  communicate  only  by  text,  the  CA  presently  receives  no  identifying  information.  Consequently,  IP  Relay  affords  users  a  degree  of  anonymity  that  is  generally  not 


 13  That  issue  is  pending  before  the  Commission.  See  2004  TRS  Report  and  Order  &  FNPRM,  19  FCC  Rcd  at 
 12567-  12568,  paras.  243-  245.  14 
 Improved  TRS  Order  &  FNPRM,  15  FCC  Rcd  at  5152,  para.  22.  On  July  19,  2005,  the  Commission  released  two  orders  further  addressing  the  provision  of  VRS.  See  Telecommunications  Relay  Services  and  Speech-  to-Speech 


 Services  for  Individuals  with  Hearing  and  Speech  Disabilities,  CG  Docket  No.  03-  123,  CG  Docket  No.  98-  67,  Report  and  Order,  20  FCC  Rcd  13165  (July  19,  2005)  (2005  VRS  Order)  (addressing  VRS  speed  of  answer, 
 VRS  hours  of  service,  and  VRS  Mail);  Telecommunications  Relay  Services  and  Speech-  to-  Speech  Services  for  Individuals  with  Hearing  and  Speech  Disabilities,  CC  Docket  No.  98-  67,  CG  Docket  No.  03-  123,  Order  on 
 Reconsideration,  20  FCC  Rcd  13140  (July  19,  2005)  (2005  ASL-  to-  Spanish  VRS  Order)  (recognizing  ASL-  to-Spanish  VRS). 
 15  The  popularity  of  VRS  is  reflected  in  how  rapidly  it  has  grown.  In  January  2002,  the  first  month  VRS  was 
 generally  offered,  there  were  7,215  minutes  of  use;  in  January  2003,  there  were  128,114  minutes  of  use;  in  January  2004,  there  were  477,538  minutes  of  use;  and  in  January  2005,  there  were  1,634,316  minutes  of  use;  and  in 


 January  2006  there  were  over  3.2  million  minutes  of  use  of  VRS.  16 
 See  IP  Relay  Declaratory  Ruling,  supra. 
 17  See  generally  Provision  of  Improved  Telecommunications  Relay  Services  and  Speech-  to-  Speech  Services  For 
 Individuals  with  Hearing  and  Speech  Disabilities,  CC  Docket  No.  98-  67,  Order  on  Reconsideration,  18  FCC  Rcd  4761,  4762,  para.  3  n.  11  (March  14,  2003). 


 18  See  generally  FCC  Reminds  Public  of  Requirements  Regarding  Internet  Relay  Service  and  Issues  Alert,  Public 
 Notice,  19  FCC  Rcd  10740  (June  18,  2004)  (IP  Relay  Fraud  Public  Notice). 
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 possible  with  PSTN-  based  relay  calls.  19  As  a  result,  some  persons  have  discovered  that  they  may  misuse  IP  Relay.  In  a  typical  scenario  involving  fraudulent  credit  card  purchases,  a  person  places  an  IP  Relay 
 call,  usually  from  outside  the  United  States,  to  a  business  located  within  the  United  States,  places  an  order  for  goods  (most  often  commodity  items  that  can  be  quickly  resold),  pays  with  a  stolen  or  fraudulent  credit 
 card,  and  arranges  for  the  goods  to  be  shipped  to  a  location  outside  the  United  States.  20 
 7.  Such  misuse  is  harmful  both  to  the  merchants  who  are  victimized  and  legitimate  IP  Relay  users  who  may  no  longer  be  able  to  convince  merchants  to  accept  their  orders  for  merchandise.  21  In 


 addition,  we  are  concerned  about  the  impact  that  such  misuse  may  have  on  the  Fund.  22  For  example,  interstate  telecommunications  carriers  that  pay  into  the  Fund  (and  generally  pass  those  costs  on  to  their 
 customers)  should  not  be  paying  more  because  of  the  misuse  of  funded  services. 
 8.  The  Commission  has  previously  alerted  the  public  and  the  business  community  to  take  precautionary  steps  to  ensure  that  the  credit  card  information  received  through  IP  Relay  is  legitimate.  23 


 The  Commission  noted  that  IP  Relay  providers  are  developing  methods  to  determine  which  calls  are  attempts  to  make  fraudulent  purchases,  and  have  successfully  prevented  some  fraudulent  purchase  calls 
 that  can  be  identified  as  originating  overseas  from  reaching  their  intended  victims.  24  The  Commission  also  recommended  that  merchants  report  any  suspected  fraudulent  purchase  calls  to  the  Federal  Trade 
 Commission,  Federal  Bureau  of  Investigation,  or  their  state  authorities.  Although  the  Commission  has  worked  with  the  providers  on  ways  to  eliminate  or  minimize  these  fraudulent  purchase  calls,  it  does  not 
 appear  that  the  frequency  of  such  calls  has  significantly  diminished.  25 


 19  Because  TTY  based  TRS  calls  are  made  over  the  PSTN,  the  call  to  the  relay  center  includes  identifying 
 information,  such  as  the  calling  partys  number.  That  information  is  used  to  determine  if  the  call  is  interstate  or  intrastate  for  compensation  purposes  under  Section  225,  but  also  has  the  effect  of  deterring  the  misuse  of  TRS 


 because  the  relay  provider  knows  where  the  inbound  call  is  coming  from.  20 
 See,  e.  g.,  Will  You  Accept  This  Call?  Camera  Retailers  Should  Beware  of  Relay  Phone  Scams,  Photo  Marketing,  Photo  Marketing  Assoc.  International,  May  1,  2004,  2004  WLNR  5835698. 


 21  We  note  that  merchants  that  accept  telephone  orders  from  voice  telephone  users  may  violate  Title  III  of  the 
 ADA  if  they  refuse  to  accept  relay  calls  from  persons  with  hearing  and  speech  disabilities.  See,  e.  g.,  IP  Relay  Fraud  Public  Notice,  19  FCC  Rcd  at  10741. 


 22  Since  IP  Relay  calls  began  being  compensated  in  2002,  the  size  of  the  Fund  has  risen  from  approximately  $70 
 million  to  its  present  size  of  over  $440  million.  In  addition  to  IP  Relay,  much  of  that  growth  is  attributable  to  the  compensation  of  VRS.  See  generally  http://  www.  neca.  org/  media/  0605RELAYRATESHISTORY.  xls  (chart  of 


 history  of  Interstate  TRS  Fund  size). 
 23  See  IP  Relay  Fraud  Public  Notice,  supra. 


 24  IP  Relay  Fraud  Public  Notice,  19  FCC  Rcd  at  10741. 
 25  The  Commission  is  aware  of  several  recent  media  publications  about  the  misuse  of  IP  Relay  to  make  fraudulent 
 credit  card  purchases.  See,  e.  g.,  Communications  Daily,  Oct.  6,  2005,  2005  WLNR  16160696;  Avoid  Becoming  a  Victim  of  Telecommunications  Fraud,  Sheboygan  Press,  Nov.  8,  2004,  2004  WLNR  15062327;  Virginia  Beach, 


 Va.  Jewelry  Seller  Foils  TTY-  aided  Credit  Card  Scam,  The  Virginian-  Pilot,  Sept.  30,  2004,  2004  WLNR  18104297;  Will  You  Accept  This  Call?  Camera  Retailers  Should  Beware  of  Relay  Phone  Scams,  Photo  Marketing, 
 Photo  Marketing  Assoc.  International,  May  1,  2004,  2004  WLNR  5835698.  See  also,  Internet  Fraud  Complaint  Center,  http://  www.  ifccfbi.  gov/  strategy/  wn040209.  asp  (visited  August  30,  2005). 
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 9.  The  Commission  also  noted  the  present  difficulty  in  preventing  fraudulent  purchase  calls  because  of  the  nature  and  purpose  of  TRS.  26  Due  to  the  transparent  nature  of  the  CAs  role  in  handling  a 
 TRS  call,  the  CA  may  not  interfere  with  the  conversation.  27  The  Commission  also  noted  that  the  TRS  statutory  and  regulatory  regime  does  not  contemplate  that  CAs  should  have  a  law  enforcement  role  by 
 monitoring  the  conversations  they  are  relaying.  28  The  current  TRS  regulations,  for  example,  prohibit  CAs  from  refusing  calls,  29  and  generally  prevent  CAs  from  disclosing  or  keeping  records  of  the  contents  of  any 
 call.  30  In  addition,  the  regulations  prohibit  the  CAs  from  intentionally  altering  a  relayed  conversation,  31  and  require  them  to  relay  all  calls  verbatim.  32  The  Commission  adopted  these  regulations  as  part  of  the 
 functional  equivalency  principle  to  ensure  that  relay  users,  like  voice  telephone  users,  may  access  the  telephone  system  and  have  any  conversation  they  want,  confidentially,  despite  the  fact  that  the  call 
 involves  a  third  person  (the  CA).  33  The  Commission  has  also  sought  comment  on  the  related  issue  of  the  abuse  of  CAs  during  IP  Relay  and  VRS  calls.  34 


 C.  Misuse  of  VRS  as  Substitute  for  an  In-  Person  Interpreter  or  a  Video  Remote  Interpreting  Service 
 10.  We  continue  to  receive  anecdotal  evidence  that  VRS  is  being  used  in  circumstances  that  should  not  involve  access  to  the  telephone  system,  and  therefore  are  not  appropriate  for  a  relay  service. 
 VRS  is  not  to  be  used  as  a  substitute  for  in-  person  interpreting  services  or  for  Video  Remote  Interpreting  (VRI).  35  Generally,  in-  person  interpreters  are  contracted  and  paid  on  a  fee-  for-  service  basis.  Similarly, 
 VRI  is  a  commercial  service  that  is  used  when  an  interpreter  cannot  be  physically  present  to  interpret  for  two  or  more  persons  who  are  together  at  the  same  location.  This  service  uses  a  video  connection  to 
 provide  access  to  an  interpreter  who  is  at  a  remote  location.  As  with  in-  person  interpreters,  VRI  services 
 26  IP  Relay  Fraud  Public  Notice,  19  FCC  Rcd  at  10740-  10741. 


 27  Id.;  see  also  2004  TRS  Report  and  Order  &  FNPRM,  19  FCC  Rcd  at12572,  para.  256  (the  CA  is  a  transparent 
 entity  who  relays  calls  between  the  TRS  users  to  provide  functionally  equivalent  telephone  service). 
 28  IP  Relay  Fraud  Public  Notice,  19  FCC  Rcd  at  10740-  10741. 


 29  47  C.  F.  R.    64.604(  a)(  3)(  i). 
 30  47  C.  F.  R.    64.604(  a)(  2)(  i). 
 31  47  C.  F.  R.    64.604(  a)(  2)(  ii). 
 32  Id. 
 33  See  generally  Telecommunications  Services  for  Individuals  with  Hearing  and  Speech  Disabilities,  and  the 
 Americans  with  Disabilities  Act  of  1990,  CC  Docket  No.  90-  571,  Report  and  Order  and  Request  for  Comments,  6  FCC  Rcd  4657,  4659-  4661,  paras.  13-  19  (July  26,  1991). 


 34  2004  TRS  Report  and  Order  &  FNPRM,  19  FCC  Rcd  at  12571-  12573,  paras.  255-  258. 
 35  See,  e.  g.,  Reminder  that  Video  Relay  Service  (VRS)  Provides  Access  to  the  Telephone  System  Only  and  Cannot 
 be  Used  as  a  Substitute  for  In-  Person  Interpreting  Services  or  Video  Remote  Interpreting  (VRI),  Public  Notice,  DA  05-  2417  (Sept.  7,  2005)  (VRS-  VRI  Public  Notice)  (noting  that  the  Commission  continues  to  receive  reports 


 that  this  is  occurring,  and  reminding,  in  part,  that  VRS  is  to  be  used  only  when  a  person  with  a  hearing  disability,  who  absent  such  disability  would  make  a  voice  telephone  call,  desires  to  make  a  call  to  a  person  without  such  a 
 disability  through  the  telephone  system);  see  also  Telecommunications  Relay  Services  and  Speech-  to-  Speech  Services  for  Individuals  with  Hearing  and  Speech  Disabilities,  CC  Docket  No.  98-  67,  Order  on  Reconsideration, 
 16  FCC  Rcd  4054,  at  4058,  para.  10  (June  5,  2000);  2005  ASL-  to-  Spanish  VRS  Order,  20  FCC  Rcd  at  13154,  para.  32  n.  109. 
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 are  generally  contracted  and  paid  on  a  fee-  for-  service  basis.  The  Commission  recently  noted  that  although  VRS  providers  generally  have  procedures  in  place  to  terminate  calls  where  VRS  is  being  used 
 as  a  way  to  obtain  free  interpreting  services,  .  .  .  persons  misusing  VRS  may  be  doing  so  in  ways  to  avoid  detection,  and  are  also  publicizing  these  methods  via  consumer  bulletin  boards  and  other  means.  36 


 III.  DISCUSSION 
 A.  Misuse  of  IP  Relay 
 11.  We  seek  comment  on  whether  we  should  waive  or  modify  certain  TRS  rules  to  permit  IP  Relay  providers  and  their  CAs  to  screen  out  and,  where  appropriate,  terminate  calls  they  determine  are  not 


 legitimate  TRS  calls.  These  include,  for  example,  calls  made  by  hearing  persons  to  merchants  to  purchase  goods  with  stolen  or  fraudulent  credit  cards.  37  At  the  same  time,  we  recognize  that  permitting 
 CAs  to  step  out  of  their  role  as  invisible  conduits  in  a  call  may  create  tension  with  the  functional  equivalency  principle.  We  invite  comment  on  steps  the  Commission  might  take,  consistent  with  Section 
 225,  to  permit  providers  to  prevent  or  terminate  such  calls,  even  if  that  means  waiving,  amending  or  modifying  for  IP  Relay  some  of  the  Commissions  TRS  mandatory  minimum  standards. 


 12.  More  particularly,  we  seek  comment  on  whether  the  IP  Relay  provider  or  CA  should  be  given  the  discretion  to  determine  that  a  call  is  not  a  legitimate  TRS  call  on  a  case-  by-  case  basis,  and  to 
 block,  terminate,  or  refuse  to  handle  the  call,  alert  the  merchant  who  receives  the  call  that  the  call  may  be  fraudulent,  or  take  some  other  steps  to  prevent  the  misuse  of  IP  Relay.  We  also  seek  comment  on 
 whether  we  should  adopt  rules  to  guide  the  exercise  of  that  discretion. 
 13.  Moreover,  we  seek  comment  on  whether  an  IP  Relay  provider  and  its  CAs  can  generally  determine  whether  a  call  to  a  merchant  is  for  the  purpose  of  fraudulently  purchasing  goods,  and  therefore 


 is  likely  not  by  a  person  with  a  hearing  or  speech  disability  seeking  access  to  the  telephone  system.  For  example,  we  understand  that  there  are  many  readily  identifiable  indicia  of  IP  Relay  calls  to  merchants  by 
 persons  seeking  to  make  fraudulent  credit  card  purchases,  including  that  the  caller  will  only  pay  via  credit  card;  offers  more  than  one  credit  card  number  for  payment;  will  not  identify  him  or  herself  or  provide  a 
 company  name;  uses  names  in  reverse  (last  name  as  first,  first  as  last);  does  not  negotiate  price;  will  not  agree  to  pay  in  advance  via  a  check,  bank  wire,  or  bank  draft;  has  few  questions  about  the  product  and 
 lacks  knowledge  about  the  product;  refuses  to  call  back  using  the  states  relay  service;  and  changes  the  payment  or  delivery  arrangements  after  an  order  has  been  approved.  38  We  seek  comment  on  whether 
 there  other  ways  in  which  a  provider  may  determine  if  a  particular  call  is  not  a  legitimate  relay  call. 
 14.  We  also  seek  comment  on  whether  additional  steps,  such  as  user  registration,  might  be  adopted  to  curtail  the  misuse  of  IP  Relay.  If  the  Commission  adopted  registration  as  a  means  of  curbing 


 illegitimate  IP  Relay  calls,  how  might  registration  be  implemented  and  what  information  should  be 
 36  VRS-  VRI  Public  Notice  at  2. 
 37  We  note  that  in  other  contexts,  e.  g.,  Speech-  to-  Speech  (STS),  the  Commission  has  permitted  the  CA  to  step  out 
 of  the  role  of  strictly  being  a  transparent  conduit  that  relays  the  call.  See  Improved  TRS  Order  &  FNPRM,  15  FCC  Rcd  5140,  at  5162-  5165  paras.  49-  58  (modifying  certain  rules  for  STS  calls,  including  the  requirement  that  the  CA 


 relay  the  call  verbatim);  see  also  2004  TRS  Report  and  Order,  19  FCC  Rcd  at  12571-  12573,  paras.  249,  255-  258  (June  30,  2004)  (FNPRM  raises  the  issues  whether  VRS  CAs  should  be  able  to  ask  questions  to  the  VRS  user 
 during  call  set-  up,  and  whether  the  TRS  provider  or  CA  should  be  given  the  discretion  to  decline  to  handle  or  terminate  abusive  calls  directed  at  the  CA  or  called  party). 


 38  See,  e.  g.,  Will  You  Accept  This  Call?  Camera  Retailers  Should  Beware  of  Relay  Phone  Scams,  Photo 
 Marketing,  Photo  Marketing  Assoc.  International,  May  1,  2004,  2004  WLNR  5835698. 
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 required  of  the  user?  Are  there  steps  that  could  be  taken,  or  technology  implemented,  to  prevent  the  wrongful  use  of  registration  information? 
 15.  We  further  seek  comment  on  whether  there  is  any  statutory  bar  to  the  Commission  adopting  rules  that  would  give  the  TRS  providers  a  role  in  curtailing  the  misuse  of  IP  Relay.  In  addition, 
 we  seek  comment  on  any  procedures  should  be  employed  to  safeguard  legitimate  calls  and  ensure  consumers  confidence  in  the  integrity  and  confidentiality  of  IP  Relay  service.  Assuming  an  IP  Relay 
 provider  or  CA  is  permitted  to  terminate  a  call  determined  to  be  illegitimate,  should  the  provider  nevertheless  be  compensated  for  the  conversation  time  of  the  call  prior  to  termination?  Further,  if  we 
 were  to  allow  the  IP  Relay  provider  and  the  CA  discretion  to  disconnect  apparently  illegitimate  calls,  should  the  provider  be  required  to  maintain  records  of  such  terminated  calls,  consistent  with  Section 
 225(  d)(  1)(  F)?  39  Would  it  be  appropriate  to  include  in  such  records  the  date,  time,  and  nature  of  the  call  and  the  reason  why  the  provider  or  CA  determined  that  the  call  was  illegitimate? 


 16.  Finally,  we  request  commenters  to  consider  whether  Section  705  of  the  Communications  Act,  47  U.  S.  C.    605,  or  any  other  federal  or  state  statute,  would  restrict  the  Commissions  authority  to 
 take  any  of  the  remedial  actions  discussed  above.  40  We  also  request  parties  to  provide  any  additional  information  that  may  be  relevant  to  preventing  the  misuse  of  IP  Relay. 


 B.  Misuse  of  VRS  as  Substitute  for  an  In-  Person  Interpreter  or  a  Video  Remote  Interpreting  Service 
 17.  We  seek  comment  on  whether,  and  if  so,  how,  we  can  ensure  that  VRS  is  not  used  as  a  substitute  for  hiring  an  in-  person  interpreter  or  a  VRI  service.  Is  it  possible  for  VRS  providers  and  their 
 CAs  to  determine  whether  a  particular  VRS  call  is  a  legitimate  call  or  is  being  used  as  a  substitute  for  an  in-  person  interpreting  service  or  VRI?  Do  VRS  providers  presently  have  procedures  in  place  to  ensure 
 that  the  VRS  calls  they  handle  and  submit  to  the  Fund  administrator  for  payment  are  legitimate  VRS  calls?  If  not,  what  procedures  could  be  implemented  to  prevent  such  abuse? 


 18.  We  further  seek  comment  on  whether  the  VRS  provider  or  CA  should  be  given  the  discretion  to  make  the  determination  that  a  call  is  not  a  legitimate  VRS  call,  and  to  terminate  the  call.  If 
 so,  should  we  adopt  rules  to  guide  the  exercise  of  this  discretion?  Should  the  Commission  waive  or  modify  any  of  the  TRS  regulations  to  enable  VRS  providers  to  ensure  that  the  calls  they  handle  are 
 legitimate? 
 19.  We  also  seek  comment  on  whether  additional  steps,  such  as  user  registration,  might  be  adopted  to  curtail  the  misuse  of  VRS.  How  might  registration  be  implemented  and  what  information 


 should  be  required  of  the  user?  Are  there  steps  that  could  be  taken,  or  technology  implemented,  to  prevent  the  wrongful  use  of  registration  information? 


 20.  We  further  seek  comment  on  whether  any  procedures  should  be  employed  to  safeguard  legitimate  calls  and  ensure  consumers  confidence  in  the  integrity  and  confidentiality  of  VRS.  Assuming 


 39  47  U.  S.  C.    225(  d)(  1)(  F)  (prohibiting  CAs  from  keeping  records  of  the  content  of  any  call  beyond  the 
 duration  of  the  call). 
 40  Section  705  of  the  Communications  Act  prohibits,  in  part,  persons  who  assist  in  receiving  and  transmitting 
 telephone  calls  from  divulging  or  publishing  the  existence  or  contents  of  a  call  except  in  certain  enumerated  circumstances.  See  47  U.  S.  C.    605(  a).  We  seek  comment,  for  example,  on  whether  Section  705  applies  to  TRS 


 CAs  and,  if  so,  whether  permitting  a  CA  to  terminate  a  relay  call  based  on  information  derived  from  the  CAs  role  in  relaying  the  call  would  be  precluded  by  this  provision. 
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 a  VRS  provider  or  CA  is  permitted  to  terminate  a  call  determined  to  be  illegitimate,  should  the  provider  nevertheless  be  compensated  for  the  conversation  time  of  the  call  prior  to  termination?  Further,  if  we 
 were  to  allow  the  VRS  provider  and  the  CA  discretion  to  disconnect  apparently  illegitimate  VRS  calls,  should  the  provider  be  required  to  maintain  records  of  such  terminated  calls,  consistent  with  Section 
 225(  d)(  1)(  F)?  41  Would  it  be  appropriate  to  include  in  such  records  the  date,  time,  and  nature  of  the  call  and  the  reason  why  the  provider  or  CA  determined  that  the  call  was  illegitimate? 


 21.  Finally,  we  request  commenters  to  consider  whether  Section  705  of  the  Communications  Act,  47  U.  S.  C.    605,  or  any  other  federal  or  state  statute,  would  restrict  the  Commissions  authority  to 
 take  any  of  the  remedial  actions  discussed  above.  42  We  also  request  parties  to  provide  any  additional  information  that  may  be  relevant  to  our  resolution  of  this  issue. 


 IV.  PROCEDURAL  MATTERS 
 22.  Comments  and  Reply  Comments.  Pursuant  to  sections  1.415,  1.419,  and  1.  430  of  the  Commissions  rules,  47  C.  F.  R.    1.  415,  1.419,  1.430,  interested  parties  may  file  comments  on  or  before 


 30  days  after  publication  of  this  Notice  in  the  Federal  Register,  and  reply  comments  on  or  before  45  days  after  publication  of  this  Notice  in  the  Federal  Register.  All  filings  should  refer  to  CG  Docket  No.  03-  123. 
 Comments  may  be  filed  using  the  Commissions  Electronic  Comment  Filing  System  (ECFS)  or  by  filing  paper  copies.  43  For  additional  information  on  this  proceeding,  please  contact  Greg  Hlibok  in  the 
 Consumer  &  Governmental  Affairs  Bureau,  Disability  Rights  Office,  at:  (866)  410-  5787  x16757  (Voice),  or  (202)  418-  0431  (TTY). 


 23.  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. 
 In  completing  the  transmittal  screen,  commenters  should  include  their  full  name,  postal  service  mailing  address,  and  the  applicable  docket  number:  CG  Docket  No.  03-  123.  Parties  may  also  submit  an 
 electronic  comment  by  Internet  e-  mail.  To  obtain  filing  instructions  for  e-  mail  comments,  commenters  should  send  an  e-  mail  to  ecfshelp@  fcc.  gov,  and  should  include  the  following  words  in  the  body  of  the 
 message:  get  form  <your  e-  mail  address>.  A  sample  form  and  instructions  will  be  sent  in  reply.  You  also  may  obtain  a  copy  of  the  ASCII  Electronic  Transmittal  Form  (FORM-  ET)  at  http://  www.  fcc.  gov/  e-file/ 
 email.  html.  Parties  who  choose  to  file  by  paper  must  file  an  original  and  four  copies  of  each  filing.  Filings  can  be  sent  by  hand  or  messenger  delivery,  by  commercial  overnight  courier,  or  by  first-  class  or 
 overnight  U.  S.  Postal  Service  mail  (although  we  continue  to  experience  delays  in  receiving  U.  S.  Postal  Service  mail). 


 24.  For  hand  deliveries,  the  Commission's  contractor,  Best  Copy  and  Printing,  will  receive  hand-  delivered  or  messenger-  delivered  paper  filings  for  the  Commission's  Secretary  at  236  Massachusetts 
 Avenue,  NE,  Suite  110,  Washington,  D.  C.  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  12th 


 41  47  U.  S.  C.    225(  d)(  1)(  F)  (prohibiting  CAs  from  keeping  records  of  the  content  of  any  call  beyond  the 
 duration  of  the  call). 
 42  See  note  40,  supra. 


 43  See  Electronic  Filing  of  Documents  in  Rulemaking  Proceedings,  GC  Docket  No.  97-  113,  Report  and  Order,  13 
 FCC  Rcd  11322,  11326,  para.  8  (April  6,  1998). 
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 Street,  SW,  Washington,  D.  C.  20554.  All  filings  must  be  addressed  to  the  Commissions  Secretary,  Office  of  the  Secretary,  Federal  Communications  Commission. 
 25.  Comments  and  reply  comments  must  include  a  short  and  concise  summary  of  the  substantive  discussion  and  questions  raised  in  the  Notice.  We  further  direct  all  interested  parties  to 
 include  the  name  of  the  filing  party  and  the  date  of  the  filing  on  each  page  of  their  comments  and  reply  comments.  We  strongly  encourage  that  parties  track  the  organization  set  forth  in  this  Notice  in  order  to 
 facilitate  our  internal  review  process.  Comments  and  reply  comments  must  otherwise  comply  with  section  1.48  and  all  other  applicable  sections  of  the  Commissions  rules.  44 


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


 27.  Ex  Parte  Rules.  This  matter  shall  be  treated  as  a  permit-  but-  disclose  proceeding  in  accordance  with  the  Commissions  ex  parte  rules.  45  Persons  making  oral  ex  parte  presentations  are 
 reminded  that  memoranda  summarizing  the  presentations  must  contain  summaries  of  the  substance  of  the  presentations  and  not  merely  a  listing  of  the  subjects  discussed.  More  than  a  one  or  two  sentence 
 description  of  the  views  and  arguments  presented  is  generally  required.  46  Other  requirements  pertaining  to  oral  and  written  presentations  are  set  forth  in  Section  1.1206(  b)  of  the  Commissions  rules. 


 28.  Initial  Regulatory  Flexibility  Analysis.  With  respect  to  this  Notice,  an  Initial  Regulatory  Flexibility  Analysis  (IRFA)  is  contained  in  the  Appendix.  As  required  by  Section  603  of  the  Regulatory 
 Flexibility  Act,  the  Commission  has  prepared  an  IRFA  of  the  expected  impact  on  small  entities  of  the  proposals  contained  in  the  Notice.  Written  public  comments  are  requested  on  the  IRFA.  Comments  must 
 be  identified  as  responses  to  the  IRFA  and  must  be  filed  by  the  deadlines  for  comments  on  the  Notice  specified  in  paragraph  24  above.  The  Commission  will  send  a  copy  of  the  Notice,  including  the  IRFA,  to 
 the  Chief  Counsel  for  Advocacy  of  the  Small  Business  Administration.  47 
 29.  Initial  Paperwork  Reduction  Act  of  1995  Analysis.  This  document  contains  proposed  or  modified  information  collection  requirements.  The  Commission,  as  required  by  the  Paperwork  Reduction 


 Act  of  1995,  Public  Law  104-  13,  and  as  part  of  its  continuing  effort  to  reduce  paperwork  burdens,  invites  the  general  public  and  the  Office  of  Management  and  Budget  (OMB)  to  comment  on  the  information 
 collection  requirements  contained  in  this  document.  Public  and  agency  comments  are  due  60  days  after  date  of  publication  of  this  Notice  in  the  Federal  Register.  Comments  should  address:  (a)  whether  the 
 proposed  collection  of  information  is  necessary  for  the  proper  performance  of  the  functions  of  the  Commission,  including  whether  the  information  shall  have  practical  utility;  (b)  the  accuracy  of  the 
 Commission's  burden  estimates;  (c)  ways  to  enhance  the  quality,  utility,  and  clarity  of  the  information  collected;  and  (d)  ways  to  minimize  the  burden  of  the  collection  of  information  on  the  respondents, 
 including  the  use  of  automated  collection  techniques  or  other  forms  of  information  technology.  In  addition,  pursuant  to  the  Small  Business  Paperwork  Relief  Act  of  2002,  Public  Law  107-  198,  see  44 


 44  See  47  C.  F.  R.    1.48. 
 45  47  C.  F.  R.    1.200  et  seq. 
 46  See  47  C.  F.  R.    1.1206(  b)(  2). 
 47  See  5  U.  S.  C.    603(  a).  In  addition,  the  FNPRM  and  IRFA  (or  summaries  thereof)  will  be  published  in  the 
 Federal  Register. 
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 U.  S.  C.  3506(  c)(  4),  we  seek  specific  comment  on  how  we  might  further  reduce  the  information  collection  burden  for  small  business  concerns  with  fewer  than  25  employees. 
 V.  ORDERING  CLAUSES 
 30.  Accordingly,  IT  IS  ORDERED  that,  pursuant  to  Sections  1,  4(  i)  and  (o),  225,  303(  r),  403,  624(  g),  and  706  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    151,  154(  i)  and  (o),  225, 


 303(  r),  403,  554(  g),  and  606,  this  Further  Notice  of  Proposed  Rulemaking  IS  ADOPTED. 
 31.  IT  IS  FURTHER  ORDERED  that  the  Commission's  Consumer  &  Governmental  Affairs  Bureau,  Reference  Information  Center,  SHALL  SEND  a  copy  of  this  Further  Notice  of  Proposed 


 Rulemaking,  including  the  Initial  Regulatory  Flexibility  Analysis,  to  the  Chief  Counsel  for  Advocacy  of  the  Small  Business  Administration. 


 FEDERAL  COMMUNICATIONS  COMMISSION 


 Marlene  H.  Dortch  Secretary 
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 APPENDIX:  INITIAL  REGULATORY  FLEXIBILITY  ANALYSIS 
 1.  As  required  by  the  Regulatory  Flexibility  Act  (RFA),  1  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  Further  Notice  of  Proposed  Rulemaking  (FNPRM).  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  provided  in  paragraph  24  of  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  (SBA).  2  In  addition,  the  FNPRM  and  IRFA  (or  summaries  thereof)  will  be  published  in  the  Federal  Register.  3 


 A.  Need  for,  and  Objectives  of,  the  Proposed  Rules 
 2.  Providers  of  telecommunications  relay  services  (TRS),  mandated  by  Title  IV  of  the  Americans  with  Disabilities  Act  of  1990,  4  relay  telephone  calls  between  persons  with  hearing  and  speech 


 disabilities  and  persons  without  such  disabilities.  Under  the  Commissions  regulations,  the  communications  assistant  (CA)  may  not  refuse  calls  or  disclose  the  contents  of  any  call.  The  Commission 
 adopted  these  regulations  as  part  of  the  functional  equivalency  principle  5  to  ensure  that  relay  users,  like  voice  telephone  users,  may  access  the  telephone  system  and  have  any  conversation  they  want, 
 confidentially,  despite  the  fact  that  the  call  involves  a  third  person  (the  CA).  6  Because  IP  Relay  and  VRS  offer  consumers  anonymity  as  the  call  is  placed  via  the  Internet,  and  not  the  PSTN,  the  Commission  has 
 become  aware  that  these  services  are  being  misused.  Persons  have  been  using  IP  Relay  to  purchase  goods  from  merchants  using  stolen  or  fraudulent  credit  cards.  Such  misuse  is  harmful  both  to  the  merchant  who 
 is  defrauded  and  to  legitimate  relay  users  who  may  no  longer  be  able  to  convince  merchants  to  accept  orders  via  relay. 


 3.  With  respect  to  VRS,  the  Commission  has  expressed  concern  that  it  is  being  misused  as  a  substitute  for  hiring  a  Video  Remote  Interpreting  (VRI)  service  or  an  in-  person  interpreter.  The 
 Commission  is  also  concerned  that  the  rapid  and  steady  increase  in  the  size  of  the  Interstate  TRS  Fund  may  in  part  be  a  result  of  such  misuse  of  IP  Relay  and  VRS.  Therefore,  the  FNPRM  seeks  comment  on 
 whether  the  Commission  should  waive  or  modify  certain  TRS  rules  to  permit  IP  Relay  and  VRS  providers  to  screen  out  and,  where  appropriate,  terminate,  IP  Relay  calls  involving  fraudulent  credit  card 
 purchases  or  VRS  calls  that  are  illegitimate.  These  TRS  rules  might  include  those  that  prevent  a  CA  from  refusing  calls,  generally  prohibit  a  CA  from  disclosing  or  keeping  records  of  the  content  of  a  call,  prohibit 
 a  CA  from  intentionally  altering  a  relayed  conversation,  and  required  CAs  to  relay  all  calls  verbatim.  7 


 1  See  5  U.  S.  C.    603.  The  RFA,  see  5  U.  S.  C.    601  et.  seq.,  has  been  amended  by  the  Contract  With  America 
 Advancement  Act  of  1996,  Pub.  L.  No.  104-  121,  110  Stat.  847  (1996)  (CWAAA).  Title  II  of  the  CWAAA  is  the  Small  Business  Regulatory  Enforcement  Fairness  Act  of  1996  (SBREFA). 


 2  See  5  U.  S.  C.    603(  a). 
 3  See  id. 


 4  See  47  U.  S.  C.    225. 
 5  See  47  U.  S.  C.    225(  a)(  3). 
 6  See  para.  9  of  the  FNPRM,  supra. 
 7  See  47  C.  F.  R.    64.  604(  a)(  2)(  i)  &  (ii),  64.  604(  a)(  2)(  ii). 
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 4.  More  specifically,  the  FNPRM  provisionally  considers  granting  the  IP  Relay  provider  or  CA  the  discretion  to  determine  that  a  call  is  not  a  legitimate  TRS  call  on  a  case-  by-  case  basis,  and  to 
 block,  terminate,  or  refuse  to  handle  the  call,  alert  the  merchant  who  receives  the  call  that  the  call  may  be  fraudulent.  The  FNPRM  also  asks  for  any  recommendation  on  a  possible  alternative  measure  to  prevent 
 the  misuse  of  IP  Relay.  In  doing  so,  the  Commission  contemplates  adopting  new  rules  that  guide  the  provider  and  the  CA  the  exercise  of  that  discretion.  Further,  the  proposed  user  registration  is  being 
 contemplated  as  an  additional  measure  to  curtail  the  misuse  of  IP  Relay.  The  FNPRM  also  asks  for  an  alternative  measure. 


 5.  The  FNPRM  provisionally  proposes  that,  assuming  that  the  IP  Relay  provider  and  the  CA  were  granted  the  discretion  to  disconnect  apparently  illegitimate  calls,  the  provider  should  be  required  to 
 maintain  records  of  such  terminated  calls,  consistent  with  Section  225(  d)(  F).  8  The  FNPRM  contemplates  on  any  rule  changes  permitting  IP  Relay  providers  or  CAs  to  terminate  apparently  illegitimate  calls  be 
 made  permanently  or  temporarily. 
 6.  The  FNPRM  seeks  input  on  whether  Section  705  of  the  Communications  Act,  47  U.  S.  C.    605,  or  any  other  federal  or  state  statute,  9  may  restrict  the  Commissions  authority  to  take  any  of  the 


 remedial  actions  discussed  above.  Finally,  the  FNPRM  asks  whether  the  providers  that  terminated  these  apparently  illegitimate  calls  should  be  compensated  from  the  Interstate  TRS  Fund  nonetheless. 


 7.  In  contemplating  an  appropriate  measure  to  ensure  that  VRS  is  not  used  as  a  substitute  for  an  in-  person  interpreter  of  VRI  service,  the  FNPRM  asks  for  recommendations  on  how  the 
 Commission  can  ensure  that  VRS  is  not  being  misused.  The  FNPRM  proposes  a  possible  rule  change  that  grants  the  VRS  provider  or  CA  the  discretion  to  make  the  determination  that  a  call  is  not  a  legitimate 
 VRS  call,  and  to  terminate  the  call.  The  FNPRM  also  tentatively  considers  waiving  or  modifying  certain  TRS  regulations  to  enable  VRS  providers  to  ensure  that  the  calls  they  handle  are  legitimate.  10 


 8.  In  addition,  the  proposed  user  registration  is  being  contemplated  as  an  additional  measure  to  curtail  the  misuse  of  VRS.  The  FNPRM  contemplates  whether  the  rule  change  that  permits  VRS 
 providers  or  CAs  to  terminate  apparently  illegitimate  calls  should  be  permanent  or  temporary.  Finally,  the  FNPRM  asks  whether  the  providers  that  terminated  these  apparently  illegitimate  calls  should  be 
 compensated  from  the  Interstate  TRS  Fund  nonetheless. 
 B.  Legal  Basis 
 9.  The  authority  for  the  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.    151,  154(  i) 
 and  (j),  201-  205,  218  and  225,  and  Sections  64.601-  64.  608  of  the  Commissions  regulations,  47  C.  F.  R.    64.601-  64.  608. 


 8  47  U.  S.  C.    225(  d)(  1)(  F)  (prohibiting  CAs  from  keeping  records  of  the  content  of  any  call  beyond  the  duration 
 of  the  call). 
 9  See,  e.  g.,  18  U.  S.  C.    2511  (which  is  noted  in  section  705). 


 10  See  para  18  of  the  FNPRM,  supra. 
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 C.  Description  and  Estimate  of  the  Number  of  Small  Entities  to  Which  the  Proposed  Rules  Will  Apply 
 10.  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  proposed  rules,  if  adopted.  11  The  RFA  generally 
 defines  the  term  "small  entity"  as  having  the  same  meaning  as  the  terms  "small  business,"  "small  organization,"  and  "small  governmental  jurisdiction."  12  In  addition,  the  term  "small  business"  has  the 
 same  meaning  as  the  term  "small  business  concern"  under  the  Small  Business  Act.  13  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  SBA.  14 
 11.  As  noted  above,  the  FNPRM  seeks  comment  on  whether  IP  Relay  and  VRS  providers  should  be  given  the  discretion  to  determine  that  a  call  is  not  a  legitimate  TRS  call  on  a  case-  by-  case  basis, 


 and  to  block,  terminate,  or  refuse  to  handle  the  call,  or  (for  IP  Relay)  alert  the  merchant  who  receives  the  call  that  the  call  may  be  fraudulent,  or  take  some  other  steps  to  prevent  the  misuse  of  IP  Relay  and  VRS. 
 As  a  result,  we  believe  that  the  entities  that  may  be  affected  by  the  proposed  rules  are  only  those  TRS  providers  that  offer  IP  Relay  and  VRS.  Neither  the  Commission  nor  the  SBA  has  developed  a  definition 
 of  small  entity  specifically  directed  toward  TRS  providers.  The  closest  applicable  size  standard  under  the  SBA  rules  is  for  Wired  Telecommunications  Carriers,  for  which  the  small  business  size  standard  is  all 
 such  firms  having  1,500  or  fewer  employees.  15  Currently,  there  are  eight  TRS  providers  that  offer  VRS  and/  or  IP  Relay,  which  consist  of  interexchange  carriers,  local  exchange  carriers,  other  common  carriers, 
 and  non-  profit  organizations.  Approximately  three  or  fewer  of  these  entities  are  small  businesses  under  the  SBA  size  standard.  16 


 D.  Description  of  Projected  Reporting,  Recordkeeping  and  other  Compliance  Requirements 
 12.  The  FNPRMs  proposed  rules  would  permit  CAs  to  terminate  certain  IP  Relay  and  VRS  calls  in  circumstances  where  they  believe  the  call  is  illegitimate.  A  registration  requirement,  if  adopted, 
 might  require  VRS  and  IP  Relay  providers  to  register  each  user  so  that  the  provider  would  have  identifying  information  of  the  person  making  the  call,  and  might  require  the  provider  or  user  to  update 
 this  information  as  necessary.  The  rules,  if  adopted,  might  also  require  the  providers  to  keep  records  of  calls  that  are  terminated. 


 11  5  U.  S.  C.    603(  b)(  3). 
 12  5  U.  S.  C.    601(  6). 
 13  5  U.  S.  C.    601(  3)  (incorporating  by  reference  the  definition  of  "small  business  concern"  in  the  Small  Business 
 Act,  15  U.  S.  C.    632).  Pursuant  to  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." 


 14  15  U.  S.  C.    632. 
 15  13  C.  F.  R.    121.  201,  NAICS  Code  517110. 
 16  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. 
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 E.  Steps  Taken  to  Minimize  Significant  Economic  Impact  on  Small  Entities,  and  Significant  Alternatives  Considered 
 13.  The  RFA  requires  an  agency  to  describe  any  significant,  alternatives,  specific  to  small  businesses,  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.  17 
 14.  The  Commission  considers  the  proposed  rule  changes  in  the  FNPRM  as  a  possible  means  of  achieving  the  competing  public  policy  goals  of  ensuring  that  TRS  works  as  a  transparent  conduit  for 


 the  calling  and  called  parties  and  preventing  the  misuses  of  IP  Relay  and  VRS  services.  This  FNPRM  invites  comment  on  a  number  of  alternative  means  by  which  IP  Relay  and  VRS  providers  might 
 undertake  to  curtail  illegitimate  calls.  For  example,  this  FNPRM  asks  if  the  Commission  should  amend  TRS  rules  to  allow  providers  the  discretion  to  refuse  or  terminate  illegitimate  IP  Relay  and  VRS  calls. 


 15.  The  FNPRM  also  seeks  comment  on  other  means  by  which  the  Commission  might  curtail  the  misuse  of  IP  Relay  and  VRS,  including  by  adopting  a  registration  requirement.  The  Commission  also 
 asks  if  there  may  be  alternatives  to  requiring  registration  or  imposing  new  obligations  on  providers,  such  as  waiving  certain  TRS  rules.  These  alternatives  could  mitigate  any  burden  the  proposed  registration 
 requirement  might  have  on  small  businesses. 
 16.  The  Commission  notes  that  by  promulgating  the  rules  in  allowing  the  provider  and  the  CA  the  discretion  to  terminate  apparent  illegitimate  calls,  it  would  lessen  an  adverse  economic  impact  on 


 small  businesses.  The  proposed  rule  change  would  save  many  small  businesses  that  may  be  affected  by  these  illegitimate  calls.  For  instance,  small  businesses  are  more  vulnerable  with  illegitimate  calls 
 involving  fraudulent  credit  card  purchases  because  they  often  are  not  equipped  to  verify  the  credit  card  numbers.  The  proposed  rule  change  that  calls  for  granting  the  provider  and  the  CA  the  discretion  to 
 terminate  apparent  illegitimate  calls  would  not  create  an  additional  financial  burden  on  any  provider,  including  small  businesses. 


 17.  The  FNPRM  contemplates  requiring  the  providers  to  maintain  records  of  terminated  calls,  and  seeks  comment  on  what  these  records  should  include.  The  FNPRM  notes,  however,  that  such  a 
 requirement  might  conflict  with  the  Commissions  rules,  18  and  also  seeks  comment  on  this  issue.  The  FNPRM  therefore  contemplates  that  it  may  not  be  possible  to  require  providers  to  maintain  any  records. 


 18.  Further,  the  FNPRM  also  invites  comment  on  whether  any  proposed  rule  change  and/  or  requirement  should  be  permanent  or  temporary.  To  the  extent  the  adopted  measure  requiring  the 
 providers  to  maintain  records  is  temporary,  any  burden  on  small  businesses  would  be  lessened. 
 F.  Federal  rules  that  may  duplicate,  overlap,  or  conflict  with  the  proposed  rules 
 19.  None. 


 17  5  U.  S.  C.    603(  c)(  1)  -  (4). 
 18  See  paras  15,  20  of  the  FNPRM,  supra. 
14