Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 51649 

Ordering Clauses 

Pursuant to the authority contained in 

Sections 1, 2, and 225 of the 

Communications Act of 1934, as 

amended, 47 U.S.C. 151, 152, and 225, 

this Order on Reconsideration is hereby 

adopted. 

The Petition for Partial 

Reconsideration filed by Hands On is 

granted in part, as provided herein; the 

Petition for Reconsideration filed by 

CSD is granted in part, as provided 

herein; and the Petition for 

Reconsideration filed by NVRSC is 

granted, as provided herein. 

This Order on Reconsideration shall 

be effective September 30, 2005. 

The Commission’s Consumer & 

Governmental Affairs Bureau, Reference 

Information Center shall send a copy of 

this Order on Reconsideration, 

including the Regulatory Flexibility 

Certification, to the Chief Counsel for 

Advocacy of the U.S. Small Business 

Administration. 

Federal Communications Commission. 

Jacqueline R. Coles, 

Associate Secretary. 

[FR Doc. 05–17110 Filed 8–30–05; 8:45 am] 

BILLING CODE 6712–01–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 64 

[CC Docket No. 98–67 and CG Docket No. 

03–123; FCC 05–140] 

Telecommunications Relay Services 

and Speech-to-Speech Services for 

Individuals With Hearing and Speech 

Disabilities 

AGENCY: Federal Communications 

Commission 

ACTION: Final rule. 

SUMMARY: In this document, the 

Commission concludes that because 

speed of answer is central to the 

provision of ‘‘functionally equivalent’’

telecommunications relay service (TRS), 

and video relay service (VRS) is now 

widely used—if not the preferred form 

of TRS, VRS providers must provide 

service in compliance with the speed of 

answer rule adopted to be eligible for 

compensation from the Interstate TRS 

Fund. The rule establishes for the first 

time, mandatory speed of answer 

requirement for VRS, requires VRS to be 

officered 24/7, and permit VRS 

providers to be compensated for 

providing VRS mail. Also, in this 

document, the Commission closes TRS 

Docket No. CC 98–67. 

DATES: Effective September 30, 2005. 

FOR FURTHER INFORMATION CONTACT: 

Thomas Chandler, Consumer & 

Government Affairs Bureau, Disability 

Rights Office at (202) 418–1475 9 

(voice), (202) 418–0597 (TTY), or e-mail 

at Thomas.Changler@fcc.gov. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Report 

and Order, FCC 05–140, adopted July 

14, 2005, and released July 19, 2005, in 

CC Docket 98–67 and CG Docket 03–

123. The Commission addresses threes 

issues related to the provision of Video 

Relay Services, a form of 

telecommunications relay service (TRS): 

(1) The adoption of a speed of answer 

rule for VRS; (2) whether VRS should be 

required to be offered 24 hours a day, 

7 days a week (24/7); and (3) whether 

VRS providers may be compensated for 

providing VRS Mail. This Report and 

Order does not contain new or modified 

information collections requirements 

subject to the Paperwork Reduction Act 

of 1995 (PRA), Public Law 104–13. In 

addition, it does not contain any new or 

modified ‘‘information collection 

burden for small business concerns with 

fewer than 25 employees,’’ pursuant to 

the Small Business Paperwork Relief 

Act of 2002, Public Law 107–198, see 44 

U.S.C. 3506 (c)(4). The full text of the 

Report and Order and copies of any 

subsequently filed documents in this 

matter will be available for public 

inspection and copying during regular 

business hours at the FCC Reference 

Information Center, Portals II, 445 12th 

Street, NW., CY–A257, Washington, DC 

20554. The Report and Order and copies 

of subsequently filed documents in this 

matter may also be purchased from the 

Commission’s duplicating contract, Best 

Copy and Printing, Inc. (BCPI), Portals 

II, 445 12th Street, SW., Room CY–B402, 

Washington, DC 20554. Customers may 

contact BCPI at their Web site 

www.bepiweb.com or call 1–800–378–

3160. To request materials in accessible 

formats for people with disabilities 

(Braille, large print, electronic files, 

audio format), send an e-mail to 

fee504@fcc.gov or call the Consumer & 

Governmental Affairs Bureau at (202) 

418–0530 (voice), (202) 418–0432 

(TTY). The Report and Order can also 

be downloaded in Word or Portable 

Document Format (PDF) at: http:// 

www.fcc.gov/cgb/dro. 

Synopsis 

Title IV of the Americans with 

Disabilities Act of 1990 (ADA), Pub. L. 

101–336, 401, 104 Statute 327, 336–69 

(1990), adding Section 225 to the 

Communications Act of 1934 

(Communications Act), as amended, 47 

U.S.C. 225; implementing regulations at 

47 CFR 64.601 et seq.), requires 

common carriers offering telephone 

voice transmission services to 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. Title IV is intended to further 

the universal service goal set out in the 

Communications Act of 1934 (Act), as 

amended, by providing to individuals 

with hearing or speech disabilities 

telephone services that are ‘‘functionally 

equivalent’’ to those available to 

individuals without such disabilities. 

Congress recognized that persons with 

hearing and speech disabilities have 

long experienced barriers to their ability 

to access, utilize, and benefit from 

telecommunications services. 

The advent of VRS as a form of TRS 

has been one of the most important 

developments in the short history of 

TRS. VRS allows a deaf person whose 

primary language is ASL to 

communicate in ASL with the CA, a 

qualified interpreter, through 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 deaf 

person and by voice with the hearing 

person. As a result, the conversion 

between the two end users, deaf and 

hearing, flows in near real time and in 

a faster and more articulate manner than 

with a TTY or text-based TRS world. 

The use of VRS reflects this reality. In 

April 2005 the monthly minutes of use 

were approximately 1.8 million, a tenfold increase in the past two years, and 

more than the number of interstate 

traditional TRS minutes. (See TRS Fund 

Performance Status Report as of May 31, 

2005, http://www.neca.org (under 

Resources, then TRS Fund)). 

Discussion 

Speed of Answer 

The TRS Speed of Answer Rule 

TRS became available on a 

nationwide basis in July 1993. Initially, 

the Commission’s regulations required 

the provision of only ‘‘traditional,’’ or 

text (TTY)-based TRS, and the 

Commission adopted mandatory 

minimum standards to govern the 

provision of this service. Providers 

seeking compensation from the 

Interstate TRS Fund for providing any 

form of TRS must offer service in 

compliance with the applicable 

mandatory minimum standards, unless 

waived. In the initial Notice of Proposed 

Rulemaking following the adoption of 

Section 225, the Commission explained 

51650 Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 

that the statute requires the Commission 

to establish minimum federal standards 

to be met by all providers of intrastate 

and interstate telecommunications relay 

services to ensure that telephone service 

for [persons with hearing and speech 

disabilities] is functionally equivalent to 

voice service offered to hearing 

individuals. Guided by this principle, 

the Commission’s proposed rules 

included a speed of answer performance 

standard requiring that a least 85 

percent of all calls be answered within 

10 seconds the ‘‘85/10’’ rule). 

In July 1991, the Commission adopted 

the TRS mandatory minimum 

standards, including the speed of 

answer rule. The rule stated, in relevant 

part, that TRS shall, except during 

network failure, answer 85% of all calls 

within 10 seconds and no more than 30 

seconds shall elapse between receipt of 

dialing information and the dialing of 

the requested number. The rule did not 

address whether compliance would be 

measured daily, monthly, or on some 

other basis. The Commission stated that 

although some common carriers favored 

relaxing the proposed rule, no evidence 

had been presented to suggest that the 

proposed rule was neither feasible nor 

clear. The Commission concluded that 

the 85/10 standard will best meet our 

goal of providing relay services which 

are functionally equivalent to voice 

telephone services. 

In 1998, the Commission proposed 

amendments to the TRS mandatory 

minimum standards to enhance the 

quality of TRS and broaden the 

potential universe of TRS users. (This 

NPRM followed a Notice of Inquiry. See 

Telecommunications Relay Services, the 

Americans with Disabilities Act of 1990, 

and the Telecommunications Act of 

1996, CC Docket No. 90–571, Notice of 

Inquiry, 12 FC Red 1152, (1997)). These 

proposals included recognizing VRS as 

a form of TRS (‘‘improved services’’), 

and also changing the TRS rules, 

including the speed of answer rule. 

Specifically, the 1998 TRS NPRM 

proposed: (1) Revising the speed of 

answer rule to require TRS providers to 

answer 85% of all calls within 10 

seconds by a CA prepared to place the 

TRS call at that time; (2) requiring that 

compliance with the 85/10 rule be 

calculated on a daily basis; (3) clarifying 

that the 10 second speed of answer time 

is triggered when a call initially arrives 

at the provider’s network, and that once 

a call does so, regardless of how the 

provider’s network handles the call, the 

call must be answered within 10 

seconds by a CA prepared to place the 

call; and (4) finding that ‘‘abandoned’’

calls—i.e., calls that are abandoned or 

successively redialed without being 

completed because the caller does not 

reach a CA prepared to place the callnot be included in the speed of answer 

calculation. The Commission proposed 

amending the speed of answer rule to 

make the experience of persons using 

TRS in placing a telephone call through 

a TRS center more functionally 

equivalent to the experience of voice 

callers using the voice telephone 

network. The Commission stated that 

the ability to make a telephone call 

without delay is fundamental to our 

concept of a rapid, efficient, Nationwide 

communications system. The 

Commission further emphasized that 

the speed-of-answer requirements are a 

cornerstone of the Commission’s TRS 

rules, and the ability of a TRS user to 

reach a CA prepared to place his or her 

call, without experiencing delays that a 

voice telephone user would not 

experience in placing a telephone call, 

is fundamental to the concept of 

‘‘functional equivalence.’’

In the March 2000 Improved TRS 

Order, the Commission expanded the 

scope of TRS by recognizing VRS as a 

form of TRS eligible for compensation 

from the Interstate TRS Fund. The 

Commission also modified the speed of 

answer rule to minimize the 

circumstances under which customers 

experience delays in placing their calls 

through relay services. In so doing, the 

Commission again emphasized that for 

a TRS user, reaching a CA to place a 

relay call is the equivalent of picking up 

a phone and getting a dial tone. Any 

interpretation of our rule that delays a 

customer’s ability to place a call through 

the relay center clearly compromises the 

functional equivalence of relay service. 

The modified speed of answer rule: 

(1) Requires 85 percent of all calls to be 

answered in 10 seconds by any method 

that results in the TRS caller’s call 

immediately being handled, not put in 

a queue or on hold; (2) clarifies that the 

10-second limit begins at the time the 

call is delivered to the TRS center’s 

network, and that the call is considered 

delivered when the relay center’s 

equipment accepts the call from the LEC 

and the public switched network 

actually delivers the call to the TRS 

center; (3) requires that compliance with 

the speed of answer rule be measured 

on a daily basis; and (4) requires that 

abandoned calls be included in the 

speed of answer calculation. The 

Commission stated that these new rules 

will protect consumers from delays in 

placing calls through TRS services, and 

will ensure calls are received and 

answered by relay centers as quickly as 

possible, thereby giving TRS users 

functionally equivalent servicer. 

However, the March 2000 order did 

not address the speed of answer rule for 

VRS. In December 2001, the 

Commission waived the speed of 

answer rule for VRS providers for two 

years in order to encourage more 

entrants into the VRS market and help 

provide more time for technology to 

develop. The Commission also stated 

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. For 

this Internet-based service, the 

Commission stated that it would 

consider the call delivered to the IP 

Relay center when the IP Relay center’s 

equipment accepts the call from the 

Internet. The Commission added that 

carriers providing IP Relay, in order to 

remain qualified to receive 

reimbursement from the Interstate TRS 

Fund, will have to maintain sufficient 

staffing to adhere to the Commission’s 

speed of answer standard. In De ember 

2003, the Commission extended the 

initial two-year waiver until June 30, 

2004. In the June 30, 2004, 2004 TRS 

Report & Order the Commission further 

extended the speed of answer waiver for 

VRS until January 1, 2006, or such time 

as the Commission adopts a separate 

rule addressing speed of answer for 

VRS, whichever is earlier. The 

Commission found that it was 

premature to require VRS providers to 

meet the speed of answer requirement 

(or to adopt a different speed of answer 

requirement for VRS), and noted 

comments that a lack of qualified 

interpreters would make it difficult to 

meet the standard. 

At the same time, because of the 

importance of this issue to the notion of 

functional equivalency, the Commission 

sought comment in the 2004 TRS Report 

& Order’s FNPRM on whether a 

particular speed of answer requirement 

should be adopted for VRS. The 

Commission stated that consumers have 

expresses 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, and 

that long wait times undermine the 

notion of functional equivalency, 

mandated by Congress. The Commission 

therefore sought 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, 

Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 51651 

and how a particular rule might affect 

the cost of providing VRS. 

On February 8, 2005 after the close of 

the comment period on the speed of 

answer issue as raised in the 2004 TRS 

Report & Order’s FNPRM, the 

Commission released a Public Notice 

seeking additional comment on the 

adoption of a speed of answer rule for 

VRS. (See Federal Communications 

Commission Seeks Additional Comment 

on the Speed of Answer Requirement for 

Video Relay Service (VRS), CC Docket 

No. 98–67, CG Docket No. 03–123, 

Public Notice, 20 FCC Rcd 2376, (2005), 

published at 70 FR 10930, March 7, 

2005, (2005 Speed of Answer PN)). The 

Commission noted that the comments 

previously filed lacked specificity on 

certain elements of a speed of answer 

rule, and therefore requested comment 

on several specific points, including 

what the rule should be, whether 

different standards should be phased in 

over time, how speed of answer should 

be measured, how abandoned calls 

should be treated, how ‘‘call backs’’

should be treated, whether compliance 

should be measured on a daily, 

monthly, or some other basis, and 

whether the providers should be 

required to submit reports to the 

Commission detailing their compliance 

with the speed of answer rule. 

The Comments on the Application of a 

Speed of Answer Rule to VRS 

In response to the 2004 TRS Report & 

Order’s FNPRM, seven comments and 

five reply comments were filed; 

comments were filed by the State of 

California and the California Public 

Utilities Commission (CA PUC)(October 

18, 2004); Communication Services for 

the Deaf, Inc. (CSD) (October 18, 2004); 

Hands On Video Relay Services, Inc. 

(Hands On) (October 15, 2004); National 

Video Relay Service Coalition (NVRSC) 

(October 18, 2004); Sorenson Media, 

Inc. (Sorenson) (October 18, 2004); 

Sprint Corporation (Sprint) (October 18, 

2004); and one individual Karl Kosiorek 

(October 5, 2004). Reply comments were 

filed by CSD (November 15, 2004); 

Hands On (November 15, 2004); NVRSC 

(November 15, 2004); and two 

individuals, Sarah Blattburg (November 

12, 2004) and Judith Jones (November 

15, 2004). Several other commenters, 

although not specifically addressing the 

speed of answer requirement, expressed 

concern about the shortage of 

interpreters necessary to staff VRS 

centers as well as to provide services for 

the deaf and hard of hearing 

community. In response to the 2005 

Speed of Answer PN, 27 comments and 

48 reply comments were filed. 

Comments were filed by CSD (February 

25, 2005); Hands On (February 25, 

2005); NVRSC (February 25, 2005); 

Sorenson (February 25, 2005); AT&T 

Corp. (AT&T) (February 25, 2005); MCI 

(February 25, 2005); NorCal Center on 

Deafness (NorCal) (February 8, 2005); 

Registry of Interpreters for the Defa, Inc. 

(RID) (February 25, 2005); University of 

Minnesota, Disability Services (UMDS) 

(February 25, 2005); Utah State Office of 

Rehabilitation (USOR) (March 3, 2005); 

and 56 individuals. Reply comments 

were filed by CSD (March 4, 2005(); MCI 

(March 5, 2005); Hands On (March 4, 

2005); NVRSC (March 4, 2005); Arizona 

Commission for the Deaf and Hard of 

Hearing (ACDHH) (March 4, 2005); 

California Public Utilities Commission 

(CAPUC) (March 4, 2005); Hamilton 

Relay, Inc. (Hamilton) (March 4, 2005); 

Sprint Corporation (Sprint) (March 4, 

2005); and Gallaudet University, 

Gallaudet Interpreting Service 

(Galaudet) (March 3, 2005). The 

majority of commenting VRS providers 

and the organizations representing deaf 

and hard of hearing consumers support 

adopting a speed of answer rule for 

VRS. Compare AT&T Comments to PN 

at 2; Hands On Comments to PN at 1; 

CSD Comments to PN at 1–2; Sprint 

Reply Comments to PN at 2 (Supporting 

adoption of a speed of answer rule); 

NVRSC Comments to PN at 1; NorCal 

Comments to PN at 1 with Sorenson 

Comments to PN at 1; MCI Comments to 

PN at 1, and Hamilton Reply Comments 

to PN at 1; USOR Comments to PN at 

1; UMDS Comments to PN at 2 and GIS 

Reply Comments to PN at 3 (opposing 

adoption of a speed of answer rule)). 

(For the initial commenters supporting 

the adoption of a speed of answer rule, 

see CSD Comments at 29–39; Hands On 

Comments at 14–20; NVRSC Comments 

at 12; Sprint Comments at 11; CSD 

Reply Comments at 2–4). Several 

commenting parties assert that presently 

there are not a sufficient number of 

qualified interpreters in the labor pool 

to meet a mandatory answering standard 

and to have community interpreters 

available for other purposes. (Sorenson 

Comments at 11; MCI Comments to PN 

at 2; RID Comments to PN at 1; 

Sorenson Comments to PN at 3; UMDS 

Comments to PN at 2). Some 

commenters also assert that if a speed of 

answer rule were adopted it would 

result in a high quality service with a 

slower answer speed being replaced by 

a lower quality service with a faster 

answer speed. (Sorenson Comments to 

PN at 2; GIS Reply Comments to PN at 

2). Sorenson argues that the 

Commission should not focus on just 

one element of functional equivalency 

(speed of answer). (Sorenson Comments 

to PN at 4). CP PUC, UMDS, and USOR 

also oppose adoption of a speed of 

answer rule at this time. CA PUC 

Comments to PN at 16; UMDS 

Comments to PN at 2; USOR Comments 

to PN at 1. (MCI further contends that 

the adoption of a speed of answer rule 

would create an outcome that would 

unfairly disadvantage new entrants. MCI 

Comments to PN at 2–3). Supporting 

commenters stress that the functional 

equivalency mandate requires VRS 

providers to be able to answer a VRS 

call within a reasonable amount of time. 

(See, Sprint Comments at 11). However, 

the majority of the individual 

commenters to the PN express their 

opposition to adopting a speed of 

answer rule based on their general belief 

that such a rule would compel the VRS 

providers to hire less qualified 

interpreters in order to meet the speed 

of answer rule. Several commenters also 

maintain that VRS has become a 

sufficiently mature service to satisfy the 

speed of answer rule and that the 

Commission should either allow the 

existing speed of answer waiver to 

expire or adopt a speed of answer rule 

at this time. (CSD Comments at 29–30; 

Hands On Comments at 14–20; NVRSC 

Comments at 12; CSD Reply Comments 

at 2–4). 

The commenters recommending a 

speed of answer requirement suggest 

proposals ranging from applying the 

current 85/10 rule to VRS, to requiring 

85 percent of all calls to be answered 

within 30 seconds. (See AT&T 

Comments to PN at 2–3 (85 percent of 

all calls must be answered within 30 

seconds (85/30)); Hands On Comments 

to PN at 2 (proposing 85/30 rule); 

NVRSC Coments to PN at 4 (proposing 

85/10) rule; NorCal Comments to PN at 

1 (proposing 85/10 rule); Sprint Reply 

Comments to PN at 2 (proposing initial 

75/60 rule followed by 85/30 rule)). 

Some commenters that oppose 

adoption of a speed of answer rule 

nevertheless offer standards if such rule 

were to be adopted. Sorenson, although 

opposing the adoption of a speed of 

answer requirement, asserts that if a 

speed of answer requirement is adopted, 

the rule should require 80 percent of 

calls to be answered within four 

minutes for the first year, and 80 

percent of calls to be answered within 

three minutes for the second year. 

(Sorenson Comments to PN at 7). The 

commenters also generally propose that 

the rule should become effective within 

three to six months of the date of the 

order adopting a standard. (AT&T 

Comments to PN at 3 n.8 (6 months; 

CSD Comments to PN at 2 (3 months); 

Hands on Comments to PN at 4 (6 

months); NVRSC Comments to PN at 4 

51652 Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 

(60 to 120 days); NorCal Comments to 

PN at 2 (‘‘immediately’’); Sprint reply 

Comments to PN at 3 (6 months); 

Sorenson Comments to PN at 7 (6 

months)). Sorenson asserts that a 

transition period is essential given the 

existing shortage of qualified 

interpreters. (Sorenson Comments to PN 

at 7). Some commenters also support 

having various speed of answer 

requirements phased in over time. (CSD 

Comments to PN at 2 (phase-in of 75/ 

60 within 3 months of date of order, and 

85/30 within 6 months of date of order, 

with the goal of reaching 85/10 in 2 

years); Sprint Reply Comments to PN at 

2 (phase-in of 75/60 to 85/30)). Further, 

commenters generally agree that the 

speed of answer calculation should be 

measured, at least initially, on a 

monthly basis, and then in a few years 

on a daily basis. (AT&T Comments to 

PN at 2–3; CSD Comments to PN at 5; 

Hands On Comments to PN at 6; 

Sorenson Comments to PN at 8). NVRSC 

and ACDHH recommend that the 

calculation be made on a daily basis. 

(NVRSC Comments to PN at 8; ACDHH 

Reply Comments to PN at 3). MCI 

recommends that the calculation be 

made on a quarterly basis. (MCI 

Comments to PN at 4). CSD asserts, for 

example, ‘‘[a] monthly measurement 

will provide the flexibility to meet the 

ebbs and flows characteristic of VRS in 

this changing market.’’ (CSD Comments 

to PN at 5). 

Commenters also address the 

appropriate starting and ending points 

for measuring speed of answer. (AT&T 

Comments to PN at 3–4; CSD Comments 

to PN at 3; Hands On Comments to PN 

at 4–5; MCI Comments to PN at 4; 

NVRSC Comments to PN at 5; Sorenson 

Comments to PN at 7). Commenters 

generally agree that the measurement 

standard should be the same as the 

speed of answer measurement for IP 

Relay, where the measurement begins 

when the call is delivered to the 

provider’s server and ends when the call 

is assigned to a VRS CA to handle the 

call. (AT&T Comments to PN at 3–4; 

CSD Comments to PN at 3; Hands On 

Comments to PN at 4–5; MCI Comments 

to PN at 4; NVRSC Comments to PN at 

5; Sorenson Comments to PN at 7). 

AT&T and Hands On, however, caution 

that there may be a several seconds 

delay for the call to ‘‘synchronize’’ into 

the VRS system before an interpreter 

may answer the call. (AT&T Comments 

to PN at 4 n. 10; Hands On Comments 

to PN at 5). No commenters proposed an 

alternative method for this 

measurement. 

Commenters also generally agree that 

abandoned calls (abandoned calls are 

those calls answered by a relay center 

but never handled by a CA because the 

customer hangs up), should be included 

in the VRS speed of answer calculation, 

as they are in the speed of answer 

calculation for the other forms of TRS. 

(AT&T Comments to PN at 4; CSD 

Comments to PN at 3; Hands On 

Comments to PN at 5; NVRSC 

Comments to PN at 6; ACDHH Reply 

Comments to PN at 3. RID, however, 

does not support the inclusion of 

abandoned calls in the calculation 

because VRS calls are susceptible of 

being dropped in the Internet Protocol. 

RID Comments to PN at 2). CSD asserts, 

however, that calls that are abandoned 

within the permissible speed of answer 

time should not be included with the 

calculation. SCD states that when a call 

is abandoned shortly after the call is 

placed, it is generally because the 

consumer has decided either not to 

place the call, or to do so at another 

time, and not because the caller no 

longer wished to wait for an interpreter 

or because he or she has waited too 

long. (CSD Comments to PN at 3–4). In 

addition, commenters generally agree 

that ‘‘call backs’’—i.e., calls where the 

consumer elects to have the provider 

call the consumer back when a VRS CA 

becomes available to place the call, 

rather than have the consumer wait for 

the next available CA should not be 

allowed because it is not an element of 

functional equivalency. (AT&T 

Comments to PN at 4; CSD Comments 

to PN at 4–5; Hands On Comments to 

PN at 5–6; NVRSC Comments to PN at 

7; NorCal Comments to PN at 1; CA PUC 

Reply comments to PN at 5). Hands On 

and NVRSC recommend that providers 

be permitted to call back the calling 

party when necessary to ‘‘re-connect’’ a 

call that has been disconnected for 

technical reasons. Hands On Comments 

to PN at 6; NVRSC Comments to PN at 

7, note 15. Sorenson and RID, however, 

support the call back feature as an 

option to be offered to the caller. (RID 

Comments to PN at 3; Sorenson 

Comments to PN at 8). Sorenson 

recommends that the call backs be 

included in the speed of answer 

calculation. (Sorenson Comments to PN 

at 8). Finally, all commenters support 

having providers submit their speed of 

answer data to the TRS Fund 

administrator either on a monthly or 

quarterly basis. (AT&T Comments to PN 

at 4 (monthly basis); CSD Comments to 

PN at 5 (monthly basis); Hands On 

comments to PN at 6 (monthly basis); 

NVRSC Comments to PN at 8 (monthly 

basis); ACDHH Reply Comments to PN 

at 3 (monthly basis); CA PUC Reply 

Comments to PN at 7 (monthly basis); 

Sorenson Comments to PN at 8 

(quarterly basis)). 

VRS Speed of Answer 

We conclude that waiver of the speed 

of answer rule for VRS can no longer be 

justified. The record reflects that VRS 

providers have now had over three and 

a half years of experience in providing 

VRS, and with monthly minutes of use 

approaching two million (now more 

than interstate traditional TRS); it can 

no longer be said that the provision of 

VRS is in its infancy. We do not, 

however, require VRS providers to meet 

the 85/10 speed of answer rule in the 

TRS mandatory minimum standards at 

this time. Instead, we adopt the 

following speed of answer rule for VRS, 

and amend our rules accordingly: (1) By 

January 1, 2006, VRS providers must 

answer 80 percent of all VRS calls 

within 180 seconds, measured on a 

monthly basis; (2) by July 1, 2006, VRS 

providers must answer 80 percent of all 

VRS calls within 150 seconds, measured 

on a monthly basis; and (3) by January 

1, 2007, VRS providers must answer 0 

percent of all VRS calls within 120 

seconds, measured on a monthly basis. 

VRS providers must answer 80 percent 

of all VRS calls within 120 seconds, 

measured on a monthly basis. VRS 

providers must meet these standards to 

be eligible for compensation from the 

Interstate TRS Fund. 

VRS Speed of Answer Standards and 

Phase-In Period. From the inception of 

TRS mandated by Title IV of the ADA, 

speed of answer has been one of the 

fundamental components of ensuring 

that TRS users have functionally 

equivalent access to the telephone 

system. Substantial delays in reaching a 

CA who is ready to place the call cannot 

be reconciled with the ability of hearing 

persons to pick up the telephone and 

hear a dial tone. We therefore conclude 

that VRS must be subject to a speed of 

answer requirement so that consumers 

using this service will have prompt 

access to a CA ready to place their call. 

The Commission has repeatedly 

recognized that TRS service should 

mirror voice telephone service to the 

extent feasible, and that requires that a 

VRS user be able to promptly reach a 

CA. 

At the same time, we recognize the 

concerns expressed by commenters that 

there may not presently be a sufficient 

number of qualified interpreters to 

permit VRS providers to meet a speed 

of answer rule that approaches the 

present rule applicable to the other 

forms of TRS. RID, for example, asserts 

that although it supports VRS calls 

being answered in a reasonable period 

of time, it is ‘‘concerned that the current 

Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 51653 

number of certified, qualified 

interpreters is well below the number 

required to adequately and safely 

provide quality VRS service.’’ (RIC 

Comments to PN at 1). RID states that 

the ‘‘crisis in the quantity, quality, and 

qualifications of interpreters dates back 

to the 1996 * * * declaration * * * 

that a national shortage of interpreters 

exists,’’ and that this ‘‘crisis affects all 

deaf citizens needing interpreting 

services for medical appointments, 

business meetings, court appearances, 

and now VRS.’’ (RIC Comments to PN 

at 1). (See also Sorenson comments at 8–

11; CA PUC Comments at 16; Sorenson 

Comments to PN at 4–5; MCI Comments 

to PN at 1–3; Hamilton Reply comments 

at 1–2; CA PUC Reply Comments to PN 

at 7; ACDHH Reply Comments to PN at 

1–2; UMDS Comments to PN at 2; USOR 

comments to PN at 1). Many individual 

commenters expressed a similar 

concern. We also recognize that as VRS 

providers hire interpreters in greater 

numbers to meet the demand of VRS 

users, there are fewer community 

interpreters available to meet the needs 

of persons with hearing disabilities in 

other circumstances (e.g., in schools, 

hospitals, business meetings, etc.). (See, 

Sorenson Comments 8–9; CA PUC 

Comments at 16; RID Comments to PN 

at 1; ACDHH Reply Comments to PN at 

1–2; Hamilton Reply Comments to PN at 

2; MCI Reply comments to PN at 3; 

UMDS Comments to PN at 2). Further, 

we recognize that providers will need 

some time to adjust their staffing levels 

to meet a speed of answer requirement. 

Therefore, as noted elsewhere, we will 

phase-in speed of answer requirements 

beginning January 1, 2006. (We note that 

when the Commission adopted the 

closed captioning rules, it adopted a 

transition period because of concerns 

that a limited number of captioners 

were avialable. See Closed Captioning 

and Video Description of Video 

Programming, MM Docket No. 95–176, 

Report and Order, 13 FCC Rcd 3272, 

3292–3293, paragraphs 41–42, (1997), 

published at 62 FR 48487, September 

16, 1997)). We find that this should 

allow VRS providers adequate time to 

meet the requirements adopted herein. 

(We also note that the question whether 

end-user VRS equipment must be 

interoperable with the relay services of 

all VRS providers is presently pending 

before the Commission. See Petition for 

Declaratory Ruling Filed by the 

California Coalition of Agencies Serving 

the Deaf and Hard of Hearing 

(CCASDHH) Concerning Video Relay 

Service (VRS) Interoperability, CC 

Docket No. 98–67, CG Docket No. 03–

123, Public Notice, 20 FCC Red 4162, 

(2005), published at 70 FR 12884, March 

16, 2005. We recognize that our 

resolution of the interoperability issue 

may also affect VRS providers’ speed of 

answer performance). 

We conclude, based on the record 

before us, that providers shall be 

required to meet the following VRS 

speed of answer requirements: (1) By 

January 1, 2006, VRS providers must 

answer 80 percent of all VRS calls 

within 180 seconds, measured on a 

monthly basis; (2) by July 1, 2006, VRS 

providers must answer 80 percent of all 

VRS calls within 150 seconds, measured 

on a monthly basis; and (3) by January 

1, 2007, VRS providers must answer 80 

percent of all VRS calls with 120 

seconds, measured on a monthly basis. 

We believe these requirements best 

balance the fundamental policy 

considerations underlying the TRS 

regime (e.g., that reaching a CA ready to 

place the call is the same as reaching a 

dial tone) and the concerns of some 

providers and consumers that there is a 

shortage of interpreters. (Because of the 

concerns we have noted about the 

shortage of interpreters, and comments 

in the record proposing a compliance 

standard of less than 85 percent, we find 

that the 80 percent threshold is 

appropriate in these circumstances). In 

this regard, we also recognize that call 

volume and the capacity of a provider 

to handle incoming Internet-based VRS 

calls may affect speed of answer 

performance. These issues are currently 

under review. For this reason as well, 

we require VRS speed of answer to be 

measured on a monthly basis, instead of 

a daily basis. We recognize that there 

may be some days when it is difficult to 

meet the speed of answer rule, 

particularly until the providers have 

determined, and are able to maintain, 

optimal VRS CA staffing levels to meet 

call demand. Because we are requiring 

VRS providers to offer service 24/7, a 

provider’s answer performance during 

periods of less demand (e.g., in the late 

night hours) may offset answer 

performance during periods of high 

demand. 

We believe that this is a starting point 

that moves us toward the goal of 

functional equivalency without 

compromising: (1) The quality of 

interpreters; (2) the availability of 

community interpreting; and (3) the 

viability of open competition where 

inflexible requirements serve as an 

obstacle to new entrants. We, therefore, 

will carefully monitor compliance with 

these requirements, and will revisit 

them if necessary. We will also reexamine the VRS speed of answer rule 

after January 1, 2007, to determine if, 

and when, it might be appropriate to 

further tighten the speed of answer 

requirement. 

Measuring Speed of Answer. We 

conclude that the speed of answer 

measurement begins when the VRS 

provider’s equipment accepts the call 

from the Internet. In the IP Relay 

Declaratory Ruling, the Commission 

stated that it would consider the IP 

Relay call delivered to the IP Relay 

center the IP Relay center’s equipment 

accepts the call from the Internet. We 

adopt a similar rule for VRS. Further, 

the call is ‘‘answered’’ when either a CA 

or an automated system responds to the 

incoming call and begins taking 

instructions from the calling party about 

the outbound call the calling party 

wishes to make. We not that the 

commenters that addressed this issue 

generally support this approach. (AT&T 

Comments to PN at 3–4; CSD Comments 

to PN at 3; Hands On Comments to PN 

at 4–5; MCI Comments to PN at 4; 

NVRSC Comments to PN at 5; Sorenson 

Comments to PN at 7). 

Abondoned Calls. We conclude that 

abandoned calls must be included in the 

VRS speed of answer calculation. As 

many commenters note, (AT&T 

Comments to PN at 4; CSD Comments 

to PN at 3; Hamilton Comments to PN 

at 5; NVRSC Comments to PN at 6; 

ACDHH Reply Comments to PN at 3), 

the treatment of abandoned calls for 

VRS should be the same as for the other 

forms of TRS. Sorenson asserts that 

sequential calls should be included in 

the speed of answer calculation, i.e., 

that multiple calls made by the calling 

party through the same CA should be 

counted as separate calls (which results 

in the subsequent calls having a speed 

of answer of zero). (Sorenson Comments 

to PN at 7; but see CSD Reply Comments 

to PN at 10; NVRSC Replay Comments 

to PN at 10 (both opposing this 

suggestion); see generally 47 CFR 

64.604(a)(3)(i) (requiring providers to 

handle sequential calls)). Because the 

speed of answer measurement is 

intended to regulate the time it takes for 

the TRS user to reach a CA ready to 

place his or her call (i.e., answer speed 

for the first in-bound call to the TRS 

provider), it does not apply to 

sequential calls made by a caller 

through the same CA. (See CSD Reply 

Comments to PN at 10; NVRSE Reply 

Comments to PN at 10). Therefore, we 

reject Sorenson’s suggestion. The speed 

of answer rule presently provides that 

abandoned calls shall be included in the 

speed of answer calculation. (See 47 

CFR 64.604(b)(2)(ii)(B)). As the 

Commission has explained, abandoned 

calls are those calls answered by a relay 

center, but never handled by a CA 

because the customer hangs up. As 

51654 Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 

noted above, although the Commission 

realized that some calls might be 

abandoned for reasons that have nothing 

to do with the length of time it takes for 

the call to reach a CA, such calls are 

included in the speed of answer 

measurement because excluding them 

would distort a provider’s actual speed 

of answer performance by reducing the 

total number of calls from which speed 

of answer is calculated. 

‘‘Call Backs.’’ We conclude that, 

effective January 1, 2006, VRS (and 

TRS) provider may not use a call back 

arrangement, including one that gives 

the consumer the choice of waiting for 

a CA or having the provider call the 

consumer back when a CA is available. 

(We recognize a narrow exception to 

this rule in circumstances where 

because of reliance on the Internet the 

VRS equipment user and the CA become 

disconnected. In those circumstances, 

the VRS provider may initiate a call to 

the VRS user to try to reconnect the call 

with the called party so that the VRS 

user does not have to contact the VRS 

provider again and wait for an available 

CA to handle the call). In the Call 

Handling Practices Public Notice, the 

Commission stated that TRS providers 

may not offer their service in such a way 

so as to force a TRS consumer (deaf or 

hearing) to leave a message with the 

TRS provider asking the caller to 

provide call back information so that the 

provider can call the consumer back 

when a CA is available to handle the 

call. The Commission further stated that 

this type of ‘‘call back’’ arrangement was 

impermissible because it relieves the 

provider of its central obligation to be 

available when a caller desires to make 

a TRS call, and permits the provider, 

and not the caller, to be in control of 

when the TRS call is placed. The 

Commission distinguished that 

situation, however, from that where the 

consumer reaches a recording but is 

given the choice of either waiting for an 

available CA or having a CA call the 

consumer back when available. The 

Commission stated, however, that it was 

concerned that the use of a ‘‘call back’’

option in any context is inconsistent 

with the functional equivalency 

mandate, but also noted that use of a 

call back feature ‘‘will be an issue only 

for those forms of TRS not subject to a 

speed of answer rule.’’

We conclude that because in this 

Report and Order we have adopted a 

speed of answer requirement for VRS, 

VRS (and TRS) providers may not use 

a call back arrangement. We also 

conclude that call backs are inconsistent 

with functional equivalency and the 

notion that TRS is a service whereby a 

consumer, in reaching a CA, reaches the 

equivalent of a ‘‘dial tone,’’ and 

therefore the ability to immediately 

have his or her outgoing call placed. 

Filing Reports. The 2005 Speed of 

Answer PN also sought comment on 

whether the Commission should require 

providers to submit reports detailing 

call data reflecting their compliance 

with the speed of answer rule. (2005 

Speed of Answer PN at 3). We decline 

to impose such a mandatory 

requirement at this time. We note, 

however, that NECA, in connection with 

its obligation to make payments from 

the Fund only ‘‘to eligible TRS 

providers operating pursuant to the 

mandatory minimum standards,’’ and 

therefore to verify payment claims, may 

seek access to this data. (See 47 CFR 

64.604(c)(5)(iii)(E)). 

Providing Service 24/7 

Title IV of the ADA directs the 

Commission to adopt regulations to 

implement TRS, including regulations 

that mandate that TRS services operate 

every day for 24 hours per day. 47 

U.S.C. 225(d)(1)(C). As a result, the 

Commission’s initial regulations 

similarly provided that TRS shall 

operate 24 hours per day, seven days 

per week (‘‘24/7’’). (See TRS I, 6 FCC 

Rcd 4669, Appendix B (adopting 47 CFR 

64.604(b)(4)). When the Commission 

recognized VRs as a form of TRS, 

however, it stated that because it was 

not mandating the service it would not 

require providers to offer it 24/7. 

Therefore, the Commission amended its 

rules to state that relay services that are 

not mandated by this Commission need 

not be provided every day, 24 hours a 

day. (47 CFR 64.604(b)(4)(i)). 

In the 2004 TRS Report & Order’s 

FNPRM, the Commission, noting the 

increasing popularity of VRS service, 

sought comment on whether VRS 

should be a mandatory service and 

whether it should be required to be 

offered 24/7, either as a mandatory 

service or even if not made a mandatory 

service. The Commission also sought 

comment on how the possible shortage 

of qualified interpreters might affect this 

issue. 

Three VRS providers, one consumer 

organization, and eight individuals filed 

comments on this issue. (Comments 

were filed by Hands On (October 15, 

2004); Sprint (October 18, 2004); 

Sorenson (October 18, 2004), and 

NVRSC (October 18, 2004); Robin Mills; 

(September 23, 2004); PJ Carberg 

(September 15, 2004); Paula Warner 

(September 16, 2004); Jan Humphrey 

(October 13, 2004); Karl Kosiorek 

(October 5, 2004); Candita Lewis 

(October 18, 2004); Jennifer Sweeney 

(October 20, 2004); and Risa Gottlieb 

(October 14, 2004). NVRSC also filed 

reply comments on this issue 

(November 12, 2004)0. Hands On, 

Sprint, and NVRSC assert that VRS 

should be offered 24 hours a day and 7 

days a week because the provision of 

VRS is sufficiently mature, its use is 

widespread, and there would be 

minimal costs associated with providing 

VRS on a 24/7 basis. (Hands On 

Comments at 21; NVRSC Comments at 

12; Sprint Comments at 10). Hands On 

notes, for example, that according to its 

traffic usage data the usage rate for the 

first hour and the last hour of the 

service consists of only 3 percent of the 

total minute usage, which means that 

the provider would only need to staff 

three to four additional interpreters 

during the midnight hours. (Hands On 

Comments at 22). Sorenson, however, 

asserts that ‘‘there is a limited number 

of qualified individuals availab eto 

serve as interpreters for VRS and 

mandating that all providers staff [24/7] 

would put additional strains on this 

already limited pool.’’ (Sorenson 

Comments at 11–12). We note, however, 

that since the filing of its comments, 

Sorenson has begun offering VRS 24/7. 

(See Sorenson Comments at 12; http:// 

www.sorensonvrs.com). We also note 

that Hands On currently offers service 

20 hours a day, 7 days a week, see 

http://www.hovrs.com, and the 

Communication Access Center for the 

Deaf and Hard of Hearing (CAC) 

currently offers service 21 hours a day 

Monday through Friday, and 18 hours a 

day Saturday and Sunday, see http:// 

www.cacvrs.org. NVRSC asserts that the 

24/7 requirement will create a market 

for VRS interpreters that will eliminate 

any shortages. (NVRSC Reply Comments 

at 4). All but one of the individual 

commenters support adopting a 24/7 

requirement for VRS to make the service 

more functionally equivalent to voice 

telephone service, although some of the 

commenters (including the individual 

commenter opposed to the adoption of 

the 24/7 rule) express concern about the 

availability of interpreters necessary to 

meet this requirement. 

We conclude that VRS providers must 

offer service 24/7 to be eligible for 

compensation from the Interstate TRS 

Fund. The record reflects the rapid 

growth in the use of VRS since 

provision of this service began in 2002. 

Presently, there are approximately two 

million minutes of use of VRS each 

month. As consumers increasingly rely 

on VRS as their preferred means of 

using TRS to access the telephone 

system, it becomes imperative that 

consumers have access to this service 

24/7. Indeed, Congress expressly 

Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 51655 

recognized that having TRS available 

24/7 is centeral to the notion of 

functional equivalency; it included that 

requirement in the statute. Finally, we 

recognize that the adoption of a speed 

of answer rule for VRS would be less 

meaningful if providers can choose 

when they will offer service. 

For these reasons, we conclude that 

VRS providers must offer this service 

24/7 to be eligible for compensation 

from the Interstate TRS Fund. Because 

the regulations provide that nonmandatory forms of TRS need not be 

offered 24/7, (see 47 CFR 

64.604(b)(4)(i)), we amend the rule so 

that it no longer applies to VRS. (We 

also note that the Commission raised the 

issue of whether VRS should be made 

a mandatory service at the same time it 

raised the issue of whether VRS should 

be required to be provided 24/7. We will 

address whether VRS should be a 

mandatory service in a separate order). 

The requirement that providers offer 

VRS 24/7 shall become effective on 

January 1, 2006, the same date that the 

VRS speed of answer rule adopted 

above is effective. 

VRS Mail 

The Petition for Declaratory Ruling 

On March 31, 2004, Hands On filed a 

Petition for Declaratory Ruling 

requesting that the Commission declare 

that the provision of video VRS Mail to 

deaf and hard of hearing persons is 

eligible for compensation form the 

Interstate TRS Fund. (VRS Mail Petition 

at 1). Video VRS mail is used by a 

hearing person when she attempts to 

call a deaf or hard of hearing VRS user 

through a VRS CA, but the VRS user is 

not available to answer the call. In those 

circumstances, the hearing persons can 

have a VRS CA leave a message in video 

format ASL for the deaf or hard of 

hearing VRS user, so that the VRS user 

can retrieve the video message at a later 

time. 

As Hands On notes, although the 

majority of VRS calls are initiated by a 

deaf or hard of hearing person using a 

video link to a CA, a hearing person 

may also initiate a VRS call. (VRS Mail 

Petition at 2). In the latter situation, the 

hearing person calls the VRS provider 

(usually via an 800 number) and gives 

either the IP address, or the name or 

proxy number (if the deaf or hard of 

hearing person is registered with the 

VRS service), of the deaf or hard of 

hearing person to be called. (VRS Mail 

Petition at 2). The VRS provider then 

attempts to place a VRS call to the deaf 

or hard of hearing person. If the deaf or 

hard of hearing person does not answer, 

VRS Mail gives the hearing calling party 

the option of leaving VRS Video Mail 

message. If the calling party chooses to 

do so, the CA listens to the calling 

party’s message and makes a video 

recording of the message in ASL. The 

CA then transmits (or otherwise makes 

available) the video message (the VRS 

Mail) to the deaf or hard of hearing 

person, who is able to retrieve the 

message on her video equipment at a 

later time. (VRS Mail Petition at 3). For 

example, the video message can be sent 

to the VRS user either via e-mail or, if 

the provider knows the IP address of the 

VRS user (e.g., through registration or 

some other arrangement with the 

particular provider), directly to the VRS 

user’s hardware. Hands On asserts that, 

under the functional equivalency 

mandate, because a hearing person can 

receive a voice mail message from a CA 

who is relaying a VRS call initiated by 

a deaf or hard of hearing person, a deaf 

or hard of hearing person should also be 

able to receive a message from a hearing 

person who has initiated a VRS call. 

(VRS Mail Petition at 5). Hands On also 

notes that because a deaf or hard of 

hearing person can leave a voice 

message via VRS for a hearing person, 

a deaf or hard of hearing person should 

be able to receive a message in video 

from a hearing person. (VRS Mail 

Petition at 3). Regardless of how 

characterized, the thrust of Hands On’s 

argument is that VRS must provide 

symmetry between the parties to a call 

and their ability to leave or receive a 

message from the other party to the call. 

Hands On also asserts that regardless of 

how the transmission of Video Mail is 

technically accomplished, i.e., how it is 

stored and retrieved, the VRS call ends 

when the hearing person hangs up after 

leaving the message for the deaf or hard 

of hearing person. (VRS Mail Petition at 

3). 

On July 9, 2004, the Commission 

released a Public Notice requesting 

comment on Hands On’s petition. 

(Petition for Declaratory Ruling Filed 

Regarding Provision of Video Relay 

Service (VRS) Video Mail, CG Docket 

No. 03–123, Public Notice, DA 04–2062 

(July 9, 2004), published at 69 FR 44534, 

July 26, 2004). Five VRS providers, a 

state administrator, three consumer 

organizations, and ten individuals filed 

comments, and ten individuals filed 

reply comments. Comments were filed 

by CSD (August 11, 2004); Hands On 

(August 16, 2004); MCI (August 16, 

2004); Sorenson (August 16, 2004); 

Sprint (August 16, 2004); Deaf 

Counseling, Advocacy and Referral 

Agency California Center for Law and 

the Deaf (DCARA) (August 12, 2004), 

NorCal Center on Deafness (NorCal) 

(August 13, 2004), Telecommunications 

for the Deaf, Inc. (TDI) (August 16, 

2004); the Idaho Public Utilities 

Commission (Idaho PUC) (August 16, 

2004). We note that the Consumer & 

Governmental Affairs Bureau received 

nine Congressional letters in response to 

constituents’ inquiries about VRS Mail. 

All commenters generally support 

Hands On’s petition. Commenters 

generally agree that under the functional 

equivalency mandate both hearing 

persons (voice users) and persons who 

are deaf or hard of hearing (video users) 

should be able to leave messages with 

the other party to the VRS call through 

the CA. (See, e.g., CSD Comments at 2; 

MCI Comments at 3; Hands on 

Comments at 7; Sorenson Comments at 

3–4; NorCal Comments at 1; Sprint 

Comments at 2; DCARA Comments at 1; 

TDI Comments at 3–6). They state that 

how the ASL message is stored by the 

CA and retrieved by the called party is 

irrelevant, so long as the VRS Mail 

service provides the functionality of 

leaving a message for the called party. 

(See, e.g., CSD Comments at 1–8; MCI 

Comments at 1–3; Sorenson Comments 

at 2; Sprint Comments 2). Commenters 

note that presently CAs leave voice mail 

messages from deaf and hard of hearing 

VRS users on the called party’s 

answering machine or voice mail 

system, and that this is considered a 

reimbursable TRS call. (See, e.g., CSD 

Comments at 1; Sorenson Comments at 

2–3; NorCal Comments at 1). They assert 

that a deaf or hard of hearing VRS user 

should similarly be able to receive a 

message from the calling party, and that 

the VRS provider should be 

compensated for the conversation time 

in handling the call and creating the 

video message. (See, e.g., CSD 

Comments at 3; Hands On Comments at 

9; Sorenson Comments at 1–2). 

Sorenson asserts, for example, that 

when a deaf or hard of hearing VRS 

users calls a hearing individual and the 

call is answered by an answering 

machine or is directed to voice mail, the 

TRS fund supports the portion of the 

call in which the [CA] leaves a voice 

message on behalf of the deaf user, 

translating the message from ASL into 

spoken language. The reverse scenario, 

in which the CA translates a hearing 

caller’s spoken message into an ASL 

video message for a deaf user who has 

missed a call, is simply a variation of 

the one the Commission has already 

approved. There is no functional 

difference between a message being left 

in video format for a deaf user or in 

voice format for a hearing user; both 

allow the recipient of the message to 

retrieve the message in his or her native 

51656 Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 

language (ASL or spoken English).’’

(Sorenson Comments at 2). 

Sorenson also emphasizes that the 

ability to leave a voice mail message is 

common and vital for both business and 

personal communications, and therefore 

that it is essential that VRS users also 

have the ability to retrieve messages 

when they are unavailable to receive a 

call. (Sorenson Comments at 3). 

Sorenson notes that it offers a service it 

calls ‘‘SignMail’’ that allows incoming 

video messages to be left for a VRS users 

when a hearing individual initiates a 

call and the VRS user is not available to 

answer the call. Sorenson asserts that 

this service has proved to be very 

popular with users, but that it has not 

been able to be compensated from the 

Interstate TRS Fund for the conversation 

minutes used to convert incoming voice 

messages into ASL video messages for 

VRS users. (Sorenson Comments at 1). 

CSD, noting that the Commission has an 

obligation ‘‘to ensure that regulations 

* * * encourage * * * the use of 

existing technology and do not 

discourage or impair the development of 

improved technology,’’ contends that 

Congress intended to bring voice mail 

and other enhanced services under the 

wing of TRS as soon as these services 

became technological possible. (CSD 

Comments at 5). Several comments 

assert that video VRS mail service is no 

different from the TTY answering 

machine or voice mail features of 

traditional TRS. (See, e.g., Idaho PUC 

Comments at 1–2; CSD Comments at 

3–7). 

Commenters assert that providers 

should be compensated from the 

Interstate TRS Fund for the CA’s 

conversational time with the calling 

party and recording the video message. 

(See, e.g., CSD Comments at 3; Sorenson 

Comments at 2; Hands On Comments at 

9; Spring Comments at 2). CSD asserts, 

for example, that the Commission is 

simply being asked ‘‘to approve 

compensation for the conversation 

minutes needed to convert the message 

that the caller wishes to leave from 

voice to ASL.’’ (CSD Comments at 3 

(emphasis in original)). Sorenson states 

that ‘‘[t]hose conversation minutes used 

by a CA to connect to the video screen, 

prompt the hearing caller to begin 

speaking his or her message and sign the 

message in ASL should be compensated, 

as these steps are functionally 

identically to those in the TRS/TTY 

context.’’ (Sorenson Comments at 2). 

Compensation for VRS Mail From the 

Interstate TRS Fund 

We conclude that VRS providers 

offering VRS Mail may be compensated 

from the Interstate TRS Fund for 

handling VRS calls that result in leaving 

a video message for the VRS user. (VRS 

Mail, by definition, is used when a 

hearing person attempts to make a call 

through a VRS provider to a person who 

is deaf or hard of hearing (sometimes 

called a ‘‘reverse’’ VRS call). We remind 

VRS providers that, to be eligible for 

compensation from the Interstate TRS 

Fund, they must provide access for 

hearing persons to call the VRS provider 

(generally via an 800 number) so the 

hearing person can request that the 

provider make an outbound call via 

video to a person who is a deaf or hard 

of hearing using VRS equipment. (See 

47 U.S.C. 225(a)(3) defining TRS as 

providing persons with hearing and 

speech disabilities the ability to engage 

in communication with persons without 

such disabilities, and not limiting it to 

calls initiated by the person with a 

hearing or speech disability). As 

commenters note, a deaf or hard of 

hearing user who attempts to make a 

VRS call (or any kind of TRS call) to a 

hearing person, but reaches an 

answering machine or voice mail 

system, may have the CA leave a voice 

message for the called party, which is 

then reimbursable from the Fund. We 

also conclude that in the reverse 

scenario—when a hearing person 

attempts to call a VRS user who is not 

available—the CA should similarly be 

able to leave a reimbursable message 

with the called party. Whether viewed 

as affording VRS users the ability to 

receive messages from hearing persons, 

or as affording hearing persons the 

ability to leave a message with the VRS 

user, the implication is the same: 

Regardless of which party to a VRS call 

initiates that call, each party should be 

able to leave messages with, and receive 

messages from, the other party. (Hands 

On and commenters make various 

arguments in support of the petition by 

analogizing to other services the TRS 

regulations require, including answering 

machine and voice mail retrieval, and 

the rules on calls placed through TRS 

that reach voice mail or interactive 

menus. See, e.g., Hands On Comments 

at 4–6; MCI Comments at 2–3; Sorenson 

Comments at 3–4; Spring Comments at 

2; TDI Comments at 5; see generally 47 

CFR 64.604(a)(3)(vii) and (viii). 

Although we do not necessarily agree 

that these requirements address 

situations directly analogous to VRS 

Mail, they do support our conclusion 

here by indicating that the use of, and 

access to, messages that are left by 

calling parties when the called party is 

not available is fundamental to the 

meaningful use of the telephone 

system). 

We also find that the fact that the CA, 

in creating a VRS Mail message, records 

in ASL what the calling party desires to 

say, and the VRS user retrieves the 

message as a video message (and not as 

a voice message), is of no consequence. 

As commenters have noted, the end 

result is that regardless of which party 

to the VRS call is leaving or receiving 

a message, each party is retrieving the 

message in his or her primary language. 

We believe that this fundamental 

service cannot be denied to VRS users 

simply because they receive the message 

as a video message. We agree with 

commenters that the ability to leave and 

receive messages is vital in both 

business and personal communications, 

and therefore VRS Mail service should 

be reimbursable. (See, e.g., Sorenson 

Comments at 3). We also find that it is 

immaterial how the VRS provider stores 

the video message and how the VRS 

user retrieves the message. So long as 

the video message is created in real 

time—i.e., the VRS CA records the video 

message at the same time that the 

hearing person is speaking the message 

during the VRS call, and not at some 

later time after the calling party has 

disconnected—the call is a VRS call that 

is compensable from the Interstate TRS 

Fund. In other words, the VRS providers 

may be compensated for the call from 

the beginning of the conversation time 

until the CA is done signing the message 

voiced by the calling party. (The 

Interstate TRS Fund compensates for 

conversation minutes, which begin 

when someone (usually the called party) 

answers the outbound telephone call 

from the CA, and ends when either 

party to the call hangs up. See generally 

47 CFR 64.604(c)(5)(iii)(E)). 

Conversation minutes therefore do not 

include time for call set-up, ringing, 

waiting for an answer, and wrap-up, or 

calls that reach a busy signal or no 

answer. Therefore, for calls that result in 

VRS Mail, the VRS provider may be 

compensated for the time beginning 

when the hearing party begins to voice 

his or her message, and ending when 

the CA completes signing the message 

voice from the calling party or the 

calling party hangs up, whichever is 

earlier. Because the conversation time 

for such calls will generally be short, 

and there are presently relatively few 

inbound VRS calls, we do not believe 

compensating this service will have a 

significant impact on the Interstate TRS 

Fund. Further, nothing in the record 

suggests the contrary. 

Other Issues: Terminating CC Docket 

No. 98–67 

In the Report and Order we close the 

TRS docket—CC Docket No. 98–67, 

Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 51657 

which the Commission opened in 1998 

when it released the 1998 TRS NPRM 

addressing improved TRS services, and 

incorporate its materials in the current 

docket, CG Docket No. 03–123 

(materials submitted in CC Docket No. 

98–67 need not be resubmitted). All 

filings addressing TRS matters should 

be filed in CG Docket No. 03–123. 

Final Regulatory Flexibility 

Certification 

The Regulatory Flexibility Act of 

1980, as amended (RFA), requires that 

an initial regulatory flexibility analysis 

be prepared for notice-and-comment 

rule making proceedings, unless the 

agency certifies that the rule will not, if 

promulgated, have a significant 

economic impact on a substantial 

number of small entities. (See 5 U.S.C. 

603. The RFA, see 5 U.S.C. 601–602, has 

been amended by the Small Business 

Regulatory Enforcement Fairness Act of 

1996 (SBREFA), Public Law 104–121, 

Title II, 110 Statute 857 (1996)). The 

RFA generally defines the term ‘‘small 

entity’’ as having the same meaning as 

the terms ‘‘small business,’’ ‘‘small 

organization,’’ and ‘‘small governmental 

jurisdiction.’’ (5 U.S.C. 601(6)). In 

addition, the term ‘‘small business’’ has 

the same meaning as the term ‘‘small 

business concern’’ under the Small 

Business Act. (5 U.S.C. 601(3) 

(incorporating by reference the 

definition of ‘‘small business concern’’

in the Small Business Act, 15 U.S.C. 

632). Pursuant to 5 U.S.C. 601(3), the 

statutory definition of a small business 

applies ‘‘unless an agency, after 

consultation with the Office of 

Advocacy of the Small Business 

Administration and after opportunity 

for public comment, establishes one or 

more definitions of such term which are 

appropriate to the activities of the 

agency and publishes such definition(s) 

in the Federal Register’’). 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). (15 U.S.C. 632). 

Nationwide, there are approximately 1.6 

million small organizations. 

(Independent Sector, The New 

Nonprofit Almanac & Desk Reference 

(2002)). 

This Report and Order addresses 

three issues related to the provision of 

Video Relay Service (VRS): (1) The 

adoption of a speed of answer rule for 

VRS; (2) whether VRS should be 

required to be offered 24 hours a day, 

7 days a week, (24/7); and (3) whether 

VRS providers may be compensated for 

providing VRS Mail. The Commission 

concludes that the public interest is best 

served by requiring providers of VRS to 

comply with a speed of answer rule in 

order to be compensated for such 

services. However, we do not require 

VRS providers to meet the new speed of 

answer rule in order to be compensated 

from the TRS Fund at this time. Instead, 

by January 1, 2006, VRS providers must 

answer 80 percent of all VRS calls 

within 180 seconds, measured on a 

monthly basis; by July 1, 2006, VRS 

providers must answer 80 percent of all 

VRS calls within 150 seconds, measured 

on a monthly basis; and by January 1, 

2007, VRS providers must answer 80 

percent of all VRS calls within 120 

seconds, measured on a monthly basis. 

As noted in paragraph 25 of this Report 

and Order, although the Commission 

sought comment on whether to require 

providers to submit reports detailing 

call data reflecting their compliance 

with the speed of answer rules, we 

declined to impose such a requirement 

at this time. 

The Commission further concludes 

that it is in the public interest that VRS 

providers seeking compensation from 

the Interstate TRS Fund must provide 

VRS 24 hours a day, 7 days a week. As 

consumers increasingly rely on VRS as 

their preferred means of using TRS to 

access the telephone system, it becomes 

imperative that consumers have access 

to their service 24/7. 

Finally, the Commission concludes 

that VRS providers may be compensated 

from the Interstate TRS Fund for the 

conversation minutes devoted to 

creating VRS Mail, i.e., for recording a 

video message in American Sign 

Language (ASL) that is sent to a deaf or 

hard of hearing person’s VRS 

equipment, or is otherwise retrievable 

by such person, so that a hearing person 

attempting to call a VRS user can leave 

a message when the VRS user is not 

available to answer the call. As 

explained in paragraph 37 of this Report 

and Order, the Commission believes 

that this fundamental service cannot be 

denied to VRS users simply because 

they receive the message as a video 

message. 

We do not believe that these actions 

will have a significant economic impact; 

however, in the event that they do, we 

also note that there are not a substantial 

number of small entities that will be 

affected by our actions. The SBA has 

developed a small business size 

standard for Wired Telecommunications 

Carriers, which consists of all such 

firms having 1,500 or fewer employees. 

(13 CFR 122.201, NAICS code 517110 

(changed from 513310 in October 2002). 

According to Census Bureau data for 

1997, there were 2,225 firms in this 

category which operated for the entire 

year. U.S. Census Bureau, 1997 

Economic Census, Subject Series: 

Information, ‘‘Establishment and Firm 

Size (Including Legal Form of 

Organization),’’ Table 5, NAICS code 

513310 (issued October 2000). Of this 

total, 2,201 firms had employment of 

999 or fewer employees, and an 

additional 24 firms had employment of 

1,000 employees or more. Thus, under 

this size standard, the majority of firms 

can be considered small. (The census 

data do not provide a more precise 

estimate of the number of firms that 

have employment of 1,500 or fewer 

employees; the largest category 

provided is Firms with 1,000 employees 

or more)). Currently, only eight 

providers are providing VRS and are 

being compensated from the Interstate 

TRS Fund: AT&T, Communication 

Access Center for the Deaf and Hard of 

Hearing, Hamilton, Hands On, MCI, 

Nordia, Sorenson and Sprint. We expect 

that only one of the providers noted 

above is a small entity under the SBA’s 

small business size standard. In 

addition, the Interstate Fund 

Administrator is the only entity that 

will be required to pay to eligible 

providers of VRS the costs of providing 

interstate service. The Commission will 

send a copy of this Report and Order, 

including a copy of this Regulatory 

Flexibility Certification, to the Chief 

Counsel for Advocacy of the SBA (5 

U.S.C. 605(b)). This certification will 

also be published in the Federal 

Register. (5 U.S.C. 605(b)). 

Congressional Review Act 

The Commission will send a copy of 

this Report and Order in a report to be 

sent to Congress and the Government 

Accountability Office pursuant to the 

Congressional Review Act, see, 5 U.S.C. 

801(a)(1)(A). 

Ordering Clauses 

Pursuant to the authority contained in 

Section 1, 2, and 225 of the 

Commissions Act of 1934, as amended, 

47 U.S.C. 151, 152, and 225, that this 

Report and Order is hereby adopted and 

Part 64 of the Commission’s rules, 47 

CFR 64.604 is amended as set forth in 

the Rule Changes. 

Hands On’s Petition for Declaratory 

Ruling on VRS Mail is granted to the 

extent indicated herein. 

CC Docket No. 98–67 is terminated. 

This Report and Order shall be 

effective September 30, 2005. 

The Commission’s Consumer & 

Government Affairs Bureau, Reference 

Information Center shall send a copy of 

this Report and Order, including the 

Regulatory Flexibility Certification, to 

51658 Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 

the Chief Counsel for Advocacy of the 

U.S. Small Business Administration. 

List of Subjects in 47 CFR Part 64 

Individuals with disabilities, 

Telecommunications. 

Federal Communications Commission. 

William F. Caton, 

Deputy Secretary. 

Rule Changes 

■ For the reasons discussed in the 

preamble, the Federal Communications 

Commission amends 47 CFR Part 64 as 

follows: 

PART 64—MISCELLANEOUS RULES 

RELATING TO COMMON CARRIERS 

■ 1. The authority citation for part 64 

continues to read as follows: 

Authority: 47 U.S.C. 154, 254(k); secs. 403 

(b)(2)(B), (c), Public Law 104–104, 110 Stat. 

56. 

■ 2. Section 64.604 is amended by 

adding paragraph (b)(2)(iii) and revising 

paragraph (b)(4)(i) to read as follows: 

§ 64.604 Mandatory minimum standards. 

* * * * * 

(b) * * * 

(2) * * * 

(iii) Speed of answer requirements for 

VRS providers are phased-in as follows: 

by January 1, 2006, VRS providers must 

answer 80% of all calls within 180 

seconds, measured on a monthly basis; 

by July 1, 2006, VRS providers must 

answer 80% of all calls within 150 

seconds, measured on a monthly basis; 

and by Janury 1, 2007, VRS providers 

must answer 80% of all calls within 120 

seconds, measured on a monthly basis. 

Abandoned calls shall be included in 

the VRS speed of answer calculation. 

* * * * * 

(4) * * * 

(i) TRS shall operate every day, 24 

hours a day. Relay services that are not 

mandated by this Commission need not 

be provided every day, 24 hours a day, 

except VRS. 

* * * * * 

[FR Doc. 05–17327 Filed 8–30–05; 8:45 am] 

BILLING CODE 6712–01–M 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 76 

[MB Docket No. 05–181; FCC 05–159] 

Implementation of Section 210 of the 

Satellite Home Viewer Extension and 

Reauthorization Act of 2004 To Amend 

Section 338 of the Communications 

Act 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: In this document, the 

Commission adopts final rules 

implementing section 210 of the 

Satellite Home Viewer Extension and 

Reauthorization Act of 2004, which 

amends section 338(a)(4) of the 

Communications Act to require satellite 

carriage of the analog signals and digital 

signals of local stations in Alaska and 

Hawaii. Satellite carriers with more than 

five million subscribers must carry these 

signals to substantially all of their 

subscribers in each station’s local 

market by December 8, 2005 for analog 

signals and by June 8, 2007 for digital 

signals 

DATES: Effective September 30, 2005. 

FOR FURTHER INFORMATION CONTACT: For 

additional information on this 

proceeding, contact Eloise Gore, 

Eloise.Gore@fcc.gov of the Media 

Bureau, Policy Division, (202) 418–

2120. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Federal 

Communications Commission’s Report 

and Order, FCC 05–159, adopted on 

August 22, 2005 and released on August 

23, 2005. The full text of this document 

is available for public inspection and 

copying during regular business hours 

in the FCC Reference Center, Federal 

Communications Commission, 445 12th 

Street, SW., CY–A257, Washington, DC 

20554. These documents will also be 

available via ECFS (http://www.fcc.gov/ 

cgb/ecfs/). (Documents will be available 

electronically in ASCII, Word 97, and/ 

or Adobe Acrobat.) The complete text 

may be purchased from the 

Commission’s copy contractor, Best 

Copy and Printing, Inc., 445 12th Street, 

SW., Room CY–B402, Washington, DC 

20554. To request this document in 

accessible formats (computer diskettes, 

large print, audio recording, and 

Braille), send an e-mail to 

fcc504@fcc.gov or call the Commission’s 

Consumer and Governmental Affairs 

Bureau at (202) 418–0530 (voice), (202) 

418–0432 (TTY). 

Paperwork Reduction Act 

This document does not contain 

proposed information collection(s) 

subject to the Paperwork Reduction Act 

of 1995 (PRA), Public Law 104–13. The 

Commission received approval for the 

information collection requirements 

contained in this Order from the Office 

of Management and Budget on June 14, 

2005. There have been no changes to the 

information collection requirements 

since receiving OMB approval. In 

addition, therefore, it does not contain 

any new or modified ‘‘information 

collection burden for small business 

concerns with fewer than 25 

employees,’’ pursuant to the Small 

Business Paperwork Relief Act of 2002, 

Public Law 107–198, see 44 U.S.C. 

3506(c)(4). As described in the Final 

Regulatory Flexibility Certification, 

supra, the businesses affected by our 

action are not small. 

Summary of the Report and Order 

Introduction 

1. In this Report and Order (‘‘Order’’), 

we adopt rules to implement section 

210 of the Satellite Home Viewer 

Extension and Reauthorization Act of 

2004 (‘‘SHVERA’’). The Satellite Home 

Viewer Extension and Reauthorization 

Act of 2004 (SHVERA), Public Law 108–

447, section 210, 118 Stat 2809 (2004). 

SHVERA was enacted on December 8, 

2004, as title IX of the ‘‘Consolidated 

Appropriations Act, 2005.’’ Section 210 

of the SHVERA amends section 338(a) 

of the Communications Act of 1934, as 

amended, (‘‘Communications Act’’ or 

‘‘Act’’). Section 338 of the Act governs 

the carriage of local television broadcast 

stations by satellite carriers; see 47 

U.S.C. 338. In general, the SHVERA 

amends this section to require satellite 

carriers to carry the analog and digital 

signals of television broadcast stations 

in local markets in states that are not 

part of the contiguous United States, 

and to provide these signals to 

substantially all of their subscribers in 

each station’s local market by December 

8, 2005 for analog signals and by June 

8, 2007 for digital signals; see 47 U.S.C. 

338(a)(4). Our rules will implement the 

SHVERA requirements for carriage of 

analog and digital signals in Alaska and 

Hawaii. This Order concludes that such 

carriage shall include high definition 

and multicast signals as broadcast by 

local stations in these states. We adopt 

a two-step carriage election process 

beginning with carriage elections for 

analog signals by October 1, 2005, and 

followed by carriage elections for digital 

signals by April 1, 2007.