[Federal Register Volume 70, Number 168 (Wednesday, August 31, 2005)]
[Rules and Regulations]
[Pages 51649-51658]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-17327]


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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.

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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 <a href="/cdn-cgi/l/email-protection#63370b0c0e02104d200b020d040f0611230500004d040c15"><span class="__cf_email__" data-cfemail="92c6fafdfff3e1bcd1faf3fcf5fef7e0d2f4f1f1bcf5fde4">[email protected]</span></a>.

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 <a href="/cdn-cgi/l/email-protection#a3c5c6c6969397e3c5c0c08dc4ccd5"><span class="__cf_email__" data-cfemail="b8dedddd8d888cf8dedbdb96dfd7ce">[email protected]</span></a> 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 ten-fold 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

[[Page 51650]]

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 call-not 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,

[[Page 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

[[Page 51652]]

(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

[[Page 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 re-examine 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

[[Page 51654]]

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

[[Page 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 non-mandatory 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

[[Page 51656]]

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,

[[Page 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

[[Page 51658]]

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

0
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

0
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.


0
2. Section 64.604 is amended by adding paragraph (b)(2)(iii) and 
revising paragraph (b)(4)(i) to read as follows:


Sec.  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


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