[Federal Register Volume 70, Number 168 (Wednesday, August 31, 2005)]
[Rules and Regulations]
[Pages 51643-51649]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-17110]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CC Docket No. 98-67 and CG Docket No. 03-123; FCC 05-139]


Telecommunications Relay Services and Speech-to-Speech Services 
for Individuals With Hearing and Speech Disabilities

AGENCY: Federal Communications Commission.

ACTION: Final rule; petition for reconsideration.

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SUMMARY: In this document, the Commission grants petitions for 
reconsideration of the 2004 TRS Report & Order. Through this action, 
the Commission reverses its conclusion that translation from American 
Sign Language (ASL) into Spanish is not a telecommunications relay 
service (TRS) eligible for compensation from the Interstate TRS Fund. 
This decision will allow Spanish-speaking people who are deaf to 
communicate with others who speak only Spanish and will allow them to 
integrate more fully into society.

DATES: Effective September 30, 2005.

FOR FURTHER INFORMATION CONTACT: Thomas Chandler, Consumer & 
Governmental Affairs Bureau, Disability Rights Office at (202) 418-1475 
(voice), (202) 418-0597 (TTY), or e-mail at <a href="/cdn-cgi/l/email-protection#55013d3a3834267b163d343b31393027153336367b323a23"><span class="__cf_email__" data-cfemail="83d7ebeceee2f0adc0ebe2ede7efe6f1c3e5e0e0ade4ecf5">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order 
on Reconsideration, FCC 05-139, adopted July 14, 2005, and released 
July 19, 2005, in CC Docket 98-67 and CG Docket 03-123. This Order on 
Reconsideration 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 Order on Reconsideration 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, SW., Room 
CY-A257, Washington, DC 20554. The Order on Reconsideration and copies 
of subsequently filed documents in this matter may also be purchased 
from the Commission's duplicating contractor, 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: 
http://www.bcpiweb.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#c1a7a2a2f4f1f581a7a2a2efa6aeb7"><span class="__cf_email__" data-cfemail="dbbdb8b8eeebef9bbdb8b8f5bcb4ad">[email protected]</span></a> or 
call the Consumer & Governmental Affairs Bureau at (202) 418-0530 
(voice), (202) 418-0432 (TTY). The Order on Reconsideration 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) 
requires the Commission to ensure that TRS is available to the extent 
possible in the most effective manner to persons with hearing or speech 
disabilities in the United States. TRS enables a person with a hearing 
or speech disability to have access to the telephone system to 
communicate with hearing individuals. The statute requires that TRS 
offers persons with hearing and speech disabilities telephone 
transmission services that are functionally equivalent to voice 
telephone services. When TRS was first implemented in 1993, persons 
desiring to use TRS to call a hearing person through the telephone 
system generally used a TTY (text-telephone) device connected to the 
public switched telephone network (the PSTN). In what is now referred 
to as a traditional TRS call (e.g., TTY text-based), the person with a 
hearing or speech disability dials (i.e., types) a telephone number for 
a TRS facility using a TTY, and then types the number of the party he 
or she desires to call. The CA, in turn, places an outbound voice call 
to the called party. The CA serves as the link in the conversation, 
converting all TTY messages from the caller into voice messages, and 
all voice messages from the called party into typed messages for the 
TTY user. The process is performed in reverse when a voice telephone 
user initiates a traditional TRS call to a TTY user.
    The most striking development in the short history of TRS has been 
the enormous growth in the use of VRS. As most frequently used, VRS 
allows a deaf person whose primary language is ASL to communicate in 
ASL with the CA 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 conversation 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 call. As a result, 
VRS calls reflect a degree of functional equivalency that is not 
attainable with text-based TRS.
    Section 225 of the Communications Act, creates a cost recovery 
framework whereby providers of TRS are compensated for their costs of 
providing TRS. This framework is based on a jurisdictional separation 
of costs. As a general matter, providers of intrastate TRS are 
compensated by the states, and providers of interstate TRS are 
compensated from the Interstate TRS Fund (Fund). The Interstate TRS 
Fund is funded by contributions from all carriers providing interstate 
telecommunications services, and is administered by the TRS fund 
administrator, currently the National Exchange Carrier Association, 
Inc.

[[Page 51644]]

(NECA). The Fund administrator uses these funds to compensate eligible 
TRS providers for the costs of providing the various forms of TRS. Fund 
distributions are made on the basis of a payment formula initially 
computed by NECA in accordance with the Commission's rules, and then 
approved or modified by the Commission. The per-minute compensation 
rates are presently based on the projected average cost per minute of 
each service.

The Evolution of TRS

    Since TRS became available on a nationwide basis in July 1993, the 
Commission has addressed the provision, regulation, and compensation of 
TRS on numerous occasions. As the Commission has noted, in adopting 
Title IV of the ADA, Congress recognized that persons with hearing and 
speech disabilities have long experienced barriers to their ability to 
access, utilize, and benefit from telecommunications services. The 
intent of Title IV, therefore, is to further the Communications Act's 
goal of universal service by ensuring that individuals with hearing or 
speech disabilities have access to the nation's telephone system. To 
this end, the Commission must ensure that persons with hearing and 
speech disabilities have adequate means of accessing the telephone 
system. At its inception, TRS was limited to the use of a TTY connected 
via the PSTN to the CA, who would then make a voice call to the other 
party to the call. In 1998, however, the Commission issued a Notice of 
Proposed Rulemaking, seeking comment on whether Title IV applies to 
other forms of TRS that go beyond the TTY-to-speech and speech-to-TTY 
model. The Commission tentatively concluded that improved TRS services, 
such as speech-to-speech (STS) and VRS, falls within the scope of Title 
IV because its language and structure establish that Congress intended 
TRS to be an evolving service that would expand beyond traditional TTY 
relay service as new technologies developed. The Commission therefore 
proposed recognizing new forms of TRS that it believed would broaden 
the potential universe of TRS users and further promote access to 
telecommunications for the millions of persons with disabilities who 
might otherwise be foreclosed from participating in our increasingly 
telecommunications and information-oriented society.
    In March 2000, the Commission adopted its tentative conclusions 
that STS and VRS are forms of TRS. The Commission found that STS would 
help break the insularity barriers that confine members of the 
community of people with speech disabilities and offer them 
opportunities for education, employment, and other, more tangible 
benefits that are concomitant with independence. The Commission further 
concluded that TRS encompasses VRS, and that VRS would make relay 
services functionally equivalent to conventional telephone service for 
individuals whose first language is ASL. The Commission did not mandate 
the provision of VRS, given its technological infancy. The Commission 
nevertheless encouraged the use and development of VRS, and to this end 
stated that, on an interim basis, all VRS calls would be eligible for 
cost recovery from the Interstate TRS Fund. Finally, as discussed more 
fully below, the Commission also concluded that any non-English 
language relay services in a shared language, such as Spanish-to-
Spanish, are telecommunications relay services, and required interstate 
common carriers to provide interstate Spanish relay service.
    In April 2002, the Commission further expanded the scope of TRS by 
concluding that IP Relay falls within the statutory definition of TRS. 
In reaching this conclusion, the Commission noted that Congress did not 
adopt a narrow definition of TRS, but rather used the broad phrase 
``telephone transmission service'' that was constrained only by the 
requirement that such service provide a specific functionality. In June 
2003, the Commission released the Second Improved TRS Order & NPRM, 
again expanding the scope of TRS to encompass new types of TRS calls, 
including two-line voice carry-over (VCO) and two-line hearing carry-
over (HCO). The Commission stated that as technology has further 
developed, new variations of traditional TRS are now available to 
support the preferences and needs of persons with hearing and speech 
disabilities.
    Finally, in August 2003, the Commission concluded that captioned 
telephone VCO service is a type of TRS eligible for cost recovery under 
Section 225. In reaching this conclusion, the Commission noted that the 
types and forms of relay services that we have found to fall within the 
definition of TRS have neither been static nor limited to relay 
services involving a TTY or the PSTN. The Commission also emphasized 
that captioned telephone service will reach a segment of the population 
persons who develop a hearing disability later in life and have some 
residual hearing that has traditionally not been well serviced by 
current TRS options, and that just as VRS has allowed greater 
functional equivalence in telecommunications for callers who use sign 
language, captioned telephone service will provide greater functional 
equivalence for those people who prefer VCO TRS and use this 
technology.

Non-Shared Language Relay Service

    In 1998, the Commission first raised the issue whether multilingual 
relay services (MRS), i.e., relay service in a shared foreign language 
(such as Spanish-to-Spanish), and translation services, i.e., relay 
services between two parties who each use a different language, were 
TRS services under Section 225. The Commission tentatively concluded 
that Title IV of the ADA, as a general matter, only encompasses same-
language MRS, and that such calls, to the extent voluntarily provided, 
should be compensated by the intrastate jurisdiction or the Interstate 
TRS Fund, as appropriate. The Commission also tentatively concluded 
that translation TRS, especially foreign language translation services, 
are value-added TRS offerings that go beyond the ``relaying'' of 
conversations between two end users, and therefore should not be 
compensable from the Interstate TRS Fund. The Commission sought comment 
on whether an exception should be made for ASL translation services, 
explaining that because ASL is a language unique to the deaf community, 
ASL translation services may be necessary to provide functional 
equivalency to ASL users.
    In March 2000, the Commission concluded that MRS--non-English 
language relay services that relay conversations in a shared language--
are TRS services compensable by either the intrastate jurisdiction or 
the Interstate TRS Fund. The Commission recognized that Spanish is the 
most widely spoken non-English language in the United States, and that 
the number of Spanish-speaking persons is significantly larger than any 
other non-English speaking population and is rapidly growing. The 
Commission concluded that this warrants the availability of interstate 
Spanish relay service, and therefore mandated that interstate common 
carriers provide interstate Spanish relay services by March 1, 2001. 
The Commission added that while it was mandating only interstate 
Spanish relay service, any non-English language relay service provided 
by an interstate relay provider would be compensable from the 
Interstate TRS Fund. The Commission also stated that although it was 
not requiring each state TRS program to offer intrastate Spanish (or 
any other non-English language) relay service, it urged states to 
consider offering such services if the need arose, noting that there 
could otherwise be an

[[Page 51645]]

adverse effect on the personal and economic well-being of individuals 
who speak a language other than English, making employment and 
education more difficult for them to attain.
    With respect to non-shared language relay service, the Commission 
concluded that the translation of typed ASL to English was TRS because 
it was necessary to provide ``functional equivalency'' to ASL users. 
The Commission noted that where a TTY user's message is in ASL, the CA 
will, upon request of the TTY user, repeat the message to the hearing 
person using standard spoken English, and the CA will repeat the 
hearing person's message by typing in ASL. The Commission stated that 
because the grammar and syntax of ASL are different from English, if 
this were not done, the hearing party may not understand the 
information as well as if it is presented in English, and vice versa. 
The order did not otherwise address non-shared language TRS.
    The Texas Public Utilities Commission (TX PUC) filed a petition for 
reconsideration, requesting that the Commission allow other non-shared 
language relay translation service (beyond ASL to English translation 
service) to be compensable from the Interstate TRS Fund. The TX PUC 
stated that there is a great demand for such service, and that the need 
for this service is particularly important for many deaf children of 
Latino origin. The TX PUC explained that many such children live in 
homes where Spanish is the spoken language, but the children are 
educated at school in ASL and English. Therefore, many deaf children of 
Spanish-speaking families are not able to participate in family 
communications. Sprint filed comments supporting the petition, stating 
that the provision of Spanish-to-English relay service is necessary to 
enable deaf children of Spanish-speaking parents to communicate with 
their families. Sprint also asserted that the incremental cost of 
providing such service would be de minimis.
    In response to the TX PUC petition, the Commission sought comment 
on whether non-shared (or multi-lingual) language translation service 
through relay is a form of TRS compensable from the Interstate TRS 
Fund. The Commission noted that since the time we addressed this issue 
in the 1998 TRS NPRM, the Commission has developed a better 
understanding of the needs of certain TRS consumers in this area, and 
recognizes that multi-lingual translation service through TRS may meet 
the unique needs of certain identifiable TRS users. The Commission 
sought comment on whether provision of this service is consistent with, 
or necessary under, the functional equivalency mandate. The Commission 
also sought comment on how multilingual translation service for TRS 
would be implemented with VRS, STS, and other forms of TRS.
    Several parties filed comments responding to this issue. Commenters 
representing TRS providers and disability advocacy groups asserted that 
non-shared language relay should be recognized as TRS, because it 
provides functionally equivalent relay service for millions of deaf 
children, parents, or friends who wish to communicate by telephone with 
Spanish-speaking Americans but cannot, because the persons who are deaf 
have been educated in ASL and English. Commenters in opposition 
generally maintained that non-shared language translation goes beyond 
the functional equivalency mandate because it provides relay users with 
a service not offered to non-relay voice telephone users, i.e., the 
ability, as part of their basic telephone services, to call and 
communicate with a person who speaks a different language.
    In 2004, the Commission found that non-shared language TRS is 
value-added translation service that is not compensable from the 
Interstate TRS Fund. At the same time, the Commission recognized that 
states, in their efforts to tailor intrastate TRS to meet the needs of 
their citizenry, may identify the need to offer non-shared language 
TRS. The Commission stated that it supported, and in fact encouraged, 
states to assess the need for, and if appropriate offer, non-shared 
language intrastate TRS. In this regard, the Commission noted that it 
was not concluding that offering non-shared language TRS conflicts with 
Commission rules, but rather that the offering of such a service is an 
example of an entity permissibly exceeding the mandatory minimum 
standards.

The Petitions for Reconsideration

    Three parties seek reconsideration of the Commission's conclusion 
that non-shared language TRS service is not a form of TRS compensable 
from the Interstate TRS Fund. Specifically, they assert that non-shared 
language Spanish translation Video Relay Service--i.e., VRS where the 
CA translates what is signed in American Sign Language (ASL) into 
spoken Spanish, and vice versa--is a form of TRS compensable from the 
Interstate TRS Fund.
    Communication Services for the Deaf (CSD) argues that the enormous 
size of America's Spanish-speaking population means that the provision 
of VRS between ASL and Spanish-speaking users is needed to achieve 
functional equivalent relay service. CSD notes that the recent growth 
of the Spanish-speaking population in America has been extraordinary, 
and that the Commission's disability access rules already reflect this 
fact. CSD notes, for example, that the Commission has already required 
Spanish-to-Spanish interstate relay services, singling out this 
language only because the number of Spanish-speaking persons is 
significantly larger than any other non-English speaking population and 
is rapidly growing. CSD further argues that it is inconsistent to 
permit reimbursement for ASL-to-English VRS, but not ASL-to-Spanish 
VRS. CSD asserts, in other words, that having recognized at least one 
translation relay service to achieve functional equivalency, it makes 
little sense to deny reimbursement for relay translation between ASL 
and Spanish-speaking people, particularly because after English, 
Spanish is the next most widely spoken language in the country. 
Further, CSD emphasizes that authorizing ASL-to-Spanish VRS is 
particularly critical for deaf Latino children because such children 
are educated in ASL and therefore can communicate by telephone with 
their relatives and other Spanish-speaking persons only through non-
shared language TRS. Finally, CSD suggests that the cost to provide 
non-shared language ASL-to-Spanish calls would not be any greater than 
that for ASL-to-English calls, and that ASL-to-Spanish calls would 
likely constitute no more than one to two percent of all VRS calls. The 
National Video Relay Service Coalition (NVRSC) makes similar arguments.
    In response to the petitions for reconsideration, eighteen 
individuals filed comments in support, making many of the same 
arguments made by petitioners. These comments generally express the 
desire of deaf members of the Latino community to have the ability to 
communicate over the telephone via VRS in ASL, their native language, 
with the members of the Spanish-speaking community who are not deaf. No 
comments opposed recognizing Spanish translation VRS as a form of TRS 
compensable from the Interstate TRS Fund.

Discussion

    We reverse the Commission's prior ruling on this issue and conclude 
that ASL-to-Spanish VRS--i.e., relay service where the CA translates 
what is signed in American Sign Language (ASL) into spoken Spanish, and 
vice versa--is a

[[Page 51646]]

form of TRS compensable from the Interstate TRS Fund. Accordingly, we 
grant the petitions for reconsideration on this issue filed by CSD, 
NVRSC, and Hands On. (We note that the petitions for reconsideration 
only addressed Spanish language translation VRS, i.e., ASL-to-Spanish 
VRS). NECA shall compensate providers of this service at the same rate 
we adopt for VRS when a Spanish translation service is not involved. In 
reaching this conclusion, we find that it is essential that members of 
the large Spanish-speaking population in this country who are deaf, 
hard of hearing, or have a hearing disability, and for whom ASL is 
their primary language, have the means to communicate via the telephone 
system with persons without such disabilities who speak Spanish, in 
keeping with the goal of universal service.

ASL-to-Spanish VRS Meets the Needs of an Identifiable Segment of the 
Population of Persons With Hearing and Speech Disabilities

    As explained above, the Commission has recognized that Congress 
intended TRS to be an evolving service that would encompass new 
developments in technology and meet the needs of identifiable segments 
of the population of persons with hearing and speech disabilities. The 
Commission has also recognized Congress' clear direction that Title IV 
and the TRS regime are intended to further the goals of universal 
service by bringing persons with hearing and speech disabilities into 
the telecommunications mainstream and facilitating their educational 
and employment opportunities. To this end, Section 225 specifically 
directs the Commission to ensure that TRS is available to the extent 
possible to persons with hearing and speech disabilities in the United 
States.
    The Commission's recognition of new forms of TRS to meet the 
particularized needs of certain persons with hearing and speech 
disabilities has not been confined to addressing the needs of persons 
with certain disabilities (e.g., Speech-to-Speech) or the use of new 
technologies (e.g., VRS and captioned telephone service). It has also 
included recognizing that persons with hearing and speech disabilities 
who do not speak English should have access to the telephone system, 
and therefore that some non-English language relay service should be 
provided. As stated above, the Commission has concluded that the 
provision of Spanish language relay service is essential to ensuring 
that the nation's large Spanish-speaking population has access to the 
telephone system.
    We find that the recognition of ASL-to-Spanish VRS as a form of TRS 
compensable from the Interstate TRS Fund serves once again to meet the 
needs of an identifiable segment of the population of persons with 
hearing and speech disabilities, and therefore to further the goal of 
universal service, consistent with the Commission's decisions noted 
above. The record reflects both that there is a large and growing 
Spanish-speaking population in this country, and that deaf members of 
this population, educated in ASL, cannot communicate with their family 
and friends who speak only Spanish. Indeed, the Commission has 
previously recognized that the provision of non-shared language relay 
service may satisfy a particular need of persons with hearing or speech 
disabilities. Further, the Commission has specifically recognized both 
shared non-English language relay service and VRS as forms of TRS 
compensable from the Interstate TRS Fund, and that precluding such 
services through a narrow reading of the statute would be inconsistent 
with Congress' intent in enacting Title IV of the ADA.
    First, the record reflects that there are nearly 40 million Latinos 
living in the United States, and that number will increase to over 60 
million by 2025, representing over 18% of the population. This is the 
largest minority population in the nation, and Spanish is the most 
widely used non-English language spoken in the United States. The 
record also reflects that, as reported by Gallaudet University, as many 
as 24.5% of all deaf and hard of hearing students age three and over 
are Latino. The Commission has previously acknowledged that Hispanics 
are the fastest growing minority group in the deaf school age 
population. Relatedly, we note that Spanish is the predominant language 
in Puerto Rico, which has a certified state relay program under the 
Commission's rules. (Territories such as Puerto Rico are encompassed by 
Section 225 and the TRS regulations. See 47 U.S.C. 225(b)(1); 42 U.S.C. 
12102(3). Puerto Rico's state TRS program was re-certified by the 
Commission on July 24, 2003. Notice of Certification of State 
Telecommunications Relay Service (TRS) Programs, Public Notice, CC 
Docket No. 98-67, 18 FCC Rcd 15322, (2003), published at 68 FR 45819, 
August 4, 2003; see generally http://welcome.topuertorico.org/descrip.shtml (noting that language has been a central issue in Puerto 
Rican education and culture since 1898, and that now English and 
Spanish are both official languages in Puerto Rico)). As NVRSC has 
noted, in Puerto Rico, where Spanish is the primary language, failure 
to compensate for ASL-to-Spanish VRS leads to the result that Puerto 
Ricans who are deaf or hard of hearing using ASL must have their VRS 
conversations translated into English, a language that is either not 
spoken or is a second language for most Puerto Ricans. (NVRSC Petition 
at 10).
    Second, the Commission has also acknowledged that for many deaf 
Hispanic persons, particularly children, ASL is their primary language, 
even though it is not the language used in their home. As a result, as 
CSD has noted, because many do not learn Spanish in the deaf and 
residential day schools they attend, the only way for these children to 
communicate with some relatives by telephone--especially because many 
are young and cannot yet type--is through non shared-language VRS. (CSD 
Petition at 10). In other words, the particular communications needs of 
deaf children raised in Spanish-speaking households arise precisely 
because the children are deaf, and therefore learn ASL as their primary 
language and not Spanish. Recognizing non shared-language Spanish 
translation VRS as a form of TRS therefore empowers these persons to 
have access to the telephone system to become more fully integrated 
into society. The legislative history of Title IV makes clear that the 
lack of telephone access for persons with certain disabilities 
relegated them to second-class citizenship, and that the relay system 
was intended to empower such persons to have greater control over their 
own lives and greater opportunities. Therefore, we agree with CSD that 
precisely because Spanish-speaking Latino Americans make up so large a 
portion of the American population, the Commission should be taking 
actions to enhance, not reduce communication between deaf people and 
Americans who speak Spanish.

Recognition of ASL-to-Spanish VRS as a Form of TRS Is Consistent With 
the Recognition of VRS as a Form of TRS

    In reaching the conclusion that ASL-to-Spanish VRS is TRS, we find 
significant, as have petitioners and commenters, that TRS already 
entails translation between two languages, English and ASL. The 
Commission has previously recognized that ASL is not English. For two 
persons to communicate with each other using these languages there must 
be a translation between a spoken language (English) and a visual 
language (ASL), each with its own grammatical structure

[[Page 51647]]

and syntax. (See also CSD Petition at 6. CSD adds that it was for this 
very reason that VRS was first created--it was seen as a means of 
enabling ASL users who were not sufficiently acquainted with the 
English language to be able to communicate with hearing people who did 
not know ASL).
    Further, we now conclude that the Commission's previous 
characterization of ASL-to-Spanish translation VRS as a value added 
service was misplaced. As we have noted, for certain identifiable 
segments of the population, the only way to communicate via telephone 
in a functionally equivalent manner is by ASL-to-Spanish translation 
VRS. Therefore, although a translation to Spanish may be a value added 
service for hearing persons, or in other contexts, we do not believe it 
can be fairly characterized as such for the deaf community for whom ASL 
is their primary language. As the record reflects, for deaf children 
who are raised in Spanish-speaking homes, and who are taught ASL in 
school as their primary language, without this service it is virtually 
impossible to communicate with their Latino communities.
    We also believe that the statutory mandate of functional 
equivalency must serve primarily as a benchmark for determining those 
services and features that TRS must offer, not as a barrier that 
precludes the recognition of new forms of TRS that give access to the 
nation's telephone system to identifiable groups of persons with 
hearing and speech disabilities. Significantly, the Commission has made 
clear that functional equivalency is reflected in the services and 
features required by the mandatory minimum standards that a provider 
must offer to receive compensation from the Interstate TRS Fund. At the 
same time, the TRS regulations recognize that states may offer services 
that exceed the mandatory minimum standards, as long as they do not 
conflict with the existing standards; indeed, in the past the 
Commission has encouraged states to do so with regard to non-shared 
language TRS. The determination of whether a particular service falls 
within the scope of TRS and is compensable from the Fund must take into 
account the purpose of the service and whether it affords persons with 
hearing and speech disabilities a means of functionally equivalent 
access to the nation's telephone system.

Recognition of ASL-to-Spanish VRS as a Form of TRS Is Consistent With 
the Commission's Focus on Spanish Language Access in Other Contexts

    The conclusion that ASL-to-Spanish VRS falls within the scope of 
TRS compensable from the Interstate TRS Fund is also supported by the 
special emphasis the Commission has placed on providing the nation's 
Spanish-speaking population with access to communications in other 
contexts. First, as we have noted above, the Commission concluded that 
the provision of Spanish-to-Spanish relay service is essential to 
ensuring that the nation's large Spanish-speaking population has access 
to the telephone system. The Commission explained that just as the 
voice telephone network allows for a Spanish-speaking user to call a 
parent and speak in Spanish, TRS users should have the same functional 
equivalency. The Commission found that because Spanish is the most 
widely spoken non-English language in the country, it was appropriate 
that the Commission mandate the availability of interstate Spanish 
relay service; at the same time, the Commission left to the states the 
determination whether particular demographics made it appropriate to 
offer other non-English language relay service.
    Second, the Commission has adopted captioning rules for Spanish 
language programming because there was already a market for such 
programming in the United States. The Commission explained that it was 
extending its disability access obligations only to Spanish video 
programmers because the number of Spanish-speaking persons is 
significantly larger than any other non-English speaking population and 
is rapidly growing. The Commission also noted that it was appropriate 
to require Spanish language captioning because the captioning rules 
applied to programming in Puerto Rico.
    Third, the Commission's Web site has a homepage that contains 
information written in Spanish about its rules and regulations. 
Consumers also have access to numerous Commission Factsheets and other 
documents that have been translated to Spanish. (The Commission has 
endeavored to provide Spanish translations of Commission Factsheets and 
Consumer Advisories. In addition, because we receive a large number of 
inquiries about charges on telephone bills, we have sample telephone 
bills available (both wireline and wireless) with definitions in 
Spanish of all line item terms. We also have translated telephone 
complaint Form 475, and ``slamming'' complaint Form 501, into Spanish 
to allow Spanish-speaking consumers to easily file complaints with the 
Commission). In sum, the Commission has endeavored in a variety of 
contexts to make its services and information accessible to the 
nation's large population of Spanish-speaking persons.

Recognition of ASL-to-Spanish VRS as a Form of TRS Will Not Have an 
Undue Impact on the Interstate TRS Fund

    Finally, the record reflects that allowing compensation from the 
Interstate TRS Fund for ASL-to-Spanish VRS will not have an appreciable 
impact on the required size of the Fund. We are mindful that the size 
of the Interstate TRS Fund has been rapidly increasing in recent years, 
largely due to the popularity of the two Internet-based relay services 
(IP Relay and VRS), and that a larger Fund size requires a higher 
carrier contribution factor, with costs ultimately passed on to all 
consumers. But as we have noted, the record indicates that ASL-to-
Spanish VRS calls should constitute no more than one to two percent of 
all VRS calls. Therefore, as the Commission stated when it recognized 
STS as a form of TRS, we find that no information has been presented 
that demonstrates that ASL-to-Spanish VRS is too costly relative to the 
benefit derived from this service. Further, the record also reflects 
that the operational cost of providing ASL-to-Spanish VRS is not likely 
to be significantly more than ASL-to-English VRS. Prior to the 2004 TRS 
Report and Order, CSD had been providing ASL-to-Spanish VRS service for 
a period in 2002 and 2003 at the same rate as ASL-to-English VRS 
service.

Conclusion

    We therefore conclude that ASL-to-Spanish VRS--i.e., relay service 
where the CA translates what is signed from ASL to spoken Spanish, and 
vice versa--is a form of TRS compensable from the Interstate TRS Fund. 
(We remind providers (and consumers) that VRS is not the same as Video 
Remote Interpreting (VRI), and that VRS, including the ASL-to-Spanish 
VRS that we recognize in this Order on Reconsideration, may not be used 
when two persons are together and an interpreter is needed. As the 
Commission has explained, VRI is a service that is used when an 
interpreter cannot be physically present to interpret for two persons 
who are together at the same location (for example, at a meeting or in 
a doctor's office). See Federal Communications Commission Clarifies 
That Certain Telecommunications Relay Services (TRS) Marketing And Call 
Handling Practices Are Improper And Reminds That Video Relay Service 
(VRS) May Not Be Used As A Video Remote Interpreting Service, Public 
Notice, CC Docket No. 98-67, CG Docket No. 03-123, 20 FCC Rcd 1471, 
(2005),

[[Page 51648]]

published at 70 FR 8034, February 17, 2005. In that situation, an 
interpreter at a remote location may be used via a video connection. A 
fee is generally charged by companies that offer this service. By 
contrast, VRS, like all forms of TRS, is a means of giving access to 
the telephone system. Therefore, VRS is to be used only when a person 
with a hearing disability, who absent such disability would make a 
voice telephone call, desires to make a call to a person without such a 
disability through the telephone system (or when, in the reverse 
situation, the hearing person desires to make such a call to a person 
with a hearing disability). In circumstances where a person with a 
hearing disability desires to communicate with someone in person, he or 
she may not use VRS but must either hire an ``in-person'' interpreter 
or a VRI service). Accordingly, providers offering ASL-to-Spanish VRS 
may be compensated from the Interstate TRS Fund. Because presently VRS 
is not a mandatory service, we also do not make ASL-to-Spanish VRS a 
mandatory service at this time. Further, NECA shall compensate 
providers of this service at the same rate we adopt for VRS when a 
Spanish translation service is not involved. (We note that the 
petitions for reconsideration only addressed Spanish language 
translation VRS, i.e., ASL-to-Spanish VRS. As noted above, the record 
suggests that compensation of ASL-to-Spanish VRS will not impose costs 
significantly greater than those associated with ASL-to-English VRS. We 
leave open the issue whether providers, after the 2005-2006 fund year, 
may include in their submitted projected costs any additional costs 
caused by providing ASL-to-Spanish VRS translation service we recognize 
in this Order on Reconsideration).

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 rulemaking 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. 601-612, 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 Order on Reconsideration addresses three petitions for 
reconsideration of the Commission's prior conclusion that non-shared 
language TRS service is not a form of TRS compensable from the 
Interstate TRS Fund. (See petitions filed by CSD (September 30, 2004), 
NVRSC (October 1, 2004), and Hands On Video Relay Services, Inc. (Hands 
On) (October 1, 2004)). This item reverses the Commission's prior 
conclusion that non-shared language Spanish translation Video Relay 
Service--i.e., VRS where the CA translates what is signed in American 
Sign Language (ASL) into spoken Spanish, and vice versa--is a not a 
form of TRS compensable from the Interstate TRS Fund. The Commission 
concludes that the public interest is best served by requiring the 
Interstate Fund Administrator to pay to eligible providers of ASL-to-
Spanish VRS the costs of providing interstate service. We find that it 
is essential that members of the large Spanish-speaking population in 
this country who are deaf, hard of hearing, or have a hearing 
disability, and for whom ASL is their primary language, have the means 
to communicate via the telephone system with persons without such 
disabilities who speak Spanish, in keeping with the goal of universal 
service. In addition, as noted in paragraph 31 of the item, the record 
reflects that allowing compensation from the Interstate TRS Fund for 
ASL-to-Spanish VRS will not have an appreciable impact on the required 
size of the Fund, or that ASL-to-Spanish VRS is too costly relative to 
the benefit derived from this service. Therefore, given the lack of a 
significant economic impact, we certify that the requirements of the 
Order on Reconsideration will not have a significant economic impact on 
a substantial number of small entities.
    We also note that, arguably, there are not a substantial number of 
small entities that will be affected by our action. 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 121.201, 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 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 ASL-to-Spanish VRS the costs of 
providing interstate service. The Commission will send a copy of this 
Order on Reconsideration, including a copy of this Regulatory 
Flexibility Certification, to the Chief Counsel for Advocacy of the 
SBA. (5 U.S.C. 605(b)).

Congressional Review Act

    The Commission will send a copy of this Order on Reconsideration 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).

[[Page 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


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