[Federal Register Volume 76, Number 151 (Friday, August 5, 2011)]
[Rules and Regulations]
[Pages 47469-47476]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-19795]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 64
CG Docket No. 10-51; FCC 11-118]
Structure and Practices of the Video Relay Service Program
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Commission adopts modifications to its
certification process for all Internet-based telecommunications relay
service (iTRS) providers to ensure that all entities seeking
certification in the future--or currently certified entities seeking
re-certification--are fully qualified to provide iTRS in compliance
with its rules and requirements, to reduce waste, fraud and abuse, and
to improve the Commission's oversight of these providers once they have
been certified.
DATES: Effective September 6, 2011, except 47 CFR 64.606(a) (2), (g),
(h) (2) and (3) which contains information collection requirements that
have not been approved by the Office of Management and Budget (OMB).
The Federal Communications Commission will publish a document in the
Federal Register announcing the effective date. Written comments on the
Paperwork Reduction Act (PRA) modified information collection
requirements must be submitted by the public, OMB and other interested
parties on or before September 6, 2011.
ADDRESSES: Federal Communications Commission, 445 12th Street, SW.,
Washington, DC 20554. Comments on the information collection
requirements contained herein should be submitted to Cathy Williams,
Federal Communications Commission, via e-mail at PRA@fcc.gov and
Cathy.Williams@fcc.gov.
FOR FURTHER INFORMATION CONTACT: Gregory Hlibok, Consumer and
Governmental Affairs Bureau at (202) 559-5158 (VP), or e-mail:
Gregory.Hlibok@fcc.gov. For additional information concerning the
information collection requirements contained in this document, contact
Cathy Williams at (202) 418-2918, or e-mail: Cathy.Williams@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
Structure and Practices of the Video Relay Service Program, Second
Report and Order (Second Report and Order), document FCC 11-118 adopted
July 28, 2011, and released July 28, 2011, in CG Docket No. 10-51,
adopting modifications to its certification process for all iTRS
providers. The full text of FCC 11-118 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. FCC 11-118 and copies of subsequently filed
documents in this matter may also be purchased from the Commission's
duplicating contractor, Best Copying and Printing, Inc. (BCPI), at
Portals II, 445 12th Street, SW, Room CY-B402, Washington, DC 20554.
Customers may contact BCPI at its Web site, http://www.bcpiweb.com, or
by calling 202-488-5300. FCC 11-118 can also be downloaded in Word or
Portable Document Format (PDF) at: http://www.fcc.gov/cgb/dro/trs.html#orders.
To request materials in accessible formats for people with
disabilities (Braille, large print, electronic files, audio format),
send an e-mail to fcc504@fcc.gov or call the Consumer and Governmental
Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).
Final Paperwork Reduction Act of 1995 Analysis
Document FCC 11-118 contains modified information collection
requirements subject to the PRA. It will be submitted to OMB for review
under section 3507(d) of the PRA. OMB, the general public, and other
Federal agencies are invited to comment on the modified information
collection requirements contained in this proceeding. In addition, the
Commission notes that pursuant to the Small Business Paperwork Relief
Act of 2002, Public Law 107-198, the Commission previously sought
specific comment on how it might further reduce the information
collection burden on small business concerns with fewer than 25
employees.
In document FCC 11-118, the Commission has assessed the effects of
imposing various requirements on iTRS providers to obtain certification
from the Commission in order to be eligible for compensation from the
Interstate TRS Fund (Fund). The Commission has determined that any
additional data filing requirements imposed by document FCC 11-118 on
iTRS providers are reasonable and necessary in order to ensure
compliance with the Commission's rules. The Commission has taken steps
to address the concerns of commenters stating that some of the
Commission's proposed rules were overly burdensome. For example, the
Commission initially proposed to require that a provider file a deed or
lease for every service center operated. The Commission has modified
this requirement in its final rule to allow for providers with more
than five centers to submit a representative sampling of deeds and
leases. In addition, the Commission has declined to adopt its proposed
requirement for providers to submit documentation of all financing
arrangements pertaining to the provision of iTRS. The Commission has
also declined to adopt the requirement that providers submit copies of
all subcontracting agreements for services not directly essential for
the provision of iTRS. The Commission concludes that it has taken steps
to further reduce the burdens on affected entities to apply for
certification to receive compensation from the Fund for the provision
of iTRS, and that the remaining filing requirements are not overly
burdensome.
Congressional Review Act
The Commission will send a copy of document FCC 11-118 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).
Synopsis
1. In document FCC 11-118, the Commission modifies its process for
certifying iTRS providers as eligible for payment from the Fund for
their provision of iTRS, as proposed in the Commission's Structure and
Practices of the Video Relay Service Program, Report and Order and
Further Notice of Proposed Rulemaking (VRS Practices Report and Order
and Certification FNPRM), document FCC 11-54, published at 76 FR 24393,
May 2, 2011 and 76 FR 24437, May 2, 2011. In the Certification FNPRM,
the Commission sought comment on ways to modify the current
certification process to ensure that iTRS providers receiving
certification are qualified to provide iTRS in compliance with the
Commission's rules, and to eliminate waste, fraud and abuse through
improved oversight of such providers.
Eligibility for Compensation From the TRS Fund
2. Under the Commission's current rules, an iTRS provider is
eligible to provide relay services and receive compensation from the
Fund if it is: (1)
[[Page 47470]]
Operated under contract with and/or by a certified state TRS program;
(2) owned or operated under contract with an interstate common carrier;
(3) an interstate common carrier offering TRS under the Commission's
rules; or (4) certified by the Commission pursuant to Sec. 64.606 of
the Commission's rules.
3. The Commission now adopts a requirement for all iTRS providers
to receive certification from the Commission to be eligible to receive
compensation from the Fund. As the Commission stated in the
Certification FNPRM, the current alternative eligibility methods have
failed to ensure that all providers are qualified to provide service
that complies with the Commission's rules, or to facilitate Commission
oversight of all entities eligible under these criteria. Because the
Commission bears the responsibility for managing the Fund and ensuring
the integrity of its iTRS programs, it should have the exclusive
authority to ensure that iTRS is provided by qualified providers and to
exercise effective oversight over the operations of these providers.
The Commission finds that requiring all iTRS providers to become
Commission-certified is a reasonable and appropriate way to achieve
these objectives and further the Commission's goals of promoting
effective, efficient, and sustainable iTRS services, and reducing fraud
and abuse in the VRS program. The Commission further finds that
applying this requirement to all iTRS will help to ensure that the
difficulties the Commission has encountered in the VRS program will
less likely be repeated for other iTRS programs.
4. Accordingly, an iTRS provider will no longer be permitted to
receive compensation from the Fund unless it is certified by the
Commission. The requirement for Commission certification will apply to
new applicants, and to existing providers who have been eligible to
provide iTRS under one of the previous alternative methods for
eligibility. It likewise will apply to all forms of iTRS, and to all
iTRS providers seeking recertification after their certifications
expire, including those providers currently eligible under an existing
Commission certification.
Requirements to Operate Call Center and Employ Communications
Assistants (CAs)
5. The Commission will require that entities wishing to be eligible
for compensation from the Fund for the provision of VRS be certified by
the Commission, operate the core facilities necessary to provide VRS
service and employ their own communications assistants (CAs). The
requirements adopted in the VRS Practices Report and Order, including
those requiring VRS providers to lease, license or acquire and operate
their own facilities and employ their own CAs, emanated from the
Commission's goals of establishing better oversight of the VRS program,
in order to ensure compliance with the Commission's rules and reduce
fraud. Requiring VRS providers to operate their own call centers and to
employ their own CAs will ensure that certified providers exercise
necessary oversight of their own operations and compliance with
Commission rules, and enable the Commission to better oversee the core
operations of these providers.
6. ACD Platforms. By the term ``ACD platform,'' the Commission
means the hardware and/or software that comprise the essential call
center function of call distribution, and that are a necessary core
component of iTRS. The Commission will require that any VRS provider
that is leasing an automatic call distribution (ACD) platform from an
eligible provider or from a third-party non-provider must have a
written lease for such ACD platform and must include a copy of such
written lease with its application for certification. The terms of the
lease may not include (i) Compensation of the lessor by the lessee
related to minutes of use or (ii) revenue sharing agreements between
the lessor and the lessee. All references to leasing, leases, lessors,
and lessees in this discussion of ACD platforms shall be construed to
refer correspondingly to licensing, licenses, licensors, and licensees.
7. In addition, a VRS provider leasing an ACD platform from an
eligible provider must locate the ACD platform on its own premises and
must use its own employees to manage the ACD platform. In other words,
an eligible VRS provider may lease the ACD platform from an eligible
provider on a stand-alone basis, but may not lease capacity on another
provider's ACD. The Commission will deny any application for
certification that does not comply with the ACD platform requirements.
In addition, if the Commission later discovers that a certified VRS
provider is leasing from an eligible provider an ACD platform subject
to an arrangement (whether in writing or verbal) that does not comply
with the ACD platform requirements, the Fund Administrator shall
immediately suspend all payments to both the lessor and the lessee.
8. The Commission finds that ACD leases with eligible providers
calling for revenue sharing, compensation related to minutes of use,
sharing of the ACD platform, or sharing the management of the ACD
platform may give providers an increased incentive and ability to
generate illegitimate minutes to bill to the Fund, and thus could
result in continuation of the types of unlawful activities that the
Commission has already seen on the part of many white label providers,
undermining the Commission's efforts to reduce waste, fraud and abuse.
In order to prevent fraud and ensure that only providers certified by
the Commission provide the core components of VRS and exercise
oversight of, and are accountable for, their own operations, the
Commission prohibits these practices.
9. For VRS providers that lease their ACD platforms from
manufacturers or equipment distributors not affiliated with VRS
providers, the Commission requires a written lease for such ACD
platform that conforms to the same restrictions on lease terms
discussed above (i.e., no compensation related to minutes of use and no
revenue sharing between lessor and lessee), and that the applicant
include a copy with its application for certification. The ban on
revenue sharing and compensation based upon minutes of use should
remove any incentive on the part of the non-provider lessor to
facilitate any scheme by a provider to generate illegitimate minutes.
10. IP Relay and IP CTS Providers. In the VRS Practices Report and
Order, the Commission adopted requirements that VRS providers own and
operate their own facilities and employ their own CAs as part of a
package of rules designed to reduce fraud, establish better oversight
of the VRS program, and address the unauthorized revenue sharing
arrangements that have escalated in the VRS program. Though IP Relay
and IP CTS providers frequently use subcontractors to operate call
centers, to date there has been no public record of significant waste,
fraud and abuse in those programs from the use of subcontractors as
there is in the VRS program, where there have been dozens of
indictments related to fraud. The Commission therefore finds that to
apply these requirements to IP Relay and IP CTS providers at this time
could force such providers to expend significant sums to restructure
their businesses to own and operate their own facilities, and thereby
result in disproportionate industry disruption as compared to
regulatory benefit. Nevertheless, the Commission will monitor the
provision of IP Relay and IP CTS services and revisit this issue should
the need arise.
[[Page 47471]]
Evidentiary Documentation for Submission for Certification Application
11. The Commission has modified some of the documentation
requirements originally proposed in the Certification FNPRM to minimize
the burden on applicants to the extent consistent with the Commission's
responsibility to ensure that only qualified providers are certified
and that the Commission is able to exercise adequate oversight of
providers. All of the requirements adopted in document FCC 11-118 are
adopted pursuant to one or more of the Commission's objectives to
ensure that iTRS providers receiving certification are qualified to
provide iTRS in compliance with the Commission's rules, and to
eliminate waste, fraud and abuse through improved oversight of such
providers.
12. Deeds or Leases for Call Centers. The Commission modifies its
proposal that a certification applicant file a copy of ``each'' deed or
lease for ``each'' of its call centers. Instead, the Commisison will
require VRS providers that maintain five or fewer domestic call centers
to submit the deeds or leases for all of those call centers, while
requiring providers with more than five domestic call centers to submit
a representative sampling of the deeds or leases for five of their
centers, together with a list of all other call centers that they
operate. The Commission notes that the VRS Practices Report and Order
already requires that providers, twice per year, submit a list to the
Commission and the TRS Fund administrator of the locations of all of
their call centers that handle VRS calls. Specifically, the list must
contain the street address of each call center, the number of
individual CAs and CA managers employed at each call center, and the
name and contact information (phone number and e-mail address) for the
managers at each call center. The Commission directs that the list we
require here contain the same information. In addition, all providers
must submit copies of deeds or leases for all international call
centers that they operate, regardless of the number of such centers;
these supplement the five (or fewer, if applicable) domestic deeds or
leases. Because the Commission does not require at this juncture that
IP Relay or IP CTS providers actually own or operate call centers, the
Commission does not apply this documentation requirement to them.
13. Entities with Financial Interest in Applicant. The Commission
requires that all iTRS applicants for certification or renewal submit a
list of individuals or entities that hold at least a 10 percent equity
interest in the provider, have the power to vote 10 percent or more of
the securities of the provider, or exercise de jure or de facto control
over the provider. In addition, the Commission requires applicants to
submit a description of its organizational structure, and the names of
its executives, officers, general partners (if the applicant is
structured as a partnership), and members of its board of directors.
The Commission declines to adopt its proposal in the Certification
FNPRM that certification applicants submit a list of all financing
arrangements pertaining to the provision of iTRS, including
documentation on loans for equipment, inventory, property, promissory
notes, and liens.
14. List of Employees and Copies of Employment Agreements. The
Commission adopts substantially modified versions of its proposals in
the Certification FNPRM that certification applicants provide a list of
names of all their employees, and that applicants furnish copies of
employment agreements for all of their executives and CAs. With respect
to employee lists, the Commission requires only that providers submit a
list of numbers of full-time and part-time employees involved in TRS
operations, that includes, divided by the following positions: the
executives and officers; video phone installers; CAs; and persons
involved in marketing and sponsorship activities. In response to
several comments objecting to the scope of the Commission's original
proposal, Commission is not requiring the submission of information on
employees, such as janitorial staff, who do not have any direct
involvement with relay services. Nevertheless, the Commission will
require applicants to retain the more comprehensive documentation that
the Commission originally asked for regarding employees, including
names and copies of employment agreements--to the extent they are
involved in TRS operations--and to furnish it to the Commission upon
the Commission's request. Likewise, instead of submitting agreements
for all of its executives and CAs, iTRS certification applicants must
retain employment agreements for its executives responsible for the
provision of iTRS, including senior operations and marketing personnel,
and copies of CA employment contracts. Consistent with record retention
requirements that the Commission adopted in the VRS Practices Report
and Order, the Commission likewise adopts a five-year duration period
for the employment agreements and other employee records that it
requires providers to retain in this Second Report and Order.
15. Proofs of Purchase or Lease for Use of All Equipment and/or
Technologies. The Commission adopts a slightly modified version of the
Commission's proposal to require applicants for certification to submit
proofs of purchase or license agreements for all equipment and/or
technologies, including hardware and software, used for the applicant's
VRS call center functions. The Commission will require applicants, in
their submissions, to describe the technology and equipment used to
support their call center functions--including, but not limited to,
ACD, routing, call setup, mapping, call features, billing for
compensation from the TRS Fund, and registration--and for each core
call center function, state whether it is owned or leased (and from
whom if leased or licensed), and provide proofs of purchase, license
agreements, or leases. This requirement's scope is limited to equipment
and/or technologies to be used by the applicant for its call center
functions, i.e., to provide the core components (other than CAs) of
VRS. Because the Commission does not require at this juncture that IP
Relay or IP CTS providers actually own or operate their own facilities,
the Commission does not apply this documentation requirement to them.
16. List of Sponsorship Arrangements. The Commission adopts a
slightly modified version of its proposal to require that applicants
submit a list of all sponsorship or marketing arrangements and
associated agreements. Now the Commission requires only those related
to iTRS.
17. Copies of Subcontracting Agreements for Non-Essential Services.
The Commission now believes that the scope of such documentation would
be overly broad and only marginally useful, and declines to adopt this
requirement.
18. Copies of All Other Agreements Related to Provision of iTRS. In
the Certification FNPRM, the Commission proposed to require applicants
for certification to submit copies of ``all other agreements''
associated with the provision of iTRS. Although the Commission declines
to adopt a requirement that applicants submit copies of all other such
agreements that are not included in any of the above categories, the
Commission may seek additional relevant information from individual
applicants that the Commission deems to be directly relevant to the
applicant's ability to
[[Page 47472]]
comply with the Commission's rules, on an as-needed basis.
19. Common Carrier Status. The Commission will eliminate the
requirement that iTRS providers demonstrate their status as common
carriers in order to receive certification. The Commission notes,
however, that all providers, regardless of whether they are common
carriers, are required to provide service in a manner that is both
compliant with the Communications Act of 1934, as amended
(Communications Act) and the Commission's rules and orders, and
consistent with the Commission's policies and goals to prevent fraud
and abusive practices. To that end, the Commission will seek comment in
a forthcoming Notice of Proposed Rulemaking on whether it is necessary
to adopt a rule to make non-common carrier iTRS providers subject to
the same prohibitions against unjust or unreasonable practices that
common carriers are subject to under the Communications Act. See 47
U.S.C. 201(b), 202(a).
On-Site Visits
20. The Commission finds that on-site visits may uncover
deficiencies in an application or noncompliance in a provider's
operations, which will decrease opportunities for and may, in turn,
prevent, waste, fraud and abuse. Accordingly, the Commission reserves
the right to include, as part of the iTRS certification process, an on-
site visit to the applicant's headquarters, offices or call centers.
The Commission also reserves the right to make subsequent, unannounced
on-site visits of iTRS providers once they receive certification, for
the purpose of ensuring continued compliance with certification
requirements.
21. In order to avoid an interruption of service by those VRS
providers who are already providing service via subcontracting, but who
seek to become eligible providers through Commission certification, the
Commission reserves the right to conditionally grant certification,
subject to a subsequent optional on-site visit of any applicant where
the Commission, upon initial review of the application, determines that
the application facially meets the certification requirements, but that
the Commission needs to verify some of the information contained in the
application. Such grant of conditional certification will be without
prejudice to the Commission's final determination of the applicant's
qualifications, and will be dependent on the Commission verifying the
information provided in the application for certification. Ultimate
conversion to a full certification will occur when the Commission
finds, based on review of the application, that the conditional grantee
is in compliance with the Commission's rules and is qualified to
receive compensation from the Fund for the provision of iTRS services.
In other words, the Commission will complete its review of the
applicant's qualifications subsequent to the on-site visit, and if the
Commission finds the applicant to be qualified based on the complete
review, then the Commission will issue full certification. If the
Commission finds the applicant not to be qualified based on the
complete review, the application will be denied and the conditional
certification will automatically terminate 35 days after the denial. In
such a case, the provider must give at least 30 days notice to its
customers that the provider will no longer provide service.
Annual Reports and Certification Renewals
22. Due to the evolving nature of the technologies and market for
iTRS services, it is essential for the Commission to be informed on an
annual basis of any updates to the information provided in the
certification application. Therefore, the Commission will now require
certified iTRS providers to append to their annual reports any
documentary evidence required for certification that has changed since
the date that certification was granted, and that has not been included
in annual reports filed since the date of certification, and to provide
a summary of such changes. If all documents that a provider supplied to
the Commission at the time of its certification application and with
subsequent annual reports remain accurate and current, a provider is
instead required to append to its annual report an attestation that it
has no updates to its certification documentation and subsequent annual
reports. The Commission also declines to eliminate the current rule
requiring iTRS providers to apply for recertification every five years.
Notification of Substantive Change
23. In order to ensure that the Commission has complete and up-to-
date information about the types of technologies and equipment used by
VRS and IP Relay providers, the Commission amends its rules to require
that each provider notify the Commission within 60 days of its launch
of any new equipment or technology, including hardware and software,
that it offers to consumers to the extent that such equipment or
technology changes the way in which consumers access the provider's VRS
or IP Relay services or has a bearing on the provider's compliance with
the Commission's mandatory minimum standards.
24. The Commission determines that providing services from a new
facility not previously identified to the Commission or the Fund
administrator and discontinuation of service from any facility are
types of substantive changes warranting notification to the Commission.
In order to ensure that all VRS and IP Relay providers comply with the
Commission's rules, the Commission must have in its records the
existence and location of all VRS and IP Relay facilities established
by the providers. Without such information, it will be more difficult
to monitor compliance with the Commission's rules and to reduce waste,
fraud and abuse.
25. The Commission takes this opportunity to reiterate that if a
Commission-certified provider purchases, acquires, or merges with
another iTRS provider, such transaction constitutes a substantive
change under Sec. 64.606(f)(2) of the Commission's rules, and
therefore requires notice to the Commission within 60 days of its
consummation. The Commission further notes that a Commission
certification is not transferable to an entity not already certified by
the Commission as eligible for compensation from the Fund.
26. The Commission finds that this 60-day notification requirement
should be limited to those changes that likely impact a provider's
ability to provide service in compliance with the Commission's rules.
At this time, the Commission does not find it necessary to apply this
60-day notification requirement to changes in a provider's management,
name branding of its product, or marketing and outreach activities to
ensure compliance with the Commission's rules, but will revisit the
issue if the need arises. Moreover, the rule changes the Commission
adopts, including the substance of the annual reporting requirements,
will enable the Commission to better monitor compliance with its rules
and help reduce waste, fraud and abuse.
Temporary Cessation of Service
27. The Commission will adopt its proposal to require Commission
approval in advance of planned service outages by VRS providers and to
require notification to consumers in advance of such outages. Because
Commission requirements that service be provided 24 hours a day, seven
days a week,
[[Page 47473]]
currently apply to VRS but not to IP Relay and IP CTS, the Commission
adopts these requirements for VRS and not for the other iTRS services.
As proposed in the Certification FNPRM, applications for temporary
cessation of service must be filed at least 60 days in advance of such
planned outage, and the Commission will act on any such application at
least 35 days in advance of the planned service interruption date to
afford providers a sufficient opportunity to notify consumers.
28. The Commission adopts a de minimis exception to its initial
proposal to require prior Commission consent for all planned service
outages. Planned outages of less than 30 minutes will not require prior
consent of the Commission or prior notification to consumers, but the
Commission must be notified of such outages within two business days
after the outage. The Commission clarifies that it will not construe
load-shifting among call centers as an interruption in service if
service is not affected by such load shifting.
29. The Commission will require that unforeseen service
interruptions of any iTRS service beyond the control of the provider be
reported to the Consumer and Governmental Affairs Bureau (CGB) within
two business days of the start of such service interruption. The
Commission also requires that notification of service outages be
provided to consumers on an accessible Web site, and that the Web site
also include timely updates of service status.
Timeframe for Existing Providers To Apply for New Certification
30. In order to ensure the seamless delivery of iTRS during the
transition period following Commission establishment of the new
eligibility requirements and certification procedures, any provider
currently eligible to receive compensation from the TRS Fund via a
means other than Commission certification is required to apply for
certification within 30 days after publication in the Federal Register
of notice of OMB approval of the rules in document FCC 11-118
containing information collections, if it wishes to continue receiving
compensation from the Fund without interruption pending review of its
certification application. The Commission hereby grants interim
eligibility to any iTRS provider currently eligible to receive
compensation directly from the TRS Fund to continue to be eligible to
receive compensation from the Fund. Such interim eligibility shall
expire (1) 35 days after this application deadline, in the event no
application is timely filed; (2) 35 days after Commission dismissal or
denial of the application for certification in the event of Commission
dismissal or denial; or (3) upon Commission grant of the application
for certification in the event of Commission grant. Where interim
eligibility expires under (1) or (2), the Commission requires the
provider to give its customers at least 30 days notice that the
provider will no longer provide service.
31. For those providers with Commission certifications that would
have expired before the new certification requirements adopted in
document FCC 11-118 go into effect had they not been extended to
November 4, 2011, the Commission requires that they submit applications
for recertification under the new requirements adopted in document FCC
11-118 after the requirements become effective but at least 30 days
prior to the expiration of their currently extended certifications--
that is, no later than October 5, 2011, provided that the rules are
effective by that date.
32. The current stay of the Commission's rule which prohibits
revenue sharing arrangements expires on October 1, 2011. For those iTRS
providers who are not currently eligible to receive compensation
directly from the TRS Fund but are currently providing service under a
revenue sharing arrangement, and are interested in seeking a seamless
transition to certified iTRS provider, the Commission urges that they
file their certification applications on, or as soon as possible after,
the day the rules adopted in this Second Report and Order become
effective, so that review of their applications can commence as soon as
possible.
Final Regulatory Flexibility Certification
The Regulatory Flexibility Act of 1980, as amended (RFA), requires
that a regulatory flexibility analysis be prepared for 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.'' The RFA generally defines ``small entity'' as
having the same meaning as the terms ``small business,'' ``small
organization,'' and ``small governmental jurisdiction.'' See 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. 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). Small Business Act, 15 U.S.C. 632.
In document FCC 11-118, the Commission amends its process for
certifying iTRS providers as eligible for payment from the Fund for
their provision of iTRS, as proposed in the Commission's Certification
FNPRM. In the Certification FNPRM, the Commission sought comment on
ways to revise the current certification process to ensure that iTRS
providers receiving certification are qualified to provide iTRS in
compliance with the Commission's rules, and to eliminate waste, fraud
and abuse through improved oversight of such providers. Specifically,
in document FCC 11-118, the Commission requires all iTRS providers to
obtain certification from the Commission in order to be eligible to
receive compensation from the Fund; requires all VRS applicants for
Commission certification to lease, license or own, as well as operate,
essential facilities associated with TRS call centers and to employ
interpreters to staff those centers at the date of the application; and
requires each iTRS applicant for certification to submit specific types
of documentary evidence of its ability to comply with all of the
Commission's rules, including those adopted in the VRS Practices Report
and Order. In addition, the Commission adopts rules governing on-site
visits by Commission staff to the premises of applicants for
certification, as well as to iTRS providers' premises after they are
certified. The Commission also revises its rules governing annual
compliance reports filed by certified providers, and substantive TRS
program changes that must be reported to the Commission. Finally, the
Commission requires prior approval for planned cessations of VRS
service of 30 minutes or longer.
The Commission has assessed the effects of imposing various
requirements on iTRS providers to obtain certification from the
Commission in order to be eligible for compensation from the TRS Fund.
The Commission has determined that any additional data filing
requirements imposed by document FCC 11-118 on iTRS providers are
reasonable and necessary in order to ensure compliance with the
Commission's rules, particularly in light of the widespread fraud
currently being investigated in the VRS industry. VRS is a form of
iTRS. The Commission has taken steps to address the concerns of
commenters stating that some of the Commission's proposed rules were
overly burdensome. For example, the Commission initially proposed to
require that a provider file a deed or
[[Page 47474]]
lease for every service center operated. The Commission has modified
this requirement in its final rule to allow for providers with more
than five centers to submit a representative sampling of deeds and
leases. In addition, the Commission has declined to adopt its proposed
requirement for providers to submit documentation of all financing
arrangements pertaining to the provision of iTRS. The Commission has
also declined to adopt the proposed requirement that providers submit
copies of all subcontracting agreements for services not directly
essential for the provision of iTRS. The Commission concludes that it
has taken steps to further reduce the burdens on affected entities to
apply for certification to receive compensation from the TRS Fund for
the provision of iTRS services, and that the remaining filing
requirements are not overly economically burdensome.
In order to be compensated, TRS providers are already required to
comply with all of the Commission's rules governing the provision of
TRS. All reasonable costs of providing service in compliance with
document FCC 11-118 are compensable from the Fund. Thus, because
certified providers will recoup the costs of compliance within a
reasonable period, the Commission asserts that such providers will not
be detrimentally burdened. This applies to currently eligible iTRS
providers, as well as potential future applicants to provide iTRS.
Applications to become a certified iTRS provider are voluntarily
submitted. Therefore, the Commission is not imposing an expense on a
potential applicant that it cannot avoid by either declining to apply
for certification, or by complying with the Commission's rules. If a
small entity, as defined by the SBA, makes the latter business decision
and applies for certification by showing that it can comply with all of
the Commission's rules, its expenses will be indirectly reimbursed from
the Fund once it becomes a certified provider. Therefore, for the small
business entities receiving certification there is no adverse economic
impact, and the question of whether there is a negative impact on a
significant number of small entities is moot.
Therefore, the Commission certifies that the requirements of
document FCC 11-118 will not have a significant economic impact on a
substantial number of small entities.
The Commission will send a copy of document FCC 11-118, including a
copy of this Final Regulatory Flexibility Certification, in a report to
Congress pursuant to the Congressional Review Act. See 5 U.S.C.
801(a)(1)(A).
Ordering Clauses
Pursuant to sections 1, 4(i), (j) and (o), 225, and 303(r), of the
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), (j) and
(o), 225, and 303(r), document FCC 11-118 is adopted.
Pursuant to Sec. 1.427(a) of the Commission's rules, 47 CFR
1.427(a), document FCC 11-118 and the rules adopted herein shall be
effective September 6, 2011, except 47 CFR 64.606(a)(2), (g), (h)(2),
and (h)(3) of the Commission's rules, which require approval by OMB
under the PRA and which shall become effective after the Commission
publishes a notice in the Federal Register announcing such approval and
the relevant effective date.
The Commission's Consumer and Governmental Affairs Bureau,
Reference Information Center, shall send a copy of document FCC 11-118
including the Final Regulatory Flexibility Certification, to the Chief
Counsel for Advocacy of the Small Business Administration.
List of Subjects in 47 CFR Part 64
Individuals with disabilities, Reporting and recordkeeping
requirements, Telecommunications.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Final Rules
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), Pub.
L. 104-104, 110 Stat. 56. Interpret or apply 47 U.S.C. 201, 218,
225, 226, 228, 254(k), and 620, unless otherwise noted.
SUBPART F--TELECOMMUNICATIONS RELAY SERVICES AND RELATED CUSTOMER
PREMISES EQUIPMENT FOR PERSONS WITH DISABILITIES
0
2. Section 64.604 is amended by adding new paragraph (b)(4)(iv) and by
revising paragraph (c)(5)(iii)(F) to read as follows:
Sec. 64.604 Mandatory minimum standards.
* * * * *
(b) * * *
(4) * * *
(iv) A VRS provider leasing or licensing an automatic call
distribution (ACD) platform must have a written lease or license
agreement. Such lease or license agreement may not include any revenue
sharing agreement or compensation based upon minutes of use. In
addition, if any such lease is between two eligible VRS providers, the
lessee or licensee must locate the ACD platform on its own premises and
must utilize its own employees to manage the ACD platform.
* * * * *
(c) * * *
(5) * * *
(iii) * * *
(F) Eligibility for payment from the TRS Fund. (1) TRS providers,
except Internet-based TRS providers, eligible for receiving payments
from the TRS Fund must be:
(i) TRS facilities operated under contract with and/or by certified
state TRS programs pursuant to Sec. 64.606; or
(ii) TRS facilities owned or operated under contract with a common
carrier providing interstate services operated pursuant to this
section; or
(iii) Interstate common carriers offering TRS pursuant to this
section.
(2) Internet-based TRS providers eligible for receiving payments
from the TRS fund must be certified by the Commission pursuant to Sec.
64.606.
* * * * *
0
3. Section 64.606 is amended by revising the section heading and
paragraph (a)(2), by adding new paragraph (a)(3), by revising
paragraphs (b)(2), (c)(2), (e)(2), (f)(2) and (g), and by adding new
paragraph (h) to read as follows:
Sec. 64.606 Internet-based TRS provider and TRS program
certification.
(a) * * *
(2) Internet-based TRS provider. Any entity desiring to provide
Internet-based TRS and to receive compensation from the Interstate TRS
Fund, shall submit documentation to the Commission addressed to the
Federal Communications Commission, Chief, Consumer and Governmental
Affairs Bureau, TRS Certification Program, Washington, DC 20554, and
captioned ``Internet-based TRS Certification Application.'' The
documentation shall include, in narrative form:
(i) A description of the forms of Internet-based TRS to be provided
(i.e., VRS, IP Relay, and/or IP captioned telephone relay service);
(ii) A detailed description of how the applicant will meet all non-
waived mandatory minimum standards applicable to each form of TRS
offered,
[[Page 47475]]
including documentary and other evidence, and in the case of VRS, such
documentary and other evidence shall demonstrate that the applicant
leases, licenses or has acquired its own facilities and operates such
facilities associated with TRS call centers and employs communications
assistants, on a full or part-time basis, to staff such call centers at
the date of the application. Such evidence shall include, but not be
limited to:
(A) In the case of VRS applicants or providers,
(1) Operating five or fewer call centers within the United States,
a copy of each deed or lease for each call center operated by the
applicant within the United States;
(2) Operating more than five call centers within the United States,
a copy of each deed or lease for a representative sampling (taking into
account size (by number of communications assistants) and location) of
five call centers operated by the applicant within the United States,
together with a list of all other call centers that they operate that
includes the information required under Sec. 64.604(c)(5)(iii)(N)(2);
(3) Operating call centers outside of the United States, a copy of
each deed or lease for each call center operated by the applicant
outside of the United States;
(4) A description of the technology and equipment used to support
their call center functions--including, but not limited to, automatic
call distribution, routing, call setup, mapping, call features, billing
for compensation from the TRS Fund, and registration--and for each core
call center function, a statement whether such technology and equipment
is owned, leased or licensed (and from whom if leased or licensed); and
(5) Proofs of purchase, leases or license agreements for all
technology and equipment used to support their call center functions,
including a complete copy of any lease or license agreement for
automatic call distribution.
(B) For all applicants, a list of individuals or entities that hold
at least a 10 percent equity interest in the applicant, have the power
to vote 10 percent or more of the securities of the applicant, or
exercise de jure or de facto control over the applicant, a description
of the applicant's organizational structure, and the names of its
executives, officers, members of its board of directors, general
partners (in the case of a partnership), and managing members (in the
case of a limited liability company);
(C) For all applicants, a list of the number of applicant's full-
time and part-time employees involved in TRS operations, including and
divided by the following positions: executives and officers; video
phone installers (in the case of VRS), communications assistants, and
persons involved in marketing and sponsorship activities;
(D) For all applicants, copies of employment agreements for all of
the provider's employees directly involved in TRS operations,
executives, and communications assistants, and a list of names of
employees directly involved in TRS operations, need not be submitted
with the application, but must be retained by the applicant for five
years from the date of application, and submitted to the Commission
upon request; and
(E) For all applicants, a list of all sponsorship arrangements
relating to Internet-based TRS, including any associated written
agreements;
(iii) A description of the provider's complaint procedures; and
(iv) A statement that the provider will file annual compliance
reports demonstrating continued compliance with these rules.
(3) Assessment of Internet-based TRS Provider Certification
Application. In order to assess the merits of a certification
application submitted by an Internet-based TRS provider, the Commission
may conduct one or more on-site visits of the applicant's premises, to
which the applicant must consent.
(b) * * *
(2) Requirements for Internet-based TRS Provider FCC certification.
After review of certification documentation, the Commission shall
certify, by Public Notice, that the Internet-based TRS provider is
eligible for compensation from the Interstate TRS Fund if the
Commission determines that the certification documentation:
(i) Establishes that the provision of Internet-based TRS will meet
or exceed all non-waived operational, technical, and functional minimum
standards contained in Sec. 64.604;
(ii) Establishes that the Internet-based TRS provider makes
available adequate procedures and remedies for ensuring compliance with
the requirements of this section and the mandatory minimum standards
contained in Sec. 64.604, including that it makes available for TRS
users informational materials on complaint procedures sufficient for
users to know the proper procedures for filing complaints.
(c) * * *
(2) Internet-based TRS Provider FCC certification period.
Certification granted under this section shall remain in effect for
five years. An Internet-based TRS provider applying for renewal of its
certification must file documentation with the Commission containing
the information described in paragraph (a)(2) of this section at least
90 days prior to expiration of its certification.
* * * * *
(e) * * *
(2) Suspension or revocation of Internet-based TRS Provider FCC
certification. The Commission may suspend or revoke the certification
of an Internet-based TRS provider if, after notice and opportunity for
hearing, the Commission determines that such certification is no longer
warranted. The Commission may, on its own motion, require a certified
Internet-based TRS provider to submit documentation demonstrating
ongoing compliance with the Commission's minimum standards if, for
example, the Commission receives evidence that a certified Internet-
based TRS provider may not be in compliance with the minimum standards.
(f) * * *
(2) VRS and IP Relay providers certified under this section must
notify the Commission of substantive changes in their TRS programs,
services, and features within 60 days of when such changes occur, and
must certify that the interstate TRS provider continues to meet Federal
minimum standards after implementing the substantive change.
Substantive changes shall include, but not be limited to:
(i) The use of new equipment or technologies to facilitate the
manner in which relay services are provided;
(ii) Providing services from a new facility not previously
identified to the Commission or the Fund administrator; and
(iii) Discontinuation of service from any facility.
(g) Internet-based TRS providers certified under this section shall
file with the Commission, on an annual basis, a report demonstrating
that they are in compliance with Sec. 64.604. Such reports must update
the information required in paragraph (a)(2) of this section and
include updated documentation and a summary of the updates, or certify
that there are no changes to the information and documentation
submitted with the application for certification, application for
renewal of certification, or the most recent annual report, as
applicable.
(h) Unauthorized service interruptions. (1) Each certified VRS
provider must provide Internet-based TRS without unauthorized voluntary
service interruptions.
[[Page 47476]]
(2) A VRS provider seeking to voluntarily interrupt service for a
period of 30 minutes or more in duration must first obtain Commission
authorization by submitting a written request to the Commission's
Consumer and Governmental Affairs Bureau (CGB) at least 60 days prior
to any planned service interruption, with detailed information of:
(i) Its justification for such interruption;
(ii) Its plan to notify customers about the impending interruption;
and
(iii) Its plans for resuming service, so as to minimize the impact
of such disruption on consumers through a smooth transition of
temporary service to another provider, and restoration of its service
at the completion of such interruption. CGB will grant or deny such a
request and provide a response to the provider at least 35 days prior
to the proposed interruption, in order to afford an adequate period of
notification to consumers. In evaluating such a request, CGB will
consider such factors as the length of time of the proposed
interruption, the reason for such interruption, the frequency with
which such requests have been made by the provider in the past, the
potential impact of the interruption on consumers, and the provider's
plans for a smooth service restoration.
(3) In the event of an unforeseen service interruption due to
circumstances beyond an Internet-based TRS service provider's control,
or in the event of a VRS provider's voluntary service interruption of
less than 30 minutes in duration, the provider must submit a written
notification to CGB within two business days of the commencement of the
service interruption, with an explanation of when and how the provider
has restored service or the provider's plan to do so imminently. In the
event the provider has not restored service at the time such report is
filed, the provider must submit a second report within two business
days of the restoration of service with an explanation of when and how
the provider has restored service. The provider also must provide
notification of service outages covered by this paragraph to consumers
on an accessible Web site, and that notification of service status must
be updated in a timely manner.
(4) A VRS provider that fails to obtain prior Commission
authorization for a voluntary service interruption or fails to provide
written notification after a voluntary service interruption of less
than 30 minutes in duration, or an Internet-based TRS provider that
fails to provide written notification after the commencement of an
unforeseen service interruption due to circumstances beyond the
provider's control in accordance with this subsection, may be subject
to revocation of certification, suspension of payment from the TRS
Fund, or other enforcement action by the Commission, as appropriate.
[FR Doc. 2011-19795 Filed 8-4-11; 8:45 am]
BILLING CODE 6712-01-P