[Federal Register Volume 78, Number 24 (Tuesday, February 5, 2013)]
[Rules and Regulations]
[Pages 8030-8032]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-02367]



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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CG Docket Nos. 13-24 and 03-123; FCC 13-13]


Misuse of Internet Protocol (IP) Captioned Telephone Service; 
Telecommunications Relay Services and Speech-to-Speech Services for 
Individuals With Hearing and Speech Disabilities

AGENCY: Federal Communications Commission.

ACTION: Final rule; interpretation.

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SUMMARY: In this document, the Commission adopts a final interpretive 
rule modification to clarify its Telecommunications Relay Service (TRS) 
payment rule to explicitly provide that the Interstate TRS Fund (Fund 
or TRS Fund) administrator shall not be obligated to pay any request 
for compensation until it has been established as compensable. The 
Commission's action is intended preserve the integrity and viability of 
the TRS Fund by ensuring that obligations are not incurred prior to the 
Fund administrator or the Commission has determined that requests for 
payment are compensable. Because this is an interpretive rule 
modification, it is not subject to notice and comment procedures.

DATES: Effective March 7, 2013.

FOR FURTHER INFORMATION CONTACT: Eliot Greenwald, Consumer and 
Governmental Affairs Bureau, Disability Rights Office, at (202) 418-
2235 or email Eliot.Greenwald@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order, 
document FCC 13-13, adopted on January 24, 2013 and released on January 
25, 2013, in CG Docket Nos. 13-24 and 03-123. In document FCC 13-13, 
the Commission also adopted an Interim Rule and a Notice of Proposed 
Rulemaking, each of which is summarized in a separate Federal Register 
publication. The full text of document FCC 13-13 will be available for 
public inspection and copying via ECFS, and during regular business 
hours at the FCC Reference Information Center, Portals II, 445 12th 
Street SW., Room CY-A257, Washington, DC 20554. It also may be 
purchased from the Commission's duplicating contractor, Best Copy and 
Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, 
Washington, DC 20554, telephone: (800) 378-3160, fax: (202) 488-5563, 
or Internet: www.bcpiweb.com. Document FCC 13-13 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 email 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 13-13, final rule, does not contain new or modified 
information collection requirements subject to the Paperwork Reduction 
Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does 
not contain any new or modified information collection burden for small 
business concerns with fewer than 25 employees, pursuant to the Small 
Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 
U.S.C. 3506(c)(4).

Synopsis

    1. In document FCC 13-13, the Commission reminds TRS providers 
that, under existing law, they are not entitled to collect payment from 
the TRS Fund for service that does not constitute compensable TRS under 
the statute and our rules. TRS is defined as ``telephone transmission 
services that provide the ability for an individual who is deaf, hard 
of hearing, deaf-blind, or who has a speech disability to engage in 
communication by wire or radio with one or more individuals, in a 
manner that is functionally equivalent to the ability of a hearing 
individual who does not have a speech disability to communicate using 
voice communication services by wire or radio.'' 47 U.S.C. 225(a)(3). 
Payments to TRS providers are based on total monthly TRS minutes of 
use. Sec. Sec.  64.601(a)(21), 64.604(c)(5)(iii)(E) of the Commission's 
rules. See also Publix Network Corp.; Customer Attendants, LLC; Revenue 
Controls Corp.; Revenue Controls Corp.; SignTel, Inc.; and Focus Group, 
LLC, Order to Show Cause and Notice of Opportunity for Hearing, 17 FCC 
Rcd 11487, 11495, paragraph 19 (2002) (Publix).
    2. Thus, service to a user who is not ``deaf, hard of hearing, 
deaf-blind, or who [does not have] a speech disability,'' or service 
that otherwise does not meet the requirements in the Commission's rules 
and orders, does not qualify for reimbursement from the TRS Fund. 
Therefore, the Commission may, for example, request providers to submit 
to the Commission a description of the reasonable practices they are 
using to ensure that they are not requesting payment from the TRS Fund 
for service that does not constitute compensable TRS. Providers whose 
submissions do not adequately establish that they are requesting 
compensation only for service to eligible users may be denied 
compensation for IP CTS minutes.
    3. To address any possible ambiguity in the Commission's existing 
rules as to when TRS providers are entitled to compensation, the 
Commission amends Sec.  64.604(c)(5)(iii)(E) of its rules (governing 
payments to TRS providers) to clarify that the Fund administrator shall 
not be obligated to pay any request for compensation until it has been 
established as compensable. A request will be established as 
compensable only after the administrator or the Commission determines 
that the provider has met its burden to demonstrate that the claim is 
properly compensable under these rules and the procedures established 
by the administrator in consultation with the Commission. The 
Commission clarifies that any request for compensation for which 
payment has been suspended or withheld in accordance with 47 CFR 
64.604(c)(5)(iii)(L) will not be considered compensable until the 
administrator, in consultation with the Commission, or the Commission 
on its own makes a final determination that the request is compensable 
in accordance with that provision. Because this revision to Sec.  
64.604 of the Commission's rules does not impose new substantive rules 
but rather clarifies existing rules, it constitutes an interpretive 
rule for which the Commission need not provide prior notice and obtain 
public comment. See 5 U.S.C. 553(b)(A). See also Syncor Intern. Corp. 
v. Shalala, 127 F.3d 90, 94 (DC Cir. 1997) (``an interpretive rule can 
construe an agency's substantive regulation as well as a statute'').

Final Regulatory Flexibility Analysis

    4. The Regulatory Flexibility Act (RFA), 5 U.S.C. 603, requires 
that an agency prepare a regulatory flexibility analysis 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.'' 5 U.S.C. 605(b). The RFA 
generally defines ``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).

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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.
    5. In document FCC 13-13, to preserve the integrity and viability 
of the TRS Fund by ensuring that obligations are not incurred prior to 
the Fund administrator or the Commission has determined that requests 
for payment are compensable, the Commission adopts a final rule 
amending Sec.  64.604(c)(5)(iii)(E) of its rules (governing payments to 
TRS providers) to clarify that the TRS Fund administrator shall not be 
obligated to pay any request for compensation until it has been 
established as compensable. As a result, a request will be established 
as compensable only after the administrator or the Commission 
determines that the provider has met its burden to demonstrate that the 
claim is properly compensable under the rules and the procedures 
established by the administrator in consultation with the Commission. 
Because this revision to Sec.  64.604 of the Commission's rules does 
not impose new substantive rules but rather clarifies existing rules, 
it constitutes an interpretive rule for which the Commission need not 
provide prior notice and obtain public comment. See 5 U.S.C. 553(b)(A). 
See also Syncor Intern. Corp. v. Shalala, 127 F.3d 90, 94 (DC Cir. 
1997) (``an interpretive rule can construe an agency's substantive 
regulation as well as a statute'').
    6. With regard to the criterion of the economic impact of document 
FCC 13-13, the Commission concludes that IP CTS providers fit within 
the business classification of Wired Telecommunications Carriers. See 
NAICS Code 517110 (2007). The closest applicable size standard under 
the SBA rules is for Wired Telecommunications Carriers, for which the 
small business size standard is all such firms having 1,500 or fewer 
employees. 13 CFR 121.201, NAICS Code 517110 (2007). Collectively, 
there are four IP CTS providers that are authorized by the Commission 
to offer these services. Only one of these entities is a small business 
under the SBA size standard. Therefore, the interim rules would not 
have a significant economic impact on a substantial number of small 
entities.
    7. The Commission therefore certifies, pursuant to the RFA, that 
the interim rules adopted in document FCC 13-13 will not have a 
significant economic impact on a substantial number of small entities. 
The Commission will send a copy of document FCC 13-13, including a copy 
of the RFA certification, to the Chief Counsel for Advocacy of the SBA.

Congressional Review Act

    8. The Commission will send a copy of document FCC 13-13 in a 
report to be sent to Congress and the Government Accountability Office 
pursuant to the Congressional Review Act. 5 U.S.C. 801(a)(1)(A).

Ordering Clauses

    9. Pursuant to sections 1, 2, 4(i) and (j) and 225 of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i) and 
(j) and 225, document FCC 13-13 is hereby adopted.

List of Subjects in 47 CFR Part 64

    Individuals with disabilities, Telecommunications.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Final Rule Changes

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 64 as follows:

PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS

0
1. The authority citation to part 64 continues to read as follows:

    Authority: 47 U.S.C. 154, 254(k); 403(b)(2)(B), (c), Pub. L. 
104-104, 110 Stat. 56. Interpret or apply 47 U.S.C. 201, 218, 222, 
225, 226, 227, 228, 254(k), 616, 620, and the Middle Class Tax 
Relief and Job Creation Act of 2012, Pub. L. 112-96, unless 
otherwise noted.

0
2. Amend Sec.  64.604 by revising paragraph (c)(5)(iii)(E) to read as 
follows:


Sec.  64.604  Mandatory minimum standards.

* * * * *
    (c) * * *
    (5) * * *
    (iii) * * *
    (E) Payments to TRS providers. (1) TRS Fund payments shall be 
distributed to TRS providers based on formulas approved or modified by 
the Commission. The administrator shall file schedules of payment 
formulas with the Commission. Such formulas shall be designed to 
compensate TRS providers for reasonable costs of providing interstate 
TRS, and shall be subject to Commission approval. Such formulas shall 
be based on total monthly interstate TRS minutes of use. The formulas 
should appropriately compensate interstate providers for the provision 
of TRS, whether intrastate or interstate.
    (2) TRS minutes of use for purposes of interstate cost recovery 
under the TRS Fund are defined as the minutes of use for completed 
interstate TRS calls placed through the TRS center beginning after call 
set-up and concluding after the last message call unit.
    (3) In addition to the data required under paragraph (c)(5)(iii)(C) 
of this section, all TRS providers, including providers who are not 
interexchange carriers, local exchange carriers, or certified state 
relay providers, must submit reports of interstate TRS minutes of use 
to the administrator in order to receive payments.
    (4) The administrator shall establish procedures to verify payment 
claims, and may suspend or delay payments to a TRS provider if the TRS 
provider fails to provide adequate verification of payment upon 
reasonable request, or if directed by the Commission to do so. The TRS 
Fund administrator shall make payments only to eligible TRS providers 
operating pursuant to the mandatory minimum standards as required in 
this section, and after disbursements to the administrator for 
reasonable expenses incurred by it in connection with TRS Fund 
administration. TRS providers receiving payments shall file a form 
prescribed by the administrator. The administrator shall fashion a form 
that is consistent with 47 CFR parts 32 and 36 procedures reasonably 
tailored to meet the needs of TRS providers.
    (5) The Commission shall have authority to audit providers and have 
access to all data, including carrier specific data, collected by the 
fund administrator. The fund administrator shall have authority to 
audit TRS providers reporting data to the administrator.
    (6) The administrator shall not be obligated to pay any request for 
compensation until it has been established as compensable. A request 
shall be established as compensable only after the administrator, in 
consultation with the Commission, or the Commission determines that the 
provider has met its burden to demonstrate that the claim is 
compensable under applicable Commission rules and the procedures 
established by the administrator. Any request for compensation for 
which payment has been suspended or withheld in accordance with 
paragraph (c)(5)(iii)(L) of this section shall not be established as 
compensable until the administrator, in consultation with the 
Commission, or the Commission determines that the request is

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compensable in accordance with paragraph (c)(5)(iii)(L)(4) of this 
section.
* * * * *
[FR Doc. 2013-02367 Filed 2-1-13; 4:15 pm]
BILLING CODE 6712-01-P