[Federal Register Volume 78, Number 24 (Tuesday, February 5, 2013)]
[Proposed Rules]
[Pages 8090-8096]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-02370]


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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: Proposed rule.

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SUMMARY: In this document, the Commission seeks comment on whether to 
make permanent, revise or eliminate its interim rules that: prohibit 
all referrals for rewards programs (as described in the synopsis below) 
and any other form of direct or indirect inducements, financial or 
otherwise, to subscribe to or use, or encourage subscription to or use 
of, Internet Protocol Captioned Telephone Service (IP CTS); require 
each IP CTS provider, in order to be eligible for compensation from the 
Interstate Telecommunications Relay Service (TRS) Fund (Fund or TRS 
Fund) for providing service to new IP CTS users, to register each new 
IP CTS user, and as part of the registration process, to obtain from 
the user a certification that the user has a hearing loss that 
necessitates IP CTS to communicate in a manner that is functionally 
equivalent to communication by conventional voice telephone users; and 
require IP CTS providers to ensure that equipment and software used in 
conjunction with their service have a default setting of captions off 
at the beginning of each call. The Commission also seeks comment on the 
following additional matters: the likely reasons that IP CTS has been 
experiencing unprecedented and unusually rapid growth; whether to 
prohibit all provider programs that give away or loan equipment to 
potential or existing IP CTS users at no cost or below some specified 
cost level; whether to require each IP CTS provider, as a condition of 
continuing to offer service to existing IP CTS users, to obtain 
registration and certification information from each such user; and 
whether to adopt any requirements for IP CTS equipment to have labels 
informing consumers that IP CTS may be used only by persons with 
hearing disabilities. The proposed rules are intended to address 
certain practices related to the provision and marketing of IP CTS that 
appear to be contributing to a recent and dramatic spike in 
reimbursement requests to the TRS Fund of sufficient magnitude to 
constitute a serious threat to the Fund if not promptly and decisively 
addressed.

DATES: Comments are due on or before February 26, 2013, and reply 
comments on or before March 12, 2013.

ADDRESSES: You may submit comments, identified by CG Docket No. 13-24, 
by any of the following methods:
    Electronic Filers: Comments may be filed electronically using the 
Internet by accessing the Commission's Electronic Comment Filing System 
(ECFS), through the Commission's Web site http://fjallfoss.fcc.gov/ecfs2/. Filers should follow the instructions provided on the Web site 
for submitting comments. For ECFS filers, in completing the transmittal 
screen, filers should include their full name, U.S. Postal service 
mailing address, and CG Docket No. 13-24.
     Paper filers: Parties who choose to file by paper must 
file an original and four copies of each filing. Filings can be sent by 
hand or messenger delivery, by commercial overnight courier, or by 
first-class or overnight U.S. Postal Service mail (although the 
Commission continues to experience delays in receiving U.S. Postal 
Service mail). All

[[Page 8091]]

filings must be addressed to the Commission's Secretary, Office of the 
Secretary, Federal Communications Commission.
     All hand-delivered or messenger-delivered paper filings 
for the Commission's Secretary must be delivered to FCC Headquarters at 
445 12th St. SW., Room TW-A325, Washington, DC 20554. All hand 
deliveries must be held together with rubber bands or fasteners. Any 
envelopes must be disposed of before entering the building.
     Commercial Mail sent by overnight mail (other than U.S. 
Postal Service Express Mail and Priority Mail) must be sent to 9300 
East Hampton Drive, Capitol Heights, MD 20743.
     U.S. Postal Service first-class, Express, and Priority 
mail should be addressed to 445 12th Street SW., Washington, DC 20554.
    [ssquf] In addition, parties must serve one copy of each pleading 
with the Commission's duplicating contractor, Best Copy and Printing, 
Inc., 445 12th Street SW., Room CY-B402, Washington, DC 20554, or via 
email to fcc@bcpiweb.com. For detailed instructions for submitting 
comments and additional information on the rulemaking process, see the 
SUPPLEMENTARY INFORMATION section of this document.

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 Misuse 
of Internet Protocol (IP) Captioned Telephone Service; 
Telecommunications Relay Services and Speech-to-Speech Services for 
Individuals with Hearing and Speech Disabilities, Notice of Proposed 
Rulemaking (NPRM), 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 
Final Rule, 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).

Initial Paperwork Reduction Act of 1995 Analysis

    Document FCC 13-13 seeks comment on potential new or revised 
information collection requirements or may result in new or revised 
information collection requirements. If the Commission adopts any new 
or revised information collection requirement, the Commission will 
publish another notice in the Federal Register inviting the public to 
comment on the requirements, as required by the Paperwork Reduction Act 
of 1995, Public Law 104-13 (44 U.S.C. 3501-3520). In addition, pursuant 
to the Small Business Paperwork Relief Act of 2002, the Commission 
seeks comment on how it might ``further reduce the information 
collection burden for small business concerns with fewer than 25 
employees.''

Synopsis

    1. In the accompanying order, which is part of document FCC 13-13, 
the Commission adopts an emergency interim rule prohibiting all 
referrals for rewards programs or other financial inducements to 
subscribe to IP CTS. Specifically, the Commission prohibits any program 
initiated, sponsored or operated by IP CTS providers that offer 
financial or similar incentives or rewards to third parties for the 
referral of customers who sign up to use the provider's IP CTS 
offering, or who have a device or software installed that is needed for 
use with the provider's IP CTS offering, and any other form of direct 
or indirect inducements, financial or otherwise, to subscribe to or 
use, or encourage subscription to or use of, IP CTS. The Commission 
seeks comment on whether it should adopt this rule permanently, as well 
as any alternatives. The Commission asks commenters to weigh the 
potential benefits of the proposed rule against the potential costs. 
The Commission also seeks comment on whether it should address any 
other activities related to referrals for rewards programs or other 
financial inducements to subscribe to or use IP CTS, and if so, what 
the appropriate scope and nature of those requirements should be. 
Again, the Commission asks commenters offering additional proposals to 
weigh the potential benefits of such proposals against the potential 
costs.
    2. In recent months, some providers have initiated programs to give 
away or to loan, at no charge, end user IP CTS equipment to IP CTS 
users who subscribe to their services. Just as the Commission is 
concerned about the potential for certain marketing programs to incent 
improper use of IP CTS, it is similarly concerned that the recent spike 
in IP CTS usage may be the direct result of these equipment giveaway or 
loan programs. Specifically, by giving away devices at no cost, these 
programs may be encouraging consumers to obtain and use the free 
equipment whether or not they actually need the service to communicate 
in a manner that is functionally equivalent to communication by 
conventional voice telephone users. Many such phone devices are modern 
and attractive--and often provide enhanced sound amplification--
features that are likely to entice consumers with or without hearing 
loss to seek their acquisition. Because of the ease and convenience of 
using such devices, which function much the same as a conventional 
telephone but for the addition of captions, once the device is in a 
consumer's possession, the consumer may begin to routinely use the 
device--as might others in the consumer's household--even if they do 
not need the service to communicate in a manner that is functionally 
equivalent to communication by conventional voice telephone users. In 
fact, the unobtrusive nature of IP CTS is such that, when using the 
phone, consumers may not even be aware that captions are turned on or 
that they have the ability to turn them off. In this manner, the free 
distribution or loan of such devices may be contributing to heightened 
IP CTS usage by persons who do not have a sufficient degree of hearing 
loss to require this service to understand conversation over the phone, 
and may be contributing to the recent acceleration in usage of this 
service. As holds true for the rewards programs discussed above, the 
more customers that sign up to acquire free devices to use the 
provider's IP CTS, the more compensation the provider may seek to 
collect from the Fund, at no cost to the customer. Offering such free 
equipment, thus, may have the effect of enlisting customers who might 
not otherwise have a reason to use the service, an effect that is 
inconsistent with the

[[Page 8092]]

purpose of the TRS program to provide communication services to persons 
who have difficulty using conventional telephone services. See, e.g., 
Telecommunications Relay Services and Speech-to-Speech Services for 
Individuals with Hearing and Speech Disabilities, CC Docket No. 98-67, 
Report and Order and Further Notice of Proposed Rulemaking; published 
at 65 FR 38432, June 21, 2000, and at 65 FR 38490, June 21, 2000). By 
contrast, when a consumer is required to pay some amount of money for 
an IP CTS phone, that individual has the incentive to first consider 
whether he or she needs the service, i.e., to evaluate whether the 
benefit from the service is worth the cost of the specialized phone.
    3. For these reasons, the Commission proposes to prohibit all 
provider programs that give away or loan equipment to potential or 
existing IP CTS users at no cost or at de minimis cost and seeks 
comment on this proposal. The Commission proposes to define ``de 
minimis cost'' for the purposes of this rule as a cost that is small 
enough so as to generally not be a factor in the consumer's decision to 
acquire the IP CTS equipment or software. Cf. Implementation of 
Sections 716 and 717 of the Communications Act of 1934, as Enacted by 
the Twenty-First Century Communications and Video Accessibility Act of 
2010; Amendments of the Commission's Rules Implementing Sections 255 
and 251(a)(2) of the Communications Act of 1934, as Enacted by the 
Telecommunications Act of 1996; In the Matter of Accessible Mobile 
Phone Options for People who are Blind, Deaf-Blind, or Have Low Vision, 
CG Docket No. 10-213, WT Docket No. 96-198, CG Docket No. 10-145, 
Report and Order and Further Notice of Proposed Rulemaking; published 
at 76 FR 82354, December 30, 2011, and at 76 FR 82240, December 30, 
2011 (ACS Report and Order). The Commission tentatively concludes that 
the distribution of equipment for a de minimis cost will have the same 
effect as giving such equipment away for free. The Commission believes 
that only if the cost of such equipment is more than de minimis, even 
if discounted from its full production cost, will consumers have 
sufficient incentive to determine whether the benefits of purchasing 
the equipment outweighs its costs. The Commission seeks comment on 
these proposals, including its definition of de minimis cost, whether 
any rule should be based on a higher price point, and the impact that 
free or de minimis cost equipment can have on a consumer's acquisition 
of IP CTS equipment and use of IP CTS. In addition, the Commission 
seeks comment on the extent to which governmental programs are able to 
provide IP CTS equipment to people with limited incomes, making the 
free distribution of equipment by providers unnecessary. Commenters are 
also invited to offer alternative definitions of de minimis cost for 
the Commission's consideration. In addition, the Commission seeks 
comment on whether it should adopt any prohibitions with regard to the 
free or de minimis cost distribution of software that facilitates the 
use of IP CTS. Finally, the Commission seeks comment on whether it 
should address any other aspects of IP CTS equipment and software, and 
if so, what the appropriate scope and nature of those requirements 
should be. The Commission asks commenters to weigh the potential 
benefits of such proposed rules against the potential costs.
    4. In the accompanying Order which is part of document FCC 13-13, 
the Commission adopts interim rules requiring each IP CTS provider, in 
order to be eligible for compensation from the TRS Fund for providing 
service to new IP CTS users, (1) To register each new IP CTS user for 
service, (2) as part of the registration process, to obtain from each 
user a self-certification that the user has a hearing loss that 
necessitates IP CTS to communicate in a manner that is functionally 
equivalent to communication by conventional voice telephone users, and 
(3) where the consumer accepts IP CTS equipment for less than $75 from 
any source other than a governmental program, to obtain from the user a 
certification from an independent, third party professional attesting 
to the same. The Commission seeks comment on whether to make these 
interim requirements permanent for new IP CTS users. The Commission 
also seeks comment on whether it should include existing users within 
these requirements. In other words, the Commission also seeks comment 
on whether it should require each IP CTS provider, as a precondition to 
continuing to be eligible for compensation from the TRS Fund for 
providing service to existing IP CTS users, (1) To register each 
existing IP CTS user and as part of the registration process, (2) to 
obtain from each existing user a self-certification that the user has a 
hearing loss that necessitates IP CTS to communicate in a manner that 
is functionally equivalent to communication by conventional voice 
telephone users, and (3) where the existing user accepts (or has 
accepted) IP CTS equipment for less than $75 from any source other than 
a governmental program, to also obtain a certification from an 
independent, third party professional attesting to the same. As would 
be the case for a new user, an existing user who has obtained equipment 
from a governmental program would be able to present documentation to 
the provider demonstrating that the equipment was obtained through one 
of these programs instead of presenting a third-party certification. 
The Commission seeks comment on whether these or other certification 
requirements would be necessary if the Commission bars the provision of 
equipment for free or at de minimis cost. In addition, the Commission 
seeks comment on whether, where certification from independent, third 
party professionals is required, such certification should be made 
under penalty of perjury as an added layer of assurance that the 
individual's disability satisfies the Commission's eligibility 
requirements. The Commission also seeks comment on whether such 
requirements will effectively fulfill Congress's directive to the 
Commission, in section 225 of the Communications Act, to ensure that 
TRS is available, ``to the extent possible and in the most efficient 
manner,'' to persons with hearing and speech disabilities. 47 U.S.C. 
225(b)(1). Will the proposed requirements be effective in covering the 
population intended for IP CTS, while excluding those who otherwise are 
able to communicate effectively by phone? Commenters who do not believe 
these are the appropriate requirements should offer alternative 
requirements that can be used to ensure that only eligible individuals 
who are intended to benefit from this service (i.e., to receive 
functionally equivalent telephone service) are permitted to use it. The 
Commission also asks commenters to weigh the potential benefits of the 
proposed rules against the potential costs.
    5. The Commission seeks comment as well on whether to adopt the 
same specifications as in the interim rules for the form and content of 
any self-certifications, or different specifications. Specifically, the 
Commission seeks comment on whether to require the self-certification 
to state that (1) The user has a hearing loss that necessitates IP CTS 
to communicate in a manner that is functionally equivalent to 
communication by conventional voice telephone users; (2) the user 
understands that the captioning service is provided by a live 
communications assistant (CA); and (3) the user

[[Page 8093]]

understands that the cost of IP CTS calls is funded by the federal TRS 
Fund. The Commission further seeks comment on whether the self-
certification must be made on a form separate from any other user 
agreement (such as on a separate page), and require a separate 
signature specific to the self-certification. Finally, the Commission 
seeks comment on whether such self-certification should be made under 
penalty of perjury.
    6. The Commission also seeks comment on whether to adopt any 
quantitative threshold hearing loss requirements to be eligible to use 
IP CTS. By way of background, the severity of an individual's hearing 
loss is often determined by the additional loudness above a nominal 
threshold to which a sound must be amplified before an individual can 
detect it. In this manner, levels of hearing loss are frequently 
classified in the following categories, defined in terms of the level 
of amplification, in decibels of gain (abbreviated as dB HL), necessary 
for the individual to detect the sound:
     Mild--between 26 and 40 dB HL
     Moderate--between 41 and 54 dB HL
     Moderately severe--between 55 and 70 dB HL
     Severe--between 71 and 90 dB HL
     Profound--91+ dB HL
     Totally Deaf--no hearing at all
    7. Some states have established eligibility threshold requirements 
for programs distributing adaptive telecommunications equipment, 
including equipment specifically designed for use with CTS and/or IP 
CTS service, free of charge, to qualifying residents. Hearing loss 
thresholds used for these programs may be relevant because they are 
established for purposes of determining whether adaptive equipment is 
necessary to enable a person to communicate effectively by telephone. 
Most state equipment programs do not use quantified hearing loss 
criteria for determining eligibility to receive assistive devices. 
Instead, they usually require a general certification from an 
audiologist or other professional that the applicant has a disability 
preventing effective use of the telephone without the requested device 
and frequently, they also require an audiogram to accompany the 
certification. At least three states--North Dakota, Washington, and 
Wisconsin--however, do set mandatory or recommended criteria requiring 
that an individual's hearing loss be severe to profound in order to 
receive a CTS device.
    8. In commenting on whether the Commission should adopt any 
quantitative eligibility requirements, and if so, what those 
requirements ought to be, the Commission asks commenters to address the 
criteria used by states, and also to address whether an eligibility 
threshold for using IP CTS should be based on a moderate hearing loss 
of 40 dB in the better ear or whether any other level of hearing loss 
would provide a more appropriate threshold. If the Commission were to 
adopt objective, quantitative eligibility criteria, should there also 
be an alternative means of establishing eligibility, for example a 
standard that qualifies an individual to use CTS if, in the reasonable 
opinion of a hearing professional, the individual is not capable of 
using the telephone in a manner that is functionally equivalent to 
communication by conventional telephone users? In addition, the 
Commission asks commenters who oppose quantitative requirements to 
propose alternative eligibility requirements. The Commission also asks 
commenters to weigh the potential benefits of establishing quantitative 
and other threshold eligibility criteria against the potential costs. 
Finally, the Commission seeks feedback on whether it should similarly 
allow states to use their own eligibility thresholds for IP CTS calls 
made by their residents to the extent that these exceed our federal 
standards, so long as such state requirements do not conflict with 
federal law.
    9. The Commission also proposes to make permanent its interim rule 
requiring each IP CTS provider to maintain the confidentiality of any 
registration and certification information obtained by the provider, 
and to not disclose such registration and certification information or 
the content of such information except as required by law.
    10. The Commission seeks comment on these proposals and any 
alternatives, including other eligibility criteria that should be 
required to become registered to use IP CTS. If the Commission adopts 
permanent rules requiring third party certification of the user's need 
for IP CTS, the Commission also seeks comment on which professionals 
should qualify as resources for providing such certification. The 
Commission also asks commenters to weigh the potential benefits of the 
proposed rules against the potential costs.
    11. The Commission further proposes that providers be allowed a 90-
day grace period to obtain registration and certification from their 
existing users, and that IP CTS providers that fail to register 
existing users within this grace period be required to cease providing 
service to any unregistered users or to any users who fail to provide 
the required certification immediately upon expiration of this grace 
period. The Commission seeks feedback on how to best implement a 
transition period for these requirements, if adopted, and asks 
commenters that do not believe that 90 days is the appropriate length 
of time for a transition period for registration of existing users to 
offer alternative proposals and include the reasons for such proposals. 
The Commission notes that in the Commission's reform of the Lifeline 
program, the Commission required carriers to recertify the eligibility 
of all existing Lifeline subscribers by December 31, 2012, which was 
seven months after the effective date of the certification requirement. 
Lifeline & Link Up Reform and Modernization, WC Docket No. 11-42, 
Report and Order and Further Notice of Proposed Rulemaking, published 
at 77 FR 12784, March 2, 2012, and at 77 FR 12952, March 2, 2012. While 
so long a grace period may not be necessary here because the number of 
IP CTS subscribers is much smaller than the number of Lifeline 
subscribers, are there other reasons, such as the need to obtain 
certification from a professional, that would make a period longer than 
90 days appropriate? Finally, the Commission asks commenters to weigh 
the potential benefits of the rules proposed above against the 
potential costs.
    12. The Commission further proposes to require applicants seeking 
certification as IP CTS providers, including any applicants with 
pending applications for certification to whom certification has not 
been granted as of the effective date of this proposed rule, to submit 
to the Commission a description of how they will ensure that they do 
not request or collect payment from the TRS Fund for service to users 
who do not satisfy the eligibility criteria contained in the rules 
proposed herein, and an explanation of how those measures provide such 
assurance. Applicants whose submissions do not adequately establish 
that they have adequate measures and procedures in place to ensure that 
they will serve only eligible users will be denied IP CTS 
certification. The Commission seeks comment on this proposal.
    13. In the accompanying Order, the Commission raises the concern 
that individuals who do not need CTS to communicate in a functionally 
equivalent manner and who are either living in the household or 
visiting the house or office of an eligible IP CTS user are likely to 
use the IP CTS equipment and service, resulting in improper billing of 
the TRS Fund. The Commission therefore adopts interim

[[Page 8094]]

rules requiring IP CTS providers to ensure that equipment and software 
used in conjunction with their service have captions turned off as the 
default setting at the beginning of each call, so that the consumer 
must take an affirmative step to turn on the captions each time the 
consumer wishes to use IP CTS. The Commission seeks comment on whether 
it should make this interim rule permanent, and if so, whether it 
should be changed in any way. The Commission asks commenters to weigh 
the cost of a requirement for a default setting of captions off against 
the benefits of such a requirement. The Commission asks commenters to 
address whether a requirement to have captions turned off as the 
default setting results in functionally equivalent IP CTS. The 
Commission also asks commenters to provide specific data comparing CTS 
usage in states with a required captions default off setting to CTS 
usage in states without such a requirement. In particular, the 
Commission asks commenters to address variations in the data that may 
not be related to the default setting--variations such as overall 
telephone usage and whether individuals with hearing loss living in 
households that include individuals with little or no hearing loss make 
less use of the telephone than individuals with hearing loss living in 
households where all occupants in the household experience hearing 
loss.
    14. The Commission's speed of answer rules require that 85% of all 
calls be answered within 10 seconds, measured daily. 47 CFR 
64.604(b)(2) of the Commission's rules. The Commission seeks comment on 
whether the current speed of answer rules are appropriate for IP CTS or 
whether such rules should be amended with respect to IP CTS. The 
Commission asks commenters to weigh the cost of any amended speed of 
answer rules against the benefits of such amended rules.
    15. The Commission also seeks comment on whether it should adopt 
rules providing for an exception for devices located in a consumer or 
work environment where the devices are not accessible to non-eligible 
persons and the user certifies that he or she will not permit non-
qualified users to utilize the captioning services provided on the 
device. The Commission asks commenters to weigh the cost of adopting 
the requirement for a default of captions off without the proposed 
exception against the benefits of not including the exception.
    16. To further prevent casual or inadvertent use of IP CTS, the 
Commission seeks comment on whether it should require that each piece 
of new IP CTS equipment have a label on its face in a conspicuous 
location specifying that FCC regulations require that captions may be 
used only by people with hearing loss who require captions to fully 
understand telephone conversations. The Commission also seeks comment 
on whether it should require, for equipment that is already in the 
possession of users, that IP CTS providers send such labels to their 
registered users of this service, with specific instructions directing 
users to affix such labels on the front of their IP CTS equipment in a 
conspicuous location. In addition, the Commission seeks comment on 
whether it should require that the same information be provided on the 
caption screen when the equipment is turned on and is in captions-off 
mode, as well as during the time period after the user pushes the 
``captions on'' button (or takes some other similar action to initiate 
captioning) and before captioning commences. The Commission asks 
commenters to weigh the costs of these labeling and display 
requirements against the benefits of such requirements.

Initial Regulatory Flexibility Analysis

    17. 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). 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.
    18. In document FCC 13-13, the Commission seeks comment on its 
proposal to adopt permanently its interim rule prohibiting all 
referrals for rewards programs and any other form of direct or indirect 
inducements, financial or otherwise, to subscribe or use, or encourage 
subscription to or use of, Internet Protocol captioned telephone 
service (IP CTS). The Commission also seeks comment on its proposal to 
adopt a rule prohibiting IP CTS providers from providing to consumers, 
directly or indirectly, equipment at no cost or at nominal cost, 
whether through giveaway, sale, loan or otherwise. In addition, the 
Commission seeks comment on whether to adopt permanently its interim 
rule requiring each IP CTS provider, in order to be eligible for 
compensation from the TRS Fund for providing service to new IP CTS 
users, (1) To register each new IP CTS user for service, and as part of 
the registration process, (2) to obtain from each user a self-
certification that (i) the user has a hearing loss that necessitates IP 
CTS to communicate in a manner that is functionally equivalent to 
communication by conventional voice telephone users, (ii) the user 
understands that the captioning service is provided by a live 
communications assistant (CA); and (iii) the user understands that the 
cost of IP CTS calls is funded by the federal TRS Fund; and (3) where 
the consumer accepts IP CTS equipment at a price below $75 from any 
source other than a governmental program, to also obtain from the user 
a certification from an independent, third party professional attesting 
to the user's need for IP CTS. In addition, the Commission seeks 
comment on whether to require each IP CTS provider, as a condition of 
continuing to offer service to existing IP CTS users who have not yet 
registered for service, (1) to register each such user with the IP CTS 
provider and as part of the registration process, to (2) obtain from 
each user certification that the user has a hearing loss that 
necessitates IP CTS to communicate in a manner that is functionally 
equivalent to communication by conventional voice telephone users. 
Lastly, the Commission seeks comment on its proposals to adopt 
permanently its interim rule requiring IP CTS equipment to have a 
default setting of captions off, so that the consumer must 
affirmatively turn on the captions each time the consumer wishes to use 
IP CTS, and on whether to require IP CTS equipment to have labels 
informing consumers that IP CTS may be used only by persons with 
hearing disabilities.
    19. In recent months, IP CTS has been experiencing unusually rapid 
growth. The Commission is concerned that usage of this service by 
people who may not need the assistance of IP CTS, along with improper 
incentives for referrals to use this service are contributing 
substantially to this sudden, rapid increase in IP CTS minutes of use.
    20. 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

[[Page 8095]]

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, document FCC 13-13, if adopted, would not 
have a significant economic impact on a substantial number of small 
entities.
    21. The Commission therefore certifies, pursuant to the RFA, that 
the proposals in document FCC 13-13, if adopted, will not have a 
significant economic impact on a substantial number of small entities. 
If commenters believe that the proposals discussed in document FCC 13-
13 require additional RFA analysis, they should include a discussion of 
these issues in their comments and additionally label them as RFA 
comments. The Commission will send a copy of the Notice, including a 
copy of this initial certification, to the Chief Counsel for Advocacy 
of the SBA.

Ordering Clauses

    22. 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, Reporting and recordkeeping 
requirements, Telecommunications.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Proposed Rule Changes

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

PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS

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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.

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2. Amend Sec.  64.604 by revising paragraph (c)(8), and paragraphs 
(c)(9), added elsewhere in this issue of the Federal Register, 
effective upon OMB approval, and (10), added elsewhere in this issue of 
the Federal Register, effective March 7, 2013, and by adding paragraph 
(c)(11) to read as follows:


Sec.  64.604  Mandatory minimum standards.

* * * * *
    (c) * * *
    (8) Inducements for use of IP CTS. An IP CTS provider shall not 
provide to any person or entity any form of direct or indirect 
inducements, financial or otherwise, to subscribe to or use or 
encourage subscription to or use of IP CTS. IP CTS providers offering 
or providing such inducements shall be ineligible for any compensation 
for IP CTS from the TRS Fund.
    (9) IP CTS registration and certification requirements. (i) IP CTS 
providers, in order to be eligible to receive compensation from the TRS 
Fund for providing IP CTS, must first register the consumer by 
obtaining the following registration information: the applicant's name, 
address and telephone number.
    (ii) IP CTS providers, in order to be eligible to receive 
compensation from the TRS Fund for providing IP CTS, also must first 
obtain a written certification attesting that the consumer needs IP CTS 
to communicate in a manner that is functionally equivalent to the 
ability of a hearing individual to communicate using voice 
communications services.
    (iii) The certification required by paragraph (c)(9)(ii) of this 
section must include the consumer's certification that
    (A) The consumer has a hearing loss that necessitates IP CTS to 
communicate in a manner that is functionally equivalent to 
communication by conventional voice telephone users;
    (B) The consumer understands that the captioning service is 
provided by a live communications assistant; and
    (C) The consumer understands that the cost of the IP CTS calls is 
funded by the TRS Fund.
    (iv) The certification required by paragraph (c)(9)(ii) of this 
section must be made on a form separate from any other agreement or 
form, and must include a separate consumer signature specific to the 
certification. For purposes of this rule, an electronic signature, 
defined by the Electronic Signatures in Global and National Commerce 
Act, 15 U.S.C. 7001 et seq., as an electronic sound, symbol, or 
process, attached to or logically associated with a contract or other 
record and executed or adopted by a person with the intent to sign the 
record, has the same legal effect as a written signature.
    (v) In instances where IP CTS equipment is or has been obtained by 
a consumer for less than $75, the IP CTS provider must also, in order 
to be eligible to receive compensation from the TRS Fund, obtain 
written certification provided and signed by an independent third-party 
professional, except as provided in paragraph (c)(9)(v)(D) of this 
section.
    (A) In instances where certification from an independent third-
party professional is required, such professionals must be qualified to 
evaluate an individual's hearing loss in accordance with applicable 
professional standards, and may include, but are not limited to, 
community-based social service providers, hearing related 
professionals, vocational rehabilitation counselors, occupational 
therapists, social workers, educators, audiologists, speech 
pathologists, hearing instrument specialists, and doctors, nurses and 
other medical or health professionals.
    (B) In instances where certification from an independent third-
party professional is required, such third-party professional must 
certify in writing that the IP CTS consumer is an individual with 
hearing loss who needs IP CTS to communicate in a manner that is 
functionally equivalent to telephone service experienced by individuals 
without hearing disabilities.
    (C) In instances where certification from an independent third-
party professional is required, such third-party professional must 
provide his or her name, title, and contact information, including 
address, telephone number, and email address.
    (D) In instances where the consumer has obtained equipment from a 
governmental program, the consumer may present documentation to the IP 
CTS provider demonstrating that the equipment was obtained through one 
of these programs, in lieu of providing an independent, third-party 
certification.
    (vi) Each IP CTS provider shall maintain the confidentiality of any 
registration and certification information obtained by the provider, 
and may not disclose such registration and certification information or 
the content of such registration and certification information except 
as required by law or regulation.
    (vii) IP CTS providers may continue to provide IP CTS to existing 
IP CTS subscribers without obtaining registration information and 
certification of the existing subscriber's hearing loss for a period of 
90 days following the effective date of this paragraph (c)(9) of this 
section.

[[Page 8096]]

    (10) IP CTS default settings. (i) IP CTS providers must ensure that 
their equipment and software used in conjunction with their service 
have a default setting of captions off, so that all new and existing IP 
CTS users must affirmatively turn on captioning for each telephone call 
initiated or received before captioning is provided.
    (ii) When IP CTS equipment is in operation with captions off, and 
during the time period after the user of IP CTS takes action to 
initiate captioning and before any such captioning commences, the IP 
CTS provider must display on the screen of the user's IP CTS equipment 
the following message: ``FCC regulations permit the use of captions 
only by people with hearing loss who require captions to communicate 
effectively using the telephone.''
    (11) IP CTS equipment. (i) An IP CTS provider shall not provide to 
consumers, directly or indirectly, equipment at no cost or at de 
minimis cost, whether through giveaway, sale, loan, or otherwise. For 
the cost to be above de minimis cost, the cost must be large enough 
such that the consumer is likely to consider such cost in determining 
whether the benefit received from the IP CTS service is worth the cost 
of the specialized equipment or software. IP CTS providers providing 
such equipment or software at no cost or for a de minimis cost shall be 
ineligible to receive compensation for minutes of IP CTS use generated 
by consumers receiving, directly or indirectly, equipment or software 
at no cost or at de minimis cost.
    (ii) IP CTS providers shall ensure that any equipment newly 
distributed for use with IP CTS has a label on its face in a 
conspicuous location specifying that FCC regulations permit the use of 
captions only by people with hearing loss who require captions to 
communicate effectively using the telephone. For IP CTS equipment 
already distributed to users by any IP CTS provider as of the effective 
date of this paragraph, such provider shall distribute to users 
equipment labels specifying that FCC regulations permit the use of 
captions only by people with hearing loss who require captions to 
communicate effectively using the telephone, along with specific 
instructions directing the users to place such labels on the face of 
their IP CTS equipment in a conspicuous location.
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2. Amend Sec.  64.606 by adding paragraph (a)(2)(ii)(F) to read as 
follows:


Sec.  64.606  Internet-based TRS provider and TRS program 
certification.

    (a) * * *
    (2) * * *
    (ii) * * *
    (F) In the case of applicants to provide IP CTS or IP CTS 
providers, a description of measures taken by such applicants or 
providers to ensure that they do not and will not request or collect 
payment from the TRS Fund for service to consumers who do not satisfy 
the registration and certification requirements in Sec.  64.604(c)(9), 
and an explanation of how these measures provide such assurance.
* * * * *
[FR Doc. 2013-02370 Filed 2-1-13; 4:15 pm]
BILLING CODE 6712-01-P