NAD Responds to the FCC Declaratory Ruling

Submitted by Bobbie Beth.Scoggins [1] on Fri, 03/12/2010 - 23:36

On February 25, 2010, the Federal Communications Commission (FCC) issued a Declaratory Ruling (DA 10-314). In the Declaratory Ruling, the FCC Consumer and Governmental Affairs Bureau (CGB) addressed payment for certain types of Video Relay Service (VRS) by the Interstate Telecommunications Relay Service Fund (TRS Fund). The National Association of the Deaf (NAD) commends the FCC for taking action, but we also have concerns about the Declaratory Ruling.

NAD Responses

• The TRS Fund does not pay for VRS calls placed for the purpose of generating compensable minutes.  We agree.
• The TRS Fund does not pay for VRS Voice Carry Over calls between two hearing people.  We agree.
• The TRS Fund does not pay for VRS calls between two people who are both physically located outside the United States (international-to-international calls). We think the TRS Fund should pay for international-to-international calls made by people who live in the United States but who are traveling outside the United States.
• The TRS Fund pays differently for VRS calls made by or to a VRS provider’s (deaf or hearing) employees and contractors.  The TRS Fund pays for VRS calls made by or a to a VRS consumer (non-employee / non-contractor) on a “per-minute basis.”  The TRS Fund pays for VRS calls made by or to a VRS provider’s employee or contractor as a “business expense.”  We have concerns about this part of the Declaratory Ruling.

NAD Concerns

We believe that this is a new rule that the FCC adopted without a notice and comment rulemaking proceeding.  The FCC must publish a public notice and take public comment before creating new rules.

The Declaratory Ruling also suggests that the TRS Fund paid VRS providers twice for VRS calls made by their employees and contractors:  (1) on a per-minute basis; and (2) as a business expense.  We thought VRS providers were paid only once – on a per-minute basis – for VRS calls made by their employees and contractors.

The FCC wants the TRS Fund to pay VRS providers for the cost of employee and contractor VRS calls as a business expense.  We can support this goal.  The TRS Fund pays for the reasonable business expenses of VRS providers.  However, we are not sure that the FCC chose the right method for the TRS Fund to pay this business expense.

The ADA established a system to provide nationwide relay services.  The cost to provide relay services should not be a factor (positive or negative) for any employer, including VRS providers, when hiring people who need relay services to do their jobs. 

NAD and Other Consumer Groups Met with the FCC

On March 2, 2010, the NAD and other consumer groups met with Joel Gurin, the new Chief of the CGB, and other CGB staff.  We expressed our disappointment that the FCC did not provide an opportunity for comments from consumers and other stakeholders before issuing the Declaratory Ruling.  We asked the FCC to provide this opportunity before issuing orders and rulings in the future.  We want to ensure functional equivalency, access to VRS, clear rules, and transparent rulemaking, and avoid unintended consequences.

During that meeting, Mr. Gurin expressed the FCC’s commitment to the continuation of the relay service program, including VRS.  Mr. Gurin also understood that consumers want to have a choice of providers.  We look forward to working with the CGB and meeting with the CGB in the future on a more regular basis.

We commend the FCC’s effort to protect the integrity of the TRS Fund.  However, the FCC may have unintentionally produced a rule that impacts the civil rights of relay service users.  VRS users are caught in the “crossfire” between the FCC and VRS providers.  We urge the FCC to publish a public notice and take public comments to consider other methods to pay VRS providers for VRS calls made by or to their employees and contractors.