The NAD has received an increasing number of reports that businesses are refusing to receive calls from or do business with people who use a relay service. This practice discriminates against deaf and hard of hearing individuals who use relay services to communicate by telephone, in violation of the Americans with Disabilities Act (ADA). Businesses need to instruct employees to accept any and all calls placed through a relay service. Policies and practices must be established to ensure and provide equal access for people who are deaf or hard of hearing.
The Federal Communications Commission (FCC) issued a public notice in 2004, alerting the public about the fraudulent use of an Internet-based text-to-voice relay service called “IP Relay” (one of many forms of relay services) and suggesting steps businesses can take to avoid becoming victims. The FCC encouraged businesses that accept orders by telephone to take steps to ensure that, when they receive a relay call, the credit card is valid and the purchaser is authorized to use the particular credit card, just as they would do with any other telephone order. The FCC also reminded businesses that, if they accept telephone orders from the general public, they cannot refuse to accept them from persons with hearing or speech disabilities calling through a relay service. See the public notice at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-04-1738A1.doc.
The FCC issued a similar public notice in 2007, stating that it had received complaints that people without disabilities, who are posing as deaf or hard of hearing consumers, are misusing IP Relay services to perpetrate fraudulent business transactions, often by using stolen or fake credit cards. The public notice included some indicators of fraudulent telephone orders or business transactions that merchants can use to help determine if an order placed by phone is legitimate. See http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-07-2006A1.doc. Again, the FCC reminded businesses that, if they accept telephone orders from the general public, they cannot refuse to accept them from persons with hearing or speech disabilities calling through a relay service. Calls made through a relay service can and must be handled in the same way as any telephone call.
The NAD believes that the burden of solving the problem of misuse of IP Relay services should not be on consumers. Businesses that fall victim to scams must implement well-established business transaction safeguards for every call. When businesses refuse to accept relay calls, out of ignorance or fear, deaf and hard of hearing consumers become the victims of unlawful discrimination.
In 2009, the FCC adopted a system to provide telephone numbers to deaf and hard of hearing IP Relay users. The NAD advocated for this system because the assignment of real ten-digit telephone numbers will enable enhanced 9-1-1 (E9-1-1) emergency services for IP Relay users. E9-1-1 services require users to provide and maintain information about their physical location. IP Relay providers use this location information to direct a 911 call and deliver the user’s telephone number and location information automatically to the appropriate emergency service center. When fully implemented, businesses should experience renewed confidence that calls received through IP Relay are made by legitimate users of this service.
The NAD continues to urge the FCC to do more public outreach to inform the public and businesses about the benefits of relay services. The NAD wants to see business trade organizations, such as the U.S. Chamber of Commerce, do a better job of educating their members about how to protect themselves from fraudulent calls, whether they are made directly or through a relay service. The NAD urges businesses that have been defrauded to contact the Federal Trade Commission (FTC) at 877-FTC-HELP and file a complaint at the Internet Fraud Complaint Center (http://www.ic3.gov). The U.S. Department of Justice also needs to enforce existing laws requiring businesses to accept relay calls.
In 2008, the U.S. Department of Justice proposed new rules for Title III of the ADA, which apply to public accommodations (business and commercial entities). The Department proposed the following rule about public accommodations accepting calls made through a relay service:
28 C.F.R. § 36.303(d)(1)(iv): A public accommodation shall respond to telephone calls from a telecommunications relay service established under title IV of the Americans with Disabilities Act in the same manner that it responds to other telephone calls.
On August 18, 2008, the NAD filed this response:
This new regulation is a much-needed codification of existing law. The adoption, in 1991, of 28 C.F.R. § 36.303(d)(2) (“This part does not require a public accommodation to use a TDD for receiving or making telephone calls incident to its operations.”) has always been interpreted to mean that public accommodations could rely on and would make the necessary reasonable modifications in policies, practices, or procedures to enable the use of TRS [Telecommunications Relay Services], established under Title IV of the ADA, to receive and make telephone calls from and to individuals who are deaf or hard of hearing or who have a speech impairment. Congress enacted Title IV to provide individuals who are deaf or hard of hearing or who have speech impairments the functional equivalent of voice telephone services. 47 U.S.C. § 225(a)(3); S. Rep. No. 101-116, at 79-80 (1989). Simply put, the availability of TRS made it unnecessary for public accommodations to purchase, install, and maintain the equipment necessary (i.e., TTYs), and train their employees to use the equipment and have the skills necessary to communicate directly with people who are deaf or hard of hearing or who have speech impairments.
When places of public accommodation refuse to accept relay calls or treat relay calls differently than voice telephone calls, relay calls are no longer the functional equivalent of voice telephone calls. To ensure functional equivalency, places of public accommodation must accept relay calls in the same manner that they accept voice telephone calls. To ensure equal access and equal opportunity, places of public accommodation must make reasonable modifications in policies, practices, or procedures to enable the use of TRS to receive and make telephone calls from and to individuals with disabilities.
Some places of public accommodation, such as banks or other financial institutions, have refused to accept relay calls on the ground that communicating through a communications assistant would violate confidentiality requirements. These and other places of public accommodation have cited confidentiality concerns even though FCC regulations make clear that the communications assistant is merely a transparent conduit whose presence does not violate confidentiality rules.
In particular, the FCC has explained that health care providers do not violate the Health Insurance Portability Access Act of 1996 (“HIPAA”) when they speak with patients through a relay service:
Some health professionals have been concerned that contacting patients and discussing health related information via TRS poses a possible violation of the Privacy Rule because a “third party,” the TRS CA, hears the information being discussed as the call is relayed. Some state TRS facilities have informed the FCC that health professionals are requiring all of the facility’s CAs to sign disclosure forms before they will use TRS to contact patients with hearing or speech disabilities.
We therefore emphasize that all forms of TRS, including “ traditional” TTY based relay, Internet Protocol (IP) Relay, Video Relay Service (VRS), and Speech-to-Speech (STS), can be used to facilitate calls between health care professionals and patients without violating HIP[A]A’s Privacy Rule. (1)
The FCC has further observed that “[b]usinesses and other voice telephone users sometimes refuse to accept TRS calls, or hang up on TRS users, in the mistaken belief that TRS calls are sales calls or ‘third-party’ calls, or would involve a breach of customer confidentiality.”). (2)
Places of public accommodation sometimes refuse to accept relay calls because they have read reports of or experienced receiving IP text relay calls made by people posing as individuals with disabilities for the purpose of perpetrating fraudulent commercial transactions. That some IP text relay calls are placed for this purpose is unfortunate but no different from the fact that many telephone calls are placed for the same purpose. Many places of public accommodation screen against fraudulent transactions by implementing security measures that ask for identifying information such as the caller’s name, birth date, and mother’s maiden name. The same measures that are used to safeguard against fraudulent transactions attempted through telephone calls should be used to safeguard against fraudulent transactions attempted through relay calls.
For these reasons, places of public accommodation have no legitimate reason for not accepting relay calls. In fact, places of public accommodation have every incentive to accept relay calls because the alternative would be a requirement to purchase, install, and maintain the equipment necessary, and train their employees to use the equipment and have the skills necessary to communicate directly with people who are deaf or hard of hearing or who have speech impairments. The proposed regulation is a much-needed reinforcement of the requirement that places of public accommodation accept relay calls in the same manner that they accept telephone calls.
In addition, the Department should clarify that places of public accommodation cannot restrict or limit acceptance of relay calls based on the form of relay service. Some places of public accommodation, including financial institutions, have had a policy of accepting only relay calls placed to or from a TTY. Such a policy is unreasonable because it would shift the burden of accommodations entirely onto individuals who are deaf or hard of hearing or who have speech impairments to purchase, install, and maintain TTY equipment and the cost of telecommunications services necessary to operate TTYs. Further, such a policy would reduce telecommunications for public accommodations and individuals with disabilities to the lowest common denominator and not enable either to benefit from the advantages of advanced telecommunications. In addition, such a policy can result in ineffective communication. For example, video relay service enables telecommunications in American Sign Language, which is the first language for many individuals who are deaf or hard of hearing. If these individuals are limited to TTYs or text-based relay services, the mandate to ensure effective communication may be impossible to achieve.
The Department should further make clear that places of public accommodation cannot limit or restrict the receipt of relay calls to a separate telephone number. While separate numbers may be necessary for a public accommodation to communicate directly, such as with TTY users, they are unnecessary and discriminatory for relay users. Use of separate numbers typically restricts the placement and transfer of calls to the appropriate person or department within the public accommodation. Further, if relay calls are directed to one telephone number, these calls may experience inferior service, such as longer wait times or more unanswered calls, compared to telephone users.
Finally, the Department should make clear that places of public accommodation cannot ask security-related questions beyond what they ask of hearing callers. Businesses should not be permitted to evade the letter of the new regulation by making it more burdensome to call through relay than it is for hearing individuals to call through voice telephone services.
(1) Clarification of the use of Telecomms. Relay Servs. (TRS) and the Health Ins. Portability and Accountability Act (HIPAA), 19 F.C.C.R. 10,677, 10,677-78 (June 16, 2004).
(2) Telecommunications Relay Services, the Americans with Disabilities Act of 1990, and the Telecommunications Act of 1996, 12 F.C.C.R. 1152, 1169 (Jan. 14, 1997).