[Federal Register: July 8, 2008 (Volume 73, Number 131)]
[Rules and Regulations]
[Page 38928-38931]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08jy08-19]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 64
[CG Docket No. 03-123; FCC 08-138]
Telecommunications Relay Services and Speech-to-Speech Services
for Individuals With Hearing and Speech Disabilities
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Commission clarifies its restrictions on
the use of consumer or call database information by telecommunications
relay service (TRS) providers to contact consumers of interstate TRS.
The Commission concludes that TRS providers may use information derived
from a consumer or call database to contact TRS users for purposes
related to the handling of relay calls, as well as to comply with a
federal statute, Commission rule or order, a court order, or other
lawful authority.
DATES: Effective May 28, 2008.
ADDRESSES: Federal Communications Commission, 445 12th Street, SW.,
Washington, DC 20554.
FOR FURTHER INFORMATION CONTACT: Lisa Boehley, Consumer and
Governmental Affairs Bureau, Consumer Policy Division at (202) 418-7395
(voice), or e-mail at lisa.boehley@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
Telecommunications Relay Services and Speech-to-Speech Services for
Individuals with Hearing and Speech Disabilities, Declaratory Ruling
(Consumer Contacts Declaratory Ruling), FCC 08-138, adopted and
released May 28, 2008, in CG Docket No. 03-123. FCC 08-138 addresses
issues arising from the Commission's Telecommunications Relay Services
and Speech-to-Speech Services for Individuals with Hearing and Speech
Disabilities, Report and Order and
[[Page 38929]]
Declaratory Ruling (2007 TRS Cost Recovery Declaratory Ruling), CG
Docket No. 03-123, FCC 07-186, published at 73 FR 3197, January 17,
2008. The full text of FCC 08-138 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 08-138 also may be purchased from
the Commission's duplicating contractor at Portals II, 445 12th Street
SW., Room CY-B402, Washington, DC 20554. Customers may contact the
Commission's duplicating contractor at its Web site http://
www.bcpiweb.com or by calling 1-800-378-3160. To request a copy of FCC
08-138 in an accessible format 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). FCC 08-138 can also be
downloaded in Word or Portable Document Format (PDF) at: http://
www.fcc.gov/cgb/dro/trs.html.
Paperwork Reduction Act of 1995 Analysis
FCC 08-138 does not contain new or modified information collection
requirements subject to the Paperwork Reduction Act of 1995 (PRA),
Public Law 104-13. In addition, 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 106-198, see 44 U.S.C. 3506(c)(4).
Synopsis
Background
1. In the 2007 TRS Cost Recovery Declaratory Ruling, the Commission
reiterated that providers seeking compensation from the Interstate TRS
Fund ``may not offer consumers financial or other tangible incentives,
either directly or indirectly, to make relay calls.'' 2007 TRS Cost
Recovery Declaratory Ruling at paragraph 92. The Commission also
specified in greater detail the nature and types of incentive programs
that are impermissible, clarified that ``a financial incentive program
is not permissible even in circumstances where the benefit goes to a
third party,'' and stated that providers cannot condition the ongoing
use or possession of TRS equipment (or the receipt of upgraded
equipment) on a consumer's call volume. 2007 TRS Cost Recovery
Declaratory Ruling at paragraphs 92 to 94. In addition, the 2007 TRS
Cost Recovery Declaratory Ruling addressed in greater detail providers'
use of consumer or call databases to contact consumers for lobbying or
to attempt to influence their use of relay. 2007 TRS Cost Recovery
Declaratory Ruling at paragraphs 95 and 96. In particular, it
prohibited providers from using a consumer or call database to contact
TRS users ``for lobbying or any other purpose,'' and prohibited
providers from using a consumer or call database to ``contact TRS users
or to in any way attempt to affect or influence, directly or
indirectly, their use of relay service.'' 2007 TRS Cost Recovery
Declaratory Ruling at paragraphs 95 and 96.
2. Following release of the 2007 TRS Cost Recovery Declaratory
Ruling, several TRS providers, in filings with the Commission, asserted
that the restrictions contained in paragraphs 95 and 96 of that ruling
violate the First Amendment rights of TRS providers. In January 2008,
Sorenson Communications, Inc. (Sorenson), filed a Petition for Review
with the United States Court of Appeals for the Tenth Circuit seeking
judicial review of this language, and sought a stay from the Commission
pending resolution of its Petition for Review. Sorenson Communications
v. FCC, Petition for Review, Nos. 08-9503 and 08-9507 (10th Circuit
January 16, 2008 (08-9503) and January 23, 2008 (08-9507)); Sorenson
Communications, Inc., Request for Stay Pending Judicial Review, CG
Docket No. 03-123 (January 28, 2008) (Stay Request). Among other
things, Sorenson contended that the restrictions contained in
paragraphs 95 and 96 are unconstitutionally vague, violate the First
Amendment rights of TRS providers, and are procedurally deficient under
the Administrative Procedure Act.
3. In order to give the Commission sufficient time to consider the
arguments presented by Sorenson and others, the Commission's Consumer
and Governmental Affairs Bureau (CGB) issued an order on February 7,
2008, granting a 90-day stay of paragraphs 95 and 96.
Telecommunications Relay Services and Speech-to-Speech Services for
Individuals with Hearing and Speech Disabilities, Request for Stay
Pending Judicial Review, CG Docket No. 03-123, Order, 23 FCC Rcd 1705
(CGB Feb. 7, 2008), published at 73 FR 21843, April 23, 2008. The stay
granted by that order was subsequently extended until May 28, 2008.
Telecommunications Relay Services and Speech-to-Speech Services for
Individuals with Hearing and Speech Disabilities, Request for Stay
Pending Judicial Review, CG Docket No. 03-123, Order, DA 08-1079 (CGB
May 6, 2008).
Discussion
4. In FCC 08-138, the Commission states that reasonable
restrictions on the use of consumer information are necessary to
prevent improper marketing practices and to ensure that interstate TRS
funds are used for their intended purpose. However, to address concerns
that the restrictions set forth in paragraphs 95 and 96 of the 2007 TRS
Cost Recovery Declaratory Ruling may be overly broad and may have the
unintended effect of preventing TRS providers from communicating
important information, including critical public safety information, to
TRS users relating to the handling of relay calls, the Commission
clarifies the restrictions in those paragraphs. The Commission also
provides examples of the circumstances in which providers may use
consumer or call databases to contact relay users.
5. First, the Commission clarifies that the language in paragraphs
95 and 96 restricting the use of consumer information ``for any * * *
purpose,'' does not prohibit contacts by TRS providers with TRS users
that are directly related to the handling of TRS calls. Consistent with
the Commission's TRS rules and orders, providers may use information
derived from a consumer or call database established in conjunction
with Section 225 of the Communications Act of 1934, as amended, 47
U.S.C. 225, to contact users as long as it is for purposes related to
the handling of relay calls. Therefore, for example, a provider
reasonably could directly contact relay users (using such customer
information) in order to inform users of a service outage, respond to a
consumer's call for emergency services, assist in the delivery of
emergency services, and provide technical support for TRS products or
services used by the consumer. Providers also may use customer data,
for example, to comply with a federal statute, a Commission rule or
order, a court order, or other lawful authority. The Commission
emphasizes that any such direct contacts with relay users must be
informational in nature and must relate to the provision of, or the
consumer's use of, TRS.
6. On the other hand, providers may not contact consumers and offer
financial or other incentives to generate additional or longer calls
that can be billed to the Fund because such contacts are not directly
related to the purpose of handling relay calls. The Commission may
revisit these determinations if
[[Page 38930]]
specific facts are brought to its attention suggesting an abuse of this
proviso.
7. The Commission declines to address the request that it
explicitly allow the disclosure of user-specific information to third
parties designated by the user and information to protect TRS users
from fraudulent, abusive or unlawful use of TRS. The Commission
believes this issue would be better addressed in the context of its
consideration of whether, and if so, how to extend customer proprietary
network information (CPNI) requirements to TRS providers. See
Telecommunications Relay Services And Speech-To-Speech Services For
Individuals With Hearing And Speech Disabilities, E911 Requirements For
IP-Enabled Service Providers, CG 03-123, WC 05-196, Report and Order,
23 FCC Rcd 5255 (Mar. 19, 2008) (Interim Emergency Call Handling
Order), published at 73 FR 21252, April 21, 2008; Consumer and
Governmental Affairs Bureau Seeks to Refresh Record on Assigning
Internet Protocol (IP)-Based Telecommunications Relay Service (TRS)
Users Ten-Digit Telephone Numbers Linked to North American Numbering
Plan (NANP) and Related Issues, CG Docket No. 03-123, Public Notice, 23
FCC Rcd 4727 (Mar. 19, 2008) (IP-Based Relay Numbering PN), published
at 73 FR 16304, March 27, 2008, (seeking to refresh the record on the
proposed establishment of a global database of proxy telephone numbers
for Internet-based TRS users and on consumer protection issues related
to numbering, including the application of CPNI requirements). Although
consumer advocates have asked the Commission to ensure that consumers
be asked by providers to opt-in to receiving marketing and promotional
materials before receiving such information directly from providers,
the Commission defers this issue for consideration in the context of
whether, and if so, how to extend CPNI requirements to TRS providers.
See Interim Emergency Call Handling Order; IP-Based Relay Numbering PN.
8. Second, the Commission clarifies that providers may not use
customer information obtained through the provision of federally-funded
relay services, or use funds obtained from the Interstate TRS Fund, to
engage in lobbying or advocacy activities directed at relay users.
Evidence in the record shows that at least one service provider has
bombarded deaf persons with material seeking to persuade them to
support the provider's position on matters pending before the FCC. See,
e.g., Ex parte letter from Jon Ziev, consumer, to Kevin Martin, FCC
(dated Feb. 4, 2008) (complaining that deaf persons are being subjected
to a ``virtual bombardment of lobbying material''). The Commission
finds that using revenue from the Interstate TRS Fund, or information
obtained from end users in the provision of services supported by the
Interstate TRS Fund, to engage in that kind of advocacy is inconsistent
with the purpose of the fund.
9. The Commission finds that these restrictions do not run afoul of
the First Amendment. In the context of a federally subsidized program,
like the Interstate TRS Fund, the government ``may certainly insist
that these `public funds be spent for the purposes for which they were
authorized.' '' United States v. American Library Ass'n, 539 U.S. 194,
212 (2003) (quoting Rust v. Sullivan, 500 U.S. 173, 196 (1991)). The
Interstate TRS Fund is designed to ensure that persons with hearing and
speech disabilities have access to the telephone system. It was not
intended to finance lobbying by TRS providers directed at end users.
The Commission is under no obligation ``to fund such activities out of
the public fisc.'' Rust, 500 U.S. at 198. For the same reasons, it is
reasonable to restrict the use of customer information acquired in the
provision of federally subsidized TRS services. A consumer or call
database that a service provider develops and maintains through
participation in the TRS program is inextricably tied to that federally
funded program. Consequently, it is permissible to prohibit the use of
that database for purposes unrelated to the handling of relay calls,
such as lobbying end users to support a service provider's position
before the Commission.
10. Nothing the Commission does in this document would prevent a
provider from using information and funds from other sources to engage
in lawful lobbying or advocacy activities. Thus, this is not an
``unconstitutional conditions'' case in which the government
``effectively prohibit[ed] the recipient from engaging in the protected
conduct outside the scope of the federally funded program.'' Rust, 500
U.S. at 197; see also Regan v. Taxation With Representation of
Washington, 461 U.S. 540, 544-46 (1983) (holding that tax exemption for
non-profit groups that do not engage in lobbying did not violate First
Amendment; and noting that a group could qualify for the tax exemption
by adopting a ``dual structure,'' with one arm for non-lobbying
activities and another for lobbying); DKT Int'l, Inc. v. United States
Agency for Int'l Development, 477 F.3d 758 (D.C. Cir. 2007) (rejecting
First Amendment challenge to requirement that recipients of funds from
AIDS/HIV education program adopt policy of opposition to prostitution
and sexual trafficking, and noting that recipients could remain neutral
by setting up a subsidiary that would receive the funds and adopt the
policy). TRS providers are free to use those resources outside the
scope of the TRS program to support their positions before the
Commission.
11. Finally, the Commission reiterates that a relay provider may
not use TRS consumer or call data, or similar, privately obtained
information, to contact a relay user in an attempt to increase,
directly or indirectly, the number or length of relay calls the user
otherwise may choose to make via that provider. In this instance,
because the practice itself (i.e., offering users financial or similar
incentives to generate additional or longer calls that can be billed to
the Fund) is prohibited by the Commission, communications with relay
users in furtherance of this practice are likewise prohibited, no
matter the source of the consumer or call data. Because the obligation
placed on relay providers is to be available to handle calls consumers
choose to make, when they choose to make them, i.e., to be the ``dial
tone'' for a consumer that uses relay to call a voice telephone user,
and because consumers do not pay for this service but rather providers
are compensated pursuant to Title IV of the Americans with Disabilities
Act, the Commission finds that these restrictions are necessary to
prevent providers from improperly urging consumers to make unnecessary
relay calls, and therefore to ensuring that interstate TRS funds are
used for their intended purpose. By highlighting examples of both
permissible and prohibited uses of consumer or call database
information above, the Commission seeks to ensure that Interstate TRS
funds are not used for activities that are outside the scope of, or
incompatible with the purposes of, the Interstate TRS Fund, as defined
by Congress.
12. The restrictions on provider-consumer contacts, as clarified in
this document, apply to relay providers in connection with their
offering of interstate relay services, including all Internet-based
relay calls and any other relay calls that are compensated by the
Interstate TRS Fund. As noted above, however, if, in the future,
evidence comes to the Commission's attention of the misuse of consumer
or call database information by traditional TRS providers, in
connection with their offering of intrastate relay services, the
Commission may revisit this issue and
[[Page 38931]]
consider the adoption of additional restrictions at that time.
Congressional Review Act
The Commission will not send a copy of FCC 08-138 pursuant to the
Congressional Review Act, see 5 U.S.C. 801(a)(1)(A) because the adopted
rules are rules of particular applicability.
Ordering Clauses
Pursuant to sections 1, 2, and 225 of the Communications Act of
1934, as amended, 47 U.S.C. 151, 152, and 225, FCC 08-138 is adopted
and became effective on May 28, 2008.
Federal Communications Commission.
William F. Caton,
Deputy Secretary.
[FR Doc. E8-15446 Filed 7-7-08; 8:45 am]
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