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Proposed Rule

Structure and Practices of the Video Relay Service Program: Telecommunications Relay Services and Speech-to-Speech Services for Individuals With Hearing and Speech Disabilities

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AGENCY:

Federal Communications Commission.

ACTION:

Proposed rule.

SUMMARY:

In this document, the Commission issues a further notice of proposed rulemaking (FNPRM) seeking comment on options and proposals to ensure that the entire telecommunications relay services (TRS) program continues to offer functional equivalence to all eligible users and is as immune as possible from any additional waste, fraud, and abuse. These proposals involve a transition plan to a market-based compensation methodology for VRS, funding mechanism for research and development, TRS Fund contribution calculations and reporting method, allowing hearing persons to purchase access to video point to point service, replacement of the current TRS Advisory Council, disaggregation of emergency calls to 911 and additional issues relating to restructure of the VRS program. The Commission continues to solicit input on ways to strengthen VRS to ensure its efficiency and that this service is being offered in a functionally equivalent manner.

DATES:

Comments are due on or before August 19, 2013, and reply comments on or before September 18, 2013.

ADDRESSES:

You may submit comments, identified by CG Docket Nos. 10-51 and 03-123, 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 Nos. 10-51 and 03-123.

  • 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 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 Start Printed Page 40408addressed to 445 12th Street SW., Washington, DC 20554.

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.

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FOR FURTHER INFORMATION CONTACT:

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

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SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Structure and Practices of the Video Relay Service Program; Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, Further Notice of Proposed Rulemaking (FNPRM), document FCC 13-82, adopted on June 7, 2013 and released on June 10, 2013, in CG Docket Nos. 10-51 and 03-123. In document FCC 13-82, the Commission adopted an accompanying Report and Order (Report and Order), which is summarized in a separate Federal Register Publication. The full text of document FCC 13-82 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 13-82 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).

Synopsis

1. In March 2000, the Commission recognized VRS as a reimbursable relay service. See 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.

2. In this document, the Commission takes further action to achieve VRS compensation rates that better approximate the actual cost of providing VRS while ensuring that VRS is provided in accordance with the Act. See Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, Order, (2010 TRS Rate Order), CG Docket No. 03-123, published at 75 FR 49491, August 13, 2010. Ratemaking based on calculations of allowable costs is inherently a contentious, complicated, and imprecise process, particularly in the VRS context. Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, Further Notice of Proposed Rulemaking, (2011 VRS Reform FNPRM), CG Docket Nos. 10-51 and 03-123, published at 77 FR 4948, February 1, 2012. First, unlike most regulated telecommunications services, VRS is generally provided at no charge to users. There is no pressure from users on VRS suppliers to restrain the amount they charge because the users share none of the costs. Second, a number of questions have arisen over the past several years concerning the methodology used for determining VRS costs as well as the appropriateness of certain costs. Third, the VRS compensation rate has fluctuated significantly over time, with frequent recalculation of rates as cost or demand levels change or as new evidence about cost and demand levels come to light. Finally, the absence of retail prices has encouraged perverse provider behavior and contributed to fraud and abuse—e.g., by resulting in providers artificially generating minutes of use in order to collect more TRS Fund revenues. Therefore, the Commission proposes to transition to a new ratemaking approach that makes use of competitively established pricing, i.e., contract prices set through a competitive bidding process, where feasible.

3. There are several elements in this new approach. First, the outreach and registration verification components of VRS will not be handled by VRS providers but that they will be handled by neutral entities pursuant to contracts. Therefore, as these transfers to neutral entities are implemented, the costs associated with these components of VRS will be removed from compensation rates for all VRS providers.

4. Second, the Commission will also contract with a neutral entity to offer the video communication service components of VRS, disaggregated from VRS CA service, without charge, to those VRS providers that choose to make use of such a common video communication service platform. The costs associated with the disaggregated components of VRS will also be removed from the cost basis for the compensation rates applicable to such standalone VRS CA service providers.

5. Third, the Commission proposes that the contract price that the Commission pays to the neutral video communication service provider for the disaggregated video communication service component of VRS will serve as a benchmark for setting appropriate compensation applicable to any VRS provider that chooses to continue offering a fully integrated service.

6. Fourth, the Commission proposes to establish a compensation rate for the provision of VRS CA service by auctioning a portion of VRS traffic.

Using the Cost of the Neutral Video Communication Service Provider Contract as a Benchmark

7. The Commission tentatively concluded that the contract price that it pays to the neutral video communication service provider for the disaggregated video communication service component of VRS will serve as a benchmark for setting appropriate compensation applicable to any VRS provider that chooses to continue offering a fully integrated service. Such result is appropriate, given that the neutral video communication service provider will be serving many of the same functions as an integrated provider—i.e., user registration and validation, authentication, authorization, ACD platform functions, routing (including emergency call routing), call setup, mapping, call features (such as call forwarding and video mail), and such other features and functions not directly related to the provision of VRS CA services. This would also be consistent with its rules requiring providers only to be compensated for the reasonable costs of providing service. See 47 CFR 64.604(c)(5)(iii)(E) of the Commission's rules. Would such an approach ensure an appropriate level of compensation for integrated providers? Specifically, how should the contract price be used to determine the appropriate additional compensation for fully integrated service? Are there overhead or other costs that an integrated VRS provider might incur that a neutral video communication service provider would not, or vice versa? Are there other factors the Commission should consider Start Printed Page 40409when setting compensation for the video communication service component of an integrated VRS provider's service offering? The winning neutral video communication service provider may be compensated on a usage insensitive basis or a usage sensitive basis. Does the compensation structure for the neutral video communication service provider affect this analysis?

Using Auctions To Establish a Per Minute Rate for CA Service

8. Data from the TRS numbering directory indicates that a sizeable percentage of compensable VRS calls are placed to a relatively small number of telephone numbers that terminate to an even smaller number of companies and government agencies.

9. Given this pattern of calling, the Commission proposes that an auction of the right to provide VRS CA service for all calls terminated to an appropriately selected set of telephone numbers representing a sufficient number of minutes of use could be used to establish a market rate for all minutes of use of VRS CA service—including VRS CA service delivered by integrated VRS providers. The Commission seeks comment on this proposal. Is it appropriate to use an auction determined price as a benchmark for regulating other prices?

10. What Is To Be Auctioned? If the Commission were to auction the right to provide VRS CA service to a set of telephone numbers, how should those telephone numbers be selected? The top 100 numbers called? All calls to government agencies, entities regulated by the Commission, and/or general business call centers? Some other selection criteria? How can the Commission ensure that the telephone numbers selected account for sufficient minutes of use to ensure that the winning bid represents a market rate for VRS CA service?

11. VRS minutes of use arguably could be categorized, by, for example, time of day or the nature of the called party (e.g., a government agency as opposed to a corporate technical support line). For the purposes of an auction, should the Commission establish and auction more than one category of minutes, where minutes within each category can be considered homogenous and minutes across categories are sufficiently different? If so, what would be appropriate categories? If more than one category is established should the different categories be auctioned simultaneously, as in spectrum auctions with different categories of interrelated licenses, or auctioned sequentially? A simultaneous dynamic (e.g., descending clock) auction has the advantage that it allows bidders to easily switch bids among categories of licenses as relative prices change.

12. Number of Winners. Should there be one or multiple auction winners? One approach for a single winner auction would be to select the bidder with the lowest price per minute willing to serve all demand for VRS CA service to the specified telephone numbers. One option is a single-round sealed bid auction in which bidders submit their price offer. Alternatively, the Commission could use a descending clock auction in which bid prices are reduced until only a single bidder remains. A descending clock auction may be simpler for bidders because optimal bidding does not require strategic calculations about what others may bid as in a single-round auction and bidders need not determine an exact bid at the beginning of the auction. How can the Commission ensure before the auction that there are multiple qualified bidders capable of providing quality VRS CA service for all auctioned minutes of use? Are there other ways a single winner auction could be structured to accomplish the Commission's goals?

13. Another option would be to design an auction that allows for multiple winners. One possibility is a descending clock auction, in which the auctioneer calls out a price and winners indicate the percentage of total demand to the eligible numbers they are willing to serve at that price. The auctioneer would continue to reduce the price until the sum of provider bids equals 100%. Given that the Commission has historical data on calling patterns, would such a structure provide flexibility to accommodate the actual number of minutes without creating a high degree of uncertainty as to the number of minutes each auction winner would be expected to service? Are there other ways a multiple winner auction could be structured to accomplish the Commission's goals?

14. In the case of a multiple winner auction, how should specific minutes be assigned to winners? If minutes are truly homogenous, should they be randomly assigned? If minutes, while sufficiently alike to be classified in a single category, are nonetheless somewhat differentiated should the Commission use another procedure? For example, bidders could be randomly assigned priorities and then pick preferences for types of minutes within a given category (e.g., minutes to be terminated to a particular entity). An alternative approach would allow winners of minutes within a given category to bid for the order in which they pick preferences.

15. Form of Bids. What form should bids take? The Commission contemplates that bids would take the form of an offer to provide VRS CA service at a price per minute for all demand or a percentage of the demand to certain telephone numbers. Is that the appropriate bid structure? Should bidders be required to specify a fixed quantity of minutes of use they are willing to provide? If bids are for a fixed number of minutes, what should the Commission do if the total minutes of use for which bids are received are insufficient to cover demand? Would additional demand be routed through a user's default provider?

16. Bidder Qualifications. What qualifications should the Commission set for bidders? Should the Commission allow entities to bid only after they have been certified by the Commission, or would it be sufficient to condition final auction reward on a bidder's ability to achieve certification? Are there additional criteria that should be established for entities that wish to bid in an auction?

17. Frequency of Auctions. How often should auctions be conducted (i.e., for what period of time would bidders win the right to provide exclusive VRS CA service)?

18. Reserve Price. Should the Commission set a reserve price and, if so, how? Is the cost data submitted by providers sufficient to allow the Commission to set a reserve price based on historical provider costs? What other mechanism might be used to establish a reserve price?

19. Ensuring Quality of Service. How can the Commission ensure that auction winners provide an appropriate level of quality of service? Should it require that auction winners be bonded (i.e., obtain a financial guarantee of performance)? Are the Commission's existing rules on quality of service sufficient to guarantee an appropriate level of performance? Should additional performance metrics with penalties for failure to achieve those metrics be implemented by contract? In the event of a failure to perform, should the party lose all the rights it won in the auction, or should it lose a portion of its rights commensurate with its degree of performance failure until performance improves? If all rights are terminated should it be immediate or phased out over a period of time and, if so, over what period?Start Printed Page 40410

Other Issues

20. How can the Commission ensure that there are sufficient bidders for a competitive auction? If it is willing to select only one winner, are any of the suppliers other than the largest incumbent able to serve all the demand? How is competitive behavior affected by the fact that the winning bids will be used as a benchmark for setting prices for non-participants? Would any large incumbent be willing to participate since driving down the price in the auction would reduce its prices on the rest of its business? Would any such disincentive for large incumbents to participate tend to encourage participation by small incumbents and new entrants?

21. Compensation for Integrated Providers. The neutral video communication service provider and any winners of an auction of VRS CA service minutes will account for overhead and other costs they incur in setting their bid prices. Is it therefore reasonable to assume that the sum of a benchmark rate for video communication service and a market rate for VRS CA service established by auction would be sufficient to compensate integrated VRS providers for the services they deliver? If not, what other factors should be considered when setting market based compensation rates?

22. Providers of Multiple Forms of iTRS. A number of VRS providers also provide other forms of iTRS and VRI, an interpreting service that allows a provider to pre-schedule, for a fee, remote interpreting sessions between ASL users and other individuals who are located in the same room, or in different locations. Several VRS providers also provide VRI. How do such providers allocate costs that may be shared across services? For example, how are costs for facilities and indirect costs such as financial/accounting, legal/regulatory, and human resources allocated between services when submitting cost data for multiple services? How can the Commission and the TRS Fund administrator ensure that entities that provide more than one iTRS service and/or VRI are not being overcompensated for shared resources?

23. Using Auctions for Other Forms of iTRS. Would it be appropriate to establish the compensation rate for other forms of iTRS by conducting similar types of auctions? What changes, if any, would the Commission need to consider if setting rates by auction for IP Relay and/or IP CTS?

Cost Recovery

24. Section 225 of the Act creates a cost recovery regime whereby TRS providers are compensated for their reasonable costs of providing service in compliance with the TRS regulations. See 47 U.S.C. 225(d)(3); 47 CFR 64.604(c)(5) of the Commission's rules. To be reasonable, the costs of providing service must relate to the provision of service in compliance with the applicable mandatory minimum standards.

25. As noted in Report and Order, the Commission does not believe that the providers' additional costs necessary to implement the requirements adopted today will be substantial, but it recognizes that, in its First Internet-Based TRS Numbering Order, it provided a mechanism whereby providers could seek to recover their actual reasonable costs of complying with certain of the new requirements adopted in that Report and Order. Telecommunications Relay Services and Speech-To-Speech Services For Individuals With Hearing and Speech Disabilities; E911 Requirements For IP-Enabled Services Providers, CG Docket No. 03-123 and WC Docket No. 05-196, Report and Order; published at 73 FR 41286, July 18, 2008. The Commission seeks comment on whether it should adopt such a mechanism in connection with any comparable requirements adopted today. What costs, if any, would it be appropriate to consider for additional recovery? How long would providers be entitled to seek recovery of such costs? By what standard should the Commission and the Fund administrator review any submitted costs to ensure that the costs are both allowable and reasonable?

Research and Development

26. The Commission seeks comment on the appropriate budget and funding mechanism for research conducted pursuant to the arrangement with the National Science Foundation it directs be entered into in the Report and Order. The Commission proposes to set the initial budget for research under this arrangement at $3 million dollars, which is approximately 40 percent of the expenditures reported by VRS providers for Fund year 2012 on compensable research and development, and seeks comment on this proposal. The Commission further seeks comment on the mechanism by which research and development should be funded under this arrangement. For example, what review criteria should be applied to identify appropriate research? What types of awards would be appropriate?

TRS Fund Contribution Calculations and Reporting

27. The Commission proposes to amend § § 64.604(c)(iii)(B) and (H) of the Commission's rules to match the periodicity of filing requirements from the TRS Fund administrator proposing contribution factors to the Commission for the TRS Fund to those of the Universal Service Fund (currently quarterly). Under this revision and the clarification above of the Office of the Managing Director's (OMD) duties in relation to the TRS Fund, the Fund administrator would request TRS providers to revise their projected minutes of use, and OMD would put the contribution factor proposals on public notice, and adopt a new contribution factor each quarter based on the TRS Fund administrator's proposal under OMD's delegated authority. This would allow for greater flexibility in addressing increases or decreases in requests for reimbursement and projections of service requirements from TRS providers. The Commission seeks comment on this proposal and asks commenters to address the costs and benefits of the proposal.

Allowing Hearing Individuals To Purchase Access to the Neutral Video Communication Service Provider for Point-to-Point Calls

28. The Consumer Groups have urged the Commission to adopt rules that would permit hearing individuals to obtain ten-digit numbers that would allow them to make point-to-point calls with VRS users, and note that if all registration is done through a central database, it presumably would be easier to flag a hearing person's ten-digit number in the system so that it is not eligible for VRS reimbursement while still allowing them to use the system to make direct calls to their deaf or hard of hearing contacts. The Commission seeks comment on this proposal. Should the neutral video communication service provider and/or integrated VRS providers be permitted to sell point-to-point service to hearing individuals? Should hearing individuals that purchase such service be registered in the TRS User Registration Database (TRS-URD) but flagged as “hearing” or “non-compensable?” How can the Commission ensure that TRS Funds are not used to subsidize such a service? Is it sufficient to require that the charge for such a service be sufficient to cover the costs of providing that service? What other factors must be considered if such a service is implemented?Start Printed Page 40411

TRS Fund Advisory Council

29. The Commission proposes to revise the nature, composition, and functions of the advisory body that focuses on TRS issues. It proposes to replace the existing Interstate TRS Fund Advisory Council (TRS Fund Council), which advises the TRS Fund administrator on TRS cost recovery matters, with a new advisory council that will provide advice and recommendations in four areas: (1) Technology; (2) efficiency; (3) outreach; and (4) user experience. Stakeholders and experts on the new Council will provide advice on ways that iTRS can adapt to the evolving and advancing nature of technology in communication technologies that affect the iTRS service, and ensure that iTRS users obtain a functionally equivalent service. The unique insight, institutional knowledge, and expertise that consumer and industry representatives can offer would help ensure that iTRS technologies and services are developed and deployed in a timely manner in response to the evolving needs of iTRS users.

30. The Commission believes that the role and structure of the TRS Fund Council should be redefined to reflect the changing needs of the TRS program. The Commission notes that at various times, the existing TRS Fund Council itself has asked for additional responsibilities, including matters concerning TRS quality. The Commission proposes to dissolve the existing TRS Fund Council. Given that rate methodology decisions currently are made by the Commission, not the TRS Fund administrator, and that it is moving to a regime in which compensation rates for most VRS functions will be set by a contractual competitive bidding process, there will be less need for the Council under its current mission.

31. In place of the existing TRS Fund Council, the Commission proposes to direct the TRS Fund administrator to establish a new advisory committee to provide advice on specified matters related to the TRS program. With respect to VRS, it is intended that the advisory committee provide input to TRS program administrators, including the TRS Fund administrator, the iTRS Outreach Coordinator(s), the VRS access technology reference platform administrator, the TRS-URD administrator, and/or the neutral video communication service provider in the implementation of their responsibilities under this restructuring. The Commission seeks comment on which of the following areas should be included within the new advisory committee's focus: (1) Technology; (2) efficiency; (3) outreach; (4) user experience (reference functional equivalency requirement); (5) eligibility, registration, and verification; and (6) porting and slamming. In addition, comments are solicited on which specific matters within these general areas require input from an advisory committee.

32. Composition of Proposed Committee's Membership. The Commission invites input on the appropriate composition of the new advisory committee to ensure that all interested parties are fairly represented. It is believed that the committee should be comprised of consumers who stand to benefit from VRS, researchers, and entities paying into the fund—rather than providers that receive compensation for services. State administrators should also be included if this includes PSTN-based TRS. While it is expected that providers will have an opportunity to make their views known to the committee through open sessions held by the advisory committee, the Commission is concerned that with the change in the council's focus, provider membership in the committee would create a potential conflict of interest when the committee is making decisions regarding recommended technologies, outreach initiatives, quality of service improvements and the like. In addition, provider membership may lead to distracting discussions regarding the relative merits of competing provider services and technologies.

33. The Commission proposes that the Consumer and Governmental Affairs Bureau releases a PN seeking nominations for the new committee. Comments are sought on ways in which the proposed advisory committee may play a productive role in connection with the four proposed areas.

Consistent Regulations of All Forms of iTRS

34. With certain exceptions such as the treatment of iTRS access technology, this proceeding has focused on the structure and practices of the VRS program. There are, however, significant commonalities among VRS, IP Relay, and other forms of iTRS. Indeed, VRS and IP Relay already are subject to the same user registration requirements, both utilize the TRS numbering directory, and VRS and IP CTS now have comparable requirements for certification of eligibility. Indeed, many of the actions taken in the Report and Order to improve the efficiency and availability of the VRS program could be equally beneficial if applied to other forms of iTRS, and such application would further simplify the administration of the TRS program. The Commission therefore seeks comment on extending the structural reforms adopted in the Report and Order to all forms of Internet-based TRS.

35. Registration and the TRS-URD. The Commission has taken significant steps to reduce waste, fraud, and abuse in the IP Relay and IP CTS programs in the last year. As is the case with VRS, however, the Commission lacks a definitive count of the number of unique, active users of each service, hindering the ability of the Commission and the TRS Fund administrator to conduct audits and determine compliance with the Commission's rules. The Commission therefore proposes to require each iTRS provider to provide users with the capability to register with that iTRS provider as a “default provider,” to populate the TRS-URD with the necessary information for each registered user, and to query the database to ensure each user's eligibility for each call. Given that deaf and hard of hearing Americans may use multiple forms of iTRS, what modifications to the TRS-URD, if any, are necessary to accommodate IP Relay and IP CTS data in the TRS-URD? Should the Commission modify or waive its registration requirements as they pertain to NANP numbers in light of the distinct technical and regulatory issues posed by IP CTS?

36. Certification and Verification Requirements. The Commission has adopted detailed eligibility certification and verification requirements for IP CTS and VRS to ensure that the use of those services is limited to those who have a hearing or speech disability. e.g. Misuse of Internet Protocol (IP) Captioned Telephone Service; Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, CG Docket Nos. 13-24 and 03-123, (IP CTS Report and Order); published at 78 FR 8030, March 7, 2013. Comment is sought on extending these certification and verification requirements to IP Relay. What criteria should be established when determining a user's eligibility for IP Relay? The Commission previously has required IP Relay providers to take reasonable measures to verify the registration information of new IP Relay registrants. Misuse Of Internet Protocol (IP) Relay Service; Telecommunications Relay Services And Speech-To-Speech Services For Individuals With Hearing And Speech Disabilities, CG Docket Nos. 12-38 and 03-123, Order, (2012 IP Relay Misuse Order); published at 77 FR Start Printed Page 4041243538, July 25, 2012. Is the information currently required for IP CTS or VRS eligibility certification sufficient for IP Relay, given the history of fraud in this program, or should additional information be required?

37. Neutral Platform. The Commission seeks comment on extending the capabilities of the neutral video communication service provider to other forms of iTRS. Would IP Relay and IP CTS benefit from the introduction of “standalone” providers of the CA service components of those services? To what extent might new providers of those services be induced to enter the market given the potential reduction of barriers to entry? Would it be appropriate to require provider certification consistent with its VRS rules? Would the availability of single communication service provider allow for or encourage the development of iTRS access technologies capable of delivering multiple forms of iTRS?

38. Outreach. The Report and Order initiates a national pilot program to conduct TRS outreach, and no longer allows IP Relay and VRS providers to include the cost of outreach in their yearly cost submissions. The Commission seeks comment on whether similar action is appropriate with regard to IP CTS. To what extent do IP CTS providers currently engage in outreach? Would it be more effective, as is the case with IP Relay and VRS, to conduct IP CTS outreach through a national outreach coordinator?

39. Other Rules and Obligations. To what extent should the Commission make applicable to all iTRS providers other VRS-specific rules and obligations adopted herein? Specifically, the general prohibitions on VRS provider practices causing discrimination, waste, fraud, and abuse would appear to be appropriate for application to IP Relay and IP CTS providers. Similarly, the rule on VRS provider compliance plans appears to be appropriate for application to IP Relay and IP CTS providers, and the rules on prevention of slamming appear to be appropriate for application to IP CTS providers. Comment is sought on whether to make these provisions of its rules applicable to all iTRS providers.

Disaggregation of Emergency Calls to 911

40. In the 2011 VRS Reform FNPRM, the Commission sought comment on whether the proposed changes to a per-user rate methodology and the elimination of the dial-around feature necessitate modifications to VRS emergency calling requirements. These requirements direct VRS providers to transmit all calls to 911, along with the automatic number identification, the caller's registered location, the VRS provider's name, and the CA identification number for each call, to the appropriate PSAP, designated statewide default answering point, or appropriate local emergency authority serving the caller's registered location. 47 CFR 64.605(b)(2)(ii). Because the Report and Order does not adopt the proposed per-user compensation model, the Commission no longer needs to consider the impact that a change in rate methodology would have on its mandates for emergency calling. Nevertheless, in an effort to improve the efficiency and effectiveness of emergency call handling for VRS users, the Commission invites comment on other ways to ensure that VRS users have access to 911 services that is functionally equivalent to 911 access available to the general population.

41. In particular, in line with the Commission's decision to disaggregate and contract for the provision of the video communication service components of VRS, as well as its proposal to partially include certain CA service components in a competitive bidding process, feedback is sought on whether the Commission should similarly transfer the VRS emergency call handling obligation to a single VRS contractor through a competitive bidding process. Given the urgent and specialized nature of such calls, the Commission asks for comment on the benefits to be gained by routing VRS 911 calls to pre-identified CAs who, under contract, would be specially trained to handle the safety and medical issues that typically characterize emergency calls. To what extent should CAs who handle emergency calls be integrated into general purpose VRS centers or separated out into centralized or regional call centers? In the event of a widespread emergency, should the Commission prescribe a means for addressing call handling if these specialized centers reach capacity?

42. It would also help the Commission to receive public comment on the average number of 911 calls that are made through VRS each month. To that end, commenters—both providers and consumers—are asked to indicate the average length of time that it takes to connect a 911 call made through VRS to the appropriate PSAP or emergency authority, as well as how this compares with making calls directly via voice or TTY. Should the Commission require that VRS calls to 911 be connected within a certain time frame, and, if so, what should that time frame be?

43. Under the Commission's rules, all CAs must be qualified interpreters, i.e., capable of interpreting “effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary.” 47 CFR 604(a)(1)(iv) of the Commission's rules. Should CAs who handle emergency calls be required to take additional training to better equip them to address the specialized needs of consumers who make these calls? If so, what should the nature of this training be? Commenters are asked to describe the extent to which such training already is provided for the purpose of handling emergency VRS calls.

44. Finally, in March 2013, the Commission's Emergency Access Advisory Committee (EAAC), established under the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA), released a report containing recommendations to facilitate effective communication for relay users who need to access 911. According to the EAAC, because current VRS providers have frequently improperly delivered or mishandled emergency calls it would be best to create nationally certified “Media Communications Line Service,” (MCLS) centers, that would provide “translation service for people with disabilities and telecommunicators using video, voice, text and data during NG [next generation] 911 calls.” The Commission seeks further information about the nature of these proposed centers and in particular, how their services would interface with VRS and other forms of TRS, whether their services should be provided by a single national entity or through regional centers, and whether funding for such centers would be expected to come from the Fund or another source, such as local and state governmental programs supporting emergency 911 services. The EAAC Report also proposed regulatory changes for national and uniform standards for relay service providers in processing 911 calls, training protocols and performance criteria to achieve and maintain highly skilled CAs capable of handling crisis calls, the provision of stress management services for CAs, the availability of caller profiles, and compatibility between emergency call handling procedures by VRS providers and specifications established by the National Emergency Number Association (NENA). The Commission invites comment on each of these recommendations, the appropriateness of integrating any or all of the EAAC's proposals into the Commission's VRS program, and information on the costs Start Printed Page 40413and benefits of adopting each of the EAAC's proposals.

Speed of Answer

45. In the Report and Order, the Commission establishes new benchmarks for the VRS speed of answer requirements. Specifically, as measured on a daily basis: (1) By January 1, 2014, VRS providers must answer 85 percent of all VRS calls within 60 seconds; and (2) by July 1, 2014, VRS providers must answer 85 percent of all VRS calls within 30 seconds. In document FCC 13-82 FNPRM, comment is sought on how the Commission should measure compliance with the new threshold. Specifically, the Commission proposes and seeks comment on the following formula to measure VRS speed-of-answer compliance: (Calls unanswered in 30 seconds or less + calls answered in 30 seconds or less)/(all calls (unanswered and answered)).

46. Alternatively, the Commission proposes and seeks comment on the following formula, which removes unanswered calls for which the caller ended the call prior to the threshold time. Under this formula, the provider's measured speed-of-answer performance would be unaffected by callers that do not give the CA enough time to answer the call within the threshold time period: (Calls answered in 30 seconds or less)/(All calls answered by a CA + Calls abandoned after more than 30 seconds).

47. As noted in the Report and Order, compliance will be determined on a daily basis. Calls will be considered as part of the measurement for the date when the call was handed off to the provider's system for purposes of establishing compliance with the VRS speed-of-answer requirements.

48. To enable the TRS Fund administrator to confirm the correct calculation of speed-of-answer performance, the Commission proposes that providers be required to submit to the TRS Fund administrator certain call detail record information. First, providers would submit an identifier for each inbound call that is unique and used only once and not reused in subsequent periods. Second, submissions would include, for each call, the date and time that each call arrives at the provider's network. Third, for each answered call, the submission would include the time when the first assigned CA answered the incoming call, to the nearest second. Fourth, for each call (including abandoned calls), the provider would submit the time, to the nearest second, that the incoming call ends. The Commission seeks comment on this proposed methodology for calculating and verifying speed-of-answer compliance for video relay service.

49. The Commission also seeks comment on whether to further reduce the permissible wait time for VRS calls by requiring calls to be answered 85 percent of the time within 10 seconds. Making this change would fully harmonize the permissible wait time for VRS with the permissible wait time for other forms of TRS. The Commission further proposes that, if adopted, compliance with this measurement continue to be determined on a daily basis. Feedback is requested on the benefits and the costs of adopting these proposals. Specifically, commenters are asked to address whether the proposed further reduction in the speed of answer would require VRS providers to hire additional CAs, and if so, what effect, if any, there would be on the per minute costs incurred by providers. Finally, commenters are asked to address whether adopting a phase-in period to implement this further reduction would facilitate any necessary hiring of additional interpreters and whether such a phase-in would help mitigate the effects of any additional costs that may be incurred to implement the change.

Administrative, Oversight, and Certification Rules

50. In the 2011 VRS Reform FNPRM, the Commission sought comment on whether, if it should choose to adopt any of the options set forth therein, there should be changes in its rules relating to the TRS Fund, including (1) Modifying the rules on data that must submitted to or that may be collected by the TRS Fund administrator, (2) modifying the rules governing payments to TRS providers, eligibility for payments from the TRS Fund, and notice of participation in the TRS Fund, (3) modifying the rules governing the obligations of the TRS Fund administrator, Commission review of the TRS Fund administrator's performance, and treatment of TRS customer information, (4) modifications to TRS rules to ensure that they are enforceable, and (5) modifying or enhancing the TRS Fund administrator's authority to conduct audits. See 47 CFR 64.604(c)(5)(iii)(D) through (K), (7). The Commission has adopted some changes to these rules, as described above. The Commission seeks additional comment on whether further changes to these rules are necessary and appropriate to effectively implement those reforms.

51. Additionally, comment is invited on the following specific issues. Is the existing general grant of authority to the TRS Fund administrator to request information reasonably “necessary to determine TRS Fund revenue requirements and payments” sufficient? Should the Commission explicitly require providers to submit additional detailed information, such as information regarding their financial status?

52. The Commission also seeks comment on whether there should be changes in its rules relating to the certification of VRS providers and/or other iTRS providers, in order to effectively implement the reforms adopted in the accompanying order. For example, Section V.E of the Report and Order creates a new category of VRS providers—standalone VRS CA service providers, which will not be required to own their own platforms for automatic call distribution and routing. Because the Commission's existing VRS rules do require the ownership or lease of such technology, they consequently require applicants for certification to provide both a description of the equipment used for this purpose, as well as the proofs of purchase, leases or license agreements of technology and equipment used to support their call center functions—including, but not limited to, automatic call distribution, routing, call setup, mapping, call features, billing for compensation from the TRS Fund, and registration. The Commission proposes to modify its VRS certification rules to eliminate such requirements and seek comment on this proposal. In addition, it seeks comment on whether and how to modify its VRS certification rules to ensure that standalone VRS CA service providers meet high standards of service and to eliminate incentives and opportunities for waste, fraud, and abuse by such providers. For example, should such providers be required to have certain levels of expertise or experience in the provision of interpreting services, and if so what should these levels be—for example, should such applicants be required to have provided interpreter services for a certain number of years, and if so, for how long? Should such providers be required to have prior experience in the provision of TRS or VRS? Should the Commission adopt specific requirements to ensure the financial stability of such applicants? To what extent should the Commission consider the impact that certifying a standalone provider may have on the availability of community interpreting services in the areas served by that provider? To what extent should the Commission consider the existence of non-competitive measures, such as non-compete contractual clauses for CAs Start Printed Page 40414who provide sign language functions, in determining certification for either standalone VRS CA service providers or integrated VRS providers? The Commission welcomes other comments on considerations that the Commission should take into consideration when certifying such standalone entities or integrated providers.

Restructuring Section 64.604

53. In the 2011 VRS Reform FNPRM, observing that § 64.604 of the Commission's rules has become somewhat unwieldy since it was adopted in 2000, the Commission sought comment on whether, the provisions in that section should be reorganized. 2011 VRS Reform FNPRM. The Commission also sought comment on whether it should separate § 64.604 of the Commission's rules into service-specific rules (e.g., VRS, speech-to-speech, captioned telephone relay service), transmission-specific rules (i.e., PSTN-based TRS vs. iTRS), or adopt some other structure. The Commission now proposes to revise the structure of its rules so that they are service-specific and transmission-specific, where appropriate, and seeks additional comment on this proposed structural approach and related issues. For example, it would be preferable, from the perspective of clarity and convenience of access, for all rules applicable to each service to be placed in a single section dedicated to that service? Alternatively, would it be more desirable for the rules to be segregated by category—e.g. operational standards, emergency calling, registration, etc.—with each service addressed in a subsection of the rule for a particular category?

Use of Consumer Information

54. The Commission is adopting a number of privacy protections for users of TRS services. The Consumer Groups proposed that the Commission prohibit a relay provider from using CPNI to contact a relay user for political and regulatory advocacy purposes, unless the user opts in to such contacts. The Consumer Groups argue that just as voice telephone users do not receive political and regulatory advocacy messages when using the telephone, the Commission should emphasize that TRS providers, while permitted to advocate such issues on their Web sites, may not advocate these issues or promote or advertise anything, on Web pages that must be navigated to make a relay call. The Commission seeks comment on the Consumer Groups' proposal in this regard. Would the proposed restrictions advance section 225's functional equivalency mandate as the Consumer Groups appear to suggest? Would they otherwise be consistent with the Act and with the First Amendment? What are the relative costs and benefits of such requirements? Are there other rules governing TRS providers' use of customer information that the Commission should consider?

Unjust and Unreasonable Practices

55. In the Report and Order, the Commission adopts a rule modeled on section 202(a) of the Act designed to address impermissible discrimination by VRS providers, as well as a rule intended to prevent practices that cause or encourage unauthorized or unnecessary use of relay services. Building on those steps, the Commission seeks comment on whether to adopt a rule implementing section 225 of the Act that would prohibit unjust and unreasonable practices for or in connection with TRS services. Like the rule modeled on section 202(a) of the Act, this rule would be modeled on section 201(b) of the Act, and the interpretation of that rule could be informed by the Commission's common carrier precedent under section 201(b) of the Act. Comment is sought on the need for such a rule, as well as the Commission's authority to adopt such a requirement. Would such a requirement advance the statutory mandate for functional equivalency, consistent with the Commission's section 225(d)(1)(A) of the Act, authority to “prescribe regulations to implement this section, including regulations that—(A) establish functional requirements, guidelines, and operations procedures for telecommunications relay services. . .”? 47 U.S.C. 225(d)(1)(A). Would such a rule be consistent with prior Commission decisions interpreting section 225(d)(1)(E) of the Act and its legislative history? Is there other authority that would provide a basis for the Commission to adopt such a rule? Are there alternative rules that the Commission should consider in this regard, and if so, how should they operate?

Temporary Registration

56. When the Commission directed VRS and IP Relay providers in the Second Internet-Based TRS Numbering Order to implement a reasonable means of verifying registration and eligibility information, the Commission added that, “to the extent technically feasible, Internet-based TRS providers must allow newly registered users to place calls immediately,” even before completing the verification of such individuals. Telecommunications Relay Services, Speech-to-Speech Services, E911 Requirements for IP-Enabled Service Providers, CG Docket No. 03-123, (Second Internet-Based TRS Numbering Order); 73 FR 79683, published December 30, 2008, at 79687. In permitting such temporary use of VRS and IP Relay by new registrants, the Commission responded to comments by a coalition of consumer groups, who were concerned that legitimate VRS and IP Relay users would be cut off from service during the transition to the new ten-digit numbering and registration system. In order to enable users to make calls under this “guest user” procedure, some providers have been giving users temporary ten-digit numbers and provisioning these numbers to the iTRS Directory. These numbers were allowed to remain valid for the purpose of making VRS and IP Relay calls until such time that the users' identifying information was authenticated or rejected.

Access to Video Mail

57. In 2012, in an effort to address concerns of rampant use of IP Relay by people who did not have hearing or speech disabilities, the Commission prohibited IP Relay providers from handling non-emergency calls made by new IP Relay registrants prior to taking reasonable measures to verify their registration information. Misuse of Internet Protocol (IP) Relay Service; Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing And Speech Disabilities, CG Docket Nos. 12-38 and 03-123, (2012 IP Relay Misuse Order); published at 77 FR 43538, July 25, 2012. The Commission found that although there may have been some value in allowing unverified users to make calls for a short period of time during the Commission's transition to the IP Relay registration system, the Commission was concerned that reliance on the guest user procedure had resulted in abuse of the IP Relay program by unauthorized IP Relay users. In addition, the Commission was concerned that unverified users had remained in the iTRS numbering directory—and made repeated IP Relay calls—for extended periods of time, despite the obligation of IP Relay providers to institute procedures to verify the accuracy of registration information.

58. In view of the fact that it is now approximately three and a half years since the transition period to ten-digit numbering has ended, the Commission questions whether there is still any reason to continue the guest user procedure for VRS. The Commission Start Printed Page 40415therefore proposes to prohibit VRS providers from handling non-emergency calls made by new VRS registrants prior to verification of their registration information and seek comment on its proposal. In particular, commenters are asked to weigh the costs and benefits of continuing the guest user procedure for VRS against the costs and benefits of eliminating the procedure.

Access to Video Mail

59. The Commission proposes to amend its rules to explicitly require that, if a VRS provider offers a video mail feature to its customers, the provider must ensure that video mail messages can be left by point-to-point callers who are customers of other VRS providers and are using access technology provided by such other providers. As the Commission has previously noted, point to point calls, while not relay calls, do constitute an important form of communication for many VRS users, and any loss of basic functionality for these calls is not acceptable. Therefore, the Commission has ruled that all default providers must support the ability of VRS users to make point-to-point calls without the intervention of an interpreter. Such interoperability is intended to ensure that VRS users can make point-to-point calls to all other VRS users, irrespective of the default provider of the calling and called party. See 47 CFR 64.611(e) of the Commission's rules. The Commission also seeks comment on whether the Commission's authority extends to this type of rule

60. The Commission believes that a VRS provider's failure to allow other providers' customers to leave video mail messages causes significant degradation in the value of point-to-point video communication capabilities for all VRS users. It seeks comment on this point, on the percentage of VRS customers who currently have video mail boxes, and on the extent to which customers currently encounter difficulties in attempting to leave messages in video mail boxes of customers registered with other providers. In addition, comment is sought on the extent to which the failure of a provider to allow such messages to be left could endanger a consumer's safety or health, and on whether such failure may unfairly discourage a consumer from switching from one default VRS provider to another.

61. Finally, the Commission seeks comment on the extent to which any new or changed technical standards are necessary to ensure that video mail messages can be left in another provider's mail box, beyond the standards necessary to ensure interoperability of point-to-point calling generally. To the extent that any new or changed standards are needed, comment is also sought on the appropriate forum for developing such standards and on the content of such standards.

Non-Competition Agreements in VRS CA Employment Contracts

62. In 2007, a coalition of five VRS providers petitioned the Commission for a declaratory ruling to prohibit VRS providers from using non-competition agreements in VRS CA employment contracts that limit the ability of VRS CAs to work for competing VRS providers after the VRS CAs terminate their employment with their current employer. Petitioners argued that non-competition agreements are overly broad, harm the VRS market, and are contrary to the public interest. The Commission placed the petition on public notice, and received five comments and two reply comments from organizations and providers. In addition, 109 individual consumers and interpreters submitted comments. Since then, several additional ex parte communications on this issue have been filed with the Commission. All commenters except Sorenson and one individual have supported the Coalition Petition. In a recent ex parte communication, Purple maintains that such non-competition agreements are contrary to the public interest because they artificially remove VRS CAs from the labor pool, resulting in higher interpreter costs and limiting the ability of VRS companies to compete in the market place, thereby depriving consumers of the full benefits of competition. However, Sorenson, which makes use of such agreements, maintains that they increase the pool of available VRS CAs because they encourage Sorenson to invest in training new VRS CAs, knowing that competitors will not hire away Sorenson's newly-trained CAs.

63. The Commission seeks comment on the extent to which these non-competition agreements have an adverse effect on the provision of VRS, and to the extent that they do, whether the Commission should prohibit these agreements in VRS CA employment contracts. What are the benefits or disadvantages of allowing or prohibiting these agreements? The Commission is especially interested in understanding any harm that these agreements may cause for VRS providers or consumers. Do non-competition agreements limit the pool of VRS CAs that are available to VRS providers? If so, does any such limitation affect the ability of VRS providers to effectively compete in the marketplace? To what extent do these agreements have an impact on the level of compensation paid to VRS CAs, and consequently, the cost of providing VRS? Do the agreements affect speed of answer, accuracy or other quality of service metrics for VRS users? As an alternative to an outright prohibition on non-competition agreements, should the Commission limit the scope of such agreements? If so, how? Commenters are asked to address the costs and benefits of prohibiting or limiting such agreements and how such costs and benefits would affect the TRS Fund. Commenters should support their positions with data to the extent possible. The Commission also asks commenters to address possible sources of authority for the Commission to regulate or prohibit VRS Relay CA non-competition agreements, and seeks feedback on any other matter that might assist the Commission in determining whether and how to regulate these agreements.

CAs Working from Home Environments During Overnight Hours

64. In the VRS Call Practices R&O the Commission found that allowing VRS CAs to work from home poses more risks than benefits, and consequently adopted a rule prohibiting VRS CAs from handling relay calls from a location used primarily as their home. Structure and Practices of the Video Relay Service Program, CG Docket No. 10-51, (VRS Call Practices R&O); published at 76 FR 24393, May 2, 2011, at 24395. The Commission was particularly concerned that the unsupervised home environment is more conducive to fraud than a supervised call center with on-site management. The Commission also concluded that compliance with its mandatory minimum requirements, including the expectation of user privacy, and its technical standards, including requirements for redundancy features, uninterruptible power for emergency use, and the ability to handle 9-1-1 calls, might be compromised in the home environment. Lastly, the Commission was concerned that CAs working in the home environment might not be able to meet service quality standards. Notwithstanding these concerns, the Commission explained that it remained open to revisiting the issue of at-home VRS call handling if, in the future, the Commission determines that “home-based VRS can be provided in a manner that meets all of the Commission's requirements.” Id. at 24395.

65. In August 2011, CSDVRS filed a petition for partial waiver of the above Start Printed Page 40416prohibition for a maximum of 10 percent of its active VRS CAs on duty and a maximum of 10 percent of CSDVRS's VRS call volume to address its concern for the safety of CAs who work during overnight hours. According to CSDVRS, its remote interpreting program ensures the safety of VRS interpreters, strictly adheres to mandatory minimum TRS standards, utilizes failsafe monitoring to prevent fraud, and ensures that CSDVRS' service to consumers is not interrupted or otherwise degraded by an inability to provide adequate support. CSDVRS further alleges that its at-home interpreting service provides sufficient safeguards against fraud; security for CAs working at home during off-hours because the CAs do not need to report to an office building; and more opportunities to recruit CAs. Finally, CSDVRS argues that it has taken steps to ensure confidentiality, redundancy, the handling of emergency calls, and service quality.

66. The Commission seeks comment on whether it should permit VRS CAs to work from home during the overnight hours when the safety and security of CAs may be endangered from travelling to or from VRS call centers. It asks commenters to address these safety concerns and to propose specific hours when CAs may be permitted to work from home. It also asks commenters to identify rules needed to ensure appropriate safeguards against fraud and to ensure that all of the Commission's mandatory minimum standards and technical standards are met. In particular, commenters are asked to address the concerns expressed by the Commission in the VRS Call Practices R&O with regard to privacy, redundancy, uninterruptable power, emergency calling, and service quality, and what measures need to be taken to ensure that functional equivalency is achieved if CAs were to be permitted to work from home during overnight hours. The Commission also asks commenters to address the costs and benefits of permitting CAs to work from home on this limited basis.

Initial Regulatory Flexibility Certification

67. As required by the Regulatory Flexibility Act (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities by the policies and rules proposed in document FCC 13-82 FNPRM. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments in document FCC 13-82. The Commission will send a copy of document FCC 13-82, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA).

68. Under Title IV of the Americans with Disabilities Act (ADA), the Commission must ensure that relay services “are available, to the extent possible and in the most efficient manner” to persons in the United States with hearing or speech disabilities. Section 225 of the Act defines TRS as a service provided in a manner that is “functionally equivalent” to voice telephone services and directs the Commission to establish functional requirements, minimum standards, and other regulations to carry out the statutory mandate. In addition, the Commission's regulations must encourage the use of existing technology and must not discourage the development of new technology. Finally, the Commission must ensure that TRS users “pay rates no greater than the rates paid for functionally equivalent voice communication services.” To this end, the costs of providing TRS on a call are supported by shared funding mechanisms at the state and federal levels. The federal fund supporting TRS is the interstate Telecommunications Relay Services Fund (TRS Fund or Fund), which is managed by the TRS Fund administrator, subject to the oversight of the Commission. Video relay service (VRS) is a form of TRS that allows persons with hearing or speech disabilities to use sign language to communicate in near real time through a communications assistant (CA), via video over a broadband Internet connection.

69. In the Report Order, as an important first step in its reforms, the Commission has identified certain discrete areas in which it can explore a new approach of relying on the efforts of one or more non-VRS provider third parties, either in whole or in part, to carry out the Commission's VRS policies. Specifically, the Commission establishes mechanisms:

  • To enable research designed to further the Commission's multiple goals of ensuring that TRS is functionally equivalent to voice telephone services and improving the efficiency and availability of TRS;
  • For a two-to three year pilot Internet-based TRS (iTRS) National Outreach Program (iTRS-NOP) and to select one or more independent iTRS Outreach Coordinators;
  • For the development and deployment of a VRS access technology reference platform;
  • To contract for a central TRS-URD which incorporates a centralized eligibility verification requirement to ensure accurate registration and verification of users, to achieve more effective fraud and abuse prevention, and to allow the Commission to know, for the first time, the number of individuals that actually use VRS; and
  • To contract for a neutral party to build, operate, and maintain a neutral video communication service platform, which will allow eligible relay interpretation service providers to compete as VRS providers.

70. The Commission also includes in document FCC 13-82 Report and Order incremental measures to improve the efficiency of the program, help protect against waste, fraud, and abuse, improve its administration of the program, and to generally ensure that VRS users' experiences reflect the policies and goals of section 225 of the Act. Specifically, the Commission:

  • Adopts a general prohibition on practices resulting in waste, fraud, and abuse;
  • Requires providers to adopt regulatory compliance plans subject to Commission review;
  • Amends the VRS speed of answer rules by reducing the permissible wait time for a VRS call to be answered within 30 seconds, 85 percent of the time, to be measured on a daily basis;
  • Adopts rules to protect relay consumers against unauthorized default provider changes, also known as “slamming,” by VRS and Internet Protocol (IP) Relay providers;
  • Adopts rules to protect the privacy of customer information relating to all relay services authorized under section 225 of the Act and to point-to-point video services offered by VRS providers;
  • Adopts permanent rules requiring that providers certify, under penalty of perjury, that their certification applications and annual compliance filings required under § 64.606(g) of the Commission's rules are truthful, accurate, and complete; and
  • Adjusts a volume-based three-tier rate structure by modifying the tier boundaries and calling for a series of incremental rate reductions, every six months, over a four-year period.

71. In the FNPRM, the Commission seeks comment on a series of proposals to further improve the structure and efficiency of the VRS program, to ensure that it is available to all eligible users and offers functional equivalence—particularly given advances in commercially-available technology—Start Printed Page 40417and is as immune as possible from the waste, fraud, and abuse that threaten the long-term viability of the program as it currently operates.

72. In the FNPRM, the Commission proposes to replace cost-of-service ratemaking with a more market-based approach by establishing a compensation rate for the provision of VRS communications assistant (CA) service through an auction process. Specifically, the Commission proposes to auction contracts to VRS providers to provide service to those governmental agencies and businesses that receive a substantial volume of VRS calls. The proposal, if adopted would provide for the winners of these auctions to receive the contracts to provide VRS to those agencies and businesses, and the rates for all other VRS traffic would be based on the rates of these competitively bid contracts.

73. In the FNPRM, the Commission also seeks comment on whether there should be changes to the Commission's rules relating to certification of VRS providers and/or other iTRS providers, including whether to modify the rules to ensure that standalone VRS CA service providers meet high standards of service and to eliminate incentives and opportunities for waste, fraud, and abuse. To this end the Commission asks whether there should be requirements for certain levels of expertise or experience in the provision of interpreting services; requirements of prior experience in the provision of TRS or VRS; and requirements to ensure financial stability. The FNPRM asks whether the Commission should consider the impact of certifying the standalone provider on the availability of community interpreting services. In addition, the FNPRM asks whether the certification application should ask for information regarding whether interpreter employment contracts for both standalone CA service providers and integrated VRS providers include non-compete clauses.

74. The Commission also seeks comment in the FNPRM on whether to extend the structural reforms and other rules adopted in the Report and Order with regard to VRS to other forms of Internet-based TRS (iTRS). These would include:

  • Extending use of the TRS-URD to IP Relay and Internet Protocol captioned telephone service (IP CTS);
  • Extending user certification and verification requirements to IP Relay;
  • Extending the capabilities of the neutral video communication service provider to IP Relay and IP CTS;
  • Conducting IP CTS outreach through a national outreach coordinator;
  • Extending the general prohibitions on discrimination, waste, fraud, and abuse to IP Relay and IP CTS;
  • Extending the rules on compliance plans to IP Relay and IP CTS;
  • Extending the prohibitions on slamming to IP CTS; and
  • The extent to which other VRS-specific rules should be extended to other forms of iTRS.

75. In the FNPRM, the Commission also seeks comment on a number of other issues as follows:

  • Whether to adopt a mechanism whereby providers could seek to recover the actual reasonable costs of complying with certain of the new requirements adopted in the Report and Order;
  • The appropriate budget and funding mechanism for research contracting to improve the efficiency and availability of TRS;
  • Whether to match the periodicity of filing requirements from the TRS Fund administrator proposing contribution factors to the Commission for the TRS Fund to those of the Universal Service Fund (currently quarterly) rather than annually;
  • Whether to permit hearing individuals to obtain ten-digit phone numbers that would allow them to make point-to-point video calls to VRS users, so long as TRS Funds are not used to subsidize such service;
  • Whether to replace the current TRS Fund Advisory Council, which advises the TRS Fund administrator on TRS cost recovery matters, with a new advisory council that would provide advice and recommendations to the iTRS database administrator on technology, efficiency, outreach, and user experience;
  • Whether to transfer the VRS emergency call handling obligation to a single VRS contractor through a competitive bidding process;
  • The methodology for measuring compliance with the new VRS speed of answer requirements and whether to further reduce the permitted speed of answer time for VRS to 10 seconds for 85 percent of the calls;
  • Whether the existing grant of authority to the TRS Fund administrator to request information reasonably “necessary to determine TRS Fund revenue requirements and payments” is sufficient, or whether the Commission should explicitly require TRS providers to submit additional detailed information, such as information regarding their financial status (e.g., cash flow to debt ratio);
  • Whether to separate § 64.604 of the Commission's rules into service-specific rules or transmission-specific rules or to adopt some other structure;
  • Whether to prohibit TRS providers from using Customer Proprietary Network Information (CPNI) for the purpose of contacting TRS users for political and advocacy purposes, unless the user affirmatively agrees to such contacts through an opt-in procedure;
  • Whether to adopt a rule implementing section 225 of the Act that would prohibit unjust and unreasonable practices on the part of TRS providers and would be modeled after section 201(b) of the Act, which prohibits unjust and unreasonable practices on the part of common carriers;
  • Whether to terminate the “guest user” procedure for VRS, which requires VRS providers to provide temporary service to users while verification of the user's eligibility is pending;
  • Whether to explicitly require that, if a VRS provider offers a video mail feature to its customers, the provider must ensure that video mail messages can be left by point-to-point video callers who are customers of other VRS providers and are using access technology provided by such other providers;
  • Whether to prohibit non-competition agreements in VRS CA employment contracts;
  • Whether to permit VRS CAs to work from home during the overnight hours.

76. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the rules. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 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 SBA.

77. The Commission believes that the entities that may be affected by the proposed rules are VRS providers and other TRS providers that are eligible to receive compensation from the TRS Fund. Neither the Commission nor the SBA has developed a definition of “small entity” specifically directed toward TRS providers. 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. Currently, there are ten TRS providers that are Start Printed Page 40418authorized by the Commission to receive compensation from the Fund. Six of these entities may be small businesses under the SBA size standard.

78. If the Commission were to adopt a mechanism whereby providers could seek to recover the actual reasonable costs of complying with certain of the new requirements adopted in the Report and Order, providers, including small entities, would be subject to the recordkeeping and reporting requirements associated with such cost recovery.

79. If the Commission were to adopt an auction process to award contracts to provide service to part of the VRS market, VRS providers, including small entities, may wish to participate. Such participation would entail compliance with the various filing, reporting, recordkeeping and bidding requirements associated with the action process.

80. If the Commission were to adopt additional certification requirements for VRS providers and/or other iTRS providers, small entities would be subject to the qualification, reporting, recordkeeping and other compliance obligations. Additional qualification and/or reporting requirements might include certain levels of expertise or experience in the provision of interpreting services, prior experience in the provision of TRS or VRS, assurances of financial stability, including the provision of financial information, the anticipated impact on the availability of community interpreting services, and whether interpreter employment contracts include non-compete clauses.

81. If the Commission were to extend the use of the TRS-URD to IP Relay and IP CTS, providers of those services, including small entities would be required to collect certain information from consumers and enter that information in the TRS-URD. However, the TRS-URD would actually reduce the regulatory burden on IP Relay and IP CTS providers, including small entities, because (1) the providers would no longer be required to verify user information, which would be accomplished centrally by a single entity contracted by the Commission, and (2) the providers would have reduced burdens when collecting information from users who switch providers, because the user information of those consumers would already be in the database.

82. If the Commission were to extend user certification and verification requirements to IP Relay, there would be no additional compliance obligations imposed on IP Relay providers, including small businesses, because the user certification and verification would be managed centrally by a Commission-contracted entity.

83. If the Commission were to extend to IP Relay and IP CTS providers, including small entities, the option to use the platform of the neutral video communication service provider for network operations, such providers would be able to operate more efficiently because they would be relieved of the obligation to provide their own communication service platform. Although providers, including small entities, who elect to continue to operate their own communication service platform, would be required to ensure that such platform is interoperable with the platform of the neutral communication service provider, the interoperability requirement would benefit small entities because the interoperability requirement would facilitate their ability to compete with larger providers.

84. If the Commission were to extend to IP Relay and IP CTS providers, including small entities, the general prohibition on practices resulting in waste, fraud, and abuse, this would in effect be a codification and clarification of the already existing prohibition on such practices. Therefore, no new regulatory compliance obligations would be imposed.

85. If the Commission were to extend to IP Relay and IP CTS providers, including small entities, the requirement to adopt regulatory compliance plans, submit such plans to the Commission and certify that they are in compliance, these additional requirements would result in new reporting, recordkeeping, and compliance requirements for such providers.

86. If the Commission were to extend to IP CTS providers, including small entities, the rules to protect consumers against unauthorized default provider changes, also known as “slamming,” such requirements would result in additional regulatory compliance requirements for such providers.

87. If the Commission were to require the TRS Fund administrator to propose changes to the Fund contribution factor with the same periodicity as is done with the Universal Service Fund (currently quarterly) rather than annually, such requirement may impose on TRS providers receiving compensation form the Fund, including small entities, a requirement to submit to the Commission their usage projections quarterly rather than annually.

88. If the Commission were to permit hearing individuals to obtain ten-digit phone numbers that would allow them to make point-to-point video calls to VRS users, VRS providers, including small entities, would be obligated to register and provide service to hearing users. Since it would be prohibited to use TRS Funds to subsidize such service, VRS providers, including small entities, either would absorb the cost of providing such service or would collect payments for service from the hearing users. Thus, such change in regulations would impose additional compliance obligations on VRS providers, including small entities.

89. If the Commission were to transfer the VRS emergency call handling obligation to a single VRS contractor through a competitive bidding process, VRS providers, including small entities, that desire to provide emergency call handling would have the additional regulatory obligation of participating in a competitive bidding process. However, those VRS providers, including small entities, that do not desire to provide emergency call handling, would be relieved of such obligations.

90. If the Commission were to adopt new regulations regarding the methodology for measuring compliance with the new VRS speed of answer requirements or if the Commission were to further reduce the permitted speed of answer time for VRS to 10 seconds for 85 percent of the calls, VRS providers, including small entities, would be obligated to comply with such regulations.

91. If the Commission were to explicitly require TRS providers, including small entities, to submit additional detailed information to the Commission, such as information regarding their financial status (e.g., cash flow to debt ratio), the Commission would be imposing additional reporting requirements on such providers.

92. If the Commission were to restructure § 64.604 of its rules, such restructuring would not impose additional regulatory obligations on TRS providers, including small entities.

93. If the Commission were to prohibit TRS providers, including small entities, from using CPNI for the purpose of contacting TRS users for political and advocacy purposes, unless the user affirmatively agrees to such contacts through an opt-in procedure, this would impose additional regulatory compliance obligations on TRS providers, including small entities.

94. If the Commission were to adopt a rule that would prohibit unjust and unreasonable practices on the part of Start Printed Page 40419TRS providers, it would impose additional regulatory compliance obligations on TRS providers, including small entities.

95. If the Commission were to terminate the “guest user” procedure for VRS, which requires VRS providers to provide temporary service to users while verification of the user's eligibility is pending, the change in rules would not impose new compliance requirements on VRS providers, including small entities, because VRS providers are already required to refuse service to unqualified individuals. The new requirements would simply expand the circumstances under which individuals would be denied service.

96. If the Commission were to explicitly require that, if a VRS provider offers a video mail feature to its customers, the provider must ensure that video mail messages can be left by point-to-point video callers who are customers of other VRS providers and are using access technology provided by such other providers, VRS providers, including small entities, would be obligated to comply with such regulations.

97. If the Commission were to prohibit non-competition agreements in VRS CA employment contracts, VRS providers, including small entities, would be obligated to comply with such regulations and would be subject to additional recordkeeping and reporting requirements if the Commission were to require that such information be included with certification applications and/or annual reports.

98. If the Commission were to permit VRS CAs to work from home during the overnight hours, it would reduce the regulatory burdens on VRS providers, including small entities, because VRS providers, including small entities, would be afforded more flexibility with VRS CA staffing.

99. The RFA requires an agency to describe any significant alternatives, specific to small entities, that it has considered in developing its approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.”

100. In general, alternatives to proposed rules are discussed only when those rules pose a significant adverse economic impact on small entities. In this context, however, the proposed rules generally confer benefits as explained below.

101. If the Commission were to adopt a mechanism whereby providers could seek to recover the actual reasonable costs of complying with certain of the new requirements adopted in the Report and Order, providers, including small entities, would be subject to the recordkeeping and reporting requirements associated with such cost recovery. However, because compliance with such requirements would result in cost recovery by providers, including small entities, small entities would benefit from such recordkeeping and reporting requirements.

102. If the Commission were to adopt an auction process to award contracts to provide service to part of the VRS market, VRS providers, including small entities, may wish to participate. Such participation would entail compliance with the various filing, reporting, recordkeeping and bidding requirements associated with the action process. However, those providers, including small entities, who were not interested in serving the market segments subject to the auction process would not be participating in the auction.

103. If the Commission were to adopt additional certification requirements for VRS providers and/or other iTRS providers, small entities would be subject to the qualification, reporting, recordkeeping and other compliance obligations. Additional qualification and/or reporting requirements might include certain levels of expertise or experience in the provision of interpreting services, prior experience in the provision of TRS or VRS, assurances of financial stability, including the provision of financial information, the anticipated impact on the availability of community interpreting services, and whether interpreter employment contracts include non-compete clauses. If the Commission were to adopt any such certification requirements, it would weigh the public interest benefits of the new requirements against the impact on VRS and other iTRS providers, including small entities, and would consider how to minimize the impact on small entities. For example, since the neutral video communication service provider would relieve small providers who elect to utilize the common platform of the qualification, reporting, recordkeeping and other compliance obligations associated with providing video communication service, those small entities could potentially have fewer regulatory burdens than larger entities utilizing their own video communication service platforms.

104. If the Commission were to extend the use of the TRS-URD to IP Relay and IP CTS, providers of those services, including small entities would be required to collect certain information from consumers and enter that information in the TRS-URD. However, the TRS-URD would actually reduce the regulatory burden on IP Relay and IP CTS providers, including small entities, because (1) the providers would no longer be required to verify user information, which would be accomplished centrally by a single entity contracted by the Commission, and (2) the providers would have reduced burdens when collecting information from users who switch providers, because the user information of those consumers would already be in the database.

105. If the Commission were to extend user certification and verification requirements to IP Relay, there would be no additional compliance obligations imposed on IP Relay providers, including small businesses, because the user certification and verification would be managed centrally by a Commission-contracted entity.

106. If the Commission were to extend to IP Relay and IP CTS providers, including small entities, the option to use the platform of the neutral video communication service provider for network operations, such providers would be able to operate more efficiently because they would be relieved of the obligation to provide their own communication service platform. Although providers, including small entities, who elect to continue to operate their own communication service platform, would be required to ensure that such platform is interoperable with the platform of the neutral communication service provider, the interoperability requirement would benefit small entities because the interoperability requirement would facilitate their ability to compete with larger providers.

107. If the Commission were to extend to IP Relay and IP CTS providers, including small entities, the general prohibition on practices resulting in waste, fraud, and abuse, this would in effect be a codification and clarification of the already existing prohibition on such practices. Therefore, no new regulatory compliance obligations would be imposed. Start Printed Page 40420

108. If the Commission were to extend to IP Relay and IP CTS providers, including small entities, the requirement to adopt regulatory compliance plans, submit such plans to the Commission and certify that they are in compliance, these additional requirements would result in new reporting, recordkeeping, and compliance requirements for such providers. In determining whether to enact any such requirements, the Commission would weigh the public interest benefits of the new requirements in curbing waste, fraud, and abuse and the need to control the expenditure of public funds against the impact on VRS and other iTRS providers, including small entities, and would consider how to minimize the impact on small entities. For example, since the neutral video communication service provider would relieve small providers who elect to utilize the common platform of the compliance plan obligations associated with providing video communication service, those small entities could potentially have fewer regulatory burdens than larger entities utilizing their own video communication service platforms.

109. If the Commission were to extend to IP CTS providers, including small entities, the rules to protect consumers against unauthorized default provider changes, also known as “slamming,” such requirements would result in additional regulatory compliance requirements for such providers. However, in addition to protecting consumers, these requirements would also protect IP CTS providers, including small entities, from unauthorized provider changes, thereby enhancing the ability of such entities to compete.

110. If the Commission were to require the TRS Fund administrator to propose changes to the Fund contribution factor with the same periodicity as is done with the Universal Service Fund (currently quarterly) rather than annually, such requirement may impose on TRS providers receiving compensation from the Fund, including small entities, a requirement to revise their usage projections more often than the current annual requirement. Although this change would impose an additional obligation on TRS providers, including small entities, the change would also benefit such providers due to the fact that more frequent revisions to the Fund contribution factor will help ensure that there are sufficient monies in the Fund to compensate providers. In determining whether to require TRS providers to revise their usage projections more often, the Commission will consider how to minimize the impact on small entities, such as considering whether to exempt small providers from providing quarterly more often and requiring only annual estimates from such small providers.

111. If the Commission were to permit hearing individuals to obtain ten-digit phone numbers that would allow them to make point-to-point video calls to VRS users, VRS providers, including small entities, would be obligated to register and provide service to hearing users. Since it would be prohibited to use TRS Funds to subsidize such service, VRS providers, including small entities, either would absorb the cost of providing such service or would collect payments for service from the hearing users. In determining whether to adopt these proposed regulatory changes, the Commission would weigh the benefits of facilitating communication between individuals with hearing and speech disabilities and individuals without such disabilities against the additional compliance obligations on VRS providers, including small entities.

112. If the Commission were to transfer the VRS emergency call handling obligation to a single VRS contractor through a competitive bidding process, VRS providers, including small entities, that desire to provide emergency call handling would have the additional regulatory obligation of participating in a competitive bidding process. However, those VRS providers, including small entities, that do not desire to provide emergency call handling, would be relieved of such obligations.

113. If the Commission were to adopt new regulations regarding the methodology for measuring compliance with the new VRS speed of answer requirements, VRS providers, including small entities, would be obligated to comply with such regulations. Such regulations would be in the public interest and would benefit VRS providers, including small entities, because they would provide additional certainty to VRS providers, including small entities, on how to comply with and report compliance with the VRS speed of answer requirements. If the Commission were to further reduce the permitted speed of answer time to 10 seconds for 85 percent of the calls, VRS providers, including small entities, would be required to comply with such regulations. Adopting such a requirement would be in the public interest because it would result in service to VRS consumers that would be comparable to the permitted speed of answer wait time for other forms of TRS and would be more functionally equivalent than a permitted wait time of 30 seconds for 85 percent of the calls. Nevertheless, in determining whether to further reduce the permitted speed of answer time, the Commission will consider how to minimize the impact on small entities, such as considering whether to phase-in a further reduction in permitted speed of answer time.

114. If the Commission were to explicitly require TRS providers, including small entities, to submit additional detailed information to the Commission, such as information regarding their financial status (e.g., cash flow to debt ratio), the Commission would be imposing additional reporting requirements on such providers. In determining whether to enact such requirements, the Commission would weigh the public interest benefits of how these requirements would help combat waste, fraud, and abuse and help preserve the integrity of the TRS Fund against the impact of imposing such requirements on TRS providers, including small entities. In determining whether to require TRS providers to provide such information, the Commission will consider how to minimize the impact on small entities, such as considering the level of detail that would be required of small providers.

115. If the Commission were to restructure § 64.604 of its rules, such restructuring would not impose additional regulatory obligations on TRS providers, including small entities.

116. If the Commission were to prohibit TRS providers, including small entities, from using CPNI for the purpose of contacting TRS users for political and advocacy purposes, unless the user affirmatively agrees to such contacts through an opt-in procedure, this would impose additional regulatory compliance obligations on TRS providers, including small entities. In deciding whether to enact such requirements, the Commission would weigh the public interest benefits in protecting consumers from misuse of CPNI against the impact on TRS providers, including small entities, and would examine whether any such requirements would infringe on the First Amendment rights of TRS providers. For example, the Commission would consider whether there would be a difference in terms of the First Amendment between utilizing CPNI to help develop a contact list for political and advocacy purposes as compared to developing a contact list for political and advocacy purposes without the use of CPNI.

117. If the Commission were to adopt an explicit rule that would prohibit Start Printed Page 40421unjust and unreasonable practices on the part of TRS providers, it would not likely impose additional regulatory compliance obligations on TRS providers, including small entities, because a prohibition on unjust and unreasonable practices is implicit in the current TRS requirements.

118. If the Commission were to terminate the “guest user” procedure for VRS, which requires VRS providers to provide temporary service to users while verification of the user's eligibility is pending, the change in rules would not impose new compliance requirements on VRS providers, including small entities, because VRS providers are already required to refuse service to unqualified individuals. The new requirements would simply expand the circumstances under which individuals would be denied service.

119. If the Commission were to explicitly require that, if a VRS provider offers a video mail feature to its customers, the provider must ensure that video mail messages can be left by video point-to-point callers who are customers of other VRS providers and are using access technology provided by such other providers, VRS providers, including small entities, would be obligated to comply with such regulations. However, such regulations would benefit small entities because the regulations would enhance the ability of small entities to compete by ensuring that point-to-point callers using the services of all VRS providers, including small entities, would be able to leave video mail messages with consumers using any VRS provider.

120. If the Commission were to prohibit non-competition agreements in VRS CA employment contracts, VRS providers, including small entities, would be obligated to comply with such regulations and would be subject to additional recordkeeping and reporting requirements if the Commission were to require that such information be included with certification applications and/or annual reports. However, such regulations would benefit small entities because the regulations would enhance the ability of small entities to compete by ensuring that all VRS providers, including small entities, would be able to hire VRS CAs without the pool of available VRS CAs being limited by non-competition agreements.

121. If the Commission were to permit VRS CAs to work from home during the overnight hours, it would reduce the regulatory burdens on VRS providers, including small entities, because VRS providers, including small entities, would be afforded more flexibility with VRS CA staffing.

Ordering Clauses

Pursuant to sections 1, 2, 4(i), (j), 225, 251 254 and 303(r), of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), (j) and (o), 225, 251, 254 and 303(r), document FCC 13-82 is adopted.

The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of document FCC 13-82 including the Initial Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

Start List of Subjects

List of Subjects in 47 CFR Part 64

End List of Subjects Start Signature

Federal Communications Commission.

Marlene H. Dortch,

Secretary, Office of the Secretary, Office of Managing Director.

End Signature End Supplemental Information

[FR Doc. 2013-15925 Filed 7-2-13; 11:15 am]

BILLING CODE 6712-01-P