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Clarification of Internet-based TRS Provider Eligibility Certification

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Released: October 17, 2011

Federal Communications Commission

FCC 11-155

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Structure and Practices of the Video Relay Service )
CG Docket No. 10-51
Program
)
)

Sprint Nextel Corporation Expedited Petition for
)
Clarification
)
)

Sorenson Communications, Inc. Petition for
)
Reconsideration of Two Aspects of the
)
Certification Order
)
)

AT&T Services, Inc. Petition for Reconsideration
)
of AT&T
)
)

MEMORANDUM OPINION AND ORDER, ORDER,

AND FURTHER NOTICE OF PROPOSED RULEMAKING

Adopted: October 17, 2011

Released: October 17, 2011

Comment Date: [30 days after date of publication in the Federal Register]
Reply Comment Date: [60 days after date of publication in the Federal Register]

By the Commission:

TABLE OF CONTENTS

Heading
Paragraph #
I.
INTRODUCTION .................................................................................................................................. 1
II. MEMORANDUM OPINION AND ORDER ........................................................................................ 5
A. Sprint Petition .................................................................................................................................. 5
1. Definition of Employees............................................................................................................ 5
2. Roll-Over VRS Traffic .............................................................................................................. 8
3. ACD Platform Leasing from Third-Party Non-Provider......................................................... 14
B. Sorenson Petition ........................................................................................................................... 16
C. AT&T Petition ............................................................................................................................... 23
III. ORDER................................................................................................................................................. 26
IV. FURTHER NOTICE OF PROPOSED RULEMAKING ..................................................................... 29
V. PROCEDURAL MATTERS................................................................................................................ 37
VI. ORDERING CLAUSES....................................................................................................................... 45
APPENDIX A Initial Regulatory Flexibility Analysis
APPENDIX B Final Regulatory Flexibility Certification
APPENDIX C Final Rules
APPENDIX D Proposed Rules

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I.

INTRODUCTION

1. In this Memorandum Opinion and Order (MO&O), we address the September 6, 2011
Expedited Petition for Clarification filed by Sprint Nextel Corporation (Sprint),1 and petitions for
reconsideration filed by Sorenson Communications, Inc. (Sorenson)2 and AT&T Services, Inc. (AT&T).3
Each petition relates to the Commission's July 28, 2011 iTRS Certification Order governing
Commission certification of Internet-based telecommunications relay services (iTRS) providers for
eligibility for compensation from the Interstate TRS Fund (Fund).4 For the following reasons, we grant
in part and deny in part the Sprint Petition, grant the Sorenson Petition, and deny the AT&T Petition, to
the extent discussed below.
2. In response to the Sorenson Petition, we revise section 64.606 of the Commission's rules5 to
lessen the burdens on applicants for video relay service (VRS) certification and VRS providers to
provide certain documentation to the Commission. We find good cause to make this modified rule
effective upon publication in the Federal Register of notice of the approval of the modified rule by the
Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA).6 In the
event that OMB approval of the modified rule and those adopted in the iTRS Certification Order that also
contain information collections is granted within thirty days of publication of this MO&O, this will allow
all such rules to go into effect concurrently.7


1 Sprint Nextel Corporation, Expedited Petition for Clarification, CG Docket No. 10-51 (filed Sept. 6, 2011) (Sprint
Petition).
2 Sorenson Communications, Inc., Petition for Reconsideration of Two Aspects of the Certification Order, CG
Docket No. 10-51 (filed Sept. 6, 2011) (Sorenson Petition).
3 AT&T Services, Inc., Petition for Reconsideration of AT&T, CG Docket No. 10-51 (filed Sept. 6, 2011) (AT&T
Petition). Pursuant to section 1.429 of the Commission's rules, 47 C.F.R. 1.429, the Commission published a
notice announcing the filing of the Sorenson and AT&T Petitions, and establishing a pleading cycle for oppositions
and replies in response to those petitions for reconsideration.. See Structure and Practices of the Video Relay Service
Program
, 76 Fed. Reg. 59,557 (Sept. 27, 2011). The one filing received by the Commission in response to that
notice, the October 12, 2011 response of Purple Communications, Inc., is discussed in paragraph 22, infra.
4 Structure and Practices of the Video Relay Service Program, CG Docket No. 10-51, Second Report and Order and
Order, 26 FCC Rcd 10898 (2011) (iTRS Certification Order).
5 47 C.F.R. 64.606.
6 See 21, infra. Both the Administrative Procedures Act (APA) and the Commission's rules require notice
of substantive rules issued by the Commission, with limited exceptions, to be made not less than 30 days before such
rules goes into effect, absent good cause shown and published with the rule. See 5 U.S.C. 553(d); 47 C.F.R.
1.427(a).
7 See 47 C.F.R. 1.427(b). OMB has yet to issue such approval, in part, because, when the Sorensen Petition was
filed, Sorenson also filed PRA comments, raising the same contentions that it raised in its petition concerning the
burdensome nature of the Commission's disclosure rules. Sorenson Communications, Inc., Paperwork Reduction
Act Comments,
CG Docket No. 10-51, OMB Control No. 3060-1150 (filed Sept. 6, 2011) (Sorenson PRA
Comments). As discussed in paragraphs 16-21, infra, the rule modifications adopted herein address those concerns,
and it is the expectation of the Commission that, with this Commission action, OMB approval of the rules, as so
modified, will be forthcoming. Under these circumstances, to expedite the filing of certification applications and
their processing by the Commission, good cause exists to make the modified rule and the other new rules become
effective concurrently, upon publication of OMB's approval.
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3. In the Order, we also, sua sponte, clarify our rules with respect to on-site visits that are part
of the Commission's certification application review process and post-certification oversight of provider
compliance with our iTRS rules. In the accompanying Further Notice of Proposed Rulemaking (Further
Notice
), we seek comment on our proposal to modify the rule8 governing the ability of eligible VRS
providers to contract with or otherwise authorize a third party eligible provider to provide certain core
VRS functions on their behalf.9
4. In the iTRS Certification Order, we required that all iTRS providers become certified by the
Commission in order to be eligible for compensation from the Fund for their provision of iTRS, and
implemented numerous changes to the certification process in order to prevent waste, fraud and abuse,
enhance Commission oversight of iTRS providers, and ensure that only qualified entities are eligible to
be compensated from the Fund for their provision of iTRS. Among the specific requirements we
adopted were that all VRS applicants for Commission certification lease, license or own, as well as
operate, essential facilities associated with TRS call centers and employ interpreters to staff those centers
at the date of the certification application; and that each iTRS applicant for certification submit specific
types of documentary evidence of its ability to comply with all of the Commission's rules, including
those newly adopted in the VRS Practices R&O and Certification FNPRM. In addition, we adopted
rules governing on-site visits by Commission staff to the premises of applicants for certification, as well
as to iTRS providers' premises after they are certified.10

II.

MEMORANDUM OPINION AND ORDER

A.

Sprint Petition

1.

Definition of Employees

5. In the iTRS Certification Order, we required that entities wishing to become certified by the
Commission for compensation from the Fund for their provision of VRS operate the core facilities
necessary to provide VRS service and employ their own communications assistants (CAs).11 Sprint
requests that the Commission clarify that CAs who are trained by the provider, who are stationed at the
facilities of the provider and who are directly under the provider's supervision should be deemed to be
employees of the provider, in satisfaction of this requirement, regardless of whether or not they are hired
directly by the provider.12 Sprint asserts that the Commission did not define the term "employee," and
that VRS providers with de minimis market shares will need flexibility in the way they develop their CA
workforce, including being able to obtain the services of CAs on a temporary basis or pursuant to a


8 47 C.F.R. 64.604(c)(5)(iii)(N)(1)(iii). See Structure and Practices of the Video Relay Service Program, CG
Docket No. 10-51, Report and Order and Further Notice of Proposed Rulemaking, 26 FCC Rcd 5545 (2011) (VRS
Practices R&O and Certification FNPRM
; or VRS Practices R&O when just referring to its Report and Order
portion, and Certification FNPRM when just referring to its FNPRM portion).
9 See VRS Practices R&O at 5574, para. 58. VRS is one form of iTRS. Some of the other forms of iTRS for which
providers currently may receive compensation from the Fund include Internet Protocol relay (IP Relay) and the
Internet-enabled form of captioned telephone relay service. See iTRS Certification Order, 26 FCC Rcd at 10899,
para. 1 n.1.
10 See generally iTRS Certification Order, 26 FCC Rcd at 10899, paras. 1-2.
11 See id. at 10905, para. 15.
12 Sprint Petition at 1.
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FCC 11-155

contract of short duration with an interpreting agency, and that such arrangements would be consistent
with Commission requirements.13
6. We deny Sprint's requested clarification. The Commission has consistently distinguished
"employees" from "subcontractors" and "contractors" in adopting rules and requirements governing the
provision of VRS,14 and we find that Sprint's proposed clarification would render those recognized
distinctions meaningless. Moreover, we determined that it was necessary for eligible VRS providers to
employ their own CAs (rather than contract out for CA services) to "ensure that certified providers
exercise necessary oversight of their own operations and compliance with Commission rules," and we
further recognized that requiring that CAs be employed by each eligible VRS provider would "enable the
Commission to better oversee the core operations of these providers."15
7. For the reasons stated above, we disagree with Sprint's assertion that allowing applicants to
obtain the services of CAs on a temporary, contractual basis, or pursuant to a contract of short duration
with an interpreting agency, would be consistent with Commission requirements, given our consistent
distinction between such workers and employees. Therefore, we reaffirm that any entity that is, or seeks
to become, certified by the Commission for compensation from the Fund for its provision of VRS must
actually employ the CAs that provide compensable relay service on its behalf. That is, an entity seeking
certification or already certified by the Commission must ensure that each of its VRS CAs who relays
calls for which the entity will seek reimbursement from the Fund is a full or part-time employee of that
entity. A CA cannot be an independent contractor or a temporary worker assigned by an agency, on a
non-employment basis, to handle VRS calls. We also clarify that this restriction should not preclude a
provider from hiring a CA to handle VRS calls on a temporary or part-time basis so long as the CA is an
actual, demonstrable employee, not a contractor or other temporary, non-employed worker, of the
provider.16
2.

Roll-Over VRS Traffic

8. Sprint further requests that the Commission clarify that certified VRS providers will be able
to send traffic to other certified VRS providers "when they are unable to immediately handle that traffic


13 See id. at 5.
14 See, e.g., VRS Practices R&O, 26 FCC Rcd at 5569, para. 46 (including, among a provider or its affiliates,
"subcontractors, partners, [and] employees"); at 5613, App. E (codifying this distinction at 47 C.F.R.
64.604(c)(5)(iii)(N)(4)); at 5577-78, paras. 67-70 (adopting whistleblower protections for all "employees and
contractors" of all TRS providers); at 5612, App. E (codifying such whistleblower protections at 47 C.F.R.
64.604(c)(5)(iii)(M)).
15 iTRS Certification Order, 26 FCC Rcd at 10905, para. 16. The Commission also noted that the requirement
would avoid the risks of lack of Commission oversight associated with allowing the contracting out of CA services
to entities that are not eligible VRS providers. Id.
16 For instance, an employer could demonstrate employee status by withholding various taxes from an employee's
pay, and reporting the employee's income on Internal Revenue Service Form W-2 (Wage and Tax Statement). Cf.
FCC Form 470, which includes, in its "non-employee" classification of workers, contractors or others who are
employed by the entity on a contract or short-term basis and who do not receive a W-2 application from the entity
filling out that form. Wireline Competition Bureau Announces Implementation Date for Revised Forms 470 and 471
and Accompanying Instruction
, CC Docket No. 02-6, Public Notice, 25 FCC Rcd 16123, 16140 (WCB 2010). As
we discuss below, we expect that, once a VRS provider has been certified, it will continue to employ and utilize its
own CAs, and not attempt to rely solely or in part on subcontracting or similar arrangements with other certified
providers for these core functions. See 13, infra.
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due to factors outside of their control, e.g., a sudden surge in traffic due to an earthquake," and still be
able to bill and receive compensation from the Fund for such traffic under section 64.604(c)(5)(iii)(F)(1-
4)
of the Commission's rules.17 In support of this request, Sprint maintains that "continuing to allow a
certificated VRS provider the ability to roll-over VRS traffic to another certificated provider is clearly in
the public interest since it would enable a VRS provider with a de minimis share of the market to handle
an unexpected and temporary surge in traffic such as that experienced by wireline and wireless carriers
in the immediate aftermath of the earthquake that occurred on August 23, 2011."18
9. In the VRS Practices R&O, the Commission adopted, among other things, service
requirements designed to prevent unauthorized revenue sharing arrangements in the VRS program, in
order to reduce fraud and establish better oversight of the VRS program, which has become vulnerable to
extensive fraud and abuse.19 One such requirement is contained in section 64.604(c)(5)(iii)(N)(1)(iii) of
our rules, which prohibits an eligible provider from contracting with or otherwise authorizing any third
party to provide interpretation services or call center functions on its behalf, unless that party is also
eligible for compensation from the Fund.20 The Commission specifically adopted the exception
contained within that rule because it was satisfied that eligible entities that have already met the
Commission's eligibility requirements would "pose less risk to the integrity of the program."21 In the
subsequent iTRS Certification Order, we adopted new service requirements for VRS and other iTRS
providers to meet in order to establish their eligibility via Commission certification. As explained in the
VRS Practices R&O, we "amended [our] rules to require all providers eligible for compensation from the
Fund to operate their own call centers and employ their own CAs -- that is, to provide the core
components of VRS."22
10. The Commission also adopted the VRS Practices R&O and iTRS Certification Order against
the backdrop of its longstanding VRS mandatory minimum service rules. Section 64.604(b)(4) of the
Commission's rules requires that VRS providers offer service every day, 24 hours per day.23 When the
Commission adopted the "24/7" rule and speed of answer requirements in 2005, it concluded, among


17 Sprint Petition at 1. Although Sprint cites section 64.604(c)(5)(iii)(F)(1-4) of the Commission's rules as authority
for when iTRS providers are deemed eligible to receive compensation from the Fund for their provision of iTRS,
section 64.604(c)(5)(iii)(F) was amended in the iTRS Certification Order. See iTRS Certification Order, 26 FCC
Rcd at 10902, para. 8; see also id. at 10935-36, App. D. Per amended section 64.604(c)(5)(iii)(F)(2), 47 C.F.R.
64.604(c)(5)(iii)(F)(2), iTRS providers may now become eligible for compensation from the Fund only if certified
by the Commission pursuant to 47 C.F.R. 64.606.
18 Sprint Petition at 5-6.
19 See VRS Practices R&O, 26 FCC Rcd at 5574-75, paras. 57-61; see also generally id. at 5549-52, 5572-74, paras.
4-7, 55-56.
20 See id. at 5612, App. E (codifying 47 C.F.R. 64.604(c)(5)(iii)(N)(1)(iii)); see also id. at 5574, para. 58. On May
31, 2011, we stayed the effectiveness of 47 C.F.R. 64.604(c)(5)(iii)(N)(1)(iii) until October 1, 2011. See Structure
and Practices of the Video Relay Service Program,
CG Docket No. 10-51, Order Suspending Effective Date, 26
FCC Rcd 8327 (2011). On September 30, 2011, we extended the stay of effectiveness of 47 C.F.R.
64.604(c)(5)(iii)(N)(1)(iii) until November 15, 2011. Structure and Practices of the Video Relay Service Program,
CG Docket No. 10-51, Order, FCC 11-145 (rel. Sept. 30, 2011) (VRS Revenue Sharing Prohibition Stay Extension
Order
).
21 VRS Practices R&O, 26 FCC Rcd at 5574, para. 58 n.164.
22 iTRS Certification Order, 26 FCC Rcd at 10905, para. 13 (emphases added), citing VRS Practices R&O, 26 FCC
Rcd at 5574, para. 58.
23 See 47 C.F.R. 64.604(b)(4).
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other things, that these requirements for VRS "would be less meaningful if providers can choose when
they will offer service."24 The Commission also contemplated that, in requiring VRS providers to offer
service 24/7, providers would be able to establish optimal VRS CA staffing levels by offsetting answer
performance during periods of high demand with such performance during periods when demand was
lower, for example, in the late night hours.25 In so doing, the Commission established its expectation
that VRS providers would adequately staff their call centers 24/7, including "during periods of less
demand."26
11. We grant Sprint's request for clarification that certified VRS providers may roll-over VRS
traffic to another eligible provider when unable to handle an unexpected and temporary surge in call
traffic, and find this request generally to be consistent with the goals and policies of our VRS rules. We
clarify that a certified provider may seek reimbursement from the Fund for minutes of use that it routes
to another certified VRS provider where exigent circumstances warrant such routing to handle an
unexpected and temporary increase in the certified provider's incoming traffic.27 Exigent circumstances
do not include events that result in increases in traffic that, in the ordinary course of business, could
reasonably have been anticipated, such as a surge in traffic occurring during a holiday period. We find
that permitting roll-over VRS traffic under exigent circumstances will facilitate redundancy of VRS
service so that providers can continue to ensure that their users have access to VRS during times of
exigent circumstances, and thus is consistent with our VRS program goals and policies.28
12. We also reiterate that section 64.604(c)(5)(iii)(N)(1)(iii) of our rules only allows an eligible
provider to subcontract for CA services or call center functions with, or otherwise authorize the
provision of such services or functions from, another eligible provider.29 We therefore clarify that this
rule does not apply to non-certified applicants for certification; as such, non-certified applicants for
certification may not rely on the ability to subcontract for or otherwise authorize the provision of CA
services or call center functions on their behalf after they are certified, to demonstrate their eligibility for
certification.
13. Finally, the ability of persons with hearing and speech disabilities to access TRS services
every day for 24 hours is a critical component of a functionally equivalent TRS service, in accordance
with Title IV of the Americans with Disabilities Act, as codified in section 225 of the Communications


24 Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech
Disabilities,
CG Docket No. 03-123, Report and Order, 20 FCC Rcd 13165, 13179, para. 29 (2005) (2005 VRS
R&O
).
25 See id. at 13176, para. 19.
26 Id.
27 We agree with Sprint that an appropriate example of such an exigent circumstance might be an unexpected and
temporary surge in traffic, such as that experienced by wireline and wireless carriers in the immediate aftermath of
the earthquake that occurred on the east coast on August 23, 2011.
28 See Certification FNPRM, 26 FCC Rcd at 5590, para. 97 (facility redundancy to ensure continuance of service
helps to ensure that relay services are functionally equivalent to voice telephone service); 47 C.F.R. 64.604(b)(4).
See also iTRS Certification Order, 26 FCC Rcd at 10920, para. 54 (requiring subsequent notification in the event of
"unforeseen service outages"); VRS Practices R&O, 26 FCC Rcd at 5557, para. 18 (raising concerns that lack of
redundancy could especially pose problems in the event that a caller is seeking emergency assistance via 9-1-1).
29 See 47 C.F.R. 64.604(c)(5)(iii)(N)(1)(iii).
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Act of 1934, as amended. 30 Pursuant to our objective of ensuring the provision of quality VRS,31 the
Commission has an obligation to ensure that all certified providers are capable of providing their
services on a continuous basis.32 Therefore, as a corollary to this clarification, we expect that, once a
VRS provider has been certified (conditionally or fully) by the Commission, it will continue to employ
and utilize its own CAs and provide its own call center functions, as represented in its certification
application, and not attempt to rely solely or in part on subcontracting or similar arrangements for these
core services and functions. In the accompanying Further Notice, we seek comment on our similar
proposal to modify our rules to allow subcontracting or similar arrangements with other eligible VRS
providers only under exigent circumstances.
3.

ACD Platform Leasing from Third-Party Non-Provider

14. Sprint's final request is that the Commission clarify that a VRS provider leasing an
automatic call distribution (ACD) platform from a vendor not affiliated with any VRS provider need not
locate such ACD on its premises or use its own employees to manage such platform.33 We believe that
Sprint's proposed clarification is appropriate. In the iTRS Certification Order, we adopted specific
requirements governing the leasing by a VRS provider of an ACD platform from another eligible
provider, or any entity affiliated with a VRS provider,34 including the requirement that a VRS provider
so leasing an ACD platform from an eligible provider must locate the ACD platform on its own premises
and must use its own employees to manage the ACD platform.35 With respect to VRS providers that
lease their ACD platforms from manufacturers or equipment distributors not affiliated with VRS
providers, however, we required only a written lease for such ACD platform that conforms to the same
restrictions on lease terms that we imposed on ACD leases with other eligible providers or affiliated
entities, and that the applicant include a copy of the lease with its application for certification.36 We then
specifically concluded that the "additional restrictions" that we placed on a provider leasing an ACD
platform from another eligible provider or entity affiliated with a provider which include locating the
ACD platform on its own premises and using its own employees to manage the ACD platform are
unnecessary when a provider leases an ACD platform from an entity not affiliated with a VRS
provider.37
15. For these reasons, we grant Sprint's request insofar as we confirm that a VRS provider
leasing an ACD platform from a vendor not affiliated with any VRS provider need not locate such ACD
on its premises or use its own employees to manage such a platform. However, regardless of the
location of the ACD, each provider is responsible for the oversight of all the core operations associated


30 47 U.S.C. 225(b)(1); see Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 401, 104 Stat. 327,
336-69 (1990), as amended by the Twenty-First Century Communications and Video Accessibility Act of 2010
(CVAA), Pub. L. No. 111-260, 124 Stat. 2751 (2010) (as codified at 47 U.S.C. 715). See also Pub. L. 111-265,
125 Stat. 2795 (2010), making technical corrections to the CVAA.
31 See, e.g., iTRS Certification Order, 26 FCC Rcd at 10905, para. 15.
32 See id. at para. 16.
33 See Sprint Petition at 1, 6.
34 See iTRS Certification Order, 26 FCC Rcd at 10907, para. 19 n.50.
35 See id. at 10906, para. 17.
36 See id. at 10907, para. 19.
37 Id.
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with such ACD platform,38 and shall be held accountable for compliance with all pertinent Commission
rules and policies.

B.

Sorenson Petition

16. In its petition for reconsideration, Sorenson maintains that the Commission did not
adequately justify the burdensomeness of requirements that VRS providers submit, as part of their
certification applications and, as applicable, in annual reports regarding their compliance with the TRS
rules: (1) "proofs of purchase or license agreements for all equipment and/or technologies, including
hardware and software, used for the applicant's VRS call center functions";39 and (2) all written
sponsorship agreements relating to iTRS.40 For the following reasons, we grant Sorenson's petition to
the extent discussed below.
17. In the iTRS Certification Order, we adopted requirements for documentary evidence that
certification applicants must submit in support of their applications.41 Among these requirements are
that VRS applicants include "[p]roofs of purchase, leases or license agreements for all technology and
equipment used to support their call center functions, including a complete copy of any lease or license
agreement for automatic call distribution."42 We adopted this requirement primarily to "help the
Commission to ensure that the applicant has the full operational and technical capability to operate a call
center, in compliance with the Commission's mandatory minimum standards," and also to help ensure
that providers and other entities comply with the Commission's rules designed to reduce fraud and put
an end to unauthorized revenue sharing arrangements.43 Sorenson argues that this will require it to
devote thousands of hours to gather the information and result in the company having to submit
thousands of pages of documents.44
18. We agree with Sorenson that such an information collection requirement may be overly
burdensome for a provider the size of Sorenson when evaluated in light of the objectives the requirement
is intended to foster. Responding to similar concerns with respect to our original proposal in the
Certification FNPRM that a certification applicant file a copy of each deed or lease for each of its call
centers, in the iTRS Certification Order, we modified that proposed requirement to mandate that, where
the provider has more than five domestic call centers, it need submit the deeds or leases for only five of
those call centers that constitute a representative sample of its centers.45 In order to similarly address
Sorenson's concerns, we now modify the documentation requirements for proofs of purchase, leases, or
license agreements for technology and equipment used to support call center functions. Where the


38 See id.
39 Sorenson Petition at 6 (quoting iTRS Certification Order, 26 FCC Rcd at 10911, para. 29).
40 See Sorenson Petition at i, 5. Sorenson advanced the same two arguments in its comments to OMB challenging
these two requirements under the PRA. See Sorenson PRA Comments. As a result, the Commission's request for
OMB approval of the rules adopted in the iTRS Certification Order containing information collection requirements,
and thereby subject to the PRA, remains pending.
41 See generally iTRS Certification Order, 26 FCC Rcd at 10907-13, paras. 21-34.
42 Id. at 10937, App. D (codifying requirements at 47 C.F.R. 64.606(a)(2)(ii)(A)(5)). See also id. at 10911-12,
para. 29.
43 Id. at 10912, para. 30.
44 See Sorenson Petition at 3-4.
45 See iTRS Certification Order, 26 FCC Rcd at 10909, para. 24.
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provider has more than five domestic call centers, it must provide such documentation for five of its
centers, that constitute a representative sample of its centers.46 As we did when we adopted modified
requirements for submission of employment agreements and lists of employees,47 however, we require
applicants to retain proofs of purchase for all technology and equipment used to support call center
functions for all of their call centers, and to furnish such documentation to the Commission upon the
Commission's request.
19. In addition, as with call center deeds or leases, we continue to require providers to submit
documentation for all technology and equipment used to support call center functions for VRS providers
that maintain five or fewer domestic call centers, and for all international call centers regardless of the
provider's size.48 Furthermore, we continue to require all VRS applicants, regardless of size, to describe
in their submissions the technology and equipment used to support their call center functions --
including, but not limited to, ACD, routing, call setup, mapping, call features, billing for compensation
from the TRS Fund, and registration.49 However, in response to Sorenson's stated concerns, we modify
the requirement that the applicant state whether the technology and equipment for each call center
function is owned or leased50 to pertain only to the maximum of five call centers for which, as described
above, the applicant must provide proofs of purchase, license agreements, or leases. Finally, in light of
the particular documentation requirements applicable to leased ACD platforms,51 we will continue to
require that VRS applicants provide a complete copy of all ACD leases or license agreements.52
20. Regarding the burdens associated with our documentation requirements related to
sponsorship agreements, Sorenson argues that it would take roughly 242 hours of work to comply in its
initial application, and an average of 26 hours per year to comply with respect to annual reporting
updates.53 In response to Sorenson's concerns, we clarify these requirements as follows. In the iTRS
Certification Order
(in the paragraph captioned "List of Sponsorship Arrangements"), we required that
applicants submit "a list of all . . . sponsorship or marketing arrangements and associated agreements,
but only those related to iTRS."54 We clarify that applicants need only to submit a list of all sponsorship
arrangements, and to describe on that list any associated written agreements relating to iTRS applicants
need not furnish the actual copies of the arrangements and associated agreements, but must retain copies
of all such arrangements and agreements for a period of three years from the date of the application and
submit them to the Commission upon request. We will revise section 64.606(a)(2)(ii)(E) of our rules


46 As with call center deeds or leases, when choosing a representative sampling of call centers for which to supply
documentation for the technologies and equipment used to support call center functions, applicants should include
within that sampling a range of such centers as determined by the center's size (by numbers of CAs) and location.
Providers already in the market should also consider call volume. See id. at n.67.
47 See id. at 10911, para. 27.
48 See id. at para. 24.
49 See id. at 10911, para. 29.
50 See id.
51 See id. at 10906-07, paras. 17-19.
52 See id. at 10937, App. D (codifying requirement at 47 C.F.R. 64.606(a)(2)(ii)(A)(5)).
53 See Sorenson Petition at 5.
54 iTRS Certification Order, 26 FCC Rcd at 10912, para. 31.
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accordingly.55 Thus, as clarified, the burdens on any iTRS provider, including Sorenson, to comply with
section 64.606(a)(2)(ii)(E) are hereby significantly lessened.
21. Both the APA and the Commission's rules require notice of substantive rules issued by the
Commission, with limited exceptions, to be made not less than 30 days before such rules goes into
effect, absent good cause shown and published with the rule.56 In this case, we find good cause to make
these rule modifications effective upon publication in the Federal Register of notice of the approval of
the modified rule by OMB under the PRA. We extended the stay of effectiveness of section
64.604(c)(5)(iii)(N)(1)(iii) of our rules until November 15, 2011, in order to enable entities currently
providing VRS via subcontracting to apply for certification prior to the expiration of the stay, and to
prevent such entities from being forced to cease operations without having had the opportunity to seek a
seamless transition to certification.57 The rule modifications we adopt in this MO&O affect the
documentation that certification applicants must submit to the Commission. Because entities not
currently certified by the Commission must be certified by November 15, 2011, in order to be eligible
for compensation from the Fund for their provision of iTRS, good cause exists to make the rule
modifications in this MO&O effective as soon as possible, upon publication in the Federal Register of
notice of OMB approval of these modifications. In the event that OMB approval of the modified rule
and those adopted in the iTRS Certification Order that also contain information collections is granted
within thirty days of publication of this MO&O, this will allow all such rules to go into effect
concurrently, and enable entities seeking iTRS certification to apply immediately. Moreover, because
the rule modifications we adopt in this MO&O modify rules that the Commission adopted on July 28,
2011 and, in so doing, decrease the burdens on iTRS providers interested entities have had far more
than 30 days notice of the documentation requirements with which they must comply.
22. Purple Communications, Inc. filed a "response" to the Sorenson Petition, in which it
requested that applicants be required in their VRS certification applications to disclose their financial
arrangements with any contractors or interested entities.58 Such a requirement is not necessary at this
juncture because we believe that the safeguards included in our new disclosure requirements -- for
example, those requiring disclosure of financial interests59 and sponsorship arrangements60 -- balance
well the need for Commission oversight of providers with minimizing information collection burdens on
providers.61 Indeed, as Purple itself concedes, "the certification process and related disclosure of
sponsorship agreements seems to be an appropriate avenue to maximize transparency."62


55 See App. C, infra.
56 See note 6, supra.
57 See VRS Revenue Sharing Prohibition Stay Extension Order at para. 4.
58 See Purple Communications, Inc. Response to Petition for Reconsideration, CG Docket No. 10-51 (filed Oct. 12,
2011) (Purple Response).
59 See iTRS Certification Order, 26 FCC Rcd at 10910, para. 26.
60 See id. at 10912, para. 31.
61 See, e.g., id. at 10910, para. 26.
62 Purple Response.
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C.

AT&T Petition

23. In its petition for reconsideration, AT&T generally seeks reconsideration of the requirements
in the iTRS Certification Order that applicants for certification operate their own call centers and employ
their own CAs.63 In addition, AT&T seeks reconsideration of the prohibition against VRS providers
subcontracting these core VRS functions to another certified VRS provider.64 AT&T argues that these
changes to the rules are unsupported by the record, are unnecessary given other recently-adopted VRS
rules, and could increase the costs of VRS providers.65 Specifically, AT&T contends that the record in
this Docket contains insufficient support to demonstrate that the facilities-based service requirements
adopted in the iTRS Certification Order will reduce waste, fraud, or abuse of the Fund.66
24. In the iTRS Certification Order, we considered and rejected the same arguments repeated by
AT&T in its petition. In its comments filed in response to the Certification FNPRM, AT&T claimed that
ownership and operation of call centers was not necessary to provide quality VRS service, and that
imposing such a requirement would reduce competition among providers.67 We were not persuaded by
these arguments at that time, and we concluded in the iTRS Certification Order that requiring VRS
providers to lease, license, or acquire and operate their own facilities and employ their own CAs would
better ensure compliance with our rules and reduce fraud.68 We see no reason to revisit that conclusion
here. Indeed, there is ample evidence in the record of this proceeding that allowing VRS providers that
operate without their own facilities to seek reimbursement from the Fund has contributed to the serious
fraud that has plagued the VRS program.69
25. Moreover, we do not agree with AT&T's assertion that the facilities-based service
requirements are unnecessary in light of the TRS reforms that we have undertaken. We think it prudent
to address waste, fraud and abuse, as witnessed in the VRS program, using multiple measures, and our
broad review of the certification process, culminating in the iTRS Certification Order, is one of several
important components of combating these unlawful activities.70 We also cannot credit AT&T's
speculative contention that the facilities-based service requirement could stifle competition and
innovation in the provision of VRS.71 AT&T maintains that the rules requiring the operation of call
centers and direct employment of CAs, and prohibiting the subcontracting of these core functions to
another certified provider, could cause currently-operating providers to withdraw from the business of
providing VRS.72 Our goals in reforming the certification rules are to ensure the provision of quality


63 AT&T Petition at 1.
64 Id.
65 Id.
66 Id. at 2.
67 AT&T Certification FNPRM Comments at 12.
68 iTRS Certification Order, 26 FCC Rcd at 10905, para. 16.
69 See id., citing VRS Practices R&O at paras. 54-58.
70 See generally VRS Practices R&O (adopting rules to detect and prevent fraud and abuse in the provision of VRS);
Structure and Practices of the Video Relay Service Program, CG Docket No. 10-51, Notice of Inquiry, 25 FCC Rcd
8597 (2010) (initiating a fresh look at the structure of the VRS program, in part to ensure that it is less susceptible to
the waste, fraud and abuse that plague the current program).
71 See AT&T Petition at 9-12.
72 See id.
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VRS in compliance with the Commission's rules, and to prevent waste, fraud, and abuse through
improved Commission oversight,73 and the facilities-based service requirements is designed to achieve
these goals.74 We therefore believe that VRS providers with legitimate business models should find
greater opportunities to serve consumers once we have eliminated opportunities for arbitrage by
providers who prioritize making money over providing quality service. As the Commission noted in the
VRS Practices R&O and Certification FNPRM, questionable provider call handling practices have
threatened the viability of the VRS program.75 The reforms that we have adopted in the iTRS
Certification Order
and elsewhere, including the requirement that VRS providers themselves operate call
centers and employ their CAs, represent our attempt to ensure that VRS will remain available to all
consumers who use this service, through protecting the integrity of the VRS program,76 and helping to
ensure that compensation from the Fund only goes to providers qualified to provide VRS in compliance
with our rules. Accordingly, for all of these reasons, we deny the AT&T Petition.

III.

ORDER

26. In this Order, we clarify, sua sponte, certain provisions of the iTRS Certification Order
related to on-site visits to the premises of applicants and certified providers. In the iTRS Certification
Order
, we adopted rules governing on-site visits by Commission staff to the premises of applicants for
certification, as well as to iTRS providers' premises after they are certified. Specifically, we reserved
the right to include, as part of the iTRS certification process, an on-site visit to the applicant's
headquarters, offices or call centers, to verify the information provided in the application for
certification. We also reserved the right to make subsequent, unannounced on-site visits to iTRS
providers' premises once they receive certification, for the purpose of ensuring continued compliance
with certification requirements.77
27. We did not specify in the rule we adopted regarding on-site visits to applicants' premises
whether such visits would occur with prior notice or unannounced.78 Consistent with our stated
objective of verifying compliance with our rules, we clarify that such visits to both applicants for
certification and certified providers may be announced or unannounced,79 which will further the goals of
verifying the information provided in a certification application, and help us to better assess the ability of
the applicant to provide, or performance of certified provider in providing, service in compliance with


73 See iTRS Certification Order, 26 FCC Rcd at 10898-99, 10905-06, paras. 1, 15-16.
74 See id. at 10905, para. 15.
75 VRS Practices R&O and Certification FNPRM, 26 FCC Rcd at 5551, para. 6.
76 See, e.g., id. at 5552, para. 8 (rules adopted in the VRS Practices R&O designed to "preserve the integrity of the
VRS program").
77 See iTRS Certification Order, 26 FCC Rcd at 10914, para. 36.
78 See id. at 10937, App. D (codifying on-site visits rule at 47 C.F.R. 64.606(a)(3)).
79 Where the Commission conducts inspections of facilities subject to a Commission authorization in any service, it
is general practice to conduct such inspections on an unannounced basis. See, e.g.,Greenwood Acres Baptist Church,
Memorandum Opinion and Order, 22 FCC Rcd 1442, 1444, para. 8 (EB 2007) (no advance notice or appointment is
necessary for the Commission to conduct an inspection), citing Norfolk Southern Railway Company, Order, 11 FCC
Rcd 519 (CIB 1996) (any delay in an inspection can shelter a serious violation). See also Mark N. Lipp, Esquire and
Christopher D. Imlay, Esquire,
Letter, 25 FCC Rcd 2588, 2589 (MB 2010); Enforcement Bureau Fact Sheet:
Inspection Authority (Mar. 2005), found at http://transition.fcc.gov/eb/otherinfo/inspect.html.
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our rules.80 In this regard, we will consider on-site visits to be equivalent to requests to examine, verify
and audit data received from eligible TRS providers under our rules.81 For both applicants and certified
providers, on-site visits may incorporate the examination of all aspects of iTRS service provision,
including, but not limited to, inspection of any documents related to the provision of iTRS, and the
monitoring of live iTRS calls. In the case of applicants for certification, we may seek to verify the
information contained in the application through an on-site visit, and may further opt, if necessary, to
grant certification only conditionally until an on-site visit has been completed.
28. Applicants for certification and certified providers must comply with a request by an
authorized representative of the Commission to conduct either announced or unannounced on-site visits.
In the case of applicants, the failure to allow complete access to inspect areas of the premises and
documents related to the provision of iTRS, and to observe live iTRS calls, at the time of an authorized
on-site visit will be cause for application denial. In the case of certified providers subject to an on-site
visit to ensure continued compliance with our rules and requirements, such failure will result in the
suspension of payments from the Fund until such access to iTRS-related areas, documents and activities
is allowed.82 In addition, a certified provider's failure to cooperate with an announced or unannounced
on-site visit will be deemed a violation of our rules governing provider audits83 and thus, may also lead
to a Commission proceeding imposing appropriate sanctions, including the suspension or revocation of
the provider's certification or forfeiture proceedings.84


80 See iTRS Certification Order, 26 FCC Rcd at 10914, para. 36. Such visits to iTRS providers may occur during
their business hours. For instance, as discussed above, section 64.604(b)(4) of the Commission's rules requires that
VRS providers operate 24 hours per day. See 10, supra. Accordingly, inspections of the premises, documents and
operations of any iTRS provider operating 24 hours per day may be made at any time of day or night. A nighttime
inspection may be very useful, for instance, to the extent we suspect that certain entities plan to rely substantially on
subcontracting and other arrangements for their call center functions and/or CA services, during late night hours.
See 31, infra.
81 In the VRS Practices R&O, the Commission stated that all TRS providers must submit to audits annually or, if
necessary, at any other time deemed appropriate by the Commission, the Fund administrator, or by the
Commission's Office of Inspector General, that such audits may, as necessary, include on-site visits, and that failure
to fully cooperate in such audits, including failure to provide documentation upon reasonable request, will result in
automatic suspension of TRS payments until sufficient documentation is provided. See VRS Practices R&O, 26
FCC Rcd at 5584, para. 84 and n.228; 47 C.F.R. 64.604(c)(5)(iii)(C)(6).
82 See iTRS Certification Order, 26 FCC Rcd at 10937, App. D (codifying 47 C.F.R. 64.606(a)(3)) (specifying that
"the Commission may conduct one or more on-site visits of the applicant's premises, to which the applicant must
consent"). We also expressed our intention to "make subsequent, unannounced on-site visits of iTRS providers once
they receive certification for the purpose of ensuring continued compliance with certification requirements." Id. at
10914, para. 36.
83 See 27, supra.
84 The Commission may conduct audits, including on-site visits, and require a certified VRS providers to submit
documentation demonstrating ongoing compliance with the Commission's minimum standards, "at times
determined appropriate by the Commission." 47 C.F.R. 64.604(c)(5)(iii)(C)(6); see VRS Practices R&O, 26 FCC
Rcd at 5584, para. 84 and n.228. 47 C.F.R. 64.606(e) provides authority for the Commission to suspend or revoke
the certification of a VRS provider if, after notice and opportunity for a hearing, the Commission determines that
such certification is no longer warranted. In addition, section 503 of the Communications Act and section 1.80 of
the Commission's rules authorizes the Commission to impose monetary forfeitures for failure to comply with the
rules or Commission orders. 47 U.S.C. 503, 47 C.F.R. 1.80.
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IV.

FURTHER NOTICE OF PROPOSED RULEMAKING

29. In Section II.A.2. of the MO&O, above, we clarify that certified VRS providers may roll-
over VRS traffic to another eligible provider when unable to handle an unexpected and temporary surge
in call traffic due to exigent circumstances. In that discussion, we recognize that the Commission, in the
VRS Practices R&O, adopted a rule prohibiting an eligible provider from contracting with or otherwise
authorizing any third party from providing interpretation services or call center functions on its behalf,
unless that party is also eligible for compensation from the Fund.85 We also clarify in the MO&O,
however, that non-certified applicants for certification may not rely on a plan to subcontract with an
eligible provider for, or otherwise authorize, the provision of CA services or call center functions on
their behalf, to demonstrate their eligibility for certification.86 In this Further Notice, we propose to
modify our rules to provide that a certified provider may subcontract with another certified provider for,
or otherwise authorize the provision by another certified provider of, CA services or call center functions
only in the event of an unexpected and temporary surge in call traffic due to exigent circumstances, and
seek comment on this proposal.
30. In the VRS Practices R&O, the Commission amended its rules in order to reduce fraud and
establish better oversight of the VRS program, and to address the unauthorized revenue sharing
arrangements that have proliferated in the VRS program.87 Among the rules that the Commission
adopted to effectuate those goals was section 64.604(c)(5)(iii)(N)(1)(iii), adopted to "ensure that an
eligible provider is responsible for providing the core components of VRS."88 To that same end, in the
accompanying Certification FNPRM, the Commission sought comment on a number of proposed
modifications to its certification process, to ensure that all iTRS entities seeking certification, including
VRS providers, are fully qualified to provide iTRS in compliance with the Commission's rules.89 In the
resulting iTRS Certification Order, we required that entities wishing to be eligible for compensation
from the Fund for the provision of VRS be certified by the Commission, operate the core facilities
necessary to provide VRS service, and employ their own CAs.90 In so acting, we explained that
"requiring VRS providers to operate their own call centers and to employ their own CAs will ensure that
certified providers exercise necessary oversight of their own operations and compliance with
Commission rules, and enable the Commission to better oversee the core operations of these
providers."91
31. While our intention in the iTRS Certification Order was thus to promote qualified, stand-
alone providers92 operating their own call centers and employing their own CAs, we now recognize that
the rule, as adopted in the VRS Practices R&O, has resulted in conflicting interpretations among


85 See 9, supra (citing 47 C.F.R. 64.604(c)(5)(iii)(N)(1)(iii)).
86 See 12, supra.
87 VRS Practices R&O and Certification FNPRM, 26 FCC Rcd at 5574, para. 57.
88 Id. at para. 58.
89 Id. at 5589, para. 95.
90 iTRS Certification Order, 26 FCC Rcd at 10905, para. 15.
91 iTRS Certification Order, 26 FCC Rcd at 10905, para. 16 (emphasis added).
92 See id. at 10906, para. 17 (allowing an eligible provider to lease an ACD platform one of the core call center
functions -- from another eligible provider only on a "stand-alone basis," and prohibiting revenue sharing as a term
of the lease).
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currently certified and would-be certified providers. For instance, as discussed above, Sprint was
motivated to seek Commission "confirm[ation] of [Sprint's] understanding" that under the rules adopted
in the iTRS Certification Order, certified VRS providers will be able to send traffic to other certified
VRS providers when they are unable to immediately handle that traffic due to factors outside of their
control, and still be able to bill and receive compensation from the Fund for such traffic.93 In addition,
AT&T read the iTRS Certification Order as "allowing only the facilities-based provision of VRS rather
than allowing subcontracting between certified VRS providers for the core functions of VRS, as
enunciated in the VRS Practices R&O."94 Given these conflicting interpretations, we are increasingly
concerned that parties may seek to rely substantially on subcontracting and other arrangements for their
own VRS functions once they have become certified by the Commission as eligible providers. We
acknowledge that in the VRS Practices R&O, we observed that subcontracting of core VRS components
to other eligible providers, whose operations are under the direct supervision of the Commission,
"pose[s] less risk to the integrity of the [VRS] program."95 Nevertheless, in light of our above-noted
concerns, we believe that reliance by providers on subcontracting arrangements may perpetuate the types
of revenue sharing schemes that we sought to put an end to in the VRS Practices R&O.96
32. Therefore, to better ensure that we foster the provision of VRS by qualified, stand-alone
providers operating their own call centers and employing their own CAs, we tentatively conclude that we
should modify section 64.604(c)(5)(iii)(N)(1)(iii) to allow an eligible VRS provider to contract with or
otherwise authorize another eligible provider to provide CA services or call center functions on its behalf
only when such arrangements are necessitated by an unexpected and temporary surge in call traffic due
to exigent circumstances, such as in the event of a natural disaster or other comparable emergency that is
outside the provider's control. In all other circumstances, certified providers must provide the core
components of VRS using their owned facilities and their full- or part-time employees. We find this
proposed modification to be consistent with our stated VRS program goals.97 We further find this
proposed modification to be reasonable and in the public interest, as it will facilitate redundancy, and
thus reliability, of VRS services.98
33. We seek comment on this tentative conclusion. We also seek comment on the specific types
of exigent circumstances that would warrant subcontracting or similar arrangements between eligible
providers. We seek to ensure that this proposed rule modification does not open a window for the
routine transfer of call traffic between eligible VRS providers, for example, in order to avoid violation of
our VRS speed of answer rule.99 Transfer of call traffic between eligible providers should not routinely
occur, but rather should be the rare exception that occurs only in exigent circumstances.
34. In addition, we tentatively conclude that, when a provider seeks to be reimbursed from the
Fund for minutes transferred to another eligible VRS provider as a result of exigent circumstances, it
should submit such minutes in its monthly submission to the Fund administrator for reimbursement in


93 Sprint Petition at 5. See id. at 1; see also 8-11, supra (addressing Sprint's requested clarification regarding
roll-over VRS traffic).
94 AT&T Petition at 3 (citing VRS Practices R&O, 26 FCC Rcd at 5574, para. 58).
95 VRS Practices R&O, 26 FCC Rcd at 5574, para. 158 n.164.
96 See id. at 5570-75, paras. 47-61.
97 See, e.g., iTRS Certification Order, 26 FCC Rcd at 10905, paras. 15-16.
98 See 11, supra.
99 See 47 C.F.R. 64.604(b)(4)(i).
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the normal course, but must identify any such minutes as having been handled by another provider and
identify the other provider. The Fund administrator shall determine whether exigent circumstances exist
as part of its normal processes for verifying monthly submissions, and may request additional
information regarding the specifics of the exigent circumstances for purposes of determining whether, in
fact, exigent circumstances existed and whether reimbursement is warranted. The Fund administrator
may withhold reimbursements for minutes where it finds that no exigent circumstances existed, or
otherwise finds that the request for reimbursement is not sufficiently substantiated.100 The Fund
administrator shall reimburse the transferring eligible provider for compensable minutes resulting from
transferred call traffic. We seek comment on these tentative conclusions. We also seek comment on
whether there are any other types of documentation that providers should be required to furnish to the
TRS Fund administrator, with their monthly submissions of data to support reimbursement from the
Fund, in order to demonstrate that exigent circumstances necessitated the transfer of call traffic, and on
the specific information they should be required to provide regarding the minutes handled under such
circumstances.
35. Furthermore, we seek comment on how the transferring eligible provider may compensate
the transferee for handling such call traffic without violating our rule against VRS revenue-sharing
agreements. We tentatively conclude that such compensation may not be based on per-minute revenue
sharing,101 and seek comment on this tentative conclusion. We also seek comment on whether, in the
event the Fund administrator or the Commission determines that no exigent circumstances existed, the
Fund administrator should withhold payment for the transferred traffic, or the Fund administrator should
be authorized to directly pay the eligible provider that handled the traffic; and whether, in the latter
scenario, directly paying the eligible provider that handled the traffic might provide incentives for
eligible providers to engage in unauthorized revenue sharing arrangements.
36. Finally, we seek comment on whether there are any other amendments that we should make
to our rules to facilitate the transfer of call traffic between eligible providers in exigent circumstances.
Furthermore, we seek comment on whether there are any other limited exemptions we should recognize
to our general prohibition on an eligible provider contracting with or otherwise authorizing any third
party from providing interpretation services or call center functions on its behalf, in light of our intention
to promote qualified, stand-alone providers operating their own call centers and employing their own
CAs.102

V.

PROCEDURAL MATTERS

37. Comments and Reply Comments. Pursuant to Sections 1.415 and 1.419 of the Commission's
rules,103 interested parties may file comments on or before 30 days after the date of publication of the
Further Notice in the Federal Register, and reply comments on or before 60 days after the date of
publication of the Further Notice in the Federal Register. Comments may be filed using: (1) the
Commission's Electronic Comment Filing System (ECFS); or (2) by filing paper copies. All filings
should reference the docket number of this proceeding, CG Docket No. 10-51.


100 See 47 C.F.R. 64.604(c)(5)(iii)(E).
101 See VRS Practices R&O, 26 FCC Rcd at 5570-75, paras. 47-61.
102 See 31, supra.
103 47 C.F.R. 1.415 and 1.419.
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Electronic Filers: Comments may be filed electronically using the Internet by accessing the
ECFS: http://fjallfoss.fcc.gov/ecfs2/. Filers should follow the instructions provided on the
website for submitting comments. In completing the transmittal screen, ECFS filers should
include their full name, U.S. Postal Service mailing address, and CG Docket No. 10-51.

Paper Filers: Parties who choose to file by paper must file an original and one copy 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. 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 Street, SW, Room TW-A325,
Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries
must be held together with rubber bands or fasteners. Any envelopes or boxes must be
disposed of before entering the building.

Commercial 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.
38. Paperwork Reduction Act of 1995 Analysis. This document contains new and modified
information collection requirements. The Commission notes that pursuant to the Small Business
Paperwork Relief Act of 2002, Public Law 107-198, we previously sought specific comment on how the
Commission might "further reduce the information collection burden for small business concerns with
fewer than 25 employees." In this present document, we have assessed the effects of the rules for
contributions to the TRS Fund and find that the collection of information requirements will not have a
significant impact on small business concerns with fewer than 25 employees. As discussed at note 7,
supra, the Commission received comments on the information collection requirements contained in the
iTRS Certification Order, under OMB Control No. 3060-1150.104 By the above MO&O, the
Commission addresses OMB's and Sorenson's concerns by revising the language in the rules to require
that providers that operate five or more domestic call centers only submit copies of proofs of purchase,
leases or license agreements for technology and equipment used to support their call center functions for
five of their call centers that constitute a representative sample of their centers, rather than requiring
copies for all call centers. Further, the Commission clarifies that the rule requiring submission of a list
of all sponsorship arrangements relating to iTRS only requires that a certification applicant include on
the list associated written agreements, and does not require the applicant to provide copies of all written
agreements. We believe that these two rule modifications significantly alleviate the burdens associated
with the subject information collections requirements, and address the concerns Sorenson raised in its
PRA comments filed with OMB.
39. Initial Paperwork Reduction Act of 1995. This Further Notice seeks comment on potential
new or revised information collection requirements or may result in new or revised information
collection requirements. If the Commission adopts any new or revised information collection
requirement, the Commission will publish a separate notice in the Federal Register inviting the public to
comment on the requirement, as mandated by the Paperwork Reduction Act of 1995.105 In addition,
pursuant to the Small Business Paperwork Relief Act of 2002, the Commission will seek specific


104 Paperwork Reduction Act Comments of Sorenson Communications, Inc. (filed Sept. 6, 2011).
105 See Pub. L. 104-13, 44 U.S.C. 3501 et. seq.
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comment from the public on how it might "further reduce the information collection burden for small
business concerns with fewer than 25 employees."106
40. Congressional Review Act. The Commission will send a copy of this MO&O in a report to
be sent to Congress and the Government Accountability Office pursuant to the Congressional Review
Act.107
41. Initial Regulatory Flexibility Analysis. With respect to this Further Notice, an Initial
Regulatory Flexibility Certification (IRFA) is contained in Appendix A. As required by Section 603 of
the Regulatory Flexibility Act, the Commission has prepared an IRFA of the expected impact on small
entities of the proposals contained in the Further Notice. Written public comments are requested on the
IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for
comments on the Further Notice. The Commission will send a copy of the Further Notice, including the
IRFA, to the Chief Counsel for Advocacy of the Small Business Administration.108
42. Final Regulatory Flexibility Certification. With respect to this MO&O, a Final Regulatory
Flexibility Certification (FRFC) is contained in Appendix B. As required by Section 603 of the
Regulatory Flexibility Act, the Commission has prepared an FRFC of the expected impact on small
entities of the requirements adopted in this MO&O. The Commission will send a copy of the MO&O,
including the FRFC, to the Chief Counsel for Advocacy of the Small Business Administration.
43. Ex Parte Rules. This proceeding shall be treated as a "permit-but-disclose" proceeding in
accordance with the Commission's ex parte rules.109 Persons making ex parte presentations must file a
copy of any written presentation or a memorandum summarizing any oral presentation within two
business days after the presentation (unless a different deadline applicable to the Sunshine period
applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the
presentation must: (1) list all persons attending or otherwise participating in the meeting at which the ex
parte
presentation was made; and (2) summarize all data presented and arguments made during the
presentation. If the presentation consisted in whole or in part of the presentation of data or arguments
already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the
presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or
other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can
be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission
staff during ex parte meetings are deemed to be written ex parte presentations and must be filed
consistent with section 1.1206(b) of the Commission's rules. In proceedings governed by section 1.49(f)
of the rules or for which the Commission has made available a method of electronic filing, written ex
parte
presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto,
must be filed through the electronic comment filing system available for that proceeding, and must be
filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should
familiarize themselves with the Commission's ex parte rules.


106 See Pub. L. 107-198, 47 U.S.C. 3506(c)(4).
107 See 5 U.S.C. 801(a)(1)(A).
108 See 5 U.S.C. 603(a). In addition, the Further Notice and IRFC (or summaries thereof) will be published in the
Federal Register.
109 See 47 C.F.R. 1.1200 et seq.
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44. To request materials in accessible formats (such as Braille, large print, electronic files, or
audio format), send an e-mail to fcc504@fcc.gov or call the Consumer and Governmental Affairs
Bureau at (202) 418-0530 (voice) or (202) 418-0432 (TTY). This Memorandum Opinion and Order,
Order, and Further Notice of Proposed Rulemaking can also be downloaded in Word and Portable
Document Formats (PDF) at http://www.fcc.gov/cgb/dro/trs.html#orders.

VI.

ORDERING CLAUSES

45. Accordingly, IT IS ORDERED that, pursuant to the authority contained in Sections 1, 4(i),
(j) and (o), 225, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i),
(j) and (o), 225, and 303(r), and Section 1.429 of the Commission's rules, 47 C.F.R. 1.429, this
Memorandum Opinion and Order, Order, and Further Notice of Proposed Rulemaking IS hereby
ADOPTED.
46. IT IS FURTHER ORDERED that Sprint's Expedited Petition for Clarification IS
GRANTED IN PART and DENIED IN PART, to the extent provided herein.
47. IT IS FURTHER ORDERED that Sorenson's Petition for Reconsideration IS GRANTED,
to the extent provided herein.
48. IT IS FURTHER ORDERED that AT&T's Petition for Reconsideration IS DENIED.
49. IT IS FURTHER ORDERED that the Memorandum Opinion and Order shall be effective
upon publication of a summary of it in the Federal Register.
50. IT IS FURTHER ORDERED that Part 64 of the Commission's rules is amended as set forth
in Appendix C.
51. IT IS FURTHER ORDERED that the amendments of Part 64 of the Commission's rules set
forth in Appendix C will be effective upon Commission publication in the Federal Register of a notice
announcing the approval of those amendments by the Office of Management and Budget under the
Paperwork Reduction Act of 1995.110
52. IT IS FURTHER ORDERED that the Order shall be effective upon release.


110 See 21, supra.
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53. IT IS FURTHER ORDERED that the Commission's Consumer and Governmental Affairs
Bureau, Reference Information Center, SHALL SEND a copy of this Memorandum Opinion and Order,
including the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small
Business Administration.
54. IT IS FURTHER ORDERED that the Commission's Consumer and Governmental Affairs
Bureau, Reference Information Center, SHALL SEND a copy of this Further Notice of Proposed
Rulemaking, including the Initial Regulatory Flexibility Certification, to the Chief Counsel for
Advocacy of the Small Business Administration.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
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APPENDIX A

Initial Regulatory Flexibility Analysis

CG Docket No. 10-51

1. As required by the Regulatory Flexibility Act (RFA),1 the Commission has prepared this present
Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities by
the policies and rules proposed in this Further Notice of Proposed Rule Making (Further Notice). 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 to this Further Notice. The Commission will send a copy of this
Further Notice, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration
(SBA).2 In addition, the Further Notice and IRFA (or summaries thereof) will be published in the Federal
Register.3

Need for, and Objectives of, the Proposed Rules

2. In this Further Notice, the Commission proposes to modify its rules to provide that a certified
VRS provider may subcontract with another certified VRS provider for, or otherwise authorize the
provision by another certified provider of, CA services or call center functions only in the event of an
unexpected and temporary surge in call traffic due to exigent circumstances, and seeks comment on this
proposal. The Commission notes that its intention in the iTRS Certification Order4 was to promote
qualified, stand-alone providers operating their own call centers and employing their own CAs, and in so
doing to limit the subcontracting of core components of VRS between eligible providers to unusual
instances necessitated by exigent circumstances. The Commission now recognizes that the related rule
adopted in the VRS Practices R&O5, which preceded the iTRS Certification Order, has resulted in
conflicting interpretations among currently certified entities and entities involved in applying for
certification. The Commission is increasingly concerned with the apparent plans of numerous entities to
rely substantially on subcontracting and other arrangements for their core VRS functions if they become
eligible providers. The Commission believes that such reliance will perpetuate the types of revenue sharing
schemes that we sought to put an end to in the VRS Practices R&O.6
3. Therefore, to better ensure the provision of VRS by qualified, stand-alone providers operating
their own call centers and employing their own CAs, the Commission tentatively concludes that it should
modify section 64.604(c)(5)(iii)(N)(1)(iii) to allow an eligible VRS provider to contract with or otherwise
authorize another eligible provider to provide CA services or call center functions on its behalf only when
necessitated by an unexpected and temporary surge in call traffic due to exigent circumstances, such as in


1 See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 et. seq., has been amended by the Contract With America
Advancement Act of 1996, Pub. L. No. 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA is the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA).
2 See 5 U.S.C. 603(a).
3 See id.
4 26 FCC Rcd 10898.
5 26 FCC Rcd 5545.
6 See id. at 5570-75, paras. 47-61.
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the event of a natural disaster or other comparable emergency that is outside the provider's control. In all
other circumstances, certified providers must provide the core components of VRS using their owned
facilities and their full- or part-time employees. The Commission finds this proposed modification to be
consistent with its stated VRS program goals, and finds this proposed modification to be reasonable and in
the public interest, as it will facilitate redundancy, and thus reliability, of VRS services.

Legal Basis

4. The legal basis for any action that may be taken pursuant to the Further Notice is contained in
Sections 1, 4(i), (j) and (o), 225, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C.
151, 154(i), (j) and (o), 225, and 303(r), and Section 1.429 of the Commission's rules, 47 C.F.R. 1.429.

Description and Estimate of the Number of Small Entities to Which the Proposed

Rules May Apply

5. Wired Telecommunications Carriers. The Census Bureau defines this category as follows:
"This industry comprises establishments primarily engaged in operating and/or providing access to
transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text,
sound, and video using wired telecommunications networks. Transmission facilities may be based on a
single technology or a combination of technologies. Establishments in this industry use the wired
telecommunications network facilities that they operate to provide a variety of services, such as wired
telephony services, including VoIP services; wired (cable) audio and video programming distribution; and
wired broadband Internet services. By exception, establishments providing satellite television distribution
services using facilities and infrastructure that they operate are included in this industry."7
6. In this category, the SBA deems a wired telecommunications carrier to be small if it has 1,500
or fewer employees.8 Census data for 2007 shows 3,188 firms in this category.9 Of these 3,188 firms, only
44 had 1,000 or more employees. While we could not find precise Census data on the number of firms
within the group with 1,500 or fewer employees, it is clear that at least 3,144 firms with fewer than 1,000
employees would be in that group. On this basis, the Commission estimates that a substantial majority of
the wired telecommunications carriers are small.10
7. All Other Telecommunications. Under the 2007 U.S. Census definition of firms included in the
category "All Other Telecommunications (NAICS Code 517919)"comprises "establishments primarily
engaged in providing specialized telecommunications services, such as satellite tracking, communications
telemetry, and radar station operation. This industry also includes establishments primarily engaged in
providing satellite terminal stations and associated facilities connected with one or more terrestrial systems
and capable of transmitting telecommunications to, and receiving telecommunications from, satellite


7 U.S. Census Bureau, 2007 NAICS Definitions, 517110 Wired Telecommunications Carriers,
http://www.census.gov/econ/industry/def/d517110.htm.
8 13 C.F.R. 121.201, NAICS Code 517110.
9 See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&;-
_lang=en.
10 Id.
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systems. Establishments providing Internet services or voice over Internet protocol (VoIP) services via
client-supplied telecommunications connections are also included in this industry."11
8. In this category, the SBA deems a provider of "all other telecommunications" services to be
small if it has $25 million or less in average annual receipts.12 For this category of service providers,
Census data for 2007 shows that there were 2,383 such firms that operated that year.13 Of those 2,383
firms, 2,346 (approximately 98%) had $25 million or less in average annual receipts and, thus, would be
deemed small under the applicable SBA size standard. On this basis, Commission estimates that
approximately 98% or more of the providers in this category are small.
9. Wireless Telecommunications Carriers (except Satellite). Since 2007, the Census Bureau has
placed wireless firms within this new, broad, economic census category.14 Prior to that time, such firms
were within the now-superseded categories of "Paging" and "Cellular and Other Wireless
Telecommunications."15 Under the present and prior categories, the SBA has deemed a wireless business
to be small if it has 1,500 or fewer employees.16 For the category of Wireless Telecommunications Carriers
(except Satellite), Census data for 2007 shows that there were 1,383 firms that operated that year.17 Of
those 1,383, 1,368 had fewer than 100 employees, and 15 firms had more than 100 employees. Thus under
this category and the associated small business size standard, the majority of firms can be considered small.
Similarly, according to Commission data, 413 carriers reported that they were engaged in the provision of
wireless telephony, including cellular service, Personal Communications Service ("PCS"), and Specialized
Mobile Radio ("SMR") Telephony services.18 Of these, an estimated 261 have 1,500 or fewer employees
and 152 have more than 1,500 employees.19 Consequently, the Commission estimates that approximately
half or more of these firms can be considered small. Thus, using available data, we estimate that the
majority of wireless firms can be considered small.
10. The Commission notes that under the standards listed above some current VRS providers and
potential future VRS providers would be considered small businesses. There are currently ten eligible VRS


11 U.S. Census Bureau, 2007 NAICS Definitions, 517919 All Other Telecommunications, http://www.census.gov/cgi-
bin/sssd/naics/naicsrch?code=517919&search=2007%20NAICS%20Search.
12 13 C.F.R. 121.201, NAICS Code 517919.
13 See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=900&-ds_name=EC0751SSSZ4&;-
_lang=en.
14 U.S. Census Bureau, 2007 NAICS Definitions, 517210 Wireless Telecommunications Carriers (Except Satellite),
http://www.census.gov/naics/2007/def/ND517210.HTM#N517210.
15 U.S. Census Bureau, 2002 NAICS Definitions, 517211 Paging,
http://www.census.gov/epcd/naics02/def/NDEF517.HTM.; U.S. Census Bureau, 2002 NAICS Definitions, "517212
Cellular and Other Wireless Telecommunications"; http://www.census.gov/epcd/naics02/def/NDEF517.HTM.
16 13 C.F.R. 121.201, NAICS code 517210 (2007 NAICS). The now-superseded, pre-2007 C.F.R. citations were 13
C.F.R. 121.201, NAICS codes 517211 and 517212 (referring to the 2002 NAICS).
17 U.S. Census Bureau, 2007 Economic Census, Sector 51, 2007 NAICS code 517210 (rel. Oct. 20, 2009),
http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-fds_name=EC0700A1&-_skip=700&;-
ds_name=EC0751SSSZ5&-_lang=en.
18 See Trends in Telephone Service, at tbl. 5.3.
19 Id.
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providers, five of which may be considered small businesses. In addition, there are several pending
applications from entities seeking to become certified to provide VRS that may be considered small
businesses.

Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

11. There are no new record keeping or reporting requirements proposed in this Further Notice.

Steps Taken to Minimize Significant Economic Impact on Small Entities and Significant

Alternatives Considered

12. The RFA requires an agency to describe any significant alternatives 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."20
13. In order to minimize the adverse economic impact on small entities, the Commission seeks
comment on the alternative types of exigent circumstances that would warrant subcontracting or similar
arrangements between eligible providers. The Commission's goal, in order to prevent small entities from
sustaining unwarranted and unjustifiable costs, is to ensure that this proposed rule modification does not
open a window for the routine transfer of call traffic between eligible VRS providers, for example, in order
to avoid violation of our VRS speed of answer rule.
14. Also, in order to minimize the adverse economic impact on small entities, the Commission
seeks comment on various ways to implement and compensate for the proposed rule modification.
Specifically, the Commission seeks comment on three alternatives: (1) whether, in the event the Fund
administrator or the Commission determines that no exigent circumstances existed, the Fund administrator
should withhold payment for the transferred traffic; or (2) the Commission should directly pay the eligible
provider that handled the traffic; and (3) whether, in the latter scenario, directly paying the eligible provider
that handled the traffic might provide incentives for eligible providers to engage in unauthorized revenue
sharing arrangements.
15. In conclusion, the Commission seeks comment on the alternatives discussed above for such
transfer of traffic. The Commission also seeks comment on whether any specific reimbursement policy
would minimize the adverse impact on a substantial number of small entities if any small entities would in
fact be impacted by this rule modification.

Federal Rules that May Duplicate, Overlap, or Conflict with Proposed Rules

16. None.


20 5 U.S.C. 603(c)(1)-(4).
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APPENDIX B

Final Regulatory Flexibility Certification

CG Docket No. 10-51

1. The Regulatory Flexibility Act of 1980, as amended (RFA),1 requires that a regulatory
flexibility analysis be prepared for rulemaking proceedings, unless the agency certifies that "the rule will
not, if promulgated, have a significant economic impact on a substantial number of small entities."2 The
RFA generally defines "small entity" as having the same meaning as the terms "small business," "small
organization," and "small governmental jurisdiction."3 In addition, the term "small business" has the same
meaning as the term "small business concern" under the Small Business Act.4 A small business concern is
one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3)
satisfies any additional criteria established by the Small Business Administration (SBA).5
2. In this MO&O, in response to a VRS provider's petition, the Commission amends its rules to
modify the documentation requirements for eligible iTRS providers for proofs of purchase, leases, or
license agreements for technology and equipment used to support call center functions, to apply only to the
technologies and equipment for a representative sampling of five of a provider's domestic call centers,
where the provider has more than five such centers. In addition, the Commission amends its rules to clarify
that applicants need only to submit a list of all sponsorship arrangements, and to include on that list any
associated written agreements relating to iTRS applicants need not furnish the actual copies of the
arrangements and associated agreements. The Commission will revise section 64.606(a)(2)(ii)(E) of its
rules accordingly.6
3. These amendments result in a significant reduction in costs and other burdens on any iTRS
provider, large or small, to comply with section 64.606(a)(2)(ii)(E) to be significantly lessened. Thus, the
discussion of whether there is a significant economic impact on a substantial number of small entities is
moot.
4. Therefore, the Commission certifies that the requirements of this MO&O will not have a
significant adverse economic impact on a substantial number of small entities, because there will be no
adverse impact on any entities, large or small.


1 See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been amended by the Small Business Regulatory
Enforcement Fairness Act of 1996, (SBREFA) Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996).
2 5 U.S.C. 605(b).
3 5 U.S.C. 601(6).
4 5 U.S.C. 601(3) (incorporating by reference the definition of "small business concern" in Small Business Act, 15
U.S.C. S 632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies "unless an agency,
after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public
comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and
publishes such definition(s) in the Federal Register."
5 Small Business Act, 15 U.S.C. S 632.
6 See App. C, infra.
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5. The Commission will send a copy of the MO&O, including a copy of this Final Regulatory
Flexibility Certification, in a report to Congress pursuant to the Congressional Review Act.7 In addition,
the MO&O and this final certification will be sent to the Chief Counsel for Advocacy of the SBA, and will
be published in the Federal Register.8
6. IT IS FURTHER ORDERED that the Commission's Consumer and Governmental Affairs
Bureau, Reference Information Center, SHALL SEND a copy of this MO&O including the Final
Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business
Administration.


7 See 5 U.S.C. 801(a)(1)(A).
8 See 5 U.S.C. 605(b).
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APPENDIX C

Final Rules

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 C.F.R.
part 64 as follows:

Part 64 MISCELLANEOUS RULES RELATING TO COMMON CARRIERS

1. The authority citation for part 64 continues to read as follows:

Authority:

47 U.S.C. 154, 254 (k); secs. 403 (b)(2)(B), (c), Public Law 104-104,
110 Stat. 56. Interpret or apply 47 U.S.C. 201, 218, 225, 226, 228, 254 (k), and 620, unless otherwise
noted.

SUBPART F TELECOMMUNICATIONS RELAY SERVICES AND RELATED CUSTOMER
PREMISES EQUIPMENT FOR PERSONS WITH DISABILITIES

2. The authority citation for subpart F continues to read as follows:

Authority:

47 U.S.C. 151-154; 225, 255, 303(r), and 620.
3. Section 64.606 is amended by revising paragraphs (a)(2)(ii)(A)(4),(5) and (a)(2)(ii)(E); and by adding
paragraphs (a)(2)(ii)(A)(6)-(8) to read as follows:
64.606 Internet-based TRS provider and TRS program certification.
(a)***
(2)***
(ii)***
(A)***
(4) A description of the 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 -- and for each core function of each call center for
which the applicant must provide a copy of technology and equipment proofs of purchase, leases or
license agreements in accordance with paragraphs (a)(2)(ii)(A)(5)-(7) of this section, a statement whether
such technology and equipment is owned, leased or licensed (and from whom if leased or licensed);
(5) Operating five or fewer call centers within the United States, a copy of each proof of purchase, lease
or license agreement for all technology and equipment used to support their call center functions for each
call center operated by the applicant within the United States;
(6) Operating more than five call centers within the United States, a copy of each proof of purchase, lease
or license agreement for technology and equipment used to support their call center functions for a
representative sampling (taking into account size (by number of communications assistants) and location)
of five call centers operated by the applicant within the United States; a copy of each proof of purchase,
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lease or license agreement for technology and equipment used to support their call center functions for all
call centers operated by the applicant within the United States must be retained by the applicant for three
years from the date of the application, and submitted to the Commission upon request;
(7) Operating call centers outside of the United States, a copy of each proof of purchase, lease or license
agreement for all technology and equipment used to support their call center functions for each call center
operated by the applicant outside of the United States; and
(8) A complete copy of each lease or license agreement for automatic call distribution.
*****
(E) For all applicants, a list of all sponsorship arrangements relating to Internet-based TRS, including on
that list a description of any associated written agreements; copies of all such arrangements and
agreements must be retained by the applicant for three years from the date of the application, and
submitted to the Commission upon request;
*****
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APPENDIX D

Proposed Rules

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend
47 C.F.R. part 64 as follows:

Part 64 MISCELLANEOUS RULES RELATING TO COMMON CARRIERS

1. The authority citation for part 64 continues to read as follows:

Authority:

47 U.S.C. 154, 254 (k); secs. 403 (b)(2)(B), (c), Public Law 104-104,
110 Stat. 56. Interpret or apply 47 U.S.C. 201, 218, 225, 226, 228, 254 (k), and 620, unless otherwise
noted.

SUBPART F TELECOMMUNICATIONS RELAY SERVICES AND RELATED CUSTOMER
PREMISES EQUIPMENT FOR PERSONS WITH DISABILITIES

2. The authority citation for subpart F continues to read as follows:

Authority:

47 U.S.C. 151-154; 225, 255, 303(r), and 620.
3. Revise 64.604(c)(5)(iii)(N)(1)(iii) to read as follows:
(c)***
(5)***
(iii)***
(N)***
(1)***
(iii) An eligible VRS provider may not contract with or otherwise authorize any third party to provide
interpretation services or call center functions (including call distribution, call routing, call setup,
mapping, call features, billing, and registration) on its behalf, unless necessitated by an unexpected and
temporary surge in call traffic due to exigent circumstances and the authorized third party also is an
eligible provider. Exigent circumstances shall be deemed to include a natural disaster or other
comparable emergency that is not reasonably foreseeable and is outside the provider's control, but shall
not include events that in the ordinary course of business could reasonably have been anticipated, such as
a surge in traffic occurring during a holiday period. When a provider seeks to be reimbursed from the
Fund for minutes transferred to another eligible VRS provider as a result of exigent circumstances, it
should submit such minutes in its monthly submission to the Fund administrator for reimbursement in the
normal course, but must identify any such minutes as having been handled by another provider and
identify the other provider. The Fund administrator shall determine whether exigent circumstances exist
as part of its normal processes for verifying monthly submissions, and may request additional information
regarding the specifics of the exigent circumstances for purposes of determining whether, in fact, exigent
circumstances existed and whether reimbursement is warranted. The Fund administrator may withhold
reimbursements for minutes where it finds that no exigent circumstances existed, or otherwise finds that
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the request for reimbursement is not sufficiently substantiated. The Fund administrator shall reimburse
the transferring eligible provider for compensable minutes resulting from transferred call traffic, and the
transferring eligible provider may compensate the transferee for handling such call traffic so long as such
compensation is not on a per-minute basis.
30

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