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FCC Stay Opp. - Sorenson Communications, Inc. v. FCC (D.C. Cir.)

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Released: November 1, 2013

USCA Case #13-1246 Document #1464289 Filed: 11/01/2013 Page 1 of 24

IN THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
___________

No. 13-1246

___________

SORENSON COMMUNICATIONS, INC., et al.,




PETITIONERS
v.



FEDERAL COMMUNICATIONS COMMISSION
AND THE UNITED STATES OF AMERICA,





RESPONDENTS

___________

FCC’S OPPOSITION TO MOTION FOR

STAY PENDING JUDICIAL REVIEW


___________





SEAN A. LEV

GENERAL COUNSEL


JACOB M. LEWIS

ASSOCIATE GENERAL COUNSEL





C. GREY PASH, JR.

COUNSEL








FEDERAL COMMUNICATIONS COMMISSION

WASHINGTON, D. C. 20554
(202) 418-1740

NOVEMBER 1, 2013


USCA Case #13-1246 Document #1464289 Filed: 11/01/2013 Page 2 of 24

TABLE OF CONTENTS

Introduction ................................................................................ 1
Background ................................................................................ 3
1. The Regulatory Setting ................................................... 3

2. The Interim Rules And The Notice Of
Proposed Rule Making ................................................... 5

3. The Adoption Of Permanent Rules ................................ 6

Argument
................................................................................. 10

The Stay Request Should Be Denied ........................................ 10

A. Sorenson Has Failed To Demonstrate That
It Is Likely To Prevail On The Merits. ........................ 11

B. Sorenson Has Failed To Demonstrate That It
Will Suffer Irreparable Injury Absent A Stay. ............ 18

C. A Stay Would Not Be In The Public Interest. ............. 19

Conclusion ............................................................................... 20







USCA Case #13-1246 Document #1464289 Filed: 11/01/2013 Page 3 of 24

INTRODUCTION

In late 2012, the FCC became aware of a dramatic and unexpected surge in
usage of a type of subsidized telephone service – known as Internet Protocol
Captioned Telephone Service (IP CTS) – designed for people who have hearing
loss, but who can speak with their own voice. IP CTS allows persons who are hard
of hearing to use phones with added features that allow them to conduct a phone
call by both reading “captions” of what the other caller is saying and using residual
hearing to listen to what the other caller is saying. IP CTS is one of several types
of telephone service for people with hearing and speech disabilities that are funded
by contributions that telecommunications carriers and voice over Internet protocol
providers (VoIP) – and indirectly all users of these services – make into a fund
administered by the FCC known as the Telecommunications Relay Service (TRS)
Interstate Fund. The Commission found that the rate of demands for payment from
IP CTS providers seeking compensation from the Fund substantially exceeded
what the Fund had budgeted for such payments during the 2012-13 fund year based
on past demand and threatened the sustainability of the fund.
The Commission concluded that the sudden spike in IP CTS usage was
likely attributable to questionable practices employed by IP CTS providers that
were encouraging use of IP CTS by persons who may not need it. For instance,
petitioner Sorenson Communications was paying audiologists (and others) for
referrals to its service, even though this practice is disapproved by the applicable
professional ethical code. Further, Sorenson was distributing free phones that had
“captions on” set as the default mode – a setting that facilitates unnecessary or

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inadvertent use by persons without hearing loss who may be present in the same
household or office.
In light of the impact of these questionable practices on the sustainability of
the TRS Fund, the Commission in January 2013 adopted interim rules directed at
restricting these practices to ensure that IP CTS was used only by eligible indivi-
duals. Those rules were in effect for six months. The Commission also adopted at
the same time a Notice of Proposed Rulemaking seeking comment on whether to
make the interim rules permanent as well as alternatives to those rules.
In August 2013 the FCC, after receiving extensive comments, adopted the
Order under review, which amended or replaced the interim rules establishing the
eligibility of existing and new users of this service. Of particular relevance here,
the Commission adopted a rule prohibiting an IP CTS provider from receiving
compensation from the TRS Fund for usage of IP CTS equipment received at no
charge or for a fee of less than $75. The Commission explained that the offering of
such equipment – which is fully usable as a phone by individuals with no hearing
loss – for free or at sharply reduced costs has the potential for promoting registra-
tion and use by IP CTS customers who do not need the service, thereby resulting in
improper payments from the Fund. Notably, most IP CTS providers supported a
rule of this kind before the Commission.
In addition, the Commission made permanent its interim rule requiring that
IP CTS equipment have a default setting of “captions-off” so that a user is required
to take an affirmative step to turn on the captions each time the device is used to

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make or receive a phone call. The Commission found that this minimal burden
was a reasonable and prudent requirement to reduce misuse of the service and help
protect the financial viability of the TRS Fund.
Sorenson’s motion fails to meet the very high standard necessary to stay an
agency order pending judicial review. The two rules in dispute constitute a
rational response to what the Commission reasonably perceived as improper mar-
keting and other practices by IP CTS providers such as Sorenson that threatened
the viability of the TRS Fund. Nor do the rules violate the Americans With Dis-
abilities Act (ADA). On the contrary, the ADA amends Section 225 of the Com-
munications Act to direct the Commission to adopt regulations that make TRS
available “to the extent possible and in the most efficient manner.” The Commis-
sion has discretion in determining how to apply that general language to this con-
text, and it reasonably determined that both rules directly promote the efficiency of
the TRS program by ensuring that the TRS Fund is not dissipated by ineligible
users.

BACKGROUND



1. The Regulatory Setting
Telecommunications Relay Services (TRS), mandated by Title IV of the
Americans with Disabilities Act of 1990 (ADA), Pub. L. No. 101-336, § 401, 104
Stat. 327, 336-69 (1990), enable an individual with a hearing or speech disability
to communicate by telephone. This is accomplished through TRS facilities ope-
rated by providers such as Sorenson. TRS providers hire individuals who relay
conversations between people who are hearing- or speech-disabled and those using

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standard telephones. See generally Telecommunications Relay Services, 21 FCC
Rcd 8379, 8380-84 (2006); Sorenson Communications, Inc. v. FCC, 659 F.3d
1035, 1039-40 (10th Cir. 2011). Section 225 of the Communications Act, 47
U.S.C. § 225, codifies the TRS provisions of the ADA.
Section 225 and its implementing regulations provide that eligible TRS pro-
viders offering interstate TRS services and certain intrastate services will be com-
pensated for their reasonable costs from the Interstate TRS Fund. These costs are
passed on to all consumers of interstate telecommunications – that is, essentially
anyone who pays a telephone bill or a bill for VoIP services. Misuse of Internet
Protocol (IP) Captioned Telephone Service, 28 FCC Rcd 703 ¶ (2013) (Interim
Order); 47 U.S.C. § 225(d)(3); 47 C.F.R. § 64.604(c)(5).
TRS calls are made using a variety of technologies, one of which is IP CTS.
IP CTS permits a person with hearing loss to speak directly with another party on a
telephone call and to both listen to the other party and read captions of what that
party is saying, in real-time, on an Internet Protocol (IP)-enabled telephone or
other device, such as a laptop computer or tablet. See 47 C.F.R. § 64.601(a)(12).
Compensation for TRS providers is set by the FCC on a per-minute basis.
Current rates range from $1.2855 per minute to $6.2390 per minute, depending on
the type of relay service. IP CTS is currently compensated at a rate of $1.7877 per
minute. For the July 2012 – June 2013 period, the TRS Fund administrator dis-

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bursed more than $784 million from the Fund to TRS providers for all TRS ser-
vices. Of that amount, $140,489,307 was attributable to IP CTS.1
2. The Interim Rules And The Notice Of Proposed Rule Making
In an Order adopted in January 2013, the FCC took limited temporary mea-
sures to address an emergency situation that threatened the financial viability of the
TRS Fund. Specifically, the FCC adopted interim rules intended to “address cer-
tain practices related to the provision and marketing” of IP CTS that the Com-
mission concluded appeared “to be contributing to a recent and dramatic spike in
reimbursement requests to the [TRS Fund] of sufficient magnitude to constitute a
serious threat to the Fund if not promptly and decisively addressed.” Interim
Order ¶5. The Commission simultaneously adopted a notice of proposed rulemak-
ing seeking comment on permanent rules; the Commission made clear that it
intended to adopt permanent rules prior to September 2013 when the interim rules
were scheduled to expire. Id. at 724-731 ¶¶38-55. In the January 2013 Interim
Order, the Commission observed that the recent increase in IP CTS usage “repre-
sents a sudden and sharp departure from the trend of declining rates of growth in
usage of this service over three prior years,” that, if left “unchecked,” would
“threaten[] in the very near term to overwhelm the Fund.” Id. at 707 ¶6.
The interim rules prohibited all rewards programs or other forms of financial
or other inducements to individuals to subscribe to or use IP CTS. The interim

1 See monthly reports of the TRS Fund administrator for July 2012 – June 2013,
available at http://www.r-l-s-a.com/TRS/Reports.htm.

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rules also required IP CTS providers to register all new users and to obtain a self-
certification from each new user that he or she has a hearing loss necessitating the
use of IP CTS service. In addition, where providers made available IP CTS equip-
ment to new users for less than $75, the interim rules required the provider to
obtain from the user a certification from an independent, third-party professional
attesting to the user’s need for IP CTS service. Finally, the interim rules required
IP CTS providers to ensure that the equipment they provide has a default setting of
“captions-off” at the beginning of each call, to reduce the possibility that other
household members or visitors who do not have a hearing loss will use a phone’s
IP CTS capability and impose unauthorized costs on the TRS Fund.2
3. The Adoption Of Permanent IP CTS Rules
In the Order under review, the Commission adopted permanent rules
addressing practices related to the marketing and provision of IP CTS. Misuse of
Internet Protocol (IP) Captioned Telephone Service, FCC 13-118 (Aug. 26, 2013)
(“Order”). These rules amended and/or replaced the interim rules the Commission
had adopted in January 2013. In its motion, Sorenson claims that two rules the

2 Each of the four IP CTS providers applied for a waiver of the interim default off
rule. In a May 9, 2013 Order, the FCC’s staff granted limited waivers of that
provision to three of the applicants. Misuse of Internet Protocol (IP) Captioned
Telephone Service
, 28 FCC Rcd 6454. 6457-62 ¶¶6-18 (CGB 2013) (Waiver
Order
). The Waiver Order denied Sorenson/CaptionCall’s request. Unlike the
other waiver applicants, all of whom had been able to come into compliance with
the interim rule on or shortly after its effective date, nearly all of CaptionCall’s
phones were not in compliance with the rule, and “CaptionCall has failed to pro-
vide a reasonable explanation for its conscious choice not to comply – or even to
make a good faith effort to comply – with the rule.” Id. ¶21; see id. ¶¶19-27.

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Commission adopted lack record support and are irrational – (1) the prohibition of
IP CTS providers receiving compensation from the TRS Fund for usage of equip-
ment that they distribute to consumers free or for less than $75, and (2) the require-
ment that equipment used in conjunction with IP CTS have a default setting of
“captions-off” at the beginning of each call.
The Commission’s decision to prohibit compensation of providers for ser-
vices provided via equipment they distribute for free or for less than $75 was based
on its conclusion that “the provision of free or minimally priced equipment
increases the likelihood that IP CTS will be provided to ineligible users.” Order
¶42. It pointed out that “IP CTS is unlike other forms of TRS because it does not
require special skills such as sign language, is generally automated and invisible to
the calling parties, and allows a conversation to flow without interruption.” Id.
The Commission added that because IP CTS devices “function much the same as a
conventional telephone but for the addition of captions, once the device is in a con-
sumer’s possession, consumers may routinely use the device with captions – as
might others in the consumer’s household – even if they do not actually need the
service for effective communication.” Id. In fact, the Commission stated, “when
using the phone, the unobtrusive nature of IP CTS is such that consumers may not
even be aware that captions are turned on or that they have the ability to turn them
off.” Id.
Based on these considerations, the FCC found that “free distribution of such
devices is likely to contribute to IP CTS usage by persons who do not have a suffi-

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cient degree of hearing loss to require this service to understand conversation over
the phone.” Order ¶42. The Commission therefore concluded that, if IP CTS pro-
viders were to offer such equipment for free or for less than $75 it would have “the
potential effect of promoting registration for and use of IP CTS by customers who
do not need the service for effective communication, resulting in improper pay-
ments from the Fund, contrary to the purpose of the TRS program to provide com-
munication services to persons who have a hearing loss and who have difficulty
using conventional telephone services.” Id.
In the Commission’s judgment, paying at least $75 “provides a concrete
indication” of a consumer’s need for IP CTS for effective communications, noting
one provider’s observation that “‘there is no better indication that a user legiti-
mately needs IP CTS than a user’s decision to pay his or her own money for the
specialized equipment needed to use the service.’” Order ¶43. Most other IP CTS
providers, with the exception of Sorenson, supported this position. See id. ¶36.
The Commission concluded that setting $75 as the minimum price threshold
“represents a reasonable balancing of interests,” finding that it “is high enough to
deter a consumer from purchasing an item if he or she does not need it for com-
munications, but not so high as to make the purchase of equipment overly burden-
some.” Order ¶51.3

3 In the rulemaking notice accompanying the Order, one of the issues that the
Commission stated it would consider is whether it should allow for an exception
to the $75 requirement for equipment provided to low-income individuals.
(footnote continued on following page)

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The Commission also decided to make permanent the interim rule it had
adopted requiring that IP CTS equipment have a default setting of “captions-off,”
describing it as a “reasonable and prudent” requirement to minimize inadvertent or
casual use of the service. Order ¶96. The agency explained that while it could not
precisely quantify the amount of IP CTS usage attributable to casual or inadvertent
use, “it stands to reason that an unregistered individual who makes casual use of an
IP CTS telephone is likely to ignore the presence of captions, or to forget, or be
unable or unmotivated – or unaware of the option – to turn them off.” Id. ¶97. In
addition, the Commission reasoned that some IP CTS users may need captions in
some circumstances, but not others. Thus “defaulting captions to ‘on’ would mean
that IP CTS may be provided to individuals who do not need it and the TRS Fund
is inappropriately billed for the cost.” Id. The Commission found “that a default
captions-off requirement is necessary to reduce misuse of the service, and help
protect the viability of the Fund in the face of the recent dramatic upsurge in IP
CTS usage.” Id. Some IP CTS providers already were supplying equipment with
a default captions-off setting, and some state TRS programs required that equip-
ment distributed pursuant to their state programs also be provided with a captions-
off default. Id. ¶92.
The Commission recognized that individuals with cognitive or physical
disabilities may have difficulty even with the minimal requirement that they push a
________________________
(footnote continued from preceding page)
Order ¶144. Until that issue is resolved, a waiver of the requirement could be
sought in appropriate cases. See 47 C.F.R. § 1.3.

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button before making or receiving a call to turn captions on. It thus adopted a
process for such individuals, or their representatives, to obtain an exemption from
the default-off requirement. Order ¶99.

ARGUMENT

THE STAY REQUEST SHOULD BE DENIED.


Under well-settled standards, a party seeking a stay pending judicial review
must show that: (1) it will likely prevail on the merits; (2) it will suffer irreparable
harm unless a stay is granted; (3) other interested parties will not be harmed if a
stay is granted; and (4) a stay will serve the public interest. Washington Metro.
Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977);
D.C. Cir. Rule 18(a)(1). A “stay is an ‘intrusion into the ordinary processes of
administration and judicial review,’ … and accordingly ‘is not a matter of right,
even if irreparable injury might otherwise result to the appellant.’” Nken v.
Holder, 556 U.S. 418, 427 (2009) (citation omitted). An applicant “must establish
that . . . he is likely to suffer irreparable harm in the absence of preliminary relief.”
Winters v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008) (emphasis added).
The mere possibility of harm is insufficient. Id. 22. As we explain below,
petitioners have failed to satisfy this stringent standard.4

4 The rules Sorenson challenges were published in the Federal Register on August
30, 2013, see 78 Fed. Reg. 53684; they became effective on September 30, 2013,
the day before Sorenson filed its motion. See Order ¶¶168, 171. Thus, Sorenson
actually is not seeking a stay but preliminary injunctive relief from the Court,
directing the Commission to turn back the clock. A request for an injunction is
subject to an even more exacting standard than the standard applicable to stay
requests that merely seek to preserve the status quo. Graddick v. Newman, 453
(footnote continued on following page)

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A. Sorenson Has Failed To Show That It Is

Likely To Prevail On The Merits.


Section 225 of the Communications Act, enacted as part of the ADA, directs
the Commission to ensure that TRS is available “to the extent possible and in the
most efficient manner” to hearing and speech impaired persons in the United
States. 47 U.S.C. § 225(b)(1). Congress has thus expressly delegated to the FCC
authority to administer Section 225, and under Chevron the FCC has the authority
to fill the statutory gap provided by Section 225’s ambiguous terms so long as its
interpretation is based on a permissible construction of the statute. Sorenson Com-
munications, 659 F.3d at 1042, citing Chevron U.S.A. v. NRDC, 467 U.S. 837, 843
(1984); see also City of Arlington Texas v. FCC, 133 S.Ct. 1863, 1868-73 (2013).
As the Commission has explained, the statute thereby authorizes the agency
to “take steps to ensure that federal funding for usage of a particular relay service
is limited to users that genuinely need that funded relay service, and preclude
federal funding for users that do not have such a need – whether because they can
use ordinary voice telephone service or because an alternative (such as amplifica-
tion) would meet their needs.” Order ¶14 (footnote omitted). The $75 minimum
payment and the default captions-off requirements adopted as part of the perma-
nent IP CTS rules are reasonable means for the Commission to implement its dele-
gated authority under the highly general language of Section 225, as explained in
Chevron and Brand X, to ensure that TRS funds are directed to those persons who
________________________
(footnote continued from preceding page)
U.S. 928, 936-37 (1981) (Powell, J., in chambers); see also Adams v. Vance, 570
F.2d 950, 956 (D.C. Cir. 1977)

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are eligible to receive the service.
1. The $75 Requirement. Sorenson claims that there is not “a shred of real
evidence demonstrating a causal connection between low-cost equipment and
improper IP CTS use.” Mot. 12. That is not correct. As one commenter observed,
“‘there is no better indication that a user legitimately needs the service than a
user’s decision to pay his or her own money for the specialized equipment needed
to use the service.’” Order ¶36 (citing other comments). Moreover, it was entirely
rational for the Commission to conclude that the ease and convenience of using IP
CTS equipment increased the likelihood that individuals who do not need the ser-
vice would nevertheless obtain the equipment and use the service if the equipment
were to be distributed free of charge or at a low cost. See Order ¶¶42-43; see also
General Instrument Corp. v. FCC, 213 F.3d 724, 735 (D.C. Cir. 2000) (affirming
agency where its interpretation of ambiguous statutory terms was “well-grounded
in common sense.”).5 Sorenson does not claim, however, that the record negated
such a causal connection. Thus, at a minimum, the $75 requirement involves
precisely the sort of predictive judgment that is committed to the Commission’s
discretion where the record does not provide a definitive answer. In re Core
Communications, Inc., 455 F.3d 267, 282 (D.C. Cir. 2006). See generally FCC v.
NCCB, 436 U.S. 775, 814 (1978).

5 The Commission pointed out that the $75 amount was roughly comparable to the
price of specialty amplified telephones and significantly less than the price of the
type of telephone sets distributed by IP CTS providers, the list price of which
ranged from $149 to $595. Order ¶51 & n. 156.

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Sorenson contends that the $75 requirement is impermissible under the ADA
because “‘the ADA generally prohibits covered entities from charging an indivi-
dual with a disability for an accommodation.’” Mot. 12.6 However, requiring con-
sumers with disabilities to purchase their own telephone equipment is not a sur-
charge – it is simply a requirement that providers may not give away telephone
equipment to these consumers which other consumers must purchase. In other
words, it is simply a limit on the subsidy given to some consumers in order to
ensure that, as Congress required, the TRS Fund be administered “efficient[ly]”
and not in a manner that causes ratepayers to foot the bill for ineligible users. In
any event, Section 225 does not guarantee free telephone equipment funded by the
TRS Fund. Thus, for example, Section 225 has never guaranteed that deaf or hard
of hearing consumers be provided with free text telephones (TTYs) in order to use
the oldest form of TRS – the TTY Relay Service.7
Nor does the principle of functional equivalence require that the Commis-

6 Sorenson relies extensively on a declaration by Professor Samuel Bagenstos that
is attached to the motion. We note that this document is not part of the record
and that the FCC has had no practical opportunity to respond to the legal argu-
ments contained in this declaration because it was first submitted to the agency
as an attachment to Sorenson’s motion for administrative stay that was filed with
the Commission on September 23, 2013. Moreover, the declaration is composed
entirely of legal arguments, and we question the permissibility of supplementing
a motion that is already at the page limits with an additional 12 pages of legal
arguments in the form of a declaration. F.R.A.P. Rule 18 appears to contemplate
that sworn submissions accompanying a stay motion should be limited to “sworn
statements supporting facts subject to dispute.”
7 See http://www.fcc.gov/guides/711-telecommunications-relay-service.

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sion permit the provision of free equipment, or otherwise override section 225’s
instruction to the agency to provide TRS “in the most efficient manner.” 47 U.S.C.
225(b)(1). The Commission has thus consistently “distinguished between the
provision of relay service, which is explicitly mandated by section 225, and the
provision of equipment, which is not.” Order ¶56.8
Sorenson also complains that the Commission did not adequately explain
why the company’s alternative proposal to allow individuals whose need was inde-
pendently certified and who showed that they had a hearing aid or cochlear implant
to receive free IP CTS phones would not “better confirm need than a $75 pay-
ment.” Mot. 2, 13. But the Commission explained that its experience with
requiring certification under the interim rules suggested that it may not be an
adequate mechanism for identifying consumers who need IP CTS. Order ¶44.
The Commission noted, for example, that there was no specific established eligi-

8 The motion points to several cases relating to fees charged for priority parking
placards to support its position. See Klingler v. Director, Dept. of Revenue, 433
F.3d. 1078 (8th Cir. 2006); Dare v. California, 191 F.3d 1167 (9th Cir. 1999).
First, those cases involve Titles II and III of the ADA, not Title IV, which
adopted Section 225 of the Communications Act. The “functionally equivalent”
and “efficient manner” standards contained in the language of Section 225 are
not present in those other provisions of the ADA. Additionally, the analysis in
the cases cited by Sorenson turned on whether the charge “constitutes a charge
that nondisabled people would not incur.” Dare, 191 F.3d at 1171. In the IP CTS
context, hearing telephone users purchase their own equipment; hence, prohibit-
ing providers from giving away IP CTS equipment does not expose people with
disabilities to a charge that nondisabled people would not or do not incur. The
Court in Dare specifically noted that “[i]f nondisabled people pay the same fee
for an equivalent service, the charge to disabled people would not constitute a
surcharge on a ‘required’ measure.” Id.

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bility threshold for whether a person with a hearing loss needs IP CTS for func-
tionally equivalent communications, thus making it difficult for third-party pro-
fessionals to exercise their judgment and for the Commission to effectively oversee
the performance of this “gatekeeping function.” Order ¶45. In addition, the Com-
mission’s experience led it to be skeptical about the reliability and independence of
the many third party professionals who would be providing such certifications. See
id. ¶47 (citing instances in which “sessions have been arranged by a provider, to
which consumers were invited to obtain a free hearing analysis and a free IP CTS
phone at the same time and location”). See also id. nn.149, 150. Cases cited by
Sorenson involving other provisions of the ADA did not involve circumstances
where federally funded entities such as IP CTS providers have an incentive to pro-
mote unreliable certifications.
The Commission also acknowledged that “the fact that a consumer has a
hearing aid or a cochlear implant certainly makes it more likely that he or she may
need IP CTS,” but it explained that such a requirement would not “ensure” that any
particular consumer would need IP CTS, and that in any event the proposal to sub-
stitute this criterion for the $75 minimum payment did not address the agency’s
“concerns about abuse of the certification process.” Order n.151.
Under settled administrative law principles, the FCC “need not demonstrate
that it has made the only acceptable decision, but rather that it has based its deci-
sion on a reasoned analysis supported by the evidence before the Commission.”
Association of Public-Safety Communications Officials-Int’l, Inc. v. FCC, 76 F.3d

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395, 398 (D.C. Cir. 1996). That a petitioner might have chosen another policy if it
had been the decision maker does not provide a basis to reject the agency’s choice.
National Tank Truck Carriers, Inc. v. EPA, 907 F.2d 177, 183 (D.C. Cir. 1990).
2. The Captions-Off Default. The FCC’s decision to adopt the default cap-
tions-off requirement as a permanent rule was likewise based on the common sense
conclusion that a phone that is set to default to captions-on facilitates misuse and
that the captions-off default, which simply requires the push of a button to activate
the captioning function, is a minimal burden, if a burden at all, to most users. “[I]t
stands to reason,” the Commission stated, “that an unregistered individual who
makes casual use of an IP CTS telephone is likely to ignore the presence of cap-
tions, or to forget, or to be unable or unmotivated – or unaware of the option – to
turn them off.” Order ¶97. As to those users who may have physical or mental
handicaps and for whom such a requirement would be a burden, the Commission
provided a procedure to obtain an exemption. See id. ¶99.
The Commission’s decision that a captions-on default poses an unacceptable
risk of abuse falls easily within the agency’s discretion in determining what rules
are necessary to ensure that IP CTS service is available “to the extent possible and
in the most efficient manner ….” 47 U.S.C. § 225(b)(1). As noted above, and
contrary to Sorenson’s argument (Mot. 17), these are the sort of predictive judg-
ments that are committed to the Commission’s discretion where the record does
not provide a definitive answer. See In re Core Communications, Inc., 455 F.3d at

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282.9
Sorenson also contends that the default captions-off rule violates the “func-
tional equivalence” requirement of Section 225 because it fails to “‘provide access
in a manner that is as convenient and easily manageable as the manner in which
nondisabled individuals receive access.” Mot. 15. But Section 225 defines TRS to
mean services that provide the ability for the speech or hearing-impaired to com-
municate “in a manner that is functionally equivalent” to that of a hearing indivi-
dual without a speech impairment. 47 U.S.C. 225(a)(3). In providing for func-
tional equivalence, the statute does not require that covered services (much less
associated equipment) be identical. See Ad Hoc Telecommunications Users
Comm. v. FCC, 680 F.2d 790, 797 (D.C. Cir. 1982). Here, the Commission rea-
sonably found that the requirement “to push one additional button when dialing or
when receiving a call … will not interfere with the functional equivalence of the IP
CTS experience for most consumers.” Order ¶98. That is an appropriate judgment
that is within the authority Congress delegated to the Commission under Section
225.10

9 Sorenson states that even when consumers remember to activate captions, “they
may miss the beginnings of calls – where crucial information is conveyed.” Mot.
15. But if the consumer remembers to activate captions before picking up the
handset, there is no additional delay in receiving captions. Order ¶98 n. 315.
10It should be noted that IP CTS is not the only type of captioned telephone service.
Consumers also have available to them traditional captioned telephone service
(CTS), which was authorized by the FCC as a form of TRS in 2003, prior to the
development of IP CTS. Telecommunications Relay Services, 18 FCC Rcd
16121 (2003). Hard of hearing individuals need only standard telephone service
to use CTS. CTS is not subject to the rules adopted in the Order on review here,
(footnote continued on following page)

- 18 -
USCA Case #13-1246 Document #1464289 Filed: 11/01/2013 Page 20 of 24

B. Sorenson Has Failed To Demonstrate That It


Will Suffer Irreparable Injury Absent A Stay.


“The basis for injunctive relief in the federal courts has always been irrepa-
rable harm and inadequacy of legal remedies.” Wisconsin Gas Co. v. FERC, 758
F.2d 669, 674 (D.C. Cir. 1985) (quoting Sampson v. Murray, 415 U.S. 61, 88
(1974)). To obtain the extraordinary relief it seeks, Sorenson therefore must
demonstrate that the irreparable injury it alleges is “both certain and great,” “actual
and not theoretical.” Id. In other words, petitioners must provide “proof indicating
that the [alleged] harm is certain to occur in the near future,id., if the rules about
which it complains remain in effect pending judicial review. It has not done so
here.
Sorenson’s one-paragraph discussion of irreparable injury relies on a decla-
ration of CaptionCall CEO Pat Nola that “CaptionCall has already suffered severe
losses … [and that the] unlawful requirements in the Order will cause further
losses ….” Mot. 19. These claims are highly misleading. The declaration relies
on claimed revenue losses for a period during which Sorenson had specifically
chosen not to comply with the interim default-off rules, and the Commission had
denied its request for waiver – thus virtually none of the IP CTS usage on devices
used by its subscribers was eligible for compensation. See Nola Decl. ¶¶12-13; see
also n.2 above. As a result, Sorenson’s claimed revenue losses if a stay is not
________________________
(footnote continued from preceding page)
including the $75 requirement and the default captions-off requirement. In
addition, many state TRS programs provide TRS equipment, including both CTS
and IP CTS devices, free of charge to low-income individuals with hearing loss,
which is consistent with the Commission’s $75 requirement. See Order ¶144.

- 19 -
USCA Case #13-1246 Document #1464289 Filed: 11/01/2013 Page 21 of 24

granted are based on the consequences it faced as a result of its failure to comply
with the interim default-off rule. It has not shown that it would face similar losses
if the rule is not stayed pending judicial review. In that case, assuming it complies
with the default-off rule, Sorenson would receive compensation from the TRS
Fund for its subscribers’ usage, unlike its experience during the period the interim
rules were in effect where it, unlike all other IP CTS providers, did not comply
with the default-off rules for several months, and it was denied compensation for
usage of those devices during that period.
There is no basis in the Nola declaration or the motion to conclude that
Sorenson will suffer any cognizable revenue losses pending judicial review if it
complies with the default-off rule. It similarly is not possible to conclude on the
basis of the Nola declaration that the $75 minimum payment rule led to the reduc-
tion in new subscribers or reduced usage by existing subscribers that it claims to
have faced after the adoption of the interim rules. Moreover, there is no evidence
in the record of this proceeding that individuals who need IP CTS have been dis-
suaded from obtaining it because of this one-time charge for equipment to use a
service that is otherwise free to them.

C. A Stay Would Not Be In The Public Interest.


The FCC has a responsibility, imposed by Section 225 of the Communica-
tions Act, to “ensure that interstate and intrastate telecommunications relay ser-
vices are available, to the extent possible and in the most efficient manner, to
hearing-impaired and speech-impaired individuals in the United States.” 47 U.S.C.

- 20 -
USCA Case #13-1246 Document #1464289 Filed: 11/01/2013 Page 22 of 24

§ 225(b)(1). With compensation to providers of all TRS services now approaching
$800 million annually, and with IP CTS accounting for more than $140 million of
that total, ensuring to the extent possible that the TRS fund supports services for
eligible individuals who in fact need such assistance is a substantial public interest.
The two rules challenged here by Sorenson protect the TRS Fund and ensure its
availability to hard of hearing individuals by imposing minimal obligations.
Notably, none of the other IP CTS providers supported Sorenson’s complete
opposition to these rules, and those other providers have not complained of an
inability to comply with them.
It is well established that courts should afford substantial deference to the
FCC's judgments on what is in the public interest in such circumstances because
“‘the responsibilities for assessing the wisdom of ... policy choices and resolving
the struggle between competing views of the public interest are not judicial ones,
and because of the agency's greater familiarity with the ever-changing facts and
circumstances surrounding the subjects regulated.’” AT&T Corp. v. FCC, 220
F.3d 607, 621 (D.C. Cir. 2000), quoting FDA v. Brown & Williamson Tobacco
Corp., 529 U.S. 120, 132 (2000).
CONCLUSION
For the reasons set forth above, the motion should be denied.



- 21 -
USCA Case #13-1246 Document #1464289 Filed: 11/01/2013 Page 23 of 24

Respectfully submitted,













Sean A. Lev
General
Counsel







Jacob M. Lewis
Associate
General
Counsel









/s/ C. Grey Pash, Jr.







C. Grey Pash, Jr.
Counsel

Federal
Communications
Commission
Washington,
D.
C.

20554
(202)
418-1740


November 1, 2013

USCA Case #13-1246 Document #1464289 Filed: 11/01/2013 Page 24 of 24
13-1246

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT


SORENSON COMMUNICATIONS, INC., ET AL
.,
PETITIONERS

V.

FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA, RESPONDENTS.



CERTIFICATE OF SERVICE


I, C. Grey Pash, Jr., hereby certify that on November 1, 2013, I
electronically filed the foregoing Opposition to Motion for Stay Pending
Judicial Review with the Clerk of the Court for the United States Court of
Appeals for the D.C. Circuit by using the CM/ECF system. Participants in
the case who are registered CM/ECF users will be served by the CM/ECF
system.

Christopher J. Wright
Finnuala K. Tessier
Timothy J. Simeone
Robert B. Nicholson
John T. Nakahata
U.S. Department of Justice
Wiltshire & Grannis LLP
Antitrust Div., Appellate Section
1200 Eighteenth Street, N.W.
950 Pennsylvania Avenue, N.W.
12th Floor
Room 3224
Washington, D.C. 20036
Washington, D.C. 2030
Counsel for: Sorenson
Counsel for: USA
Communications, Inc. and
CaptionCall, LLC







/s/ C. Grey Pash, Jr.

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