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Request for Review of TRS Administrator to Withhold TRS Payment

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Released: July 13, 2012

Federal Communications Commission

DA 12-1130

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

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

Purple Communications, Inc.
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)

Request for Review of the Decision of the
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TRS Administrator to Withhold TRS Payments
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)

ORDER

{Public Version}

Adopted: July 13, 2012

Released: July 13, 2012

By the Acting Chief, Consumer and Governmental Affairs Bureau:

I.

INTRODUCTION

1. In this Order, the Consumer and Governmental Affairs Bureau (Bureau), acting on delegated
authority,1 grants in part and denies in part Purple Communications, Inc.’s (Purple) request for review2 of
a decision by the Telecommunications Relay Service (TRS) Fund administrator, Rolka Loube Saltzer
Associates (Administrator, or RLSA). In that decision, RLSA withheld payment to Purple from the
Interstate TRS Fund (TRS Fund) for the provision of Internet Protocol Relay Service (IP Relay) based on
its determination that Purple did not comply with the Commission’s speed-of-answer (SOA) rule3 on
{REDACTED} occasions during the four-month period of July-October 2011.4 We find that Purple
failed to comply with the Commission’s mandatory minimum standard governing speed of answer for
TRS calls. Specifically, we reject Purple’s assertion that compliance with our SOA rule should be
determined using a legal standard of “substantial compliance.” We also deny Purple’s alternative request
for waiver of that rule. Although, consistent with past practice, we direct RLSA to remit to Purple some
of the amounts heretofore withheld from reimbursement from the TRS Fund for Purple’s provision of IP
Relay, we emphasize that, for violations of the SOA rule occurring after the date of release of this order,
the Administrator is authorized to withhold payment for the full day’s service when the provider fails to
meet the minimum SOA threshold on that day.

1 See generally 47 C.F.R. §§ 0.141, 0.361.
2 Purple, Request for Review of the Decision by the TRS Administrator, CG Docket No. 10-51 (filed Jan. 17, 2012)
(Request for Review).
3 47 C.F.R. § 64.604(b)(2) (the SOA rule).
4 See id. § 64.604(c)(5)(iii)(E), (L).

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II.

BACKGROUND

2. Under the Commission’s SOA rule, IP Relay providers must answer at least 85% of all calls
within 10 seconds (the 85/10 standard), with compliance measured on a daily basis.5 A provider’s
compliance with the SOA rule and other mandatory minimum standards set forth in Section 64.604 is a
condition precedent for disbursement of TRS Fund payments.6 In order to enable the Administrator to
determine compliance with the SOA rule, IP Relay providers and other Internet-based TRS providers
must submit SOA compliance data with their monthly claims for payment.7
3. After reviewing the payment claims and SOA compliance data submitted by Purple for each
month of a four-month period from July 2011 through October 2011, RLSA determined that on numerous
days of each month Purple did not comply with the SOA rule. Therefore, the Administrator withheld all
payment for service for each day on which it found Purple had violated the rule.8 Overall, RLSA found
that Purple had violated the SOA requirement on {REDACTED} out of the 123 days in the July-October
2011 period. According to Purple, the total TRS Fund compensation withheld from Purple for those
{REDACTED} days was ${REDACTED}.9
4. On November 7, 2011, Purple sent a letter to RLSA seeking a modification of RLSA’s
determination that payment must be withheld in full for each day on which there was a violation.10 On
December 22, 2011, after consultation with Commission staff, RLSA denied Purple’s request, stating that
it had no discretion to modify or waive the rule.11 On January 17, 2012, Purple filed the Request for
Review, in which it asks the Commission to overrule the RLSA Letter and reimburse Purple some or all
of the total amount withheld for July, August, September, and October 2011.12

5 47 C.F.R. § 64.604(b)(2)(ii). A different SOA standard applies to video relay service (VRS) providers. See id. §
64.604(b)(2)(iii).
6 See id. § 64.604(c)(5)(iii)(E) (“The TRS Fund administrator shall make payments only to eligible TRS providers
operating pursuant to the mandatory minimum standards as required in § 64.604”). See also id. §
64.604(c)(5)(iii)(L).
7 Id. § 64.604(c)(5)(iii)(D)(3). Prior to September 26, 2011, providers submitted SOA compliance data at the
request of the Administrator. Structure and Practices of the Video Relay Service Program, Report and Order and
Further Notice of Proposed Rulemaking, 26 FCC Rcd 5545, 5580, ¶ 74 (2011) (VRS Practices Order). Effective
September 26, 2011, the Commission codified this obligation in its rules “to make clear that VRS and IP Relay
providers must submit such data in order to be compensated from the Fund.” Id. See also 76 FR 59269 (Sept. 26,
2011) (establishing effective date).
8 Letter from David Rolka, President, RLSA, to John Goodman, Chief Legal Officer, Purple (December 22, 2011)
(RLSA Letter) (attached to the Request for Review as Exhibit D). RLSA initially withheld Purple’s entire IP Relay
payment for the month of July. Subsequently, RLSA determined that, because compliance is calculated on a daily
basis, it would withhold payment for only those days on which Purple failed to meet the 85/10 benchmark. RLSA
therefore released payment for those days in July on which the 85/10 standard was met, and it applied the same
approach to Purple’s August, September, and October payments going forward. See Request for Review at 6-7.
9 Id. at 7. The Bureau’s calculation of the amount withheld is ${REDACTED}. See ¶ 28 and Appx. B, infra.
10 Request for Review at 8, Exhibit E.
11 RLSA Letter at 2-3.
12 Request for Review at 21.

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III.

PURPLE’S REQUEST FOR REVIEW

5. In its Request for Review, Purple argues that RLSA improperly departed from precedent by
applying a “strict compliance” standard rather than a “substantial compliance” standard, which Purple
asserts has previously governed determinations of SOA compliance.13 Purple claims that its July-October
2011 SOA performance substantially complied with the SOA rule and that, accordingly, under a
substantial compliance standard, it should have been paid in full.14 In the alternative, Purple requests that
any violations of the SOA requirement be waived for numerous days on which, according to Purple, it
experienced unusual, unforeseen “spikes” in call activity.15 As a further alternative, Purple contends that
any withholding of payments should be calculated under the “sliding scale” approach applied by the
Consumer and Governmental Affairs Bureau for IP Relay SOA violations in letter rulings issued in
January 2008.16

IV.

DISCUSSION

A.

Standard of Compliance

1.

Applicability of a substantial compliance standard

6. We find Purple’s assertion that the Commission has previously applied a “substantial
compliance” standard in assessing SOA compliance to be misplaced.17 As discussed below, the
substantial compliance standard cited by Purple was found applicable in Publix to an overall eligibility
determination made by the Commission under Section 64.604(c)(5)(iii)(F) of the rules.18 This case,
however, involves the quite different context of specific compliance determinations made by the
Administrator in deciding whether to grant or withhold payment for specific compensation claims under
Section 64.604(c)(5)(iii)(E) and (L).19 Contrary to Purple’s assertions, the Commission has never applied
a substantial compliance standard to specific compliance and payment determinations under Section

13 Id. at 9-15, citing Publix Network Corp.; Customer Attendants, LLC; Revenue Controls Corp.; Revenue Controls
Corp.; SignTel, Inc.; and Focus Group, LLC
, Order to Show Cause and Notice of Opportunity for Hearing, 17 FCC
Rcd 11487, 11495, ¶ 19 (2002) (Publix).
14 Request for Review at 9-15.
15 Id. at 15-19.
16 Id. at 19-21, citing Letter from Catherine W. Seidel, Chief, Consumer and Governmental Affairs Bureau, to
Martin Beaulac, Nordia, Inc. (Jan. 23, 2008) (Nordia Letter Ruling) (attached to the Request for Review as Exhibit
A); Letter from Catherine W. Seidel, Chief, Consumer and Governmental Affairs Bureau, to Davida Grant, Senior
Counsel, AT&T Services, Inc. (Jan. 23, 2008) (AT&T Letter Ruling) (attached to the Request for Review as Exhibit
B).
17 Purple begins its argument with a review of appellate law regarding the “manifest injustice” standard for applying
a new or changed rule to prior conduct. Request for Review at 9-11. Under this standard, adjudicatory decisions are
generally applied retroactively, but prospective-only application may be appropriate if retroactive application of a
new or changed rule would result in manifest injustice. See Clark-Cowlitz Joint Operating Agency v. FERC, 826
F.2d 1074, 1081 (D.C. Cir. 1987) (en banc); Consolidated Freightways v. NLRB, 892 F.2d 1052, 1058 (D.C. Cir.
1989); Verizon Telephone Cos. v. FCC, 269 F.3d 1098, 1109 (D.C. Cir. 2001). We need not address this argument
with respect to the standard of compliance, because, as explained in the text, it is based on the incorrect premise that
in requiring full compliance, the Administrator is now applying a “new interpretation of the SOA rule.” Request for
Review at 13.
18 47 C.F.R. § 64.604(c)(5)(iii)(F).
19 Id. § 64.604(c)(5)(iii)(E), (L).

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64.604(c)(5)(iii)(E) or (L). Moreover, the Commission has never found that a substantial compliance
standard is applicable to determinations of SOA compliance. In any case, even if such a standard were
applicable, we find that Purple has not substantially complied with the SOA rule.
7. In contrast to this case, where we are assessing whether a TRS provider has justified specific
claims for TRS payments, the Commission in Publix was considering the much broader question of
whether certain entities were eligible to receive any compensation from the TRS Fund given their record
of apparent noncompliance, over time, with numerous applicable provisions of Section 64.604.20 Under
the Commission’s TRS regulations, in order for a service provider to receive any payments from the TRS
Fund, the provider must be “eligible.”21 In Publix, the Commission proposed to address the global issue
of whether the Publix Companies were “eligible” at all for TRS funding, i.e., whether they were “entitled
to any of the [TRS] fund monies that they requested or received from the TRS Fund.”22 In that context,
where the Commission was assessing a company’s overall record of compliance, over time, with Section
64.604 as a whole, in order to determine whether the carrier should be declared ineligible for TRS
funding, the Commission found that a substantial compliance standard should apply because “an
insignificant violation” of one provision should not render a provider wholly ineligible to participate in
the TRS program.23
8. The Commission in Publix, however, indicated that the substantial compliance standard
applied only to the global assessment by the administrative law judge (ALJ) of the Publix companies’
overall compliance with Section 64.604, not to the individual compliance determinations underlying that
assessment. For example, the Commission directed the ALJ to examine, as part of its overall eligibility
determination, whether the Publix Companies had complied with the requirements to make TRS available
24 hours a day and 7 days a week, met the requirement to have an adequate back-up power source,
adhered to the restrictions against recording a telephone call, met the standards governing qualifications
and training of communications assistants (CAs), provided equal access to interexchange carriers, and
advertised the availability of its facilities to consumers – as well as whether the Companies provided
accurate information to the Administrator in support of their payment claims.24 The Commission stated:
The ALJ should determine, using the foregoing principles, whether the
Publix Companies’ operations were in substantial compliance with the
requirements of Section 64.604. To do so, the ALJ should first make
findings on the specific issues
raised below regarding whether and to
what extent the Publix Companies met the operational, technical, and
functional standards of Section 64.604. In light of those findings, the
ALJ should then determine whether the Publix Companies substantially
complied with Section 64.604
. . . . 25

20 See Publix, 17 FCC Rcd at 11494, ¶ 18.
21 47 C.F.R. § 64.604(c)(5)(iii)(F).
22 Publix, 17 FCC Rcd at 11487, ¶ 1 (emphasis added). In this show-cause proceeding, the Commission also
addressed the similarly global issues of whether the Publix Companies’ operating authority as common carriers
should be revoked and whether they and their principals should be ordered to cease and desist from further common
carrier activities. Id.
23 Id. at 11494-95, ¶ 19.
24 Id. at 11495-99, ¶¶ 20-26.
25 Id. at 11495-96, ¶ 20 (emphasis added).

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In its instructions to the ALJ regarding the individual compliance determinations, the Commission made
no mention of requiring the ALJ to apply a substantial compliance standard to those determinations.
9. In the instant case, the Administrator made a series of individual compliance determinations–
precisely the type of decision to which the Publix substantial compliance standard did not apply. That is,
the Administrator assessed Purple’s compliance, measured on a daily basis,26 with a specific provision of
Section 64.604, the SOA rule, in order to determine whether to disburse or withhold payment for specific
calls for which Purple had submitted a monthly claim for payment. In making such specific
determinations, moreover, the Administrator acted pursuant to other provisions of the rules, namely
Sections 64.604(c)(5)(iii)(E) and (L), which were not addressed in Publix.27 Accordingly, we conclude
that there is no conflict with the holding of Publix.
10. We also disagree with Purple’s assertion that the Commission has previously applied a
substantial compliance standard to monthly TRS payment claim determinations. Although Purple
contends that the Administrator’s payment claim determinations for IP Relay have been governed by a
substantial compliance standard “since [IP Relay’s] inception,”28 Purple fails to identify a single case in
which such a standard was applied to such payment claim determinations. To the contrary, in a letter
ruling that Purple itself cites as governing this case (and that Purple attaches to its Request for Review),
the Bureau explicitly rejected the provider’s “argument that eighty percent or better constitutes
‘substantial compliance’ with the rule, stating that “[t]he 85/10 rule is specific to the percentage for which
compliance can be found.”29
11. Thus, even if a substantial compliance standard were relevant in some circumstances,
applying such a standard to withholdings for SOA violations would depart from the Bureau’s prior
decisions. Moreover, such application would be inconsistent with the Publix ruling. Although “absolute
compliance with each component of the rules may not always be necessary to fulfill the purposes of the
statute,”30 the requirements at issue in this case are clearly central to the statutory purpose. As the
Commission has often stated, the SOA requirements are “a cornerstone of the Commission's TRS rules.”31
Because “[t]he ability to make a telephone call without delay . . . is fundamental to our concept of a rapid,

26 The SOA rule expressly states that “a TRS provider’s compliance with this rule shall be measured on a daily
basis,” an instruction that is obviously inconsistent with gauging compliance based on a provider’s overall
performance history. 47 C.F.R. § 64.604(b)(2)(ii).
27 Id. § 64.604(c)(5)(iii)(E), (L).
28 Request for Review at 12.
29 Nordia Letter Ruling at 4.
30 Publix, 17 FCC Rcd at 11495, ¶ 19 (emphasis added).
31 Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech
Disabilities
, CG Docket No. 03-123, Declaratory Ruling and Further Notice of Proposed Rulemaking, 21 FCC Rcd
5442, 5444, ¶ 6 (2006) (VRS Declaratory Ruling), quoting Telecommunications Services for Hearing-Impaired and
Speech Impaired Individuals, and the Americans with Disabilities Act of 1990
, CC Docket No. 90-571, Notice of
Proposed Rulemaking, 13 FCC Rcd 14187, 14207, ¶ 49 (1998) (1998 TRS NPRM); see also 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, 13174, ¶ 17 (2005) (VRS Report and Order) (stating that speed-of-
answer is “one of the fundamental components of ensuring that TRS users have functionally equivalent access to the
telephone system”).

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efficient, Nationwide communications system,”32 the “ability of a TRS user to reach a CA prepared to
place his or her call, without experiencing delays that a voice telephone user would not experience in
placing a telephone call, is fundamental to the concept of ‘functional equivalence.’”33 Therefore, “[a]ny
interpretation of our [SOA] rule that delays a customer's ability to place a call through the relay center
clearly compromises the functional equivalence of relay service.”34 In short, full compliance with the
SOA rule is indisputably “necessary to fulfill the purposes of the statute.”35
12. Indeed, to interpret the SOA rule as permitting performance below the prescribed 85/10
standard would be at odds with the Commission’s express characterization of this standard as a
mandatory minimum standard.36 Built into this minimum standard, , which allows as few as 85 percent of
calls daily to be answered within 10 seconds, is a performance cushion that allows providers ample
margin for error in meeting the functional equivalence mandate of Section 225.37 In this regard, in
mandating that abandoned calls be included in calculations of whether providers meet the 85/10 standard,
the Commission justified that mandate in part by stating that the 85 percent threshold allows for instances
where the call is abandoned for reasons other than SOA.38 Similarly, in requiring that compliance with
the 85/10 standard be measured on a daily basis, the Commission specifically rejected the argument that
providers needed more leeway “to account for wide daily variations in traffic loads”;39 rather, the
Commission concluded that “[t]he burden should be on relay services to manage staffing needs based on

32 VRS Declaratory Ruling, 21 FCC Rcd at 5444, quoting 1998 TRS NPRM at 14189, ¶ 3. See also 47 U.S.C. §
225(b)(1) (In order to “make available to all individuals in the United States a rapid, efficient, nationwide
communication service, and to increase the utility of the telephone system of the Nation, the Commission shall
ensure that interstate and intrastate [TRS] are available, to the extent possible and in the most efficient manner,” to
individuals in the United States with hearing disabilities or speech disabilities).
33 VRS Declaratory Ruling, 21 FCC Rcd at 5444, quoting 1998 TRS NPRM, 13 FCC Rcd at 14207, ¶ 49. See 47
U.S.C. § 225(a)(3) (defining TRS as telephone transmission services that enable individuals with hearing or speech
disabilities “to engage in communication by wire or radio with one or more individuals, in a manner that is
functionally equivalent to the ability of a hearing individual who does not have a speech disability to communicate
using voice communication services by wire or radio”) (emphasis added).
34 Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech
Disabilities,
CC Docket No. 98-67, Report and Order and Further Notice of Proposed Rulemaking, 15 FCC Rcd
5140, 5165, ¶ 60 (2000) (2000 TRS Report and Order).
35 Publix, 17 FCC Rcd at 11495, ¶ 19. Further underscoring the importance of full compliance with the SOA rule is
the Commission’s requirement that VRS and IP Relay providers submit SOA data with their monthly claims for
payment. 47 C.F.R. § 64.604(c)(5)(iii)(C). The Commission adopted this requirement “to ensure compliance with
this mandatory minimum standard, which is critical to ensuring that [relay] providers promptly answer the calls that
come into their centers.” 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, 5580, ¶ 74 (2011).
36 Section 64.604 of the Commission’s rules, which contains the 85/10 standard, see 47 C.F.R. § 64.604(b)(2)(ii), is
entitled “Mandatory minimum standards”. If a lower level of performance were permissible, then 85/10 would be
neither “mandatory” nor “minimum.”
37 Wireline voice users, by contrast, virtually always get an immediate dial tone; they do not get a dial tone only 85
percent of the time, nor do they have to wait up to 10 seconds for a dial tone. See, e.g., Industry Analysis and
Technology Division, Wireline Competition Bureau, Federal Communications Commission, Quality of Service of
Incumbent Local Exchange Carriers
, Tables 1(b), (Dec. 2009)
<http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-295377A1.pdf>; (showing that in 2008, mandatory price
cap telephone companies had, at most, negligible amounts of switch downtime).
38 See 2000 TRS Report and Order, 15 FCC Rcd at 5167, ¶ 64.
39 Id. at 5166, ¶ 63.

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the fluctuations in traffic, not on consumers to tolerate delays in reaching a CA when traffic is high.”40
Therefore, to use a “substantial compliance” principle to move the daily compliance threshold below the
85/10 standard set by the SOA rule, as Purple advocates, would be inconsistent with the Commission’s
clear intent that 85/10 be a minimum standard.
13. Finally, even if a substantial compliance standard were applicable to SOA compliance, we
do not characterize Purple’s violations in this case as “minor” or “insignificant” deviations.41 As Purple
concedes, it failed to meet the 85/10 benchmark on {REDACTED} out of the 123 days in the July-
October 2011 period.42 Such pervasive noncompliance cannot reasonably be deemed substantially
compliant with the rule.
14. In summary, because the application of a substantial compliance standard to Purple’s SOA
violations would depart from the Bureau’s prior decisions, is not compelled by the authority Purple cites
to support use of such a standard, and would conflict with the Commission’s own characterization of the
SOA rule, we reject Purple’s argument that we should apply such a standard. Moreover, even if a
substantial compliance standard did apply, we find that Purple’s pervasive noncompliance in the July-
October 2011 period would not satisfy such a standard.
2.

Actual vs. Projected Call Volume

15. We also reject Purple’s argument that its compliance with the SOA rule should be assessed
with respect to projected rather than actual call volumes. Pointing out that under the Commission’s rule
governing the permissible level of blocked calls, compliance is assessed in relation to projected call
volumes, Purple argues that the same approach should apply to measuring compliance with the 85/10
SOA standard.43
16. The 85/10 and blocked call standards are distinct, however. The blocked call provision cited
by Purple states:
TRS providers shall ensure adequate TRS facility staffing to provide
callers with efficient access under projected calling volumes, so that the
probability of a busy response due to CA unavailability shall be
functionally equivalent to what a voice caller would experience in
attempting to reach a party through the voice telephone network.44
This blocked call standard does indeed speak in terms of projections and probabilities, rather than actual
performance. By contrast, however, the 85/10 SOA standard states that “TRS facilities shall, except
during network failure, answer 85% of all calls within 10 seconds . . .”45 Furthermore, as discussed

40 Id.
41 Publix, 17 FCC Rcd at 11494-95, ¶ 19.
42 Request for Review at 6-7.
43 Id. at 5-6, 12-14.
44 47 C.F.R. § 64.604(b)(2)(i) (emphasis added). A virtually identical provision governs the permissible level of call
blocking due to congestion of network facilities. Id. § 64.604(b)(2)(ii).
45 Id. § 64.604(b)(2)(ii) (emphasis added). Indeed, the blocked call and 85/10 standards have been separate and
distinct since their initial adoption in 1991, and, unlike the blocked call standard, the 85/10 standard has never been
expressed as a function of projected call volumes. See Telecommunications Services for Individuals with Hearing
and Speech Disabilities, and the Americans with Disabilities Act of 1990,
CC Docket No. 90-571, Report and Order
(continued....)

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above,46 in requiring daily measurement of compliance, the Commission rejected the argument that its
compliance measurement should “account for wide daily variations in traffic loads,”47 stating that “[j]ust
like voice calls, TRS calls should be answered within a reasonable time period, regardless of the traffic
load.”48 In summary, compliance with the 85/10 SOA standard is clearly based on actual daily
performance, as opposed to projected traffic loads and probabilities.

B.

Waiver of SOA Requirement

17. Purple also argues that the SOA rule should be waived for {REDACTED} days on which,
Purple states, the actual call volume exceeded 110% of its forecasted call volume based on a seven-week
rolling average of daily call volume.49 Purple states that on these days, it “experienced such pronounced
and unforeseen call volume as to render it impossible” to comply fully with the SOA rule.50
18. Generally, the Commission’s rules may be waived for good cause shown.51 The Commission
may exercise its discretion to waive a rule where the particular facts make strict compliance inconsistent
with the public interest.52 In addition, the Commission may take into account considerations of hardship,
equity, or more effective implementation of overall policy on an individual basis.53 Waiver of the
Commission’s rules is therefore appropriate only if special circumstances warrant a deviation from the
general rule, and such a deviation will serve the public interest.54 The Commission must take a “hard
look” at applications for waiver and must consider all relevant factors when determining if good cause
exists.55
19. Moreover, in demonstrating whether a waiver is warranted, the burden of proof rests with the
petitioner.56 An applicant seeking a waiver faces a high hurdle and must plead with particularity the facts
and circumstances that warrant a waiver.57
20. We find that Purple has failed to meet its burden of proof that a waiver is warranted. As
discussed in greater detail below, Purple has failed to demonstrate, or even plead with particularity, facts
that would show (1) the actual cause of the variations in call volume that Purple claims rendered it unable

(...continued from previous page)
and Request for Comments, 6 FCC Rcd 4657, 4669 (1991) (TRS First Report and Order) (adopting 47 C.F.R. §
64.604(b)(2)).
46 See ¶ [12], supra.
47 2000 TRS Report and Order, 15 FCC Rcd at 5166, ¶ 63.
48 Id.
49 Request for Review at 19.
50 Id. at 18.
51 47 C.F.R. § 1.3.
52 Northeast Cellular Telephone Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990) (Northeast Cellular).
53 WAIT Radio v. FCC, 418 F.2d 1153, 1159 (D.C. Cir. 1969); Northeast Cellular, 897 F.2d at 1166.
54 Id.
55 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971).
56 Tucson Radio, Inc. v. FCC, 452 F.2d 1380, 1382 (D.C. Cir. 1971).
57 WAIT Radio, 418 F.2d at 1157 (citing Rio Grande Family Radio Fellowship, Inc. v. FCC, 406 F.2d 664 (D.C. Cir.
1968)); Birach Broadcasting Corp., Memorandum Opinion and Order, 18 FCC Rcd 1414, 1415 (2003).

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to comply, (2) why such variations could not have been reasonably projected and addressed through
staffing, (3) why fraudulent calling constitutes a special circumstance warranting a waiver of the SOA
rule, and (4) why Purple alone, among the IP Relay providers, was unable to avoid pervasive SOA
violations.
21. Purple advances a number of factors that, as a general matter, may cause unforeseen “spikes”
in call volume, including aberrant weather patterns, significant national or global events, and questionable
calls.58 Purple does not, however, attempt to pinpoint the specific factors that caused the particular call-
volume variations for which it requests waivers, other than to state that these so-called “spikes” occurred
during a period when Purple’s staffing reflected only projected call volumes, without spikes, because
Purple did not realize that the Commission expected full compliance with the SOA rule.59 As we have
explained above, there has been no change in the standard of compliance, and Purple had no reasonable
basis for its assumption that full compliance with the SOA rule was not required.
22. Moreover, we find that Purple has failed to demonstrate that the call volume variations that it
experienced in July, August, September, and October 2011 went beyond levels that could have been
reasonably projected. Based on historical trends, in which call volume typically fluctuates from month to
month, even substantial variations from the average would appear to be foreseeable. As the Commission
has previously explained, TRS providers who engage in intelligent planning for network design and CA
staffing, consistent with the Commission’s blocked-call standard, should not have difficulty meeting the
minimum SOA standard, absent extraordinary circumstances.60 Similarly, the Bureau found that “there
are providers that operate their IP Relay offerings in a manner such that the 85/10 rule is met despite
variations in call volumes.”61 Yet Purple states, without support, that it was unable to foresee call volume
variations a mere 10% higher than the seven-week rolling average.62 As the record provides no basis to
conclude that the call variations experienced by Purple represent unforeseeable “spikes” exceeding what
could be reasonably anticipated, we are not persuaded that such call variations constitute a “special
circumstance” weighing in favor of a waiver.
23. As for Purple’s speculation that IP Relay fraud calls may have played a role in the call
volume “spikes,”63 the existence of such calls does not in itself present a “special circumstance”

58 Request for Review at 16.
59 See id. at 19; see also id. at 18.
60 2000 TRS Report and Order, 15 FCC Rcd at 5167-68, ¶ 65.
61 Nordia Letter Ruling at 4.
62 Purple requests that the SOA rule be waived for any call volume “spike” exceeding 110% of its seven-week
rolling average call volume. Purple also provides no explanation or documentation supporting the use of a seven-
week rolling average, other than the bald assertions that a seven-week rolling average call volume {REDACTED}.
Request for Review at 13 n.29. Purple also does not explain why more than half of the days on which it committed
SOA violations were more than seven weeks from the initial date of violation during the period in question, See
Table, infra ({REDACTED} days of SOA violations from July through October 2011occurred after
{REDACTED}, 2011, which date is seven weeks after {REDACTED}, 2011, the 1st day of violation).
63 Request for Review at 16-17. Apart from the other deficiencies in its request for waiver, Purple failed to provide
relevant data regarding the role that it suggests IP relay fraud may have played in Purple’s SOA violations.
Although an exhibit prepared by Purple indicates that, during the July-October 2011 period, Purple had a high
number of customers whose registrations could not be verified (Request for Review, Exhibit C at 13th unnumbered
page), Purple failed to show either the number of minutes used by these unverified customers or how long they were
allowed to continue making calls. As the Commission recently explained, even prior to the elimination of the guest
user procedure, “providers that have processed calls by unverified users with suspicious names, addresses or
(continued....)

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warranting waiver of the SOA rule. All providers of IP Relay have experienced IP Relay fraud, over a
period of many years. Fraudulent calls, for example, were cited as a cause of the SOA violations
addressed in the 2008 letter rulings attached to Purple’s Request for Review, but the Bureau did not deem
them sufficient grounds for waiver of the SOA rule.64 In the Nordia Letter Ruling, the Bureau stated that
“IP Relay fraud calls in and of themselves do not present a ‘special circumstance’ because all providers of
IP Relay Service receive ‘attacks’ of IP Relay fraud. In fact . . . we determined that several [IP Relay]
providers were able to meet the 85/10 requirement despite attacks from fraudulent calls.”65 Similarly,
from reviewing the SOA data for all providers of IP Relay, we determined that during the July-October
2011 period for which Purple seeks a waiver of the IP Relay SOA rule, in part based on its handling of
fraudulent IP Relay calls, none of the other six IP Relay providers committed pervasive violations of the
SOA rule, despite the likely presence of fraudulent calls.66
24. Furthermore, granting a waiver in these circumstances would undermine the purpose of the
SOA rule, which is to ensure functional equivalence.67 As the Commission has explained: “For a TRS
user, reaching a CA to place a relay call is the equivalent of picking up a phone and getting a dial tone.”68
The 85/10 standard, therefore, is not a merely aspirational goal, or a rough benchmark to help providers
make staffing decisions. It is a minimum standard defining the minimum acceptable level of SOA
performance in accordance with the functional equivalence provisions of the Act.69
25. In summary, we find no good cause for granting Purple a waiver in these circumstances, and
to do so would undermine the purpose of the SOA rule and be contrary to the public interest. Therefore,
we deny Purple’s request for waiver of the SOA rule.

C.

Reimbursement Calculation

26. Purple also requests, in the alternative, that it be partially reimbursed for the days on which it
failed to comply with the 85/10 standard, based on the sliding scale approach that the Bureau applied in
the Nordia Letter Ruling and AT&T Letter Ruling.70 In those two rulings, as well as in others that the

(...continued from previous page)
questionable calling practices over extended periods of time may be in violation of [their verification obligations].”
See Misuse of Internet Protocol (IP) Relay Service; Telecommunications Relay Services and Speech-to-Speech Services
for Individuals with Hearing and Speech Disabilities,
CG Docket Nos. 12-38 and 03-123, FCC 12-71, ¶ 11 n.42 (rel.
June 29, 2012). A waiver clearly cannot be justified if the provider’s violations are of its own making.
64 Nordia Letter Ruling at 3-4; AT&T Letter Ruling at 4.

65 Nordia Letter Ruling at 3-4 (footnote omitted).
66 See RLSA, IP Year to Date Speed of Answer Report, January-December 2011. Three of the other six IP Relay
providers were able to avoid any violations of the SOA rule. A fourth provider violated the SOA rule on only two
days during the four-month July-October 2011 period. No IP Relay provider, other than Purple, reported any
violations of the SOA rule in September or October 2011. Id. Nevertheless, like other IP Relay providers, Purple
should not have handled, and billed the TRS Fund for, IP Relay calls it knew to be fraudulent.
67 TRS First Report and Order, 6 FCC Rcd at 4661, ¶ 21 (The 85/10 rule “best meet[s] our goal of providing relay
services which are functionally equivalent to voice telephone services”). See also note [33], supra.
68 2000 TRS Report and Order, 15 FCC Rcd at 5165, ¶ 60.
69 As noted earlier, Section 64.604 of the Commission’s rules, which contains the 85/10 standard, see 47 C.F.R. §
64.604(b)(2)(ii), governs the “mandatory minimum standards” (emphasis added) for the provision of the various
forms of TRS, including IP Relay.
70 Request for Review at 19-21.

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Bureau rendered at the same time, the Bureau imposed a graduated, or sliding scale, formula for the
subject IP Relay provider to return portions of the TRS Fund reimbursements it had received for days that
it missed compliance with the 85/10 standard.71 The amount that the provider was required to return in
those cases increased commensurate with the degree of its noncompliance, and would double for each day
after the fifth day of violation in a calendar month.72 Moreover, for days on which performance fell
below certain SOA thresholds, the percentage of TRS Fund reimbursements that the provider had to
return to the TRS Fund doubled no matter how many violations the provider had already had that month,
or the provider had to return all of the reimbursements it had received for that day.73
27. Because of the 2008 letter rulings, Purple may not have been on notice that a different
approach than the sliding scale would apply in the event of future IP Relay SOA violations. As a result,
we will also apply the same formula to the SOA violations at issue here, as well as to any SOA violations
that pre-date the effective date of this order. We place all providers on notice, however, that, for
violations occurring after the date of this order, the Bureau does not intend to utilize a sliding scale
approach with respect to any SOA violations. We conclude that further application of a sliding scale
approach to SOA violations that occur after the effective date of this order would no longer serve the
public interest. As noted above, the SOA requirements are “a cornerstone of the Commission's TRS
rules.”74 The 85/10 standard is a minimum standard defining the minimum acceptable level of SOA
performance. Service that falls below this standard is not functionally equivalent to voice service
pursuant to the Act; such service is tantamount to service not having been provided at all, and does not
merit any reimbursement from the TRS Fund.75 We also emphasize that providers committing multiple
and/or egregious SOA violations additionally risk incurring penalties and forfeitures in enforcement
proceedings pursuant to Section 503 of the Act,76 and the Commission may take such violations into
account when evaluating a TRS provider’s application for Commission certification or re-certification for
eligibility for payment from the TRS Fund for the provision of TRS, or whether to suspend or revoke a
certification.77 Thus, upon further consideration, we no longer believe that it is prudent or necessary to
apply a sliding scale in order to maintain a provider’s incentive to provide adequate service for the
remainder of a day, after failing to meet SOA parameters early that day.78
28. Consistent with the above, and, as set forth in Appendix B pursuant to the sliding scale
formula described in Appendix A, we calculate that Purple shall be denied reimbursement in the amount

71 See, e.g., AT&T Letter Ruling at 4-5, 8 (Appendix) (showing table of percentages of reimbursements that
providers would be required to return).
72 See, e.g., id. at 5, 8 (Appendix)..
73 See, e.g., id. at 8 (Appendix).
74 See note [31], supra.
75 Even the sliding scale approach that Purple urges we apply in the alternative recognizes that SOA below a certain
threshold is tantamount to no service at all and is not reimbursable from the TRS Fund. See, e.g., Nordia Letter
Ruling
at 5. Whereas, pursuant to the sliding scale approach, 65 percent (or below) of a particular day’s call volume
being answered within 10 seconds is the threshold for a complete denial of payment from the TRS Fund for that day,
as we discuss in the text, going forward we will strictly adhere to the 85 percent SOA performance threshold
established by the Commission as the minimum standard. See ¶¶ [12, 24], supra.
76 47 U.S.C. § 503.
77 See, e.g., 47 C.F.R. § 64.606(b)(2) (To be certified as eligible for payment from the TRS Fund, an Internet-based
TRS provider must establish that it will meet all non-waived minimum standards); id. § 64.606(e)(2) (certification
may be suspended or revoked if an Internet-based TRS provider is not in compliance with the minimum standards).
78 Cf. Request for Review at 20, quoting Nordia Letter Ruling at 5.

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of ${REDACTED} for IP Relay service rendered in violation of the Commission’s SOA rules during the
July-October 2011 time frame. Accordingly, Purple is entitled to a net credit for ${REDACTED}, the
difference between ${REDACTED} and the ${REDACTED} withheld by the TRS Fund administrator.
Below, we order RLSA, the TRS Fund administrator, to remit to Purple ${REDACTED} out of amounts
heretofore withheld from reimbursement from the TRS Fund due to violations of 47 C.F.R. §
64.604(b)(2)(ii). The amount remitted is subject to any rights of offset the Commission may have or may
assert in the future.79 The denial of reimbursement that we order here is separate and apart from any
potential action that the Commission, the Bureau, or the Commission’s Enforcement Bureau may take
against Purple for failure to comply with the Commission’s rules.

V.

ORDERING CLAUSES

29. Accordingly, IT IS ORDERED, pursuant to Sections 1, 4(i), 4(j), 5 and 225 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 154(i), 154(j), 155 and 225, and Sections
0.141, 0.361 and 64.604 of the Commission’s rules, 47 C.F.R. §§ 0.141, 0.361, 64.604, that the Request
for Review filed by Purple Communications, Inc. IS GRANTED IN PART AND DENIED IN PART, as
provided above.
30. IT IS FURTHER ORDERED that, pursuant Sections 1, 4(i), 4(j), 5, and 225 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 154(i), 154(j), 155 and 225, and pursuant to
the authority delegated in Sections 0.141, 0.361, and 64.604 of the Commission’s rules, 47 C.F.R. §§
0.141, 0.361, and 64.604, Rolka Loube Saltzer Associates, the TRS Fund administrator, SHALL REMIT
${REDACTED} to Purple Communications, Inc., out of amounts heretofore withheld from
reimbursement from the TRS Fund due to violations of 47 C.F.R. § 64.604(b)(2)(ii), the IP Relay speed
of answer rule.
31. IT IS FURTHER ORDERED that, aside from the amounts that we order Rolka Loube Saltzer
Associates, the TRS Fund administrator, to remit to Purple Communications, Inc., out of amounts
heretofore withheld from reimbursement from the TRS Fund due to violations of 47 C.F.R. §
64.604(b)(2)(ii), Purple Communications, Inc.’s request for remittance by Rolka Loube Saltzer Associates
of any other amounts heretofore withheld from reimbursement from the TRS Fund due to violations of 47
C.F.R. § 64.604(b)(2)(ii) IS DENIED.
32. This Order shall be effective upon release, in accordance with Section 1.102(b) of the
Commission’s rules, 47 C.F.R. § 1.102(b).

FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Acting Chief
Consumer and Governmental Affairs Bureau

79 See 31 U.S.C. § 3716; 47 C.F.R. § 1.1912.

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APPENDIX A

Percentage of Reimbursements to be Denied Purple for IP Relay SOA Violations Through [insert

date of release]
% Calls Answered Within
Cumulative Days Missed Per Month
10 Seconds
1st – 5th Day Missed
Greater than 5 Days Missed
84%
1%
2%
83%
2%
4%
82%
3%
6%
81%
4%
8%
80%
5%
10%
79%
6%
12%
78%
7%
14%
77%
8%
16%
76%
9%
18%
75%
10%
20%
74%
11%
22%
73%
12%
24%
72%
13%
26%
71%
14%
28%
70%
30%
30%
69%
32%
32%
68%
34%
34%
67%
36%
36%
66%
38%
38%
65%
40%
40%
<65%
ALL
ALL

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DA 12-1130

APPENDIX B

Calculation of Reimbursements To Be Denied

Number of
Amount of
SOA
Month
Date
Minutes
Compensation
Performance
% Denied
Amount Denied
{TABLE REDACTED}

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