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VRS Provider Requests For Temporary Waiver Of Speed-Of-Answer Rule

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Released: June 24, 2014
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Federal Communications Commission

DA 14-878

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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Telecommunications Relay Services

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CG Docket No. 03-123

And Speech-to-Speech Services for

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Individuals with Hearing and Speech Disabilities

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Video Relay Service Provider Requests for

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Temporary Waiver of the Speed-of-Answer Rule

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ORDER

Adopted: June 24, 2014

Released:

June 24, 2014

By the Acting Chief, Consumer and Governmental Affairs Bureau:

I.

INTRODUCTION

1.

This Order defers for six months the effective date of the new 30-second standard

governing how quickly a video relay service (VRS) provider must respond to a consumer’s request to

make a VRS call. This new standard, which otherwise takes effect July 1, 2014, requires that providers

must answer (i.e., provide the equivalent of a dial tone) 85 percent of consumers’ VRS call attempts

within 30 seconds, measured daily. Providers and consumer groups, however, have made a persuasive

showing that to compel providers to meet a 30-second response time by July 1st, only six months after the

current 60-second time standard took effect, could be unnecessarily disruptive to providers’ ability to

offer high quality service. On balance, we believe this temporary delay in the transition to a faster speed-

of-answer standard will benefit consumers and serve the public interest by ensuring that quality of service

is maintained, avoiding undue disruption in the supply of interpreters, and allowing providers more

predictability and stability in their operations during the transition to faster speed-of-answer requirements.

2.

As a result of this temporary waiver, which is granted by the Consumer and

Governmental Affairs Bureau (Bureau) of the Federal Communications Commission (FCC or

Commission),1 the current speed-of-answer rule, requiring that 85 percent of all VRS call attempts be

answered within 60 seconds, measured daily, will remain applicable to all providers through December

31, 2014.2 The other relief requested by various VRS providers has not been shown to serve the public

1 See 47 C.F.R. §§ 0.141, 0.361.

2 As explained in more detail below, in June 2013, the Commission adopted strengthened speed-of-answer standards

for VRS, which changed the compliance measurement requirement from monthly to daily, increased the required

percentage of compliant calls from 80 percent to 85 percent, and replaced the previous 120-second time interval

with shorter time intervals to be phased in over a two-step transition period. The current 60-second criterion became

effective January 1, 2014. Structure and Practices of the Video Relay Service Program, Telecommunications Relay

Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disability, CG Docket Nos. 10-51,

03-123, Report and Order and Further Notice of Proposed Rulemaking, 28 FCC Rcd 8618, 8671-73, ¶¶ 135-41

(2013) (2013 VRS Reform Order), pet. for review pending sub nom. Sorenson Communications, Inc. v. FCC (D.C.

Cir., No. 13-1215, filed July 11, 2013); 47 C.F.R. §§ 64.604(b)(2)(iii)(A).

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interest and is therefore denied. Specifically, we deny the requests for temporary waiver of the daily

compliance measurement requirement and for modification of the Commission’s approach to withholding

of compensation for speed-of-answer violations.

II.

BACKGROUND

3.

Since 1993, the Commission’s rules have required that for most forms of

telecommunications relay service (TRS), 85 percent of calls must be answered within 10 seconds.3

Although the rule did not initially specify the interval for measuring speed-of-answer compliance, the rule

was amended in 2000 to require that compliance with the standard be measured on a daily basis.4

In

2005, the Commission adopted a different speed-of-answer requirement for VRS.5 Recognizing concerns

about a shortage of qualified interpreters and the need for providers to determine optimal staffing levels,

the Commission applied a less strict standard to VRS and allowed compliance to be measured on a

monthly rather than daily basis.6 The Commission provided for a three-step, phased-in implementation of

the initial VRS requirements, which culminated in requiring VRS providers to answer 80 percent of all

VRS calls within 120 seconds by January 1, 2007.7

The Commission stated its intention to revisit the

speed-of-answer requirements when appropriate.8

4.

In June 2013, finding that it had become feasible for VRS providers to meet a faster

speed-of-answer standard, closer to that applicable to other forms of TRS, the Commission amended the

speed-of-answer requirement to require that, by January 1, 2014, 85 percent of all VRS calls be answered

within 60 seconds and that, by July 1, 2014, 85 percent of all VRS calls be answered within 30 seconds.

Effective January 1, 2014, the Commission also changed the method for measuring speed-of-answer

performance from monthly to daily, to be consistent with the compliance measurement method already

used for other forms of TRS.9

5.

Thus, whereas under the prior rule, VRS providers were required to answer 80 percent of

all VRS calls within 120 seconds, with compliance measured on a monthly basis,10 the strengthened rule,

3 47 C.F.R. § 64.604(b)(2)(ii); 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 and Request for

Comments, 6 FCC Rcd 4657, 4661, ¶ 21 (1991) (1991 TRS Order). The Commission explained that this standard

would best meet the goal of providing relay services that are functionally equivalent to voice telephone services. Id.

When initially adopted, this measurement applied only to relay calls between TTY users and voice telephone users.

Over time, however this measurement came to be used for other forms of TRS, including IP Relay and all forms of

captioned telephone relay services. 47 C.F.R. § 64.604(b)(2)(ii).

4 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 Order); 47 C.F.R. § 64.604(b)(2)(ii)(C).

5 Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech

Disabilities, CG Docket Nos. 03-123 and 98-67, Report and Order, 20 FCC Rcd 13165 (2005) (2005 Speed-of-

Answer Order). VRS allows people with hearing or speech disabilities who use sign language to communicate with

voice telephone users over a broadband Internet connection using video equipment. The video link allows the

communications assistant (CA) to view the deaf or hard of hearing user’s signed conversation and relay the

conversation back and forth by signing what the voice telephone user says to the deaf or hard of hearing user and

responding in voice to the voice telephone user. 47 C.F.R. § 64.601(a)(40); 2000 TRS Order, 15 FCC Rcd at 5152-

54, ¶¶ 21-27.

6 2005 Speed-of-Answer Order, 20 FCC Rcd at 13174-76, ¶¶ 16-20.

7 Id. at 13175, ¶ 19.

8 Id. at 13176, ¶ 20.

9 2013 VRS Reform Order, 28 FCC Rcd at 8671-73, ¶¶ 135-41, ¶ 135.

10 47 C.F.R. § 64.604(b)(2)(iii)(A)(1).

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which became effective January 1, 2014, requires VRS providers to answer 85 percent of all VRS calls

within 60 seconds, with compliance measured on a daily basis.11 In addition, effective July 1, 2014, VRS

providers must answer 85 percent of all VRS calls within 30 seconds, measured on a daily basis.12

6.

In adopting the shorter maximum response times, the Commission found that providers

were already largely achieving a 30-second speed-of-answer standard at current communications assistant

(CA) staffing levels.13 In adopting the daily compliance measurement requirement, the Commission

noted this finding and observed, in addition, that the current VRS environment is unlike that present in

2005 when the original speed-of-answer standards were adopted. In 2005, VRS was a “nascent service,”

and providers lacked experience in determining the CA staffing levels necessary to meet call demand and

achieve compliance with the new standard. Since then, the Commission reasoned, VRS providers had

accumulated nearly a decade of experience in providing VRS, which now enables them to assess staffing

levels needed to meet a daily measurement window. Therefore, the Commission concluded, the original

reason for deviating from the measurement window applied to other forms of TRS no longer applies.14

7.

On October 24, 2013, ASL Services Holdings, LLC (ASL Services) filed a petition for

waiver seeking a temporary, one-year waiver of the daily compliance measurement requirement.15 ASL

Services did not at that time seek any waiver of the underlying speed-of-answer standard setting forth the

percentage of calls that must be answered within a specified number of seconds.

8.

In its petition, ASL Services argues that the Commission’s justification for adopting the

daily compliance measurement requirement does not apply to ASL Services, because, as a relatively new

VRS provider, it lacks the decade of experience that the Commission attributed to providers in general.16

In fact, ASL Services asserts, due to its lack of long term data and the unpredictability of its growth as a

new provider, it is not yet able to calculate consistently predictable staffing levels on a daily basis. While

affirming that, as of the date of its petition, it has consistently achieved 30 seconds or less answering time,

ASL Services asserts that this was achieved based on a monthly speed-of-answer measurement, and that it

is unclear whether the new speed-of-answer standard can be met on a daily basis.17

9.

ASL Services maintains that it requires an additional year in which to obtain meaningful

call data “on which predictable and sustainable staffing calculations can be based if measured daily.”18

Rejection of the waiver request, ASL Services adds, will adversely affect consumers by increasing

financial pressure on the company, hindering its ability to attract, employ, and properly train additional

video interpreters, and creating the potential for slower speeds of answer and increased noncompliance.19

ASL subsequently filed a supplement showing the speed-of-answer standards “and associated

noncompliance penalties” of a number of European countries.20

11 Id., § 64.604(b)(2)(iii)(A)(2).

12 Id., § 64.604(b)(2)(iii)(A)(3).

13 2013 VRS Reform Order, 28 FCC Rcd at 8671, ¶ 137.

14 Id. at 8672, ¶ 139.

15 ASL Services, Petition for Waiver, CG Docket Nos. 03-123, 10-51 (filed Oct. 24, 2013) (ASL Services Petition).

Inherent in ASL Services’ waiver request is a request that compensation not be withheld when the daily

measurement indicates the standard is not met. See 2013 VRS Reform Order, 28 FCC Rcd at 8672, ¶ 139 n. 312.

16 ASL Services Petition at 2.

17 Id. at 5-6.

18 Id. at 7.

19 Id. at 20.

20 Letter from Andrew O. Isar, Miller Isar Inc., to Marlene H. Dortch, FCC Secretary CG Docket Nos. 03-123, 10-

51, filed November 4, 2013 (ASL Services Supplement). ASL Services reports, for example, that in Sweden, the

(continued….)

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10.

In a separate filing, three other VRS providers (Collective Providers) requested that the

same temporary waiver sought by ASL Services be granted for all providers and, in addition, that the

Commission modify its approach to withholding payment of Fund compensation when providers fail to

comply with the speed-of-answer rule.21 The Collective Providers urge that the percentage of

compensation withheld from a provider be no greater than the difference between the percentage of calls

answered within the applicable time limit and the percentage of calls required to be answered.22

11.

Although the Collective Providers do not claim to be recent entrants, they assert that they

are similarly situated to ASL Services with respect to “the potential for unprecedented call volume

fluctuations, the need to overstaff to ensure daily compliance and providers’ limited experience under a

fundamentally changed regulatory framework.”23 Arguing that modifying the rule to require

measurement of speed of answer on a daily basis was a “radical change inconsistent with current provider

operations and consumer demand,” the Collective Providers assert that they had no opportunity to

comment on the change.24 Further, because the staffing of their VRS call centers is based on projections

of typical customer usage, which do not address episodic, unexpected needs for additional staffing (e.g.,

due to disasters or other unforeseeable events), the Collective Providers contend that they cannot forecast

consumer demand on a daily basis.25 As a result, they contend, it is likely that all providers occasionally

will miss the speed-of-answer requirement and have compensation withheld.26

12.

The Collective Providers also assert that the daily measurement requirement creates

“perverse incentives for providers to reduce their service on a certain day when it becomes apparent that

there is far greater consumer demand than reasonably projected for which compensation will be withheld

that day.”27 They add that the difficulty of meeting the new standard is exacerbated by the simultaneous

reduction in VRS compensation rates ordered by the Commission.28

13.

In addition to seeking a waiver, the Collective Providers urge the Commission to limit the

withholding “penalty” for noncompliance to the loss of the provider’s compensation only for the

percentage of calls in which it falls below the standard. The Collective Providers argue that this approach

will maintain incentives for providers to continue to provide a high level of service and to seek additional

staffing during surges in consumer demand, and thereby will help ensure that VRS remains available

during unanticipated periods of high demand.29 By way of example, under their proposed withholding

scheme – assuming a standard requiring 85 percent of calls to be answered within a 30-second time frame

(Continued from previous page)

speed-of-answer standard requires that, measured on a monthly basis, 70% of all calls must be answered in 30

seconds and 90% of all calls must be answered in 60 seconds. Id. at 2. See also Letter from Angela Roth,

Managing Member, President, and Chief Executive Officer, ASL Services, to Marlene H. Dortch, FCC Secretary

(April 24, 2014) (providing additional data in support of ASL Services’ waiver request).

21 Letter from CSDVRS, LLC (CSDVRS), Sorenson Communications, Inc. (Sorenson), and Hancock, Jahn, Lee &

Puckett, LLC d/b/a Communication Axess Ability Group (CAAG) to Tom Wheeler, FCC Chairman, et al.,

Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech

Disabilities; Structure and Practices of Video Relay Service, CG Docket Nos. 03-123, 10-51, at 1-3 (filed December

6, 2013) (Collective Providers Letter).

22 Id. at 2-3.

23 Id. at 2.

24 Id. at 4.

25 Id.

26 Id. at 1-2, 4.

27 Id. at 2.

28 Id. at 4-5.

29 Id.

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– if a provider only answers 70 percent of calls within 30 seconds, the provider would not be in

compliance for 15 percent of its calls and therefore should lose no more than 15 percent of its

compensation.30

14.

The Consumer groups support these waiver requests,31 as do Purple Communications,

Inc. (Purple), and Convo Communications, LLC (Convo).32 While generally supporting the daily

measurement requirement, the Consumer Groups express concern that meeting the requirement may not

be feasible in 2014 in some instances.33 Additionally, they assert that meeting the daily measurement

requirement will be hampered further by the compensation rate reductions imposed by the Commission in

the 2013 VRS Reform Order.34 Thus, the Consumer Groups support a one-year waiver in order to allow

the successful implementation of the daily measurement without causing a detrimental impact on VRS.35

15.

On April 22, 2014, representatives of all six VRS providers met with CGB staff. In

addition to reiterating their support for the waivers previously requested, the VRS providers, for the first

time, urged the Commission to waive the 30-second speed-of-answer standard, which is scheduled to take

effect July 1, 2014, as well as waiving the daily measurement requirement. The VRS providers

contended that meeting the current 60 seconds/85 percent requirement requires extraordinary,

unsustainable measures and that providers cannot meet the 30 seconds/85 percent requirement for reasons

independent of cost.

Specifically, the providers argued that the available supply of qualified VRS

interpreters is too limited and that the exogenous factors affecting both call volume and interpreter

availability on a day-to-day basis are too varied to enable compliance with that standard. In addition, the

VRS providers contended that meeting the revised speed-of-answer requirement is hampered by the

significant reductions in VRS compensation rates that will take effect over the next three years.36

16.

On June 3, 2014, Sorenson submitted detailed information to support the claimed

infeasibility of consistently meeting a daily speed-of-answer requirement and the extent to which

Sorenson would have failed to satisfy a 30 seconds/85 percent requirement, had it been in effect during

the first five months of 2014.37 Sorenson’s letter describes numerous factors that it contends place severe

limits on the current supply of interpreters and on VRS providers’ ability to maintain sufficient staffing at

30 Id.

31 Letter from Telecommunications for the Deaf and Hard of Hearing, Inc., National Association of the Deaf,

Association of Late-Deafened Adults, Inc., Cerebral Palsy and Deaf Organization, American Association of the

Deaf-Blind, and California Coalition of Agencies Serving Deaf and Hard of Hearing, Inc. (Consumer Groups) to

Tom Wheeler, FCC Chairman, CG Docket Nos. 03-123, 10-51 (filed December 30, 2013) (Consumer Groups

Letter).

32 Letter from Monica S. Desai, Patton Boggs LLP, to Marlene H. Dortch, FCC Secretary, CG Docket Nos. 03-123,

10-51 (Dec. 9, 2013) (Purple Letter); Letter from Jarrod Musano, Chief Executive Officer, Convo. to Marlene H.

Dortch, FCC Secretary, CG Docket Nos. 03-123, 10-51 (Dec. 16, 2013) (Convo Letter); Letter from Angela

Valcarcel-Roth, CEO/President, ASL Services, Everett Puckett, CEO, CAAG, Jeff Rosen, General Counsel, Convo,

Sean Belanger, CEO, CSDVRS, John Goodman, Chief Legal Officer, Purple, and Michael Maddix, Director,

Government and Regulatory Affairs, Sorenson, to Marlene H. Dortch, FCC Secretary, CG Docket Nos. 03-123, 10-

51 (Apr. 24, 2013) (All Providers Letter).

33 Consumer Groups Letter at 2.

34 Id. at 2-3.

35 Id. While Consumer Groups request that no payments be withheld for failure to meet the measured-daily

requirement for a period of one year, they urge the Commission, during that period, to implement the 30-second,

measured-daily requirement on a test basis while continuing to apply the pre-existing 120-second, measured-

monthly requirement for compensation and enforcement purposes. Id. at 3.

36 See All Providers Letter.

37 Letter from John T. Nakahata et al., Harris, Wiltshire & Grannis, LLP, CG Docket Nos. 03-123, 10-51, at 1 (June

3, 2014) (Sorenson Letter).

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all hours to satisfy a daily speed-of-answer requirement, especially with a 30-second standard in effect.38

The limiting factors reported by Sorenson include interpreter demographics, wage differentials between

VRS and other interpreting opportunities, the high stress level of VRS interpreting, state regulatory

requirements, the variability of interpreters’ availability and willingness to work, and the unpredictability

of daily and hourly demand for VRS.39

17.

In addition, Sorenson notes that the supply of interpreters is limited by the current

capacity of the educational system to train qualified interpreters. Sorenson estimates that although

interpreter training programs offering a college or university degree produce about 750 new interpreters

per year, only 375-400 of these graduates remain in the industry in the first year after graduation, and of

these, a substantially smaller number may actually be eligible to interpret under a particular state’s

regulatory requirements.40 Finally, Sorenson states that VRS interpreting requires additional skills and

training, the development of which takes additional time and may result in further attrition, and that the

number of interpreter applicants who pass Sorenson’s proficiency screening is very low.41

III.

DISCUSSION

18.

It is well established that the Commission has the authority to waive its rules if there is

“good cause” to do so.42 The Commission may do so where particular facts would make strict compliance

inconsistent with the public interest.43 The Commission may take into account considerations of hardship,

equity, or more effective implementation of overall policy on an individual basis.44 A waiver is

appropriate only if special circumstances warrant a deviation from the general rule and such deviation

will serve the public interest.45 The Commission must take a “hard look” at applications for waiver46 and

must consider all relevant factors when determining if good cause exists.47

A.

Requests for Temporary Waiver of the Daily Measurement Requirement

19.

All providers have raised concerns with the Commission about their ability to satisfy the

strengthened VRS speed-of-answer requirement. Nevertheless, in addressing requests for waiver of the

speed-of-answer rule, especially a broadly applicable waiver such as that requested here, we must take

account of the importance of the rule’s underlying policy to ensure functional equivalence.48

Notably, all

38 Id. at 2-4. See also id. at 4-7 (describing various kinds of unpredictable events, many of which occurred in

January-May 2014 and, according to Sorenson, would have prevented it from complying with a 30 seconds/85

percent requirement, measured daily, had it been in effect).

39 Id. at 3-4.

40 Id. at 2-6.

41 Id. at 4.

42 47 C.F.R. § 1.3.

43 WAIT Radio v. FCC, 418 F.2d 1153 (D.C. Cir. 1969) (WAIT Radio), aff’d, 459 F.2d 1203, cert. denied, 93 S.Ct.

461 (1972). See also Northeast Cellular Telephone Co. v. FCC, 897 F.2d 1164 (D.C. Cir. 1990) (Northeast

Cellular).

44 WAIT Radio, 418 F.2d at 1159 (D.C. Cir. 1969); Northeast Cellular, 897 F.2d at 1166.

45 Id., 897 F.2d at 1166.

46 WAIT Radio, 418 F.2d at 1157; BellSouth Corp. v. FCC, 162 F.3d 1215, 1224-25 (D.C. Cir. 1999).

47 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971).

48 1991 TRS Order, 6 FCC Rcd at 4661, ¶ 21. See also 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) (speed-of-answer requirement is “a cornerstone of

the Commission’s TRS rules”); 2000 TRS Order, 15 FCC Rcd at 5165, ¶ 60 (2000) (“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.”); 2005 Speed-of-Answer Order,

(continued….)

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other forms of TRS are required to meet a speed-of-answer standard based on daily measurement,

reflecting a Commission judgment that daily compliance measurement is a key component of its speed-

of-answer policy.49 Indeed, in adopting the daily measurement requirement for non-VRS forms of TRS,

in 2000, the Commission stated that “[t]he burden should be on relay services to manage staffing needs

based on the fluctuations in traffic, not on consumers to tolerate delays in reaching a CA when traffic is

high. Just like voice calls, TRS calls should be answered within a reasonable time period, regardless of

the traffic load.”50 Thus, it is not necessarily the case, as some providers argue, that waiver of the daily

measurement requirement would have no impact on the public.51 If providers are permitted to measure

their compliance over a month, rather than on a daily basis, there would be a greater danger that

consumers would experience wait times in excess of the specified time period, because providers would

have less incentive to keep their speed-of-answer performance from falling below the standard on days

when traffic exceeds projected levels.52

20.

As noted in the 2013 VRS Reform Order, the Commission did not previously apply a

daily measurement requirement to VRS only because of transitory issues characterizing a “nascent

service.”53 In particular, the Commission wished to allow providers additional time “until they have

determined, and are able to maintain, optimal VRS CA staffing levels to meet call demand.”54

In the

2013 VRS Reform Order, the Commission concluded that, more than a decade later, providers could be

expected to have sufficient experience managing CA staffing levels to be able to comply with a daily

requirement. Providers’ showings in support of their current requests for waiver do not persuade us that

they have insufficient expertise in managing daily staffing levels to enable them to comply.55

21.

We are also unpersuaded that the rate reductions adopted by the Commission are

preventing providers from hiring a sufficient number of interpreters to enable them to comply with a daily

requirement.56

In this regard, the Commission put compensation rates for VRS providers on a “glide

path” toward cost-based rates purposely to allow providers an opportunity to adapt gradually to the rate

(Continued from previous page)

20 FCC Rcd at 13174, ¶ 17 (speed of answer is “one of the fundamental components of ensuring that TRS users

have functionally equivalent access to the telephone system”).

49 47 C.F.R. § 64.604(b)(2)(ii).

50 2000 TRS Order, 15 FCC Rcd at 5166, ¶ 63.

51 See, e.g., ASL Services Petition at 10.

52 Thus, we are not persuaded by the providers’ speculative argument that the daily measurement requirement

“creat[es] perverse incentives for providers to reduce their service on a certain day when it becomes apparent that

there is far greater consumer demand than reasonably projected for which compensation will be withheld that day.”

Collective Providers Letter at 2.

This argument is inconsistent with the providers’ claims that when unpredictable

events occur, they are unable to increase staff on short notice sufficiently to prevent violations. See, e.g., Sorenson

Letter at 6. Further, we conclude that monthly measurement causes more significant “perverse incentives,” e.g., for

providers to maintain staffing levels that are insufficient to ensure coverage during unexpected spikes in demand, or

even to “reduce their service” on a high traffic day – even before it becomes “apparent” that they cannot meet the

standard on that day – if they expect they can rely on monthly averaging to avoid any withholding of compensation.

53 2013 VRS Reform Order, 28 FCC Rcd at 8672, ¶ 139.

54 2005 Speed-of-Answer Order, 20 FCC Rcd at 13176, ¶ 19.

55 See ASL Services Petition at 4-5; Collective Providers Letter at 2.

56 See id. at 4-5.

To the extent that the Collective Providers argue that the VRS rates adopted in the 2013 VRS

Reform Order are unsustainable (Collective Providers Letter at 5), that argument should have been made to the

Commission in a petition for reconsideration of the 2013 VRS Reform Order. Similarly, the Collective Providers’

argument that lack of notice prevented a fair opportunity for comment on the speed-of-answer standard adopted in

the 2013 VRS Reform Order (id. at 3-4) also should have been made to the Commission in a petition for

reconsideration and is not suitable for consideration in this Order.

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modifications and other changes mandated by the order.57 Pursuant to this “glide path,” even Tier III

rates, applicable only to the largest provider(s), will remain more than $.85 per minute above average

reported costs through June 30, 2015. The providers’ showings do not persuade us that, under the

Commission’s graduated schedule of rate reductions, any provider currently lacks adequate leeway to

maintain sufficient staff to comply with the current standard based on daily measurement.

22.

ASL Services argues that it faces greater traffic management challenges, and thus higher

costs, than other providers due to its shorter period of experience with VRS, its rapid growth, and its

chosen specialty of offering Spanish language interpretation.58

However, the Commission has maintained

tiered rates for VRS compensation pending the completion of structural reforms, expressly to allow small

providers who face higher per-minute costs a temporary opportunity to improve their efficiency and to

grow to a size where they can take advantage of economies of scale.59 Specifically, the Tier I

compensation rates applicable to small providers will remain more than one dollar higher than the Tier III

rates and almost two dollars higher than average provider-reported costs through June 30, 2015.60 ASL

Services has not shown that these rates will be insufficient to enable it to manage its staffing levels

adequately in order to comply with a daily measurement requirement.

23.

Although providers also argue that the supply of interpreters is too limited and variable to

permit consistent compliance with a daily measurement requirement,61 recent speed-of-answer

compliance data confirm that, despite the unusual weather conditions of the past winter, and except for

two days when one provider did not comply,62 providers have been able as a matter of fact to maintain

staffing levels and configurations sufficient to ensure full compliance with the current standard, which

includes a daily measurement requirement, from January 1, 2014, through April 30, 2014.63 Therefore, as

applied to the current speed-of-answer standard requiring 85 percent of calls to be answered within 60

seconds, measured daily, there is affirmative evidence that the requested waiver is not necessary to

maintain continuity of service to consumers. Further, as noted in section III.B below, the providers have

not shown that the Commission’s existing waiver process is inadequate to address those instances where a

provider, due to circumstances beyond its control, may have good cause for being excused from strict

application of the speed-of-answer rule. Granting the requested blanket waiver under these

circumstances, without a clear showing of need, would adversely affect the public interest by depriving

consumers of assurance that their calls will be answered relatively promptly, i.e., within 60 seconds, on

any given day.64 Therefore, we deny providers’ request for waiver of the daily measurement requirement.

57 2013 VRS Reform Order, 28 FCC Rcd at 8703-07, ¶¶ 212-216.

58 ASL Services Petition at 3-9.

59 2013 VRS Reform Order, 28 FCC Rcd at 8699-8702, ¶¶ 200-208.

60 See id. at 8705-06, ¶ 215, Table 2.

61 See, e.g., Sorenson Letter at 1-7.

62 See Letter from Aaron Wegehaupt, VP of Operations, CSDVRS, to Marlene H. Dortch, FCC Secretary, CG

Docket No. 10-51 (filed March 26, 2014) (seeking a speed-of-answer waiver for two days in February 2014, citing

extreme weather conditions).

63 Information provided by Rolka Loube Saltzer Associates (RLSA), the TRS Fund administrator, based on

providers’ speed-of-answer compliance data. The information submitted by Sorenson and others does not materially

conflict with the data provided by RLSA. For example, Sorenson acknowledges that it is meeting the current 60-

second, measured-daily requirement. Sorenson Letter at 2.

64 See 2000 TRS Order, 15 FCC Rcd at 5166, ¶ 63. As noted above, if monthly measurement were allowed, that

there would be a greater danger that consumers would experience wait times in excess of the specified time period,

because providers would have less incentive to keep their speed-of-answer performance from falling below the

standard on days when traffic exceeds projected levels.

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24.

Nonetheless, in light of the Commission’s determination to monitor provider compliance

and “re-visit the speed-of-answer standard in the future if necessary,”65 we invite providers to submit

additional information to the Bureau, as they develop further experience with operating under the daily

measurement requirement, regarding any challenges and costs of achieving compliance on a daily basis

that might differ from the evidence that formed the basis for the Commission’s existing speed-of-answer

rules, so that we can consider such information in developing recommendations for future policy

development in this area.

B.

Request for a Sliding Scale Approach to Withholding Compensation

25.

We also deny providers’ request for reinstatement of a “sliding scale” approach to

withholdings for violation of the speed-of-answer rule.66 Under the Commission’s rules, a provider’s

compliance with the speed-of-answer rule and other mandatory minimum standards set forth in section

64.604 is a condition precedent for disbursement of TRS Fund payments.67 As the Bureau explained two

years ago in abandoning a previously used sliding-scale approach to speed-of-answer withholdings, the

Commission’s prior orders make clear that the numerical standard specified in the rule is a minimum

standard defining the minimum acceptable level of speed-of-answer performance.68

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.69 The Bureau also found that “it is [not] 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 speed-of-answer parameters early that day.”70

26.

Providers’ request for us to reinstate a sliding scale approach is effectively a request to

reconsider the prospective approach enunciated in the Purple Withholding Order.71 Such action is not

justified, even as a temporary waiver, on the basis of this record. Providers have not made a persuasive

showing that the Commission’s decision to preclude any compensation in this context imposes such a

hardship in the context of VRS speed-of-answer violations as to warrant the adoption of a sliding-scale

approach to such violations.

In those instances where there is a legitimate reason for a provider’s failure

to comply with the rule, the option of requesting a waiver tailored to the particular situation remains

65 2013 VRS Reform Order, 28 FCC Rcd at 8673, ¶ 141.

66 As explained above, under the proposed sliding-scale approach, the percentage of compensation withheld for

noncompliance would be limited to the percentage of calls in which the provider fell below the standard.

67 See 47 C.F.R. § 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).

68 Purple Communications, Inc., Request for Review of the Decision of the TRS Administrator to Withhold TRS

Payments, CG Docket No. 10-51, Order, 27 FCC Rcd 8014, 8024, ¶ 27 (CGB 2012) (Purple Withholding Order).

69 Id. at 8024, ¶ 27. Thus, the withholding of compensation is not a “penalty” for noncompliance, as the providers

have suggested. Rather, compensation is withheld because service provided on the day in question did not meet the

minimum TRS standards and therefore does not qualify as service entitled to compensation from the TRS Fund.

70 Id.

71 The sliding-scale approach abandoned in the Purple Withholding Order was actually much stricter than the

approach advocated by the providers here. Under the previously used sliding-scale approach discussed in the Purple

Withholding Order, a provider whose percentage of calls answered within the applicable time limit on a particular

day was 65 percent or lower would receive no compensation for that day. Under the approach currently advocated,

a provider who answered only 65 percent of the calls within the time limit would lose only 20 percent of its

compensation, i.e., would still receive 80 percent of its compensation. Indeed, even a provider who answered zero

percent of its calls within the time limit would lose only 85 percent of its compensation, i.e., would still receive 15

percent of its compensation, even though it did not answer a single call within the specified time limit.

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available to any provider.72 The providers have not shown why this individualized waiver process should

be short-circuited in favor of a major modification of the prospective approach to compensation specified

in the Purple Waiver Order.

27.

In reviewing any future requests for waiver of the speed-of-answer rule to excuse isolated

instances of noncompliance, we will consider carefully the information submitted by providers as to the

reasons for noncompliance. Although we will continue to apply rigorously the Commission’s standards

for justification of waivers as outlined above, we invite providers to include in any such requests specific

details regarding the particular causes of spikes in demand and the particular factors such as severe

weather conditions and competing demands for sign language interpreters that may be affecting the

available supply of CAs for specific and limited periods of time.

C.

Request for Temporary Waiver of the 30-Second Standard

28.

Although we deny the requests for temporary waiver of the daily measurement rule and

for reinstatement of a sliding scale approach to compensation withholdings, we will grant a six-month

waiver of the 30-second speed-of-answer standard.

Under this waiver, for all providers, the 30-second

speed-of-answer standard, which is currently scheduled to take effect July 1, 2014, will be waived

through December 31, 2014.

Particularly in light of the information presented regarding limitations on

the rate of growth in the supply of interpreters,73 we are persuaded that the imposition of a 30-second

standard just six months after providers were required to adapt to a 60-second standard and a daily

compliance requirement could be disruptive to the supply of qualified interpreters and to providers’

ability to offer high quality service. Call data submitted by providers for the period from November 2013

through April 2014 indicate that, while most VRS providers’ performance during that period does satisfy

a 30 seconds / 85 percent standard on most days, VRS providers were failing to satisfy that standard about

two days per month, on average.74 Therefore, based on the information now available, it appears that the

change to a 30-second standard that is to take effect July 1, 2014, may require some providers to increase

staffing substantially75 and, given the apparent relative inelasticity of the supply of interpreters, may have

an adverse near-term impact on the quality of service to consumers if it takes effect when scheduled.76

72 For this reason, among others, we are not persuaded by the Collective Providers’ argument that a sliding scale is

preferable to full withholding of compensation for the day of a speed-of-answer violation “because, if an

unforeseeable event leads a provider to conclude that it will fail to meet the standard, it would not be reasonable for

the provider to take emergency steps to answer calls as fast as possible if it knows that it nevertheless may receive

no compensation for the period, while it would be reasonable to take emergency steps to get as close to the 85%

standard as possible if doing so will limit its penalty.” Collective Providers Letter at 2.

As a variant of the

“perverse incentives” argument addressed above with respect to daily measurement, this argument has a similar

weakness, in that the sliding scale approach arguably would undermine a provider’s incentives to make sure the

chance of a violation is as low as possible in the first place. Moreover, the availability of a waiver in appropriate

cases should offset any “perverse incentives” the full withholding approach might otherwise create. If a provider

were to slacken its efforts to comply on a day when it doubts it will meet the standard, such reduced efforts not only

would increase the likelihood that the standard will not in fact be met, but also would undermine any justification

the provider might otherwise be able to provide in support of a waiver.

73 See, e.g., Sorenson Letter at 3-4 (describing the process for educating and training qualified VRS interpreters and

providing an estimate of the number of available graduates and the attrition that occurs during and after that

process).

74 Analysis by RLSA based on providers’ speed-of-answer compliance data. The confidential analysis provided by

Sorenson regarding this issue, while not matching RLSA’s analysis exactly, is roughly consistent with it. See id.,

Exhibit 1 at 4-6.

75 See, e.g., id., Exhibit 1 at 12 (stating confidentially the number of additional interpreters that Sorenson believes it

would have needed in a recent, unusually challenging month to operate in compliance with a 30-second standard).

76 See, e.g., id. at 3-4; Letter from Shane H. Feldman, Executive Director, Registry of Interpreters for the Deaf, Inc.,

to Marlene H. Dortch, FCC Secretary (April 7, 2014) (noting research finding that “one of the top five stressors that

(continued….)

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29.

Deferring the effective date of the 30-second standard by six months provides an

appropriate additional period of time for the supply of interpreters to grow and thereby to mitigate any

short-term shortage of interpreters caused by increased staffing needs.77 Although this temporary waiver

of the 30-second standard will delay the improvement in functional equivalence that is expected to result,

we find that such delay will serve the public interest, on balance, by ensuring that quality of service is

maintained, avoiding undue disruption in the supply of interpreters, and allowing providers more

predictability and stability in their operations during the transition to faster speed-of-answer requirements.

30.

Therefore, we grant a six-month waiver of the effective date of the 30-second standard, in

order to permit providers additional time in which to assess their staffing needs and to prepare to meet the

further enhanced speed-of-answer requirements, including when there are unanticipated spikes in

demand. During the six-month period of this waiver we expect VRS providers to prepare to meet the 30-

second standard, measured on a daily basis, beginning January 1, 2015.78 However, in light of the

Commission’s determination to monitor provider compliance and to “re-visit the speed-of-answer

standard in the future if necessary,”79 we invite providers to submit additional information to the Bureau

regarding any challenges and costs of achieving compliance, so that we can consider such information in

developing recommendations for future policy development in this area.80 We also invite providers and

others to submit information on the extent to which other factors, such as changes in providers’ work

rules, are affecting the supply of interpreters and whether improvements in working conditions and

employment practices could alleviate some of the problems reported by providers in maintaining staffing

levels.81

IV.

ORDERING CLAUSES

31.

Accordingly, IT IS ORDERED that, pursuant to the authority contained in sections 4(i)

and 4(j) and 225 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 154(j) and 225,

(Continued from previous page)

leads to burnout for video relay interpreters is the rate at which calls come in” and expressing concern that, if a

faster standard is implemented without a sufficient transition period, “video interpreters will face increased risk of

injury and burn out, thereby shrinking the pool of qualified video interpreters available to work in VRS”).

77 For example, this delay allows interpreters graduating from interpreting degree programs in June 2014

approximately six months to prepare for certification examinations and/or complete VRS training before entering

the work force to assist providers in staffing up to ensure compliance with the 30-second standard. See generally

Sorenson Letter at 3-4.

78 We limit the period of this waiver to six months because we are not convinced that the current difficulties

identified by the providers regarding recruitment of interpreters and achieving daily compliance with a 30-second

standard are so severe and persistent as to warrant a longer waiver period. For example, Sorenson’s analysis of its

historical speed-of-answer record over an entire year shows that Sorenson’s overall speed-of-answer performance

for the last 12 months was substantially better than its recent 2014 performance, even though Sorenson arguably had

less incentive to maximize its speed of answer in 2013, before the 60-second, measured-daily standard became

effective. Id., Exhibit 1 at 7.

79 2013 VRS Reform Order, 28 FCC Rcd at 8673, ¶ 141.

80 See, e.g., id. at 8718, ¶ 265 (seeking information on the costs and benefits of a further reduction in the wait-time

portion of the standard and on whether compliance with a further modified standard should continue to be measured

on a daily basis).

81 See, e.g., Comments of Communications Workers of America and National Interpreter Action Network, CG

Docket No. 10-51, at 2-3 (filed Aug. 19, 2013) (stating that, in the past, providers have “respond[ed] to tighter

benchmarks not by hiring more video interpreters, but instead by imposing unrealistic and harmful ‘work speed-up’”

requirements, causing video interpreters to reduce their VRS hours or leave the industry). See also id. at 4 (arguing

that non-competition agreements in VRS employment contracts “artificially remove video interpreters from the

available labor pool”).

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and sections 0.141, 0.361 and 1.3 of the Commission’s rules, 47 C.F.R. §§ 0.141, 0.361 and 1.3, this

Order IS ADOPTED.

32.

IT IS FURTHER ORDERED that the requests of VRS providers for temporary waiver of

the speed-of-answer rule ARE GRANTED to the extent and subject to the conditions set forth above and

are otherwise DENIED, and that section 64.604(b)(2)(iii)(A)(3) of the Commission’s Rules (47 C.F.R. §

64.604(b)(2)(iii)(A)(3)) IS WAIVED through December 31, 2014.

33.

IT IS FURTHER ORDERED that the temporary waiver granted herein SHALL BE

EFFECTIVE upon release of this Order.

FEDERAL COMMUNICATIONS COMMISSION

Kris Anne Monteith

Acting Chief

Consumer and Governmental Affairs Bureau

12

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