WhyDom

On May 28, 2008, the FCC issued yet another declaratory order relating to TRS (Telecommunications Relay Service) providing clarification of a 2007 order related to the use of customer information by TRS providers. By issuing the clarification order, the Commission is seeking to avoid litigation initiated by TRS providers regarding their right to contact and communicate with users of TRS. The ADA (Americans with Disabilities Act) mandated that the FCC implement, regulate, and fund TRS in 1990. At the time the law was enacted, Congress could not have known that a can of worms was opened that was not intended. Among the TRS issues have recently been addressed by the FCC are: a) dealing unidentifiable foreign credit card scammers using the system, b) instructing businesses receiving the TRS calls from scammers to avoid the calls but not hang up because doing so is a violation the ADA, d) authorizing internet video relay providers (VRS) reimbursement by the TRS fund at a rate of $6.74 per minute , e) prohibiting TRS providers offering rebates and incentives to callers to use more minutes, f) requiring VoIP providers to fund the TRS, and f) regulating “competition” among TRS providers.

The legal history of the May 28, 2008 TRS Declaratory Ruling is the following. In late 2004, Hands On Video Relay Services, Inc. requested a declaratory ruling from the Commission’s Consumer & Governmental Affairs Bureau regarding its practice of providing incentives to callers. The customer loyalty program, known as the “Brown Bag Rewards Program” gave callers points that could be redeemed by having the VRS vendor make payments for their broadband bills. On January 26, 2005, the Commission issued a declaratory order prohibiting any program offering rewards or incentives as a violation of 47 USC 255 making the vendor “ineligible” for TRS Funding. To be ineligible for TRS funding is the life blood for providers offering solely TRS services. The Commission reasoned that TRS existed to provide functional equivalency of dial tone for deaf subscribers. TRS providers were authorized to provide the accommodation but not incentives.

On the same day, January 26, 2005, the Commission also reviewed VRS “marketing” practices and found that contacting consumers using the VRS to encourage more calling “constitutes an improper use of information obtained from consumers using the service, is inconsistent with the notion of functional equivalency, and may constitute a fraud on the Interstate TRS Fund because the Fund, and not the consumer, pays for the cost of the VRS call.”

On November 19, 2007, the Commission in its TRS Cost Recovery Declaratory Ruling expanded further its prohibition on TRS marketing practices. The marketing ruling was directed at a practice in the TRS industry of using customer identifying information obtained from users of TRS services for various purposes such as encouraging the TRS callers to make more and longer calls on a TRS providers’ service or contacting Congress or the FCC to support the provider’s TRS issues.

The Commissioned ordered the TRS providers to not use the customer information for any purpose to contact the customers including lobbying: “a provider may not contact its customers, by an automated message, postcards, or otherwise, to inform them about pending TRS compensation issues and urge them to contact the Commission about the compensation rates.” (It seems that the lobbying efforts were overly effective!) The Commission ordered TRS providers not to talk or communicate with their users: “they may not use consumer or call data to contact TRS users or to in any way attempt to affect or influence, directly or indirectly, their use of relay service.”

The TRS providers were not happy about not being able to contact their users and complained that the order violated their First Amendment rights of free speech. Other providers of “dial tone” – event those providers of last resort or “universal service” did not have the same prohibitions. In January 2008, one of the TRS providers, Sorenson Communications, Inc., filed a “Petition for Review” with the U.S. Court of Appeals for the Tenth Circuit seeking a stay from the Commission pending resolution of its Petition for Review. The Petition claimed that the requirements to not use the customer information to communicate with the customers were unconstitutionally vague, violated the First Amendment rights, and were procedurally deficient under the Administrative Procedure Act. After this filing, the Commission halted the order pending review through a stay and then on May 28, 2008 issued a clarifying order.

In the May 28, 2008 clarification order the Commission held that some communication using the customer information was appropriate including allowing TRS providers to communicate “important information” such as “critical public safety information” or the about “handling of relay calls.” The communications must be “informational in nature and must relate to the provision of, or the consumer’s use of, TRS.” The Commission clarified that lobbying and advocating are not an “informational” communications: “providers may not use customer information obtained through the provision of federally-funded relay services, or use funds obtained from the Interstate TRS Fund, to engage in lobbying or advocacy activities directed at relay users. Evidence in the record shows that at least one service provider has bombarded deaf persons with material seeking to persuade them to support the provider’s position on matters pending before the FCC.”

The order further clarified, in order to address the First Amendment claims, that what was prohibited was using the customer information to lobby but that lobbying itself was permissible. The order explained that TRS funds received from the federally subsidized TRS services and the resulting information obtained from customers where the customer contact was subsided should be used for providing the accommodation and not for increasing minutes or lobbying.

It is clear that other providers of telecommunications and broadband services receive federal funding from the universal service fund paid for through access charges and subscriber lines charges for providing high cost rural users with dial tone or broadband. There are no orders prohibiting these providers from using their customer information through bill inserts or emails to encourage their customers to lobby or use their service more often.

It seems that the Commission is wading deeper and deeper into a TRS swamp. There are few good answers to the problems of providing dial tone for the deaf and at the same time keeping out unlawful scammers and protecting businesses from scammers who are calling the TRS providers. However, shutting down the TRS providers from communicating with their legitimate customers for purposes of lobbying or increasing use of the system is not one of the solutions.