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

Federal Communications Commission FCC 08-138

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of

Telecommunications Relay Services

And Speech-to-Speech Services for

Individuals with Hearing and Speech

Disabilities

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CG Docket No. 03-123

DECLARATORY RULING

Adopted: May 28, 2008 Released: May 28, 2008

By the Commission:

I. INTRODUCTION

1. In the 2007 TRS Cost Recovery Declaratory Ruling, the Commission reminded

telecommunications relay service (TRS) providers1 seeking compensation from the Interstate TRS Fund

(Fund) of the prohibition, announced in previous Commission rulings, against offering consumers

financial or other tangible incentives to make relay calls.2 The 2007 TRS Cost Recovery Declaratory

Ruling also called attention to previous instances where the Commission had imposed restrictions on TRS

providers� use of consumer or call databases to contact TRS consumers.3 In order to clarify the scope of

those restrictions, the Commission provided examples, in paragraphs 95 and 96 of the 2007 TRS Cost

Recovery Declaratory Ruling, of certain prohibited uses of consumer or call database information by TRS

providers, including restrictions on the use of such information, among other things, �[to] attempt to �

influence � [consumers�] use of relay service,� or �for lobbying or any other purpose.�4 We continue to

1 TRS, mandated by Title IV of the Americans with Disabilities Act (ADA) of 1990, enables an individual with a

hearing or speech disability to communicate by telephone with a person without such a disability. See 47 U.S.C. �

225; 47 C.F.R. � 64.601 et seq. (implementing regulations). This is accomplished through TRS facilities staffed by

specially trained communications assistants who relay conversations between persons using various types of

assistive communication devices and persons using a standard telephone

ech disability to communicate by telephone with a person without such a disability. See 47 U.S.C. �

225; 47 C.F.R. � 64.601 et seq. (implementing regulations). This is accomplished through TRS facilities staffed by

specially trained communications assistants who relay conversations between persons using various types of

assistive communication devices and persons using a standard telephone. There are presently several forms of TRS,

including Video Relay Service (VRS), IP Relay, and IP captioned telephone service, which are Internet-based

services. See generally Telecommunications Relay Services and Speech-to-Speech Services for Individuals with

Hearing and Speech Disabilities, Report and Order, Order on Reconsideration, and Further Notice of Proposed

Rulemaking, CC Docket Nos. 90-571 & 98-67, CG Docket No. 03-123, 19 FCC Rcd 12475, 12479-86, paras. 3-13

(June 30, 2004) (2004 TRS Report & Order).

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

Speech Disabilities, CG Docket No. 03-123, Report and Order and Declaratory Ruling, 22 FCC Rcd 20140,

20173-76, paras. 89-96 (Nov. 19, 2007) (2007 TRS Cost Recovery Declaratory Ruling).

3 See, e.g., id., 22 FCC Rcd at 20174, para. 91.

4 Id., 22 FCC Rcd at 20176, paras. 95-96. In paragraphs 95 and 96, the Commission stated, in relevant part, that:

[A]part from attempting to generate additional calls that can be billed to the Fund, providers also may

not use a consumer or call database to contact TRS users for lobbying or any other purpose. The

Commission has made clear � that TRS customer profile information cannot be used for any purpose

other than handling relay calls

raphs 95 and 96, the Commission stated, in relevant part, that:

[A]part from attempting to generate additional calls that can be billed to the Fund, providers also may

not use a consumer or call database to contact TRS users for lobbying or any other purpose. The

Commission has made clear � that TRS customer profile information cannot be used for any purpose

other than handling relay calls. Therefore, for example, a provider may not contact its customers, by

(continued....)

Federal Communications Commission FCC 08-138

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believe that reasonable restrictions on the use of consumer information are necessary to prevent improper

marketing practices and to ensure that interstate TRS funds are used for their intended purpose. However,

to address concerns that paragraphs 95 and 96 of the 2007 TRS Cost Recovery Declaratory Ruling may be

overly broad, we clarify the language set forth in those paragraphs, as explained more fully below. The

restrictions on provider-consumer contacts, as clarified here, apply to relay providers in connection with

their offering of interstate relay services, including all Internet-based relay calls and any other relay calls

that are compensated by the Fund.5

II. BACKGROUND

2. Title IV of the ADA requires common carriers offering telephone voice transmission

services to also provide TRS throughout the area in which they offer service to ensure that persons with

hearing and speech disabilities have access to the telephone system. As we have explained, Congress, in

enacting Title IV, �place[d] the obligation on carriers providing voice telephone services to also offer

TRS to, in effect, remedy the discriminatory effects of a telephone system inaccessible to persons with

disabilities.�6 To this end, Section 225 is intended to ensure that individuals with hearing or speech

disabilities have access to telephone services that are �functionally equivalent� to those available to

individuals without such disabilities.7

3

ice telephone services to also offer

TRS to, in effect, remedy the discriminatory effects of a telephone system inaccessible to persons with

disabilities.�6 To this end, Section 225 is intended to ensure that individuals with hearing or speech

disabilities have access to telephone services that are �functionally equivalent� to those available to

individuals without such disabilities.7

3. Because the provision of TRS is directed at ensuring that certain persons,

notwithstanding their disabilities, can access the telephone system, Congress mandated that the cost of the

TRS service is not paid by the TRS user.8 The statute and regulations provide that eligible TRS providers

offering interstate services and certain intrastate services will be compensated for their just and

�reasonable� costs of doing so from the Fund.9 Under this mechanism, TRS providers submit to the Fund

administrator on a monthly basis the number of minutes of service they provided of the various forms of

TRS, and the Fund administrator compensates them based on per-minute compensation rates. In addition,

(...continued from previous page)

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. Similarly, as noted

above, a provider may not use call data to monitor the TRS use by its customers (or the customers of

other providers) and to determine whether they are making a sufficient number of calls to warrant

further benefits from the provider

or otherwise, to inform them about pending TRS compensation

issues and urge them to contact the Commission about the compensation rates. Similarly, as noted

above, a provider may not use call data to monitor the TRS use by its customers (or the customers of

other providers) and to determine whether they are making a sufficient number of calls to warrant

further benefits from the provider.

In sum, because the obligation placed on TRS providers is to be available to handle calls consumers

choose to make, when they choose to make them, i.e., to be the �dial tone� for a consumer that uses

relay to call to a voice telephone user, and because consumers do not pay for this service but rather

providers are compensated pursuant to Title IV of the ADA, providers may not offer relay users

financial and similar incentives, directly or indirectly, to use their service. Likewise, 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.

Id. (internal footnotes omitted).

5 If, in the future, evidence comes to our attention of the misuse of consumer or call database information by

traditional TRS providers, in connection with their offering of intrastate relay services, we may revisit this issue and

consider the adoption of additional restrictions at that time.

6 See, e.g., 2004 TRS Report & Order, 19 FCC Rcd at 12543-45, paras. 179, 182 n.521.

7 See, e.g., 47 U.S.C. � 225(a)(3).

8 See, e.g., 2004 TRS Report & Order, 19 FCC Rcd at 12480-81, para. 4 n.23.

9 See, e.g., 47 C.F.R. � 64.604(c)(5)(iii)(E) (implementing 47 U.S.C. � 225(d)).

Federal Communications Commission FCC 08-138

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consumers using the Internet-based forms of TRS presently do not pay any long distance charges in

connection with a call.10 Therefore, there is no cost to the consumer for placing Internet-based relay calls.

4

Report & Order, 19 FCC Rcd at 12480-81, para. 4 n.23.

9 See, e.g., 47 C.F.R. � 64.604(c)(5)(iii)(E) (implementing 47 U.S.C. � 225(d)).

Federal Communications Commission FCC 08-138

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consumers using the Internet-based forms of TRS presently do not pay any long distance charges in

connection with a call.10 Therefore, there is no cost to the consumer for placing Internet-based relay calls.

4. As explained in the 2007 TRS Cost Recovery Declaratory Ruling, the Commission has

addressed TRS provider marketing and incentive programs directed at generating relay calls.11 First, the

2005 Financial Incentives Declaratory Ruling concluded that �any program that involves the use of any

type of financial incentives to encourage or reward a consumer for placing a TRS call� violates Section

225.12 The item reasoned that �[t]he fact that any TRS reward or incentive program has the effect of

enticing TRS consumers to make TRS calls that they would not otherwise make, which allows the

provider to receive additional payments from the Fund, and results in �payments� to consumers for using

the service, puts such programs in violation of Section 225.�13 The item explained that the obligation

placed on TRS providers is to be available to handle calls consumers choose to make, when they choose

to make them, and that �[b]ecause the Fund, and not the consumer, pays for the cost of the TRS call, such

financial incentives are tantamount to enticing consumers to make calls that they might not ordinarily

make.�14

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violation of Section 225.�13 The item explained that the obligation

placed on TRS providers is to be available to handle calls consumers choose to make, when they choose

to make them, and that �[b]ecause the Fund, and not the consumer, pays for the cost of the TRS call, such

financial incentives are tantamount to enticing consumers to make calls that they might not ordinarily

make.�14

5. Also in January 2005, the Commission released a Public Notice addressing impermissible

VRS marketing practices.15 This item noted that apparently �some providers use their customer database

to contact prior users of their service and suggest, urge, or tell them to make more VRS calls.�16 The item

concluded that �[t]his marketing practice constitutes an improper use of information obtained from

consumers using the service � 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.�17 The item further stated that �[e]ntities electing

to offer VRS (or other forms of TRS) should not be contacting users of their service and asking or telling

them to make TRS calls,� but rather �must be available to handle the calls that consumers choose to

make.�18

6. In the 2007 TRS Cost Recovery Declaratory Ruling, the Commission expressly

�reaffirm[ed] the 2005 Financial Incentives Declaratory Ruling and the 2005 TRS Marketing Practices

PN, and reiterate[d] that providers seeking compensation from the Fund may not offer consumers

financial or other tangible incentives, either directly or indirectly, to make relay calls.�19 The

Commission also specified in greater detail the nature and types of incentive programs that are

10 See 2004 TRS Report & Order, 19 FCC Rcd at 12524-25, paras. 127-29 & n.364.

11 2007 TRS Cost Recovery Declaratory Ruling, 22 FCC Rcd at 20173-74, paras. 89-91.

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

Disabilities, CC Docket No

mission also specified in greater detail the nature and types of incentive programs that are

10 See 2004 TRS Report & Order, 19 FCC Rcd at 12524-25, paras. 127-29 & n.364.

11 2007 TRS Cost Recovery Declaratory Ruling, 22 FCC Rcd at 20173-74, paras. 89-91.

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

Disabilities, CC Docket No. 98-67, CG Docket No. 03-123, Declaratory Ruling, 20 FCC Rcd 1466, para. 1 (Cons.

& Govt. Aff. Bur. Jan. 26, 2005) (2005 Financial Incentives Declaratory Ruling).

13 Id., 20 FCC Rcd at 1469, para. 8.

14 Id. The item added that in these circumstances, �TRS is no longer simply ... [a means] for persons with certain

disabilities [to access the telephone system], but an opportunity for their financial gain.� Id.

15 Federal Communications Commission Clarifies that Certain Telecommunications Relay Services (TRS) Marketing

and Call Handling Practices are Improper and Reminds that Video Relay Service (VRS) May Not be Used as a

Video Remote Interpreting Service, CC Docket No. 98-67, CG Docket No. 03-123, Public Notice, 20 FCC Rcd 1471

(Jan. 26, 2005) (2005 TRS Marketing Practices PN).

16 2005 TRS Marketing Practices PN, 20 FCC Rcd at 1473.

17 Id.

18 Id. The item also �question[ed] whether there are any circumstances in which it is appropriate for a TRS provider

to contact or call a prior user of their service,� given that �the role of the provider is to make available a service to

consumers ... under the ADA when a consumer may choose to use that service.� Id.

19 2007 TRS Cost Recovery Declaratory Ruling, 22 FCC Rcd at 20175, para. 92

8 Id. The item also �question[ed] whether there are any circumstances in which it is appropriate for a TRS provider

to contact or call a prior user of their service,� given that �the role of the provider is to make available a service to

consumers ... under the ADA when a consumer may choose to use that service.� Id.

19 2007 TRS Cost Recovery Declaratory Ruling, 22 FCC Rcd at 20175, para. 92.

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impermissible, clarified that �a financial incentive program is not permissible even in circumstances

where the benefit goes to a third party,� and stated that providers cannot condition the ongoing use or

possession of TRS equipment (or the receipt of upgraded equipment) on a consumer�s call volume.20 The

2007 TRS Cost Recovery Declaratory Ruling also addressed in greater detail providers� use of consumer

or call databases to contact consumers for lobbying or to attempt to influence their use of relay.21

7. Following release of the 2007 TRS Cost Recovery Declaratory Ruling, several TRS

providers, in filings with the Commission, asserted that the restrictions contained in paragraphs 95 and 96

violate the First Amendment rights of TRS providers.22 In January 2008, Sorenson Communications, Inc.

(Sorenson), filed a Petition for Review with the United States Court of Appeals for the Tenth Circuit

seeking judicial review of this language,23 and sought a stay from the Commission pending resolution of

its Petition for Review.24 Among other things, Sorenson contends that the restrictions contained in

paragraphs 95 and 96 are unconstitutionally vague, violate the First Amendment rights of TRS providers,

and are procedurally deficient under the Administrative Procedure Act.25 In order to give the

Commission sufficient time to consider the arguments presented by Sorenson and others, the

Commission�s Consumer & Governmental Affairs Bureau (CGB) issued an order on February 7, 2008,

granting a 90-day stay of paragraphs 95 and 96.26 The stay granted by tha

rst Amendment rights of TRS providers,

and are procedurally deficient under the Administrative Procedure Act.25 In order to give the

Commission sufficient time to consider the arguments presented by Sorenson and others, the

Commission�s Consumer & Governmental Affairs Bureau (CGB) issued an order on February 7, 2008,

granting a 90-day stay of paragraphs 95 and 96.26 The stay granted by that order was set to expire after

May 7, 2008, but was subsequently extended until May 28, 2008.27

III. DISCUSSION

8. We believe that reasonable restrictions on the use of consumer information are necessary

to prevent improper marketing practices and to ensure that interstate TRS funds are used for their

intended purpose. However, to address concerns that the restrictions set forth in paragraphs 95 and 96 of

the 2007 TRS Cost Recovery Declaratory Ruling may be overly broad and may have the unintended effect

of preventing TRS providers from communicating important information, including critical public safety

information, to TRS users relating to the handling of relay calls,28 we clarify the restrictions in those

20 Id. at 20175, paras. 92-94.

21 Id. at 20176, paras. 95-96; see supra note 4.

22 Letter from George L. Lyon, Jr., Hands On Video Relay Services, Inc., to Marlene H. Dortch, FCC, dated

December 12, 2007 (Hands On Ex Parte); Letter from Michael B. Fingerhut, Sprint Nextel Corporation, to Marlene

H. Dortch, FCC, dated December 14, 2007 (Sprint Ex Parte); Letter from Toni Acton, AT&T, Deb MacLean,

Communication Access Center for the Deaf and Hard of Hearing, Inc., Sean Belanger, CSDVRS, LLC, Mark Stern,

GoAmerica, Inc., Kelby Brick, Hands On Video Relay Services, Inc., Jeff Rosen, Snap Telecommunications, Inc.,

Michael D. Maddix, Sorenson Communications, Inc., Michael B. Fingerhut, Sprint Nextel Corporation, and Carla

Mathers, Viable, Inc., to Marlene H. Dortch, FCC, dated January 11, 2008 (Coalition Ex Parte).

23 Sorenson Communications v. FCC, Petition for Review, Nos

S, LLC, Mark Stern,

GoAmerica, Inc., Kelby Brick, Hands On Video Relay Services, Inc., Jeff Rosen, Snap Telecommunications, Inc.,

Michael D. Maddix, Sorenson Communications, Inc., Michael B. Fingerhut, Sprint Nextel Corporation, and Carla

Mathers, Viable, Inc., to Marlene H. Dortch, FCC, dated January 11, 2008 (Coalition Ex Parte).

23 Sorenson Communications v. FCC, Petition for Review, Nos. 08-9503 & 08-9507 (10th Cir., filed Jan. 16, 2008

(08-9503) and Jan. 23, 2008 (08-9507)) (Sorenson Petition for Review).

24 Sorenson, Request for Stay Pending Judicial Review, CG Docket No. 03-123 (filed Jan. 28, 2008) (Sorenson Stay

Request).

25 See generally Sorenson Stay Request.

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

Disabilities, Request for Stay Pending Judicial Review, CG Docket No. 03-123, Order, 23 FCC Rcd 1705 (CGB

Feb. 7, 2008).

27Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech

Disabilities, Request for Stay Pending Judicial Review, CG Docket No. 03-123, Order, DA 08-1079 (CGB rel. May

6, 2008).

28 Coalition Ex Parte at 1-2.

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paragraphs. We also provide examples of the circumstances in which providers may use consumer or call

databases to contact relay users.

9. First, we clarify that the language in paragraphs 95 and 96 restricting the use of consumer

information �for any � purpose,� does not prohibit contacts by TRS providers with TRS users that are

directly related to the handling of TRS calls

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paragraphs. We also provide examples of the circumstances in which providers may use consumer or call

databases to contact relay users.

9. First, we clarify that the language in paragraphs 95 and 96 restricting the use of consumer

information �for any � purpose,� does not prohibit contacts by TRS providers with TRS users that are

directly related to the handling of TRS calls. Consistent with the Commission�s TRS rules and orders,

providers may use information derived from a consumer or call database established in conjunction with

Section 225 to contact users as long as it is for purposes related to the handling of relay calls.29

Therefore, for example, a provider reasonably could directly contact relay users (using such customer

information) in order to inform users of a service outage, respond to a consumer�s call for emergency

services, assist in the delivery of emergency services, and provide technical support for TRS products or

services used by the consumer.30 Providers also may use such customer data, for example, to comply

with a federal statute, a Commission rule or order, a court order, �or other lawful authority.�31 We

emphasize that any such direct contacts with relay users must be informational in nature and must relate

to the provision of, or the consumer�s use of, TRS.32 On the other hand, providers may not contact

consumers and offer financial or other incentives to generate additional or longer calls that can be billed

to the Fund because such contacts are not directly related to the purpose of handling relay calls. We may

29 See, e.g., Telecommunications Relay Services and Speech-to-Speech Service 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, 5175, para. 83 (March 6, 2000) (stating that providers may not use such data �for any purpose other than

the provision of TRS�)

f handling relay calls. We may

29 See, e.g., Telecommunications Relay Services and Speech-to-Speech Service 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, 5175, para. 83 (March 6, 2000) (stating that providers may not use such data �for any purpose other than

the provision of TRS�). We have received a significant amount of confidential, anecdotal, or other evidence

(including copies of mailings from VRS providers to consumers) indicating that some providers contact consumers

to alert them to matters unrelated to the actual handling of relay calls. See, e.g., infra note 33.

30 Under this Declaratory Ruling, Snap!VRS reasonably could contact users, as it reportedly did in January 2008, to

inform them of a service outage. See Email from Snap!VRS Customer Service to Snap!VRS Customer (embedded

in email from Jeff Rosen, Snap!VRS, to FCC Staff (dated Jan. 30, 2008)). On the contrary, correspondence, such as

that reportedly sent by Snap!VRS to VRS users recently discussing a payment dispute between Snap!VRS and a

particular video phone manufacturer, would not be considered related to the actual handling of relay calls and

therefore, upon the effective date of this Declaratory Ruling, could not be sent directly to VRS users. See Ex parte

letter from Edward Bosson, Consumer, to FCC staff (dated Feb. 29, 2008) (attaching Letter from Richard

Schatzberg, CEO, Snap!VRS to Snap!VRS Customers, dated Feb. 6, 2008).

31 Coalition Ex Parte at 1-2. We do not address the request in the Coalition Ex Parte that we explicitly allow the

disclosure of user-specific information to third parties designated by the user and information to protect TRS users

from fraudulent, abusive or unlawful use of TRS. Id. at 2

(attaching Letter from Richard

Schatzberg, CEO, Snap!VRS to Snap!VRS Customers, dated Feb. 6, 2008).

31 Coalition Ex Parte at 1-2. We do not address the request in the Coalition Ex Parte that we explicitly allow the

disclosure of user-specific information to third parties designated by the user and information to protect TRS users

from fraudulent, abusive or unlawful use of TRS. Id. at 2. We believe this issue would be better addressed in the

context of the Commission�s consideration of whether, and if so, how to extend customer proprietary network

information (CPNI) requirements to TRS providers. See Telecommunications Relay Services And Speech-To-Speech

Services For Individuals With Hearing And Speech Disabilities, E911 Requirements For IP-Enabled Service

Providers, CG 03-123, WC 05-196, Report and Order, 23 FCC Rcd 5255 (Mar. 19, 2008) (Interim Emergency Call

Handling Order); Consumer & Governmental Affairs Bureau Seeks to Refresh Record on Assigning Internet

Protocol (IP)-Based Telecommunications Relay Service (TRS) Users Ten-Digit Telephone Numbers Linked to North

American Numbering Plan (NANP) and Related Issues, CG Docket No. 03-123, Public Notice, 23 FCC Rcd 4727

(Mar. 19, 2008) (IP-Based Relay Numbering PN) (seeking to refresh the record on the proposed establishment of a

global database of proxy telephone numbers for Internet-based TRS users and on consumer protection issues related

to numbering, including the application of CPNI requirements).

32 In a Letter from Claude L. Stout, Executive Director, Telecommunications for the Deaf and Hard of Hearing, Inc.,

to Marlene H. Dortch, FCC, dated May 21, 2008 (incorporating a May 20, 2008 e-mail submitted on behalf of the

Deaf and Hard of Hearing Consumer Advocacy Network) (Consumer Ex Parte), consumer advocates asked the

Commission to ensure that consumers be asked by providers to opt-in to receiving marketing and promotional

materials before receiving such information directly from providers

Inc.,

to Marlene H. Dortch, FCC, dated May 21, 2008 (incorporating a May 20, 2008 e-mail submitted on behalf of the

Deaf and Hard of Hearing Consumer Advocacy Network) (Consumer Ex Parte), consumer advocates asked the

Commission to ensure that consumers be asked by providers to opt-in to receiving marketing and promotional

materials before receiving such information directly from providers. We do not address the request in the Consumer

Ex Parte; rather, we believe this issue would be better addressed in the context of the Commission's consideration of

whether, and if so, how to extend CPNI requirements to TRS providers. See Interim Emergency Call Handling

Order; IP-Based Relay Numbering PN.

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revisit these determinations if specific facts are brought to our attention suggesting an abuse of this

proviso.

10. Second, we clarify that 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.33 We find that using revenue from the TRS

Fund, or information obtained from end users in the provision of services supported by the TRS Fund, to

engage in that kind of advocacy is inconsistent with the purpose of the TRS Fund.

11. These restrictions do not run afoul of the First Amendment. In the context of a federally

subsidized program, like the TRS Fund, the government �may certainly insist that these �public funds be

spent for the purposes for which they were authorized.��34 The TRS Fund is designed to ensure that

persons with hearing and speech disabilities have access to the telephone system

he TRS Fund.

11. These restrictions do not run afoul of the First Amendment. In the context of a federally

subsidized program, like the TRS Fund, the government �may certainly insist that these �public funds be

spent for the purposes for which they were authorized.��34 The TRS Fund is designed to ensure that

persons with hearing and speech disabilities have access to the telephone system. It was not intended to

finance lobbying by TRS providers directed at end users. The Commission is under no obligation �to

fund such activities out of the public fisc.�35 We find that, for the same reasons, it is reasonable to restrict

the use of customer information acquired in the provision of federally subsidized TRS services. A

consumer or call database that a service provider develops and maintains through participation in the TRS

program is inextricably tied to that federally funded program. Consequently, it is permissible to prohibit

the use of that database for purposes unrelated to the handling of relay calls,36 such as lobbying end users

to support a service provider�s position before the Commission.

12. We emphasize that nothing we do here would prevent a provider from using information

and funds from other sources to engage in lawful lobbying or advocacy activities. Thus, this is not an

�unconstitutional conditions� case in which the government �effectively prohibit[ed] the recipient from

engaging in the protected conduct outside the scope of the federally funded program.�37 TRS providers

are free to use those resources outside the scope of the TRS program to support their positions before the

Commission.

13. Finally, we reiterate that a relay provider may not use TRS consumer or call data, or

similar, privately obtained information, to contact a relay user in an attempt to increase, directly or

indirectly, the number or length of relay calls the user otherwise may choose to make via that provider

ources outside the scope of the TRS program to support their positions before the

Commission.

13. Finally, we reiterate that a relay provider may not use TRS consumer or call data, or

similar, privately obtained information, to contact a relay user in an attempt to increase, directly or

indirectly, the number or length of relay calls the user otherwise may choose to make via that provider. In

this instance, because the practice itself (i.e., offering users financial or similar incentives to generate

additional or longer calls that can be billed to the Fund) is prohibited by the Commission,

communications with relay users in furtherance of this practice are likewise prohibited, no matter the

33 See, e.g., Ex parte letter from Jon Ziev, consumer, to Kevin Martin, FCC (dated Feb. 4, 2008) (complaining that

deaf persons are being subjected to a �virtual bombardment of lobbying material�).

34 United States v. American Library Ass�n, 539 U.S. 194, 212 (2003) (quoting Rust v. Sullivan, 500 U.S. 173, 196

(1991)).

35 Rust, 500 U.S. at 198.

36 See supra para. 9.

37 Rust, 500 U.S. at 197; see also Regan v. Taxation With Representation of Washington, 461 U.S. 540, 544-46

(1983) (holding that tax exemption for non-profit groups that do not engage in lobbying did not violate First

Amendment; and noting that a group could qualify for the tax exemption by adopting a �dual structure,� with one

arm for non-lobbying activities and another for lobbying); DKT Int�l, Inc. v. United States Agency for Int�l

Development, 477 F.3d 758 (D.C Cir. 2007) (rejecting First Amendment challenge to requirement that recipients of

funds from AIDS/HIV education program adopt policy of opposition to prostitution and sexual trafficking, and

noting that recipients could remain neutral by setting up a subsidiary that would receive the funds and adopt the

policy).

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source of the consumer or call data

7) (rejecting First Amendment challenge to requirement that recipients of

funds from AIDS/HIV education program adopt policy of opposition to prostitution and sexual trafficking, and

noting that recipients could remain neutral by setting up a subsidiary that would receive the funds and adopt the

policy).

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source of the consumer or call data. Because the obligation placed on relay providers is to be available to

handle calls consumers choose to make, when they choose to make them, i.e., to be the �dial tone� for a

consumer that uses relay to call a voice telephone user, and because consumers do not pay for this service

but rather providers are compensated pursuant to Title IV of the ADA, we find that these restrictions are

necessary to prevent providers from improperly urging consumers to make unnecessary relay calls, and

therefore to ensuring that interstate TRS funds are used for their intended purpose. By highlighting

examples of both permissible and prohibited uses of consumer or call database information above, we

seek to ensure that Interstate TRS funds are not used for activities that are outside the scope of, or

incompatible with the purposes of, the Interstate TRS Fund, as defined by Congress.

14. We note that the restrictions on provider-consumer contacts, as clarified here, apply to

relay providers in connection with their offering of interstate relay services, including all Internet-based

relay calls and any other relay calls that are compensated by the Interstate TRS Fund. As noted above,

however, if, in the future, evidence comes to our attention of the misuse of consumer or call database

information by traditional TRS providers, in connection with their offering of intrastate relay services, we

may revisit this issue and consider the adoption of additional restrictions at that time.

IV. CONCLUSION

15

ls that are compensated by the Interstate TRS Fund. As noted above,

however, if, in the future, evidence comes to our attention of the misuse of consumer or call database

information by traditional TRS providers, in connection with their offering of intrastate relay services, we

may revisit this issue and consider the adoption of additional restrictions at that time.

IV. CONCLUSION

15. We find that the clarifications set forth above will help ensure that the limits of the

federal TRS program are observed, without placing undue restrictions on provider-user communications.

In particular, by prohibiting the use of consumer or call database information that is obtained through the

provision of federally funded relay services, and the use of funds obtained from the Interstate TRS Fund

for purposes unrelated to the handling of relay calls, we conclude that the restrictions on provider-user

communications, as clarified herein, will better serve the goals of the Interstate TRS Fund without

interfering with day-to-day contacts between providers and consumers that are necessary to the proper

handling of relay calls.

V. PROCEDURAL MATTERS

16. Paperwork Reduction Act. This document does not contain new or modified information

collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In

addition, therefore, it does not contain any new or modified �information collection burden for small

business concerns with fewer than 25 employees,� pursuant to the Small Business Paperwork Relief Act

of 2002, Public Law 107-198, see 44 U.S.C. � 3506(c)(4).

17. Congressional Review Act. The Commission will not send a copy of the Declaratory

Ruling pursuant to the Congressional Review Act, see 5 U.S.C. � 801(a)(1)(A) because the adopted rules

are rules of particular applicability.

18. Materials in Accessible Formats

than 25 employees,� pursuant to the Small Business Paperwork Relief Act

of 2002, Public Law 107-198, see 44 U.S.C. � 3506(c)(4).

17. Congressional Review Act. The Commission will not send a copy of the Declaratory

Ruling pursuant to the Congressional Review Act, see 5 U.S.C. � 801(a)(1)(A) because the adopted rules

are rules of particular applicability.

18. Materials in Accessible Formats. To request materials in accessible formats (such as

braille, large print, electronic files, or audio format), send an e-mail to fcc504@fcc.gov or call the

Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice) or (202) 418-0432 (TTY). This

Declaratory Ruling can also be downloaded in Word and Portable Document Formats (PDF) at

http://www.fcc.gov/cgb/dro/trs.html#orders.

VI. ORDERING CLAUSES

19. Accordingly, IT IS ORDERED that, pursuant to the authority contained in Sections 1, 2,

and 225 of the Communications Act of 1934, as amended, 47 U.S.C. �� 151, 152, and 225, this

Declaratory Ruling IS hereby ADOPTED.

Federal Communications Commission FCC 08-138

8

20. IT IS FURTHER ORDERED that this Declaratory Ruling shall become effective upon

release.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary