FCC Rule on IP and Video Relay Fraud

1 June 2006

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[Federal Register: June 1, 2006 (Volume 71, Number 105)]
[Proposed Rules]
[Page 31131-31137]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01jn06-27]

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CG Docket No. 03-123; FCC 06-58]

Telecommunications Relay Services and Speech-to-Speech Services
for Individuals With Hearing and Speech Disabilities; Misuse of
Internet Protocol (IP) Relay Service and Video Relay Service

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Commission addresses the misuse of the
two Internet-based forms of Telecommunications Relay Service (TRS),
Internet Protocol (IP) Relay Service and Video Relay Service (VRS), and
seeks comment on possible changes to the TRS regulations to curtail
their misuse.

DATES: Comments are due on or before July 3, 2006. Reply comments are
due

[[Page 31132]]

on or before July 17, 2006. Written comments on the Paperwork Reduction
Act (PRA) proposed information collection requirements must be
submitted by the general public, Office of Management and Budget (OMB),
and other interested parties on or before July 31, 2006.

ADDRESSES: You may submit comments, identified by CG Docket number 03-
123 and/or FCC Number 06-58, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.

Follow the instructions for submitting comments.
Federal Communications Commission's Web site: http://www.fcc.gov/cgb/ecfs/.
Follow the instructions for submitting comments.

People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by e-mail: FCC504@fcc.gov or phone (202) 418-
0539 or TTY: (202) 418-0432.
For detailed instructions for submitting comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document. In addition, a copy of any
comments on the PRA information collection requirements contained
herein should be submitted to Leslie Smith, Federal Communications
Commission, Room 1-A804, 445 12th Street, SW., Washington, DC 20554, or
via the Internet to Leslie.Smith@fcc.gov, and to Kristy L. LaLonde, OMB
Desk Officer, Room 10234 NEOB, 725 17th Street, NW., Washington, DC
20503, or via the Internet to Kristy_L._LaLonde@omb.eop.gov, or via
fax at (202) 395-5167.

FOR FURTHER INFORMATION CONTACT: Gregory Hlibok, Consumer &
Governmental Affairs Bureau, Disability Rights Office at (202) 418-1475
(voice), (202) 418-0597 (TTY), or e-mail at Gregory.Hlibok@fcc.gov. For
additional information concerning the PRA information collection
requirements contained in this document, contact Leslie Smith at (202)
418-0217, or via the Internet at Leslie.Smith@fcc.gov.

SUPPLEMENTARY INFORMATION: The Further Notice of Proposed Rulemaking,
Telecommunications Relay Services and Speech-to-Speech Services for
Individuals with Hearing and Speech Disabilities; Misuse of Internet
Protocol Relay Service and Video Relay Service (IP Relay Fraud FNPRM);
CG Docket No. 03-123, FCC 06-58, contains proposed information
collection requirements subject to the PRA of 1995, Public Law 104-13.
It will be submitted to the Office of Management and Budget (OMB) for
review under Sec. 3507 of the PRA. OMB, the general public, and other
Federal agencies are invited to comment on the proposed information
collection requirements contained in this document. This is a summary
of the Commission's IP Relay Fraud FNPRM, FCC 06-58, adopted May 3,
2006, and released May 8, 2006, in CG Docket No. 03-123.
Pursuant to Sec. Sec. 1.415 and 1.419 of the Commission's rules,
47 CFR 1.415 and 1.419, interested parties may file comments and reply
comments on or before the dates indicated on the first page of this
document. Comments may be filed using: (1) the Commission's Electronic
Comment Filing System (ECFS), (2) the Federal Government's eRulemaking
Portal, or (3) by filing paper copies. See Electronic Filing of
Documents in Rulemaking Proceedings, 63 FR 24121, May 1, 1998.
Electronic Filers: Comments may be filed electronically
using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ or the Federal eRulemaking Portal: http://www.regulations.gov. Filers

should follow the instructions provided on the Web site for submitting
comments.
For ECFS filers, if multiple docket or rulemaking numbers
appear in the caption of this proceeding, filers must transmit one
electronic copy of the comments for each docket or rulemaking number
referenced in the caption. In completing the transmittal screen, filers
should include their full name, U.S. Postal Service mailing address,
and the applicable docket or rulemaking number, which in this instance
is CG Docket No. 03-123. Parties may also submit an electronic comment
by Internet e-mail. To get filing instructions, filers should send an
e-mail to ecfs@fcc.gov, and include the following words in the body of
the message, ``get form .'' A sample form and
directions will be sent in response.
Paper Filers: Parties who choose to file by paper must
file an original and four copies of each filing. If more than one
docket or rulemaking number appears in the caption in this proceeding,
filers must submit two additional copies of each additional docket or
rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial
overnight courier, or by first-class or overnight U.S. Postal Service
mail (although the Commission continues to experience delays in
receiving U.S. Postal Service mail). All filings must be addressed to
the Commission's Secretary, Office of the Secretary, Federal
Communications Commission.
The Commission's contractor will receive hand-delivered or
messenger-delivered paper filings for the Commission's Secretary at 236
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing
hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be
held together with rubber bands or fasteners. Any envelopes must be
disposed of before entering the building.
Commercial mail sent by overnight mail (other than U.S.
Postal Service Express Mail and Priority Mail) must be sent to 9300
East Hampton Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority
mail should be addressed to 445 12th Street, SW., Washington, DC 20554.
Pursuant to Sec. 1.1200 of the Commission's rules, 47 CFR 1.1200,
this matter shall be treated as a ``permit-but-disclose'' proceeding in
which ex parte communications are subject to disclosure. Persons making
oral ex parte presentations are reminded that memoranda summarizing the
presentations must contain summaries of the substance of the
presentation and not merely a listing of the subjects discussed. More
than a one or two sentence description of the views and arguments
presented is generally required. Other requirements pertaining to oral
and written presentations are set forth in Sec. 1.1206 (b) of the
Commission's rules.
People With Disabilities: To request materials in accessible
formats for people with disabilities (Braille, large print, electronic
files, audio format), send an e-mail to fcc504@fcc.gov or call the
Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202)
418-0432 (TTY).

Initial Paperwork Reduction Act of 1995 Analysis

The IP Relay Fraud FNPRM contains proposed information collection
requirements. The Commission, as part of its continuing effort to
reduce paperwork burdens, invites the general public and the Office of
Management and Budget (OMB) to comment on the information collection
requirements contained in this document, as required by the Paperwork
Reduction Act of 1995, Public Law 104-13. Public and agency comments
are due July 31, 2006. Comments should address: (a) Whether the
proposed collection of information is necessary for the proper
performance of the functions of the Commission, including whether the
information shall have practical utility; (b) the accuracy of the
Commission's burden estimates; (c) ways to enhance the quality,
utility, and

[[Page 31133]]

clarity of the information collected; and (d) ways to minimize the
burden of the collection of information on the respondents, including
the use of automated collection techniques or other forms of
information technology. In addition, pursuant to the Small Business
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506
(c)(4), the Commission seeks specific comment on how it may ``further
reduce the information collection burden for small business concerns
with fewer than 25 employees.''
OMB Control Number: 3060-1089.
Title: Telecommunications Relay Services and Speech-to-Speech
Services for Individuals with Hearing and Speech Disabilities;
Emergency Access NPRM and IP Relay/VRS Fraud FNPRM, CG Docket No. 03-
123.
Form No.: N/A.
Type of Review: Revision of a currently approved collection.
Number of Respondents: 8--(6 of which provides VRS and IP Relay
service; 2 of which provides VRS).
Number of Responses: 5,001,190.
Respondents: Business and other for-profit entities; State, local
or tribal government.
Estimated Time per Response: 4 to 1,000 hours.
Frequency of Response: Annual, one-time, and on occasion reporting
requirement; Recordkeeping; Third party disclosure.
Total Annual Burden: 22,848 hours.
Total Annual Costs: $0.
Privacy Act Impact Assessment: No impact(s).
Needs and Uses: On May 8, 2006, the Commission released a Further
Notice of Proposed Rulemaking, Telecommunications Relay Services and
Speech-to-Speech Services for Individuals with Hearing and Speech
Disabilities; Misuse of Internet Protocol (IP) Relay Service and Video
Relay Service (IP Relay Fraud FNPRM), CG Docket No. 03-123, FCC 06-58
which contains the following information collection requirements
involving user registration, e.g., callers register to use VRS and IP
Relay and provide their requisite information as necessary:
The IP Relay Fraud FNPRM seeks comment on: (1) Whether IP Relay and
VRS providers should be required to implement user registration system
in which users provide certain information to their providers, in
advance, as a means of curbing illegitimate IP Relay and VRS calls; (2)
what information should be required of the user; (3) whether there are
steps that could be taken, or technology implemented, to prevent the
wrongful use of registration information; and (4) whether the
Commission should require VRS and IP Relay providers to maintain
records of apparently illegitimate calls that were terminated by the
providers.

Note: The Commission is merging the IP Relay Fraud FNPRM
collection with the Emergency Access NPRM collection to avoid
duplications.

Synopsis

IP Relay is a form of text-based TRS that uses the Internet, rather
than the Public Switched Telephone Network (PSTN). See Provision of
Improved TRS and Speech to Speech Services for Individuals with Hearing
and Speech Disabilities, CC Docket No. 98-67, Declaratory Ruling and
Second Further Notice of Proposed Rulemaking; published at 67 FR 39863,
June 11, 2002 and 67 FR 39929, June 11, 2002 (IP Relay Declaratory
Ruling) (recognizing IP Relay as a form of TRS). VRS is a form of TRS
that allows communication via American Sign Language (ASL) using video
equipment. See 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, 5152-5154, paragraphs 21-27 (March 6,
2000); published at 65 FR 38432, June 21, 2000 and 65 FR 38490, June
21, 2000 (Improved TRS Order and FNPRM) (recognizing VRS as a form of
TRS); 47 CFR 64.601 (17) (defining VRS). Currently, if IP Relay and VRS
are offered in compliance with the TRS mandatory minimum standards, see
47 CFR 64.604; Telecommunications Relay Services and Speech-to-Speech
Services for Individuals with Hearing and Speech Disabilities, CC
Dockets 90-571 and 98-67 and CG Docket 03-123, Report and Order, Order
on Reconsideration, and Further Notice of Proposed Rulemaking;
published at 69 FR 53346, September 1, 2004 and 69 FR 53382, September
1, 2004 (2004 TRS Report and Order and FNPRM) (discussing how TRS
works), the costs of providing the services are reimbursed from the
Interstate TRS Fund (Fund), which is overseen by the Commission.
Improved TRS Order and FNPRM, 15 FCC Rcd 5152-5154, paragraphs 23-27.
Generally, the Interstate TRS Fund compensates providers for providing
interstate TRS services, and the states compensate providers for
providing intrastate TRS services. Presently, however, all VRS and IP
Relay calls are compensated from the Interstate TRS Fund. The question
of whether the Commission should adopt a mechanism for the
jurisdictional separation of costs for these services is pending. 2004
TRS Report and Order and FNPRM, 19 FCC Rcd at 12561-12564, paragraphs
221-230 (IP Relay), at 12567, paragraphs 241-242 (VRS).

Misuse of IP Relay

The Commission continues to receive complaints and anecdotal
evidence that IP Relay is being misused by persons without a hearing or
speech disability to defraud merchants by making purchases over the
telephone using stolen, fake, or otherwise invalid credit cards, and to
make harassing or ``prank'' calls. See generally FCC Reminds Public of
Requirements Regarding Internet Relay Service and Issues Alert, Public
Notice, 19 FCC Rcd 10740 (June 18, 2004) (IP Relay Fraud Public
Notice); published at 69 FR 41478, July 9, 2004. Although such conduct
may be illegal, because IP Relay calls reach the relay center via the
Internet, and the calling party and the communications assistant (CA),
the TRS provider employee who handles the call, communicate only by
text, the CA presently receives no identifying information.
Consequently, IP Relay affords users a degree of anonymity that is
generally not possible with PSTN-based relay calls. Because TTY based
TRS calls are made over the PSTN, the call to the relay center includes
identifying information such as the calling party's number. That
information is used to determine if the call is interstate or
intrastate for compensation purposes under Section 255 of the
Communications Act, but also has the effect of deterring the misuse of
TRS because the relay provider knows where the inbound call is coming
from. As a result, some persons have discovered that they may misuse IP
Relay. In a typical scenario involving fraudulent credit card
purchases, a person places an IP Relay call, usually from outside the
United States, to a business located within the United States, places
an order for goods (most often commodity items that can be quickly
resold), pays with a stolen or fraudulent credit card, and arranges for
the goods to be shipped to a location outside the United States.
Such misuse is harmful both to the merchants who are victimized and
legitimate IP Relay users who may no longer be able to convince
merchants to accept their orders for merchandise. In addition, the
Commission is concerned about the impact that such misuse may have on
the Fund. For example, interstate telecommunications carriers that pay
into the Fund (and generally pass those costs on to their customers)
should not be paying more because of the misuse of funded services.

[[Page 31134]]

The Commission has previously alerted the public and the business
community to take precautionary steps to ensure that the credit card
information received through IP Relay is legitimate. See (IP Relay
Fraud Public Notice). The Commission noted that IP Relay providers are
developing methods to determine which calls are attempts to make
fraudulent purchases, and have successfully prevented some fraudulent
purchase calls that can be identified as originating overseas from
reaching their intended victims. The Commission also recommended that
merchants report any suspected fraudulent purchase calls to the Federal
Trade Commission, Federal Bureau of Investigation, or their state
authorities. Although the Commission has worked with the providers on
ways to eliminate or minimize these fraudulent purchase calls, it does
not appear that the frequency of such calls has diminished.
The Commission also noted the present difficulty in preventing
fraudulent purchase calls because of the nature and purpose of TRS. Due
to the transparent nature of the CA's role in handling a TRS call, the
CA may not interfere with the conversation. The Commission also noted
that the TRS statutory and regulatory regime does not contemplate that
CAs should have a law enforcement role by monitoring the conversations
they are relaying. The current TRS regulations, for example, prohibit
CAs from refusing calls, and generally prevent CAs from disclosing or
keeping records of the contents of any call. In addition, the
regulations prohibit the CAs from intentionally altering a relayed
conversation, and require them to relay all calls verbatim. The
Commission adopted these regulations as part of the functional
equivalency principle to ensure that relay users, like voice telephone
users, may access the telephone system and have any conversation they
want, confidentially, despite the fact that the call involves a third
person (the CA).

Misuse of VRS as Substitute for an In-Person Interpreter or a Video
Remote Interpreting (VRI) Service

The Commission continues to receive anecdotal evidence that VRS is
being used in circumstances that do not involve access to the telephone
system, and therefore are not appropriate for a relay service. VRS is
not to be used as a substitute for in-person interpreting services or
for Video Remote Interpreting (VRI). See, e.g., Reminder that Video
Relay Service (VRS) Provides Access to the Telephone System Only and
Cannot be Used as a Substitute for ``In-Person'' Interpreting Services
or Video Remote Interpreting (VRI), Public Notice, DA 05-2417
(September 7, 2005) (VRS-VRI Public Notice), published at 70 FR 59346,
October 12, 2005 (noting that the Commission continues to receive
reports that this is occurring, and reminding, in part, that VRS ``is
to be used only when a person with a hearing disability, who absent
such disability would make a voice telephone call, desires to make a
call to a person without such a disability through the telephone
system''); see Telecommunications Relay Services and Speech-to-Speech
Services for Individuals with Hearing and Speech Disabilities, CC
Docket No. 98-67, Order on Reconsideration, 6 FCC Rcd 4054, at 4058
(June 5, 2000), paragraph 10; see also Telecommunications Relay
Services and Speech-to-Speech Services for Individuals with Hearing and
Speech Disabilities, Order on Reconsideration (2005 ASL-to-Spanish VRS
Order), 20 FCC Rcd 13154, paragraph 32, note 109; published at 70 FR
54294, September 14, 2005. Generally, in-person interpreters are
contracted and paid on a fee-for-service basis. Similarly, VRI is a
commercial service that is used when an interpreter cannot be
physically present to interpret for two or more persons who are
together at the same location. This service uses a video connection to
provide access to an interpreter who is at a remote location. As with
in-person interpreters, VRI services are generally contracted and paid
on a fee-for-service basis. The Commission recently noted that although
``VRS providers generally have procedures in place to terminate calls
where VRS is being used as a way to obtain free interpreting services,
* * * persons misusing VRS may be doing so in ways to avoid detection,
and are also publicizing these methods via consumer bulletin boards and
other means.''

Discussion

Misuse of IP Relay

The Commission seeks comment on whether it should waive or modify
certain TRS rules to permit IP Relay providers and their CAs to screen
out and, where appropriate, terminate calls they determine are not
legitimate TRS calls. These include, for example, calls made by hearing
persons to merchants to purchase goods with stolen or fraudulent credit
cards. The Commission notes that in other contexts, e.g., Speech-to-
Speech (STS), the Commission has permitted the CA to step out of the
role of strictly being a transparent conduit that relays the call. See
Improved TRS Order and FNPRM, 15 FCC Rcd 5140, at 5162-5165 paragraphs
49-58 (modifying certain rules for STS calls, including the requirement
that the CA relay the call verbatim); see also 2004 TRS Report and
Order and FNPRM, 19 FCC Rcd at 12571-12573, paragraphs 249, 255-258
(June 30, 2004) (FNPRM raises the issues whether VRS CAs should be able
to ask questions to the VRS user during call set-up, and whether the
TRS provider or CA should be given the discretion to decline to handle
or terminate abusive calls directed at the CA or called party). At the
same time, the Commission recognizes that permitting CAs to step out of
their role as invisible conduits in a call may create tension with the
functional equivalency principle. The Commission invites comment on
steps the Commission might take, consistent with Section 225 of the
Communications Act, to permit providers to prevent or terminate such
calls, even if that means waiving, amending or modifying for IP Relay
some of the Commission's TRS mandatory minimum standards.
More particularly, the Commission seeks comment on whether the IP
Relay provider or CA should be given the discretion to determine that a
call is not a legitimate TRS call on a case-by-case basis, and to
block, terminate, or refuse to handle the call, alert the merchant who
receives the call that the call may be fraudulent, or take some other
steps to prevent the misuse of IP Relay. The Commission also seeks
comment on whether it should adopt rules to guide the exercise of that
discretion.
Moreover, the Commission seeks comment on whether an IP Relay
provider and its CAs can generally determine whether a call to a
merchant is for the purpose of fraudulently purchasing goods, and
therefore is likely not by a person with a hearing or speech disability
seeking access to the telephone system. For example, we understand that
there are many readily identifiable indicia of IP Relay calls to
merchants by persons seeking to make fraudulent credit card purchases,
including that the caller will only pay via credit card; offers more
than one credit card number for payment; will not identify him or
herself or provide a company name; uses names in reverse (last name as
first, first as last); does not negotiate price; will not agree to pay
in advance via a check, bank wire, or bank draft; has few questions
about the product and lacks knowledge about the product; refuses to
call back using the state's relay service; and changes the payment or
delivery arrangements after an order has been approved. The Commission
seeks comment on whether there are other ways in which a provider

[[Page 31135]]

may determine if a particular call is not a legitimate relay call?
The Commission seeks comment on whether additional steps, such as
user registration, might be adopted to curtail the misuse of IP Relay.
If the Commission adopted registration as a means of curbing
illegitimate IP Relay calls, how might registration be implemented and
what information should be required of the user? Are there steps that
could be taken, or technology implemented, to prevent the wrongful use
of registration information?
The Commission further seeks comment on whether there is any
statutory bar to the Commission adopting rules that would give the TRS
providers a role in curtailing the misuse of IP Relay. In addition, the
Commission seeks comment on whether any procedures should be employed
to safeguard legitimate calls and ensure consumers' confidence in the
integrity and confidentiality of IP Relay service. Assuming an IP Relay
provider or CA is permitted to terminate a call determined to be
illegitimate, should the provider nevertheless be compensated for the
conversation time of the call prior to termination? Further, if the
Commission were to allow the IP Relay provider and the CA discretion to
disconnect apparently illegitimate calls, should the provider be
required to maintain records of such terminated calls, consistent with
Section 225(d)(F) of the Communications Act? Would it be appropriate to
include in such records the date, time, and nature of the call and the
reason why the provider or CA determined that the call was
illegitimate?
Finally, the Commission requests commenters to consider whether
Section 705 of the Communications Act, 47 U.S.C. 605, or any other
federal or state statute, would restrict the Commission's authority to
take any of the remedial actions discussed above. Section 705 of the
Communications Act prohibits, in part, persons who assist in receiving
and transmitting telephone calls from divulging or publishing the
existence or contents of a call except in certain enumerated
circumstances. See 47 U.S.C. 605(a). The Commission seeks comment, for
example, on whether Section 705 of the Communications Act applies to
TRS CAs and, if so, whether permitting a CA to terminate a relay call
based on information derived from the CA's role in relaying the call
would be precluded by this provision. The Commission also requests
parties to provide any additional information that may be relevant to
preventing the misuse of IP Relay.

Misuse of VRS as Substitute for an In-Person Interpreter or a Video
Remote Interpreting Service

The Commission seeks comment on whether, and if so, how, it can
ensure that VRS is not used as a substitute for hiring an in-person
interpreter or a VRI service. Is it possible for VRS providers and
their CAs to determine whether a particular VRS call is a legitimate
call or is being used as a substitute for an in-person interpreting
service or VRI? Do VRS providers presently have procedures in place to
ensure that the VRS calls they handle and submit to the Fund
administrator for payment are legitimate VRS calls? If not, what
procedures could be implemented to prevent such abuse?
The Commission further seeks comment on whether the VRS provider or
CA should be given the discretion to make the determination that a call
is not a legitimate VRS call, and to terminate the call. If so, should
it adopt rules to guide the exercise of this discretion? Should the
Commission waive or modify any of the TRS regulations to enable VRS
providers to ensure that the calls they handle are legitimate?
The Commission also seeks comment on whether additional steps, such
as user registration, might be adopted to curtail the misuse of VRS.
How might registration be implemented and what information should be
required of the user? Are there steps that could be taken, or
technology implemented, to prevent the wrongful use of registration
information?
The Commission further seeks comment on whether any procedures
should be employed to safeguard legitimate calls and ensure consumers'
confidence in the integrity and confidentiality of VRS. Assuming a VRS
provider or CA is permitted to terminate a call determined to be
illegitimate, should the provider nevertheless be compensated for the
conversation time of the call prior to termination? Further, if the
Commission were to allow the VRS provider and the CA discretion to
disconnect apparently illegitimate VRS calls, should the provider be
required to maintain records of such terminated calls, consistent with
Section 225(d)(i)(F) of the Communications Act? 47 U.S.C. 225(d)(i)(F)
(prohibiting CAs from ``keeping records of the content'' of any call
beyond the duration of the call). Would it be appropriate to include in
such records the date, time, and nature of the call and the reason why
the provider or CA determined that the call was illegitimate?
Finally, the Commission requests commenters to consider whether
Section 705 of the Communications Act, 47 U.S.C. 605, or any other
federal or state statute, would restrict the Commission's authority to
take any of the remedial actions discussed above. The Commission also
requests parties to provide any additional information that may be
relevant to our resolution of this issue.

Initial Regulatory Flexibility Analysis

As required by the Regulatory Flexibility Act of 1980, as amended
(RFA), the Commission has prepared this present Initial Regulatory
Flexibility Analysis (IRFA) of the possible significant economic impact
on a substantial number of small entities by the policies and rules
proposed in this IP Relay Fraud FNPRM. See 5 U.S.C. 603. The RFA, see 5
U.S.C. 601 et. seq., has been amended by the Contract With America
Advancement Act of 1996, Public Law Number 104-121, 110 Statute 857
(1996) (CWAAA). Title II of the CWAAA is the Small Business Regulatory
Enforcement Fairness Act of 1996 (SBREFA). Written public comments are
requested on this IRFA. Comments must be identified as responses to the
IRFA and must be filed by the deadlines for comments on the IP Relay
Fraud FNPRM provided in paragraph 24 of the IP Relay Fraud FNPRM. The
Commission will send a copy of the IP Relay Fraud FNPRM, including this
IRFA, to the Chief Counsel for Advocacy of the Small Business
Administration (SBA). See 5 U.S.C. 603(a).

Need for, and Objectives of, the Proposed Rules

Providers of telecommunications relay services (TRS), mandated by
Title IV of the Americans with Disabilities Act of 1990, relay
telephone calls between persons with hearing and speech disabilities
and persons without such disabilities. See 47 U.S.C. 225. Under the
Commission's regulations, the communications assistant (CA) may not
refuse calls or disclose the contents of any call. The Commission
adopted these regulations as part of the functional equivalency
principle to ensure that relay users, like voice telephone users, may
access the telephone system and have any conversation they want,
confidentially, despite the fact that the call involves a third person
(the CA). See 47 U.S.C. (a)(3). IP Relay and VRS offer consumers
anonymity because the call is placed via the Internet, and not the
PSTN, the Commission has become aware that these services are being
misused. Persons have been using IP Relay to purchase goods from
merchants using

[[Page 31136]]

stolen or fraudulent credit cards. Such misuse is harmful both to the
merchant who is defrauded and legitimate relay users who may no longer
be able to convince merchants to accept orders via relay. With respect
to VRS, the Commission has expressed concern that it is being misused
as a substitute for hiring a Video Remote Interpreting (VRI) service or
an in-person interpreter. The Commission is also concerned that the
rapid and steady increase in the size of the Interstate TRS Fund may in
part be a result of such misuse of IP Relay and VRS. Therefore, the IP
Relay Fraud FNPRM seeks comment on whether the Commission should waive
or modify certain TRS rules to permit IP Relay and VRS providers to
screen out and, where appropriate, terminate, IP Relay calls involving
fraudulent credit card purchases or VRS calls that are illegitimate.
These TRS rules might include those that prevent a CA from refusing
calls, generally prohibit a CA from disclosing or keeping records of
the content of a call, prohibit a CA from intentionally altering a
relayed conversation, and required CAs to relay calls verbatim. See 47
CFR 64.604(a)(2)(i) and (ii).
More specifically, the IP Relay Fraud FNPRM provisionally considers
granting the IP Relay provider or CA the discretion to determine that a
call is not a legitimate TRS call on a case-by-case basis, and to
block, terminate, or refuse to handle the call, alert the merchant who
receives the call that the call may be fraudulent. The IP Relay Fraud
FNPRM also asks for any recommendation on a possible alternative
measure to prevent the misuse of IP Relay. In doing so, the Commission
contemplates adopting new rules that guide the provider and the CA the
exercise of that discretion. Further, the proposed user registration is
being contemplated as an additional measure to curtail the misuse of IP
Relay. The IP Relay Fraud FNPRM also asks for an alternative measure.
The IP Relay Fraud IP Relay Fraud FNPRM provisionally proposes
that, assuming an IP Relay provider or CA were granted the discretion
to disconnect apparently illegitimate calls, the provider should be
required to maintain records of such terminated calls, consistent with
Section 225 (d)(i)(f) of the Communications Act. 47 U.S.C. 225
(d)(i)(f) (prohibiting CAs from ``keeping records of the content'' of
any call beyond the duration of the call). The IP Relay Fraud FNPRM
contemplates on any rule changes permitting IP Relay providers or CAs
to terminate apparently illegitimate calls be made permanently or
temporarily.
The IP Relay Fraud FNPRM seeks input on whether Section 705 of the
Communications Act, 47 U.S.C. 605, or any other federal or state
statute, may restrict the Commission's authority to take any of the
remedial actions discussed above. See, e.g., 18 U.S.C. 2511 (which is
noted in Section 705 of the Communications Act). Finally, the IP Relay
Fraud FNPRM asks whether the providers that terminated these apparently
illegitimate calls should be compensated from the Interstate TRS Fund
nonetheless.
In contemplating an appropriate measure to ensure that VRS is not
used as a substitute for an in-person interpreter of VRI service, the
IP Relay Fraud FNPRM asks for recommendation on how the Commission can
ensure that VRS is not being misused. The IP Relay Fraud FNPRM proposes
a possible rule change that grants the VRS provider or CA the
discretion to make the determination that a call is not a legitimate
VRS call, and to terminate the call. The IP Relay Fraud FNPRM also
tentatively considers waiving or modifying certain TRS regulations to
enable VRS providers to ensure that the calls they handle are
legitimate.
In addition, the proposed user registration is being contemplated
as an additional measure to curtail the misuse of VRS. The IP Relay
Fraud FNPRM contemplates whether rule changes permitting VRS providers
or CAs to terminate apparently illegitimate calls should be made
permanent or temporary. Finally, the IP Relay Fraud FNPRM asks whether
the provider that terminated these apparently illegitimate calls should
be compensated from the Interstate TRS Fund nonetheless.

Legal Basis

The authority for the actions proposed in this IP Relay Fraud FNPRM
may be found in Sections 1, 4(i) and (j), 201-205, 218 and 225 of the
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i) and (j),
201-205, 218 and 225, and Sec. Sec. 64.601-64.608 of the Commission's
regulations, 47 CFR 64.601-64.608.

Description and Estimate of the Number of Small Entities To Which the
Proposed Rules Will Apply

The RFA directs agencies to provide a description of, and where
feasible, an estimate of the number of small entities that may be
affected by the proposed rules, if adopted. 5 U.S.C. 603(b)(3). The RFA
generally defines the term ``small entity'' as having the same meaning
as the terms ``small business,'' ``small organization,'' and ``small
governmental jurisdiction.'' 5 U.S.C. 601(6). In addition, the term
``small business'' has the same meaning as the term ``small business
concern'' under the Small Business Act. 5 U.S.C. 601(3) (incorporating
by reference the definition of ``small business concern'' in the Small
Business Act, 15 U.S.C. 632). Pursuant to the 5 U.S.C. 601(3), the
statutory definition of a small business applies ``unless an agency,
after consultation with the Office of Advocacy of the Small Business
Administration and after opportunity for public comment, establishes
one or more definitions of such term which are appropriate to the
activities of the agency and publishes such definition(s) in the
Federal Register.'' A small business concern is one which: (1) Is
independently owned and operated; (2) is not dominant in its field of
operation; and (3) satisfies any additional criteria established by the
SBA. 15 U.S.C. 632.
As noted above, the IP Relay Fraud FNPRM seeks comment on whether
IP Relay and VRS providers should be given the discretion to determine
that a call is not a legitimate TRS call on a case-by-case basis, and
to block, terminate, or refuse to handle the call, or (for IP Relay)
alert the merchant who receives the call that the call may be
fraudulent, or take some other steps to prevent the misuse of IP Relay
and VRS. As a result, the Commission believes that the entities that
may be affected by the proposed rules are only those TRS providers that
offer IP Relay and VRS. Neither the Commission nor the SBA has
developed a definition of ``small entity'' specifically directed toward
TRS providers. The closest applicable size standard under the SBA rules
is for Wired Telecommunications Carriers, for which the small business
size standard is all such firms having 1,500 or fewer employees. 13 CFR
121.201, NAICS Code 517110. Currently, there are eight TRS providers
that offer VRS and/or IP Relay, which consist of interexchange
carriers, local exchange carriers, other common carriers, and non-
profit organizations. Approximately three or fewer of these entities
are small businesses under the SBA size standard. See National
Association for State Relay Administration (NASRA) Statistics. These
numbers are estimates because of recent and pending mergers and
partnerships in the telecommunications industry.

Description of Projected Reporting, Recordkeeping and Other Compliance
Requirements

The IP Relay Fraud FNPRM's proposed rules would permit CAs to
terminate certain IP Relay and VRS calls in circumstances where they
believe the

[[Page 31137]]

call is illegitimate. A registration requirement, if adopted, might
require VRS and IP Relay providers to register each user so that the
provider would have identifying information of the person making the
call, and might require the provider or user to update this information
as necessary. The rules, if adopted, might also require the providers
to keep records of calls that are terminated.

Steps Taken To Minimize Significant Economic Impact on Small Entities,
and Significant Alternatives Considered

The RFA requires an agency to describe any significant,
alternatives, specific to small businesses, that it has considered in
reaching its proposed approach, which may include the following four
alternatives (among others): ``(1) the establishment of differing
compliance or reporting requirements or timetables that take into
account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance or
reporting requirements under the rule for small entities; (3) the use
of performance rather than design standards; and (4) an exemption from
coverage of the rule, or any part thereof, for small entities.'' 5
U.S.C. 603(c)(1)--(4).
The Commission considers the proposed rule changes in the IP Relay
Fraud FNPRM as a possible means of achieving the competing public
policy goals of ensuring that TRS works as a transparent conduit for
the calling and called parties and preventing the misuse of IP Relay
and VRS services. The IP Relay Fraud FNPRM invites comment on a number
of alternative means by which IP Relay and VRS providers might
undertake to curtail illegitimate calls. For example, the IP Relay
Fraud FNPRM asks if the Commission should amend TRS rules to allow
providers the discretion to refuse or terminate illegitimate IP Relay
and VRS calls.
The IP Relay Fraud FNPRM also seeks comment on other means by which
the Commission might curtail the misuse of IP Relay and VRS, including
by adopting a registration requirement. The Commission also asks if
there may be alternatives to requiring registration or imposing new
obligations on providers, such as waiving certain TRS calls. These
alternatives could mitigate any burden the proposed registration
requirement might have on small businesses.
The Commission notes that by promulgating the rules in allowing the
provider and the CA the discretion to terminate apparent illegitimate
calls, it would lessen an adverse economic impact on small businesses.
The proposed rule change would save many small businesses that may be
affected by these illegitimate calls. For instance, small businesses
are more vulnerable with illegitimate calls involving fraudulent credit
card purchases because they often are not equipped to verify the credit
card numbers. The proposed rule change that calls for granting the
provider and the CA the discretion to terminate apparent illegitimate
calls would not create an additional financial burden on any provider,
including small businesses.
The IP Relay Fraud FNPRM contemplates requiring the providers to
maintain records of terminated calls, and seeks comment on what these
records should include. The IP Relay Fraud FNPRM notes, however, that
such a requirement might conflict with the Commission's rules, and also
seeks comment on this issue. The IP Relay Fraud FNPRM therefore
contemplates that it may not be possible to require providers to
maintain any records.
Further, the IP Relay Fraud FNPRM also invites comment on whether
any proposed rule change and/or requirement should be permanent or
temporary. To the extent the adopted measure requiring the providers to
maintain records is temporary, any burden on small businesses would be
lessened.

Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules

None.

Ordering Clauses

Pursuant to Sections 1, 4(i) and (o), 225, 303(r), 403, 624(g), and
706 of the Communications Act of 1934, as amended, 47 U.S.C. 151,
154(i) and (o), 225, 303(r), 403, 554(g), and 606, this Further Notice
of Proposed Rulemaking is adopted.
The Commission's Consumer & Governmental Affairs Bureau, Reference
Information Center, shall send a copy of this Further Notice of
Proposed Rulemaking, including the Initial Regulatory Flexibility
Analysis, to the Chief Counsel for Advocacy of the Small Business
Administration.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. E6-8489 Filed 5-31-06; 8:45 am]

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