Telecom Law Blog

As previously noted in our June 1 posting, the Federal Communications Commission (FCC) has extended its Telecommunications Relay Service (TRS) requirements, which oblige telecommunications service providers and manufacturers to afford persons with hearing and speech-impaired disabilities reasonable access to telephone services and equipment.

The FCC’s new Order and rules, which have now been released, impose these obligations on “interconnected” [to the public switched network] Voice over Internet Protocol (VoIP) providers and manufacturers of VoIP handsets and other equipment. Some of these requirements will become effective for VoIP providers and manufacturers 60 days after they are published in the Federal Register, while others (involving collection of information) must await OMB approval. All told, we estimate the requirements will be phased in over a four- to seven-month time frame.

As described in our previous advisory, the new regulations require VoIP providers to offer (and manufacturers to enable) various types of TRS—which typically involves an interplay of voice, text and/or video components and an operator’s intervention—and to the extent “readily achievable,”¹ to designate an agent for receipt and handling of accessibility complaints and inquiries, and to send this information to the FCC for posting on the agency’s website. In addition, all interconnected VoIP providers and equipment manufacturers are required to: (1) consider accessibility of covered equipment and services throughout their design, development, and fabrication, as early and consistently as possible; (2) where employee training is provided, consider accessibility issues in the development of such training; and (3) maintain records of the entity’s accessibility efforts that can be presented to the FCC in the event that consumers with disabilities file complaints. Interconnected VoIP providers must also offer abbreviated “711” dialing to access these relay services.

Finally, and importantly, VoIP providers will now be required to contribute a percentage of their interstate revenues into the federal TRS Fund, and to file FCC Form 499-A (used to calculate such contributions, as well as Universal Service Fund and other contributions) on an annual basis. In turn, VoIP providers will be eligible for compensation from the fund for the TRS services they provide.

The FCC once again declined to classify VoIP as a “telecommunications” service subject to the panoply of regulations applied to providers of such services, but instead found that “[b]ecause consumers have a reasonable expectation that interconnected VoIP services are replacements for traditional phone service, the same disability access protections that currently apply to telephony must apply to interconnected VoIP.” This pronouncement fits the FCC’s pattern over the past two years of applying a growing variety of public-safety, consumer-protection and law-enforcement-related obligations on interconnected VoIP services. The FCC has already imposed 911/E911, universal service, CALEA (wiretapping) and, most recently, CPNI (subscriber privacy) obligations on interconnected VoIP services.

FCC Chairman Kevin Martin has stated that the agency will “continue to evaluate” the applicability of other telephone-type obligations to VoIP, including numbering and other consumer protection measures, in order to “protect the interests of consumers and establish a competitively neutral playing field for competing services.” Interconnected VoIP providers and equipment manufacturers thus may expect additional FCC regulation in the future.

The details of these new regulatory requirements and contribution obligations are complex in their applicability and implementation. For further information, please contact one of the below-listed DWT attorneys.

Footnote

¹ If the requirement is not “readily achievable,” the provider must ensure that the service is compatible with existing devices or specialized customer premise equipment (CPE) commonly used by individuals with disabilities to achieve access. A provider also must ensure, if readily achievable, that information and documentation provided in connection with an interconnected VoIP service is accessible. A manufacturer of equipment or CPE designed to provide interconnected VoIP service must ensure, if readily achievable, that the equipment is designed and fabricated to be usable by individuals with disabilities. If such compliance is not readily achievable, the manufacturer must ensure that the equipment is compatible with existing devices or specialized CPE commonly used by individuals with disabilities to achieve access, if such compatibility is readily achievable. A covered manufacturer also must ensure that information and documentation provided in connection with covered interconnected VoIP equipment or CPE is accessible—again, if such accessibility is readily achievable.

For more information, please contact:

James M. Smith, Washington, D.C., (202) 973-4200, jamesmsmith@dwt.com
K.C. Halm, Washington, D.C., (202) 973-4200, kchalm@dwt.com
Gregory J. Kopta, Seattle, Washington, (206) 622-3150, gregkopta@dwt.com

This advisory is a publication of the Communications Group of Davis Wright Tremaine LLP. Our purpose in publishing this advisory is to inform our clients and friends of recent developments in the communications industry. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may be given only in response to inquiries regarding particular situations.

Copyright © 2007, Davis Wright Tremaine LLP.