Position Statement on Functionally Equivalent Telecommunications for Deaf and Hard of Hearing People

INTRODUCTION

The National Association of the Deaf (NAD) asserts that all telecommunications[1] equipment and services must be accessible to and usable by people who are deaf and hard of hearing.[2]  Equal access to telecommunications is absolutely necessary for deaf and hard of hearing individuals to have equal opportunities in education, employment, public and private programs and services, and everyday life. Existing laws[3] mandate access to telecommunications for deaf people, but it is imperative to update on a periodic basis federal regulations and guidelines to incorporate all existing, new, emerging, and future telecommunications equipment and services to ensure ongoing accessibility. To avoid delays in accessibility and usability as well as possible expensive retrofitting, telecommunications equipment and services should be subject to universal design principles. Further, where telephone usage is available to individuals who are not deaf, similar access must be afforded for people who are deaf such as in the workplace; in places of lodging; in prisons and jails; and in government and public venues. The NAD appreciates the efforts of the Federal Communications Commission (FCC) to fulfill the telecommunications requirements of the Americans with Disabilities Act (ADA) of 1990, the Telecommunications Act of 1996, and the 21^st Century Communications and Video Accessibility Act of 2010, but urges that further steps be taken to go beyond preserving existing services and achieve the goal of functionally equivalent telephone services as well as equal access to all telecommunication services.

FUNCTIONALLY EQUIVALENT TELEPHONE SERVICES

In 1990, Congress mandated nationwide Telecommunications Relay Services (“TRS” or “relay services”) through Title IV of the ADA[4] (47 U.S.C.) to provide functionally equivalent telephone transmission services to deaf and hard of hearing individuals.

The term “telecommunications relay services” means telephone transmission services that provide the ability for an individual who is deaf, hard of hearing, Deaf-Blind, or who has a speech disability to engage in communication by wire or radio with one or more individuals, in a manner that is functionally equivalent to the ability of a hearing individual who does not have a speech disability to communicate using voice communication services by wire or radio.[5]

Relay services carry out the purposes intended by the Communications Act “to make available to all individuals in the United States a rapid, efficient nationwide communication service, and to increase the utility of the telephone system of the Nation.”[6]  Although direct communication is generally preferred and should be enabled whenever possible, relay services fill the gap when telecommunications equipment and services are not directly accessible. Relay services are available for use and benefit all users, deaf and hearing.

As telephone services and technology evolve, so does the scope and achievement of functional equivalence. At one time, typed text communication was considered the functional equivalent of voice communication. Today, captioning, video, and other technologies have changed what functional equivalency means. Accessibility and functional equivalency gaps in existing and new services need to be resolved, and gaps in emerging and future services must be anticipated and avoided whenever possible. All areas and aspects of functionally equivalent telephone services must be addressed, including but not limited to the following.

·      Unrestricted Availability of Relay Services

At the present time, all forms of relay services (video, text, captioned telephone, etc.) are provided on a 24-hour, seven-days-a-week basis without exception. Such unrestricted availability of relay services is functionally equivalent to voice communication telephone services and must continue for existing and new relay services. Relay services must also be available without restriction on mobile phones including where both voice and data function are necessary to carry out the relay call.

·      Emergency Preparedness and Response

Emergency preparedness plans must include measures to continue or resume the delivery of relay services as a priority in the event of disruptions to telecommunications services caused by natural or man-made disasters. Those measures may include redundant off-site information storage, transfer of services to an alternate site or service provider, and priority restoration. In addition, emergency preparedness plans must include, at emergency services facilities (such as but not limited to police and fire stations), accessible telecommunications services including appropriate devices and technologies that meet the needs of deaf individuals.

·      International Telephone Services

International calls using any relay service should be enabled and allowed when the call originates from or terminates to telecommunications equipment, including software, identified with a U.S. based North American Numbering Plan (NANP) 10-digit telephone number.

In addition, direct international point-to-point calls (without using any relay service) made with accessible telecommunications equipment, such as TTYs or videophones, should be enabled and allowed when the call originates from or terminates to telecommunications equipment, including software, identified with a U.S. based NANP telephone number (with the use of any necessary international codes).

The FCC has imposed restrictions on the use of relay services for Americans traveling internationally, specifically to require Americans to register in advance of such travel for special use of video relay services and only for a limited time of four weeks. International IP Relay calls are not permitted at all. Such restrictions unduly limit the capabilities of Americans who pursue studies or careers abroad, such as those who work for the U.S. Government in embassies or military bases. Care must be taken to balance the telecommunication needs of Americans against the security precautions to prevent abuse of the relay system by individuals seeking to engage in criminal activities.

·      Telephone Services

Relay service users must be able to utilize the full panoply of existing telephone services offered by telecommunications providers, including but not limited to, interactive response systems and menus; voice, text, and video messaging services; NANP telephone number portability; caller identification, contact lists, and call history; speed and repeat dial services; and call holding, forwarding, blocking, and transferring. Users should be able to make relay calls from all advanced communications services, such as VOIP, video conferencing, and gaming platforms, instead of only those tethered to ten-digit telephone numbers.

·      Competition, Innovation, and Choice

Competition among providers of relay services fosters innovation, efficiency, and improved quality. Multiple relay service providers must be encouraged to provide relay users with the same range of options as telecommunications users in general, and relay service users must be able to access the relay service provider of their choice.

Innovation should be encouraged with financial incentives especially with technological developments not readily used at the present time, such as programs or devices that allow multiple video callers to see each other as well as include a video relay interpreter. Other examples include the following: the combination of captioning technology and video relay services; the interoperability of video relay services with mainstream conferencing systems, including the use of NANP telephone numbers to facilitate such conferencing; the use of Braille or large print technology in combination with video relay calls; and the increased usage of mobile technology for all forms of relay calls.

To promote and motivate such innovation, there must be direct financial compensation for research and development by relay service providers and others. Without such directed financial incentives, there will be no innovation or new means of providing relay services even when there are technological developments that advance telecommunications for the rest of society.

·      Available and Affordable Telephone Service

Telecommunications services are now widely available across the country, albeit with some limitations in certain areas. Some areas are served primarily by wireless cellular or satellite technology, while other areas may be served primarily by wireline technology (also called landline technology). Increasingly, wireless and broadband technologies are becoming available and used to provide telecommunications services.

Telecommunications services must be available, accessible, and affordable, regardless of the technology used.[7]  Deaf and hard of hearing individuals, particularly those who communicate primarily in American Sign Language or who rely on visual information for communication, need high-speed broadband service with sufficient bandwidth to use video communication (videophones) and video relay services effectively.  High speed broadband with sufficient bandwidth and Internet services must be widely available and affordable across the country to achieve functionally equivalent telephone services for this population.

Similarly, certain technologies, such as voice carry over and captioned telephone service, may require two telephone lines to function effectively for a single telephone call, resulting in increased costs to the users of these relay services.  Some form of subsidization may be necessary to achieve functional equivalence for this population.

Further, as copper lines are increasingly replaced by fiber optics, every effort must be made to ensure there is uninterrupted telecommunication access to deaf and hard of hearing individuals using any form of telecommunication devices. Legacy TTYs and some captioned telephones were designed for copper line telecommunications and there have been reported incidents of incompatibility for those devices when used with fiber optics.

·      Underserved Populations

It is imperative that unrestricted access to telephone services be expanded to include currently underserved populations such as individuals who are Deaf-Blind, deaf and have other disabilities, elderly, low-income, culturally diverse, rural area residents, and any other individuals who do not have available or affordable access to broadband and Internet services. In addition, captioned telephone services and real-time captioned telephone conference calling must be readily available to many deaf individuals who do not communicate primarily in American Sign Language.

·      Instant Connection to Telephone Service

Any person who uses a conventional telephone[8] can instantly get a “dial tone” necessary to place a call. Relay service users endure variable delays reaching a communications assistant, which is the functional equivalent of getting a dial tone. For example, text-based relay services are required, except during network failure, to answer 85% of all calls within 10 seconds by any method which results in the caller’s call immediately being placed. This leaves 15% of all text-based calls subject to an indefinite wait period. Video relay service providers are currently required answer to 85% of all calls within 30 seconds, measured on a daily basis. However, the daily basis measurement has been counter-productive and caused disruption in the provision of video relay services. While a thirty-second wait for a dial tone is not functionally equivalent, policies must be tailored to ensure adequate funding and protocols exist to improve – not deteriorate – services. Functional equivalence requires that all relay services, regardless of their form, be provided instantly. The goal for achieving this functional equivalence should be 100% of calls answered within 10 seconds for all forms of relay services with appropriate measures taken to prevent the reduction of competition in the provision of relay services.

·      Telecommunications Equipment

Telecommunications equipment and services are inextricably intertwined, and do not function independently. In addition, telecommunications equipment and services are covered under a wide spectrum of laws involving accessible telecommunications equipment and services, hearing aid compatibility, relay services, and discrimination. Therefore, equipment used to access telecommunications services and relay services must also be considered.

All forms of telecommunications equipment, using any form of existing or emergent technology, must provide direct communication, whenever possible, and access to relay services when necessary. Equipment used to achieve this goal includes, but is not limited to, wireline, wireless, cellular, and VoIP telephones with volume control and that are hearing aid compatible; computers, smart phones, video conferencing services, gaming platforms or handheld devices capable of transmitting and receiving voice, text, and/or video communication; and specialized equipment such as TTYs, captioned telephones, and videophones.

Telecommunications equipment must be accessible or must be made accessible with the use of third-party applications, peripheral devices, software, hardware, or customer premises equipment at nominal cost to the consumer.[9] This includes compatibility and affordable availability of visual alert devices to work with such telecommunications equipment.

Telecommunications equipment should be readily available to consumers through a variety of sources, including telecommunications and relay service equipment and service providers, retail sales outlets, and telecommunications equipment distribution programs.

Various telecommunications equipment, such as TTYs and videophones, should be readily available on the open market for purchase or distribution to individuals regardless of hearing status. Family, friends, service providers, and businesses should be able to obtain the appropriate telecommunications equipment to communicate with deaf individuals directly, rather than being unnecessarily compelled to use relay services.

·      Connection and Interoperability

Individuals using conventional telephone services are able to call one another without difficulty between different forms of technology or brands of telephones. Interoperability exists with ease whether individuals use landline, wireless, cellular, VoIP, or any other type of telephone technology. This is not true for individuals who are deaf or hard of hearing. Difficulties are often experienced by users of video communications equipment developed by different manufacturers of telecommunications and relay service equipment. To ensure that all video communications equipment users can communicate with one another and with video relay service providers, it is essential that this equipment be manufactured to be interoperable and that future equipment be manufactured in a manner that is backward compatible.[10]  The Federal Communications Commission (“FCC”) should establish and enforce minimal technological standards and protocols for all video communications equipment. For instance, video mail, which is offered on many videophones, should be interoperable so that people using different videophones can leave video mail messages with each other.

Such interoperability should also exist among any other technologies such as captioned telephones and text based telecommunication, as well as between landline and mobile devices. When such interoperability does not exist, functional equivalence should be achieved through relay services. For example, relay services should be used for calls between deaf individuals using different forms of telecommunications equipment, such as between a person using a videophone and a person using a TTY or captioned telephone.

·      Making and Receiving Calls Through Any Relay Service Provider

Consumers should be able to use any authorized relay service provider even when using equipment provided by a different relay service provider. With many videophones, it is difficult or impossible to connect with a video relay service provider other than the provider that provided the videophone. In addition to ensuring technical capability and compatibility, all Internet-based text and video relay services providers should have and publicize their NANP 10-digit numbers (not Internet addresses) for consumers to connect to their relay services. Consumers using Internet-based text or video communications equipment should be able to connect to the relay service of their choice by dialing the provider’s 10-digit number. As telecommunications services evolve, it is important to continue monitoring for any new equipment or service barriers to consumers’ ability to making or receiving calls through any relay service providers.

For all relay calls that are directed to deaf and hard of hearing consumers, relay service communication assistants should follow a protocol that mandates a minimum number of rings to allow deaf consumers to answer the call.

·      Quality of Telephone Service

Conventional telephone users enjoy reliable, high quality telephone services virtually everywhere at any time. Deaf and hard of hearing consumers deserve nothing less.

However, the experience and quality of relay service users is dependent on the qualifications, training, skills, and ethics of relay service communications assistants. Minimum standards have been established for TTY relay service communications assistants, but not for other forms of relay services. This is especially important and challenging for video relay service communication assistants (also called “video interpreters”) as assessing minimum qualifications in American Sign Language interpreting is more subjective than minimum standards for the speed and accuracy of text typing or captioning.

All relay service communication assistants must be prepared to handle the content and context of any telephone call, ranging from the mundane to high risk issues such as those involving emergency or 9-1-1, medical, or legal communications. Further, all relay service communication assistants must be familiar with various regional signs throughout this country to be prepared to handle calls from any part of the country. More importantly, the subjective ability of video interpreters to handle high-risk issues depends largely on whether they have years of experience and/or specialized training. An interpreter fresh out of a training program would not normally be expected to take on an emergency, medical, or legal assignment; the same interpreter should not be expected to handle a 9-1-1 emergency, medical, or legal telephone call for the same reason. It may be necessary to create a way to direct video relay service calls with high risk or emergency 9-1-1 calls to properly trained and qualified video interpreters.

In addition, the use of a caller profile to identify qualified video interpreters based on communication skills, content, and context of calls should be included as part of the minimum standards for all video relay service providers. In addition to skills-based routing, users should be able to create a list of preferred video interpreters and at one’s choosing, and be directed to a preferred video interpreter when one is available. The current one-size fits all matching of video interpreters with callers fails to recognize the different communication needs among users and calls as well as different skills and abilities of video interpreters. Interpreting agencies regularly match interpreters with assignments and clients. Similar matching of video interpreters to callers must be made optional when possible. Moreover, relay service communication assistants must respect relay users’ requests and instructions.

·      9-1-1 and Other N-1-1 Services

Deaf and hard of hearing individuals should have equal direct access to 9-1-1 (including Enhanced 9-1-1 and Next Generation 9-1-1) and other N-1-1 services, whenever technologically feasible, as well as functionally equivalent indirect access to 9-1-1 and N-1-1 services via any form of relay service. To be functionally equivalent, relay services must provide timely access to 9-1-1 emergency services at the same rate experienced by individuals who use conventional telephones.

Achieving equal access to 9-1-1 services may include the ability to connect to such services from a wireless device or other equipment, such as a smart phone or a laptop computer that has voice, text, and/or video communications capability. All wireless equipment that can connect with a 9-1-1 emergency service, regardless of the mode of communication used, should provide integrated Enhanced 9-1-1 capability that directs the communication to the appropriate emergency call center and transmits the call-back 10-digit number and location information to the emergency call center automatically. 9-1-1 services also need to be able to connect with all forms of video devices in a fully interoperable fashion.

Equal access and functional equivalency require the ability to contact emergency responders directly by using text messages (such as e-mails and SMS) wherever available. Redundant means of contacting and communicating with emergency call centers is critical for all Americans, particularly in the event of disruption to one or more telecommunications systems (landline, cellular, or Internet-based).

·      Streamlined Troubleshooting

In making video relay service calls, consumers currently experience some level of disconnects during a call, resulting in incomplete calls, due to technical problems. While consumers can generally inform the relay service provider of such difficulties, such disconnects continue to occur. There is a need for some streamlined troubleshooting process where systemic problems such as disconnects can be identified, investigated, and resolved promptly. Relay service users should be informed of the proper protocol with respect to connecting again to the same party, particularly with respect to whether to attempt to reach the same relay operator or starting over with a new relay operator.

Further, because troubleshooting relay service problems often involve Internet connections, a protocol needs to be developed to ensure the discussion of troubleshooting issues with their Internet service providers while avoiding disconnects as a result of resetting the Internet during this troubleshooting process. Any disconnect of the Internet would typically cause the discussion to end prematurely without a way to reconnect to the troubleshooting expert.

·      Specialized Access to Telephone Services

For certain individuals, the provision of a video interpreter in a video relay call is not sufficient for effective communications. A deaf or hard of hearing person who has limited English proficiency or is not fluent in American Sign Language may require the use of a Certified Deaf Interpreter to facilitate a video relay service call. Similarly, access to telephone services for individuals who are Deaf-Blind is possible in many ways including wireless text systems as well as video relay services, which would require a modified video relay system that may involve a video interpreter specially trained and specially equipped to work with deaf or hard of hearing individuals with limited vision. Another way to provide access to video relay services may require sending specially trained Communication Facilitators (typically Certified Deaf Interpreters) to the homes or location of Deaf-Blind individuals and assist such individuals with calls by providing tactile interpreting of the relay service call.

Similarly, direct video communication with the use of captioned or video relay services must be provided, as needed, including the use of oral interpreters for those deaf or hard of hearing individuals who do not communicate primarily in American Sign Language.

·      Universal Design and Emergent Technologies

As technologies and telecommunications equipment and services evolve, it is critical that universal design principles be applied at the outset and through all stages of design and development. This approach ensures that there is equal access for everyone with new equipment and services without accessibility and usability delays or expensive retrofitting to remedy inaccessibility.

EQUAL ACCESS

It is critical that deaf and hard of hearing individuals have equal access wherever and whenever telephone usage is available to people who are not deaf. Examples include provision of telephone services in the workplace, in places of public accommodations, in prisons and jails, and in government entities and public places.

When video communication or videophones are provided, all technological challenges need to be resolved, including ensuring that sufficient bandwidth and high speed is provided, as well as the opening of appropriate ports, to make and receive calls effectively.

·      Employment in General

Making appropriate and effective technology and/or relay services available to employees who are deaf is essential to their ability to compete in the workforce. Regulations implementing legal mandates such as Title I of the Americans with Disabilities Act and the Rehabilitation Act of 1973 should be revised to emphasize that employers must provide up-to-date telecommunications accommodations that ensure equal access and equal opportunity for deaf and hard of hearing employees. At the time of the original regulations, accessible telecommunications equipment was limited to the TTY and only TTY based relay services existed. Today, newer and Internet-based telecommunications technology, equipment, services, and relay services are available, necessary, and reasonable. Moreover, employers should focus on what form of reasonable accommodation is effective for deaf and hard of hearing employees needing to use telecommunications to perform job duties, and engage in an interactive process in determining such accommodations.

·      Employment in the Video Relay Service Industry

Employing or contracting deaf and hard of hearing individuals who use video relay services to work in the video relay service industry should not result in economic disincentives, which may discourage employers from hiring such individuals. Any governmental restriction on the use of or reimbursement for the use of video relay services by deaf and hard of hearing employees or contractors is likely to have a chilling effect on their employment. While there is governmental interest in preventing video relay service fraud, waste, and abuse, any such restriction on the use of video relay services by deaf and hard of hearing employees or contractors appears discriminatory on its face. As a matter of public policy, other non-discriminatory and non-employment-related measures should be taken to reduce fraud, waste, and abuse so as not to impact the employability of deaf and hard of hearing individuals. One way this policy goal can be achieved is through at-cost reimbursement of the use of employer-provided video relay services by all employees and contractors. There would be two incidental benefits:  no economic disincentive for video relay service employer-providers to hire or contract with deaf and hard of hearing individuals; and no financial incentive for video relay service employer-provides for encouraging or engaging in video relay service calls by any employee or contractor.

Rather than utilizing policies that discourage the hiring of deaf and hard of hearing employees within the relay service industry, all relay service providers should be required to comply with Section 503 of the Rehabilitation Act. Given that this industry primarily serves deaf and hard of hearing people, relay service providers should include qualified deaf and hard of hearing employees at all levels.

·      Public Accommodations

Many places of public accommodation, such as hospitals, hotels, and motels provide telephone services to patients, travelers, and others. This includes the telephone services offered for rental cars and other services at airports. Pursuant to regulations, such places are often aware of their obligation to provide TTYS to deaf and hard of hearing individuals to access telephone services. However, TTYs have become increasingly obsolete, as telecommunications technologies, equipment, and services, including relay services, have evolved. While TTYs are still used by a segment of the deaf and hard of hearing population, many deaf and hard of hearing individuals use newer and Internet-based telecommunications technology, equipment, services, and relay services. Consequently, the provision of TTYs by public accommodations is of very limited use to a number of deaf and hard of hearing people. Therefore, other forms of telecommunications technologies, such as videophones or captioned telephones, and the ability to access relay services, including Internet-based relay services, should be made available to this segment of the public to ensure equal access. In addition, public accommodations should provide for the necessary connection where individuals already possess videophones or other technologies. This includes prohibiting places of public accommodation from blocking video conferencing services on their public Wi-Fi systems.

Although regulations are being amended to include video based telecommunications products and systems,[11] it is nevertheless necessary to clarify that the provision of TTYs are not adequate to meet the needs of a large segment of deaf and hard of hearing individuals.

·      Deaf and Hard of Hearing Inmates

Public entities, including prisons and jails, must “furnish appropriate auxiliary aids and services where necessary to afford qualified individuals with disabilities . . . an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity,”[12] including telephone services made available to arrestees or prisoners. Auxiliary aids and services include “voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices.”[13]  Further, the type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual and other factors, and public entities must give primary consideration to the requests of the individual who is deaf or hard of hearing.[14]

Most prisons and jails provide only TTYs for prisoners or arrestees who are deaf to access telephone services, which may not be effective. Therefore, other forms of telecommunications technologies, such as videophones or captioned telephones, and the ability to access relay services, including Internet-based relay services, should be made available to deaf and hard of hearing prisoners and arrestees to ensure equal access. Access to relay services or the equipment needed for direct telecommunications should also be made available to prisoners and arrestees who may not be deaf but may need to contact family members, friends, or others who are deaf or hard of hearing.

·      Public Telephones

Despite the widespread availability and use of wireless and other mobile telecommunications devices, public telephones still serve a purpose and are provided in many public areas, such as airports, train and bus stations, shopping malls, and roadside rest stops. While the use of public telephones has decreased significantly, people continue to rely on such telephones in cases of emergencies or in the absence of personal telecommunications devices due to affordability, loss, or other reasons. All public telephones must have volume control for amplification and be hearing aid compatible. Wherever public telephones are provided, accessible telephone devices must also be provided, including but not limited to TTYs, videophones, and captioned telephones. Public telecommunications equipment incorporating these accessibility features is available, and such equipment should be installed, visible, and readily available in all public places that continue to provide public telephones with appropriate signage to identify the location of the equipment. Moreover, public Wi-Fi networks such as those at airports or other public places must not block video conferencing services, which are critically necessary for deaf and hard of hearing individuals seeking to use their videophones.

·      Public Education Efforts

Public education efforts are greatly needed to inform the general public about the existence and use of telecommunications relay services. Too many entities and individuals continue to hang up on calls that come in through the relay services. In addition, there have been media reports of individuals who are not deaf or hard of hearing who have used or pretended to use relay services to commit or attempt to commit fraud against individuals, businesses, and financial institutions. These experiences and media reports stigmatize the relay system, even though commonly used security measures can significantly reduce or eliminate identity theft and fraud. The FCC, in concert and collaboration with other federal and state agencies, must disseminate information broadly about relay services to the general public to improve understanding, acceptance, and use, and to restore the public trust in relay services. The FCC website could be used for this purpose, as it is already used for educating the public about telecommunications issues on an ongoing basis.

·      Responding to Relay Service Calls

Most public and private entities, such as government offices or banks, allow conventional telephone callers to communicate directly with any department within the entity. However, some of these entities do not allow relay service users or TTY users to communicate with various departments directly. Rather, such relay service or TTY users are required to communicate with a central contact person within the entity who acts as a conduit for communication with other people or departments. This approach is separate and unequal, as well as unnecessary and ineffective. Public and private entities must respond to relay service calls in the same manner that they respond to other telephone calls.[15] Such response to relay service calls should include a prohibition on the entities’ requesting the identity of the relay service communication assistant as a condition of accepting the call.

·      Privacy of Relay Calls

All telephone calls are considered to be private and not subject to be monitored without warrant by any person other than the parties to the call. Deaf and hard of hearing individuals deserve no less. No call made by a deaf or hard of hearing individual through the relay service should be subject to monitoring by any individual without a warrant. Any efforts to combat fraudulent calls should be based on a clear policy with full notice to the general public on when such calls may be subjected to appropriate scrutiny with the proper authority and warrant.

·      Prevention of Fraud, Waste, and Abuse

Federal laws mandate the provision of telecommunications relay services to provide functionally equivalent telephone services and ensure equal access by people who are deaf or hard of hearing. This mandate has led to an industry that is reimbursed at a per-minute rate for providing relay services. Instances of fraud, waste, and abuse have occurred involving the false generation of relay service minutes. The FCC should set the per-minute rate of reimbursement at the level necessary to achieve the congressional mandate of functionally equivalent telecommunications services, and not consider the level of fraud, waste, and abuse as a factor in this decision-making process. Given the accumulative nature of per-minute reimbursement for relay service calls, the rate of reimbursement is not the sole factor incentivizing fraud, waste, or abuse. It is important that frequent and ongoing monitoring of relay services occur within all service providers. The FCC should examine and adopt appropriate security, accounting, and monitoring mechanisms to detect and prevent fraud, waste, and abuse. As measures are taken to prevent such fraud, waste, and abuse, the National Association of the Deaf is resolute that the availability, quality, and standards of relay services are not reduced, and the rights and privacy of relay service users and confidentiality of relay service communications are not compromised.

FCC TRS ACTIONS AFFECTING FUNCTIONAL EQUIVALENCE

The NAD strongly believes that functional equivalency must be the standard filter through which every TRS program action proposed or taken by the Commission is assessed. In April 2011, the NAD joined fellow Consumer Groups with developing theConsumer Groups’ TRS Policy Statement which stressed the need to make functional equivalency the highest priority in all TRS rulemakings.[16] In recent years we have become increasingly concerned that functional equivalency is taking a back seat to other concerns such as the size of the TRS fund. We acknowledge the FCC’s responsibility to maintain the efficiency of the relay program, however, efficiency should never come at the expense of functional equivalency. The NAD believes that functional equivalency is a goal that we have yet to reach and that many more improvements to the TRS program are needed. We are also concerned that inordinate amount of attention on reducing TRS rates has slowed down the pace of innovation and decreased quality in relay services. We fail to understand how the FCC can assure quality in an environment where they repeatedly cut rates but do not create quality standards.

·      IP Relay
IP Relay is a service that allows deaf and hard of hearing individuals to communicate over the telephone by sending and receiving text messages to a Communications Assistant, who acts as an intermediary between the relay user and the hearing user. While use of IP Relay has declined significantly among deaf and hard of hearing users, it remains the sole means of accessible relay service for countless Deaf-Blind individuals. IP Relay is also the only relay services available to those who do not use ASL, as well as those who cannot access or afford broadband access. In addition, IP Relay remains an important backup communication option such as when one cannot connect to VRS or one’s preferred relay service. For instance, it can be the only relay option when traveling in areas without high-speed wireless networks or when in areas with weak wireless connections.

On July 1, 2013, the FCC slashed program compensation rates by 20 percent,[17] resulting in all but two providers leaving that market. The NAD expressed great concern about the lack of competition as well as the future of IP Relay.

This concern proved to be prophetic, given that one provider left the market in November 2014 leaving us with only one IP Relay provider.[18] The NAD is seriously concerned about the lack of competition in IP Relay, the financial sustainability of IP Relay under the reduced rates and shrinking market, and accessibility for DeafBlind users as well as many other users. We also have deep concerns about innovation in this field given the lack of competition.

IP Relay can be viewed as the “canary in the mines” in the relay service industry. What happened with the depletion of IP relay services can also occur to all other relay services. It is of critical importance that all relay services remain competitive and provide functional equivalence. While every effort should be made to ensure no fraud or abuse is occurring, every effort should also be made to ensure that adequate compensation and competition occurs to create a functionally equivalent telecommunication experience through all relay services.

·      VRS
Video Relay Service allows deaf and hard of hearing individuals who use American Sign Language to communicate over the telephone system using video conferencing technology where they sign to the video interpreter who relays their call with the hearing user. The FCC has been working to reform VRS following a massive crackdown on waste, fraud and abuse. While the FCC appropriately increased oversight and ended bad practices, starting with comprehensive reforms in April 2011,[19] many of their efforts to reform VRS have been disappointing.

In December 2011, the deaf and hard of hearing community was blindsided by an FCC proposal to transform VRS from per-minute reimbursement to a per-user reimbursement system.[20] A per-user system would have destroyed VRS as we know it by shifting incentives for VRS companies from encouraging VRS calls to discouraging them to maximize their profits. In short, VRS companies would have been incentivized to tailor their products to serve users who use VRS the least and avoid heavy VRS users who need VRS the most. The NAD fully opposed this proposal and is grateful that the FCC decided not to pursue this per-user system.

However, in October 2012 the FCC continued its efforts to reform VRS without any buy-in from the deaf and hard of hearing community by considering a proposal to migrate all VRS access technologies to a single VRS application.[21] Shifting all VRS users to a single application would have relegated us to inferior VRS technology, destroyed innovation, and prevented us from being able to use VRS on a wide range of smartphones, tablets, and more. We again were grateful that the FCC did not pursue this proposal.

Following a leadership change at the FCC, the per-user and single app proposals were shelved and the FCC started working much closely with the deaf and hard of hearing community on reforming VRS. For instance, the FCC adopted our proposal for a reference platform which will ensure interoperability among all VRS providers and video phones.[22] The FCC also proposed the Neutral Video Communication Service Platform, which was strongly opposed by delegates at the 2014 NAD Conference. The concern was that the Neutral Platform is another tactic to reduce the per-minute rate by driving providers to this new platform and thus giving up their own innovated systems.

Competition and innovation is critical to achieving the functional equivalence that the deaf and hard of hearing community seeks. Any system that the FCC proposes must encourage and provide financial incentives to innovations including through research and development rather than relying on a single platform. Such a platform can only be a supplement and must not be the sole means of encouraging innovation.

The FCC has significantly cut VRS rates in the last few years and while we understand the FCC’s responsibility to ensure efficiency, there are clear signs that quality and functional equivalence is being sacrificed.

The Registry of Interpreters for the Deaf has expressed serious concern about cost-cutting practices at VRS companies where video interpreters are being overworked.[23] Overworked interpreters translate to lower quality video interpreting and therefore less functional equivalency in our calls.

We need to see more attention paid to the quality of our VRS calls, not only making sure that services continue, but rather that it improves and keeps moving towards functional equivalency.  We are also concerned that there have been no new VRS companies in years and question whether the current reimbursement system fails to attract competition.

·      IP CTS
Captioned Telephone Services (IP CTS) enables people who are hard of hearing – especially older Americans – to continue to use the telephone even as they experience hearing loss. With IP CTS, hard of hearing people can use their residual hearing on the call, get captions showing what the other person is saying, and use their own voices to talk to the other party.

In a January 2013 Interim Order,[24] the FCC began requiring users of IP CTS to justify their need for this service by requiring payment of a minimum $75 for their captioned telephones. The Interim Order also required the IP CTS devices to have the captioning set to be off until the user turned the captions on. The FCC had no evidence of fraudulent use of IP CTS necessitating these measures, and acted only because there was an increase in IP CTS use. The FCC made these measures permanent through a Final Order in August 2013,[25] even though IP CTS users already can demonstrate their need and already pay for both regular phone service and broadband Internet access – charges that exceed what a hearing person might pay to make calls. Put simply, the FCC made an assumption that the increase in IP CTS usage was improper with no evidence on the record.

On June 20, 2014, the U.S. Court of Appeals for the District of Columbia found these FCC orders in violation of the Administrative Procedure Act for each of the two measures.[26] Although the Court has resolved this issue, we remain concerned that the FCC is more interested in reducing costs than ensuring access to phones that are functionally equivalent.

·      Confidentiality
The NAD is concerned about the confidentiality of all relay calls and urged the FCC to ensure us that the confidentiality of our calls are equal to calls made among non-relay users. The NAD wrote a letter to the FCC Chairman in November 2014 expressing concern over allegations that that the FCC was requiring an IP Relay provider to monitor the content of IP Relay calls.[27] Chairman Wheeler assured us that the FCC has “never asked, and will not ask” any TRS provider to monitor the content of our calls.[28] The NAD further asks that the FCC recognize relay calls as equally private as telephone calls made by individuals who are not deaf or hard of hearing, by banning the monitoring of all relay calls by any person without a warrant.

·      TRS Registration

The FCC is creating a TRS User Registration Database and rules for verifying eligibility.[29] While we support the registration of all users in the database and sound verification methods, the registration/verification system must not be more burdensome than it is for a non-relay users registering their own phones. We are especially opposed to requiring any user to provide Social Security Numbers or any part thereof. Many deaf and hard of hearing people do not feel comfortable sharing their SSN or any portion thereof. The FCC has provided no reasonable explanation for why SSN information is necessary, and the FCC has not been able to explain how they can assure that our SSN information will be protected.

CONCLUSION

Nearly twenty-five years after the passage of the Americans with Disabilities Act and the emergence of new telecommunications technologies, functionally equivalent telephone services has continued to elude deaf and hard of hearing individuals. The definition of functional equivalence has evolved and government agencies need to adapt to ensure deaf and hard of hearing individuals are equally able to access telecommunications. The National Association of the Deaf sets forth this Position Statement to ensure equal access in telecommunications without further delay for people who are deaf and hard of hearing. Prompt implementation of accessible and functionally equivalent telecommunications not only allows for every citizen to fully participate in employment and society but does so in a cost-efficient manner without the need for retroactive measures.

The NAD is appreciative of the many efforts of the Federal Communications Commission (FCC), including its formation of the Disability Advisory Committee which can be significantly instrumental in implementing and recommending steps to achieve equal access and functional equivalence discussed in this position statement. The NAD also appreciates the efforts of other government agencies such as the Department of Justice (DOJ) in its regulatory efforts. However, both the FCC and the DOJ need to ensure that critical changes are made at this time to remove the remaining barriers and promote full equal access and functionally equivalent telecommunications for all deaf and hard of hearing people in this country.

Adopted December 21, 2014 by NAD Board vote pursuant to NAD Council of Representatives Priority for the 2014-2016 term.