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Editorial #46-FCC Issues Declaratory Ruling, Order and Notice of Proposed Rulemaking

Today, the FCC issued a Declaratory Ruling, Order and Notice of Proposed Rulemaking. It is a 34-page document and addresses a lot of issues that have been discussed for the past year or so. Dr. Z will summarize this information as best as he can. These rulings and notices go over and above the rate recommendations that were issued recently. They focus on the process of reimbursing providers for minutes, better documentation, audit requirements, certification of VRS providers, white label providers, protection of interpreters as well as insuring interpreters work in the US, among other things.

A declaratory ruling allows the FCC to set up rules that do not go through the normal rulemaking process. The FCC does not do this often but does this when situations warrant immediate attention or correction and Dr. Z is of the opinion that the FCC is doing this to forestall further fraud and take immediate steps so they can be sure the rates being established reflect appropriate oversight through audits, documentation and the like.

An order allows the FCC to set up a rule without notice and comment. This allows the FCC to exercise jurisdiction on matters that warrant immediate attention.

A notice of proposed rulemaking (NPRM) is a process whereby FCC asks for public review of proposed rules, allowing the public to submit comments and reply comments before the FCC makes a decision. A rulemaking process can take several months before the FCC issues an order or orders.

Declaratory Ruling

The FCC is reminding providers that if they do not submit to audits, they are subject to suspension or delay of payments. (partial quote from FCC press release)

Dr. Z’s comment/interpretation: The FCC has authority under the current TRS rules to require audits. If a VRS provider refuses to allow the FCC or the Fund Administrator (currently, NECA) to audit its books, the FCC has the right to delay or suspend payments.


The FCC is adopting an emergency interim rule requiring the CEO, CFO or other senior executive of a provider submitting data to the Fund Administrator to make various certifications under penalty of perjury.

Dr. Z’s comment/interpretation: The FCC is requiring all senior executives to certify all reimbursement requests and submission of historical and projected data . In other words, they are responsible for its accuracy and factual representation. If the FCC finds the information to be inappropriate, they can charge the senior executives for perjury.

Notice of Proposed Rulemaking (as quoted from press release)

The NPRM sought comment a host of additional anti-waste, fraud, and abuse measures, such as:

  • Whether the FCC should adopt specific whistleblower protection rules for the employees and subcontractors of TRS providers;
  • Whether VRS providers must use automated, rather than manual, methods to capture a call’s conversation time, to the nearest second, for each call submitted for compensation;
  • Whether the FCC should adopt more specific and stringent auditing rules for VRS providers;
  • Whether VRS providers should make public their cost and demand data;
  • Whether Internet-based TRS providers must retain their call detail records, and other records to support their claims for payment from the Fund, for five years;
  • Whether a CA should disconnect a VRS call in which the caller’s face does not appear on the screen;
  • How to address fraud and misuse associated with international VRS calls;
  • Whether the Commission should make the senior executive certification requirement permanent; and,
  • Whether the Commission should prohibit “white-label” Internet-based TRS services — where non-certified providers offer service and bill the Fund through certified providers.

Dr. Z’s comment/interpretation: This is a partial listing of what the FCC is proposing. All told, the FCC is putting most of the outstanding issues that have emerged over the past year or so on the table for others to review and comment before they make it part of the rules in the form of an order.

The actual press release and text of the order can be found with the following links:

  • In the Matter of Structure and Practices of the Video Relay Service Program-DECLARATORY RULING, ORDER AND NOTICE OF PROPOSED RULEMAKING (link)

Like Dr. Z has said in the past, the FCC has a process in place to handle rules that need to be outlined for all communication matters that come before them. The above is part of the process, like the rate proposal recently. This does not mean the FCC has resolved the rate proposal yet. It is still an outstanding process.

Dr. Z (and the FCC) cares about your communication access.

Disclosure: Dr. Z is a contractor working with CSDVRS on several projects.

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