E8-8793. Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities; Request for Stay Pending Judicial Review

AGENCY:

Federal Communications Commission.

ACTION:

Final rule; stay of effectiveness.

SUMMARY:

In this document, the Consumer and Governmental Affairs Bureau (Bureau) grants a request to stay the effectiveness of paragraphs 95 and 96 of the 2007 TRS Cost Recovery Declaratory Ruling, which restrict telecommunications relay service (TRS) providers from using consumer or call databases to contact TRS users. Because these paragraphs have been challenged in the Court of Appeals, a stay is appropriate pending review of the argument that these paragraphs violate the First Amendment rights of providers.

DATES:

Paragraphs 95 and 96 of the 2007 TRS Cost Recovery Declaratory Ruling, as summarized in paragraph 24, published at 73 FR 3197, January 17, 2008, are stayed for 90 days, starting February 7, 2008.

ADDRESSES:

Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT:

Thomas Chandler, Consumer and Governmental Affairs Bureau, Disability Rights Office at [phone] (voice), [phone] (TTY), or e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

This is a summary of the Bureau's Order, DA 08-312, Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities; Request for Stay Pending Judicial Review, CG Docket No. 03-123, Order, 23 FCC Rcd 1705 (CGB 2008), adopted and released February 7, 2008. The full text of DA 08-312 and copies of any subsequently filed documents in this matter will be available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. DA 08-312 and copies of subsequently filed documents in this matter also may be purchased from the Commission's duplicating contractor at Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. Customers may contact the Commission's duplicating contractor at its Web site www.bcpiweb.com or by calling 1-800-378-3160.

To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to [e-mail] or call the Consumer and Governmental Affairs Bureau at [phone] (voice) or [phone] (TTY). DA 08-312 also can be downloaded in Word or Portable Document Format (PDF) at: http://www.fcc.gov/​cgb/​dro/​trs.html#orders.

Synopsis

1. On November 19, 2007, the Commission released Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, CG Docket No. 03-123, Report and Order and Declaratory Ruling, 22 FCC Rcd 20140 (2007) (2007 TRS Cost Recovery Declaratory Ruling), published at 73 FR 3197, January 17, 2008, which, among other things, prohibits providers from using a consumer or call database to contact TRS users “for lobbying or any other purpose,” and prohibits providers from using a consumer or call database to “contact TRS users or to in any way attempt to affect or influence, directly or indirectly, their use of relay service.” 2007 TRS Cost Recovery Declaratory Ruling, 22 FCC Rcd at 20176, paras. 95-96. On January 16, 2008, Sorenson Communications, Inc. (Sorenson) filed a Petition for Review in the United States Court of Appeals for the Tenth Circuit asserting, in part, that the above-quoted language violates the First Amendment rights of TRS providers. On January 28, 2008, Sorenson filed with the Commission a request for a stay of paragraphs 95 and 96 pending judicial review. Sorenson Communications, Inc., Request for Stay Pending Judicial Review, CG Docket No. 03-123 (filed Jan. 28, 2008) (Stay Request).

2. In its Stay Request, Sorenson contends that it has a substantial likelihood of prevailing on the merits of the judicial review proceeding in the Tenth Circuit because paragraphs 95 and 96 of the 2007 TRS Cost Recovery Declaratory Ruling violate Sorenson's First Amendment rights by “limiting [its] ability to engage in core political speech and to petition the government for redress of grievances” and by “restrict[ing] [its] ability to engage in protected commercial speech.”

Although Sorenson does not dispute that the Commission has a substantial interest in preventing providers from using customer call data to offer TRS users financial incentives to make unnecessary TRS calls, it contends that the Commission has no substantial interest in preventing providers from contacting users for other reasons, including to assist them with service issues, to educate them about new service features, or to inform them of potential misuse of the service by third parties. Sorenson also asserts that, absent a stay, it will suffer irreparable harm through the loss of its First Amendment rights and harm to its business as a result of its inability to warn its users of scams and abusive relay practices. Sorenson further asserts that a stay will not injure other parties, as it will simply preserve the status quo. Finally, Sorenson asserts that a stay is in the public interest because the challenged restrictions run afoul of the First Amendment and impair the ability of TRS users to learn about developments in the provision of relay service.

3. In considering requests for stay, the Commission generally considers the four criteria set forth in Virginia Petroleum Jobbers Association v. Federal Power Commission, 259 F.2d 921, 925 (DC Cir. 1958). These criteria are: (1) A likelihood of success on the merits; (2) the threat of irreparable harm absent the grant of preliminary relief; (3) the degree of injury to other parties if relief is granted; and (4) the issuance of the order will further the public interest. As the Commission has explained, the relative importance of the four criteria will vary depending upon the circumstances of the case. If there is a particularly overwhelming showing in at least one of the factors, the Commission may find that a stay is warranted notwithstanding the absence of another one of the factors.

4. The Bureau agrees that a temporary stay of paragraphs 95 and 96 of the 2007 TRS Cost Recovery Declaratory Ruling is appropriate under the circumstances presented. Specifically, the Bureau concludes that a stay will further the public interest. The Bureau notes that Sorenson and other providers have raised several concerns, including their asserted inability to contact users for emergency or consumer protection-related purposes, that, if borne out by further Commission examination, may cause the Commission to reconsider the language of paragraphs 95 and 96 of the 2007 TRS Cost Recovery Declaratory Ruling. In order to provide the Commission with sufficient time to consider the arguments presented by Sorenson and others, the Bureau finds that a temporary stay of those paragraphs is warranted. The Bureau therefore finds that it is in the public interest to grant the requested stay for a period of 90 days, starting February 7, 2008.

Ordering Clause

Pursuant to section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), and the authority delegated under §§ 0.141 and 0.361 of the Commission's rules, 47 CFR 0.141, 0.361, the Request for Stay filed by Sorenson Communications, Inc. on January 28, 2008, is granted, and will remain in effect for a period of 90 days, starting February 7, 2008.

Federal Communications Commission.

Nicole McGinnis,

Deputy Chief, Consumer and Governmental Affairs Bureau.