Relay Providers Challenging FCC Disparity on Marketing

The TRS marketing rules, adopted in November, ban providers from contacting customers to promote increased minute usage and to encourage participation in lobbying efforts. The rules restrict TRS providers’ use of customer IP addresses, which they collect during calls and later submit to the TRS Fund administrator when applying for subsidies. TRS providers Sorenson Communications and GoAmerica challenged part of the order, which banned providers from contacting users to “attempt to influence… [consumer] use of relay service” or “for lobbying or any other purpose.” The providers said the vague language violated their First Amendment rights. The FCC admitted the rules were foggy in late May, issuing another order clarifying what activity was restricted (CD May 30 p2). In early June, a still-unhappy Sorenson appealed to the 10th U.S. Circuit Court of Appeals in Denver.

The FCC should apply to TRS providers customer proprietary network information (CPNI) rules it has set for telecom voice carriers, Sorenson said in a written statement. “CPNI rules protect consumers without infringing on the First Amendment rights of providers,” it said. Sorenson supports the FCC’s ban on using financial incentives to encourage relay users to make more calls but believes it’s “unconstitutional” to restrict providers’ right to communicate “with the public and customers about Video Relay Service developments and government decisions affecting VRS,” it said.

GoAmerica also condemned the May order, but it hasn’t appealed. “Ongoing communication into the deaf community about technology is already limited because few companies are immersed in serving this market,” said Kelby Brick, GoAmerica vice president of strategic and regulatory policy. “This ongoing dialog between relay providers and users is essential, and ensures users aren’t left behind as technology advances. The FCC should adopt a policy that protects users’ privacy while not restricting their right to learn about new technology that delivers a calling experience that’s more functionally equivalent to their hearing counterparts.” GoAmerica is aware of the Sorenson appeal, Brick said: “We're still studying our options.”

The Americans with Disabilities Act doesn’t block TRS providers from talking to customers for marketing or lobbying purposes, said telecom attorney Barlow Keener. Rather, the ADA requires TRS calls to be “functionally equivalent” to non-TRS calls, he said. But the FCC reads that to mean it should restrict TRS providers from doing “anything beyond” what ordinary, dial-tone providers do, he said. “Dial tone is dial tone. Dial tone doesn’t [encourage customers] to increase minutes and dial tone doesn’t get [them] to call the FCC.”

The FCC says it has authority to impose different rules on TRS providers because the federal interstate TRS fund subsidizes their entire calls, Keener said. However, the FCC hasn’t made similar marketing rules for carriers that take from the Universal Service Fund and other subsidy programs, he said. “Is the FCC going to go this far with TRS providers, but not… other similarly situated companies?”

“In most cases, the FCC should treat [TRS providers] as if they are VoIP providers,” Stout said, but TRS customers don’t pay for service like VoIP customers do. Telecommunications for the Deaf and Hard of Hearing approved of the language of the original order imposing marketing rules, he said.

“There needs to be restrictions in place to protect the consumers,” said NorCal Center on Deafness CEO Sheri Mutti. The FCC acted in the “best interest” of customers when it made the marketing rules, she said. TRS providers who oppose the rules want to ensure the marketplace treats all companies on equal footing, she said. But the ADA “principle of functional equivalency applies to the FCC’s regulation of the marketplace to ensure consumers aren’t being manipulated and their rights violated,” she said. That “is ultimately what the needs to be the focus and I expect the providers to adhere accordingly,” she said.

An equivalent experience means that TRS providers should serve only as the intermediary, enabling communication between calling parties, Stout said. The consumer is “in charge of the call,” he said. “The provider should not use any data from that call for any other purpose.” Providers should only be allowed to contact a TRS user about lobbying if the customer opts in, he said.

Not all relay providers dislike the rules. The FCC shouldn’t treat TRS providers the same as phone carriers, said Andy May, chief marketing officer for relay provider CSDVRS. The TRS world is different because it’s “heavily subsidized, and there is no contractual or fiduciary relationship between the TRS user and the TRS provider,” he said. “I'm not one to say that just that issue in itself is what might yield different behavior or different rules, but it is one very different thing.”

Calling customers to increase minute usage has been “strictly forbidden” at CSDVRS for “many years,” May said. “We have never been in favor of that.” Also, providers “don’t need to” encourage customers to lobby, he said, because that’s deaf consumer groups’ role, he said. Trying to influence customers’ positions on regulatory issues “is not a position we want to put ourselves in,” though relay providers may try to raise awareness of issues on their Web sites, he said.

Additional customer privacy rules are on the way for relay services. In a recent further notice (CD June 26 p2) tagged to an order establishing a 10-digit numbering plan for IP relay services, the FCC asked how it might apply CPNI and other customer privacy rules to relay providers. “There’s going to be lots of debate… because that’s a very sensitive issue in the voice world,” said May, declining to speculate on what positions will be taken. Telecommunications for the Deaf is studying how CPNI rules have worked for carriers and keeping an “open mind” about how they might apply to TRS providers, Stout said. “We want to make sure of [consumers'] rights not to be harassed unnecessarily.”

Phone carriers might face marketing rules like those for TRS in the future, Keener said. Marketing seems to be turning into a hot issue for regulators, he said, citing a recent FCC order scolding Verizon for illegally marketing to departing customers (CD June 27 p9).