FCC Ruling on VRS Staff and VCO Calls
25 02 2010All..
I guess I need to make habit of saying the following remark first.
Disclaimer: I am owner of Edsalert, and I also am a co-founder of Convo so take this post for what it is.
That aside.
FCC just now released ruling on problematic issues.
Quotable quotes:
"First, we emphasize that VRS calls made by or to a VRS provider’s employee, or the employee of a provider’s subcontractor, are not eligible for compensation from the TRS Fund on a per-minute basis from the Fund, but rather as business expenses."
At first glance, this seems to be reasonable; however, in analyzing this – maybe not. If all VRS providers actually put in business expense of all the calls their employees made, it means NECA would need to recalculate the reimbursement rate and the rate will likely shoot up.
Also, there are now several VRS providers who has mostly deaf employees and owned by deaf employees, does that mean they no longer can use VRS to make legitimate business calls? For example, hearing persons in other VRS providers only pay from 1/2 cents to several cents per min while VRS provider pay full cost of video interpreter (lot more than 1.2 cents to a few cents). Is that functionally equivalent?
"..two categories of calls do not meet the definition of TRS or otherwise are not compensable from the Fund under plain statutory language: (1) VRS Voice Carry Over used to connect two hearing users and (2) VRS calls used to connect two users who are both outside the United States."
This one, I agree. This is where a deaf person calls VRS and says will use VCO and once communication is connected to a hearing person – the deaf person lets his hearing friend or relative "take over" while deaf person just watch. This is being done to avoid long distance calls. Typically to another country. That’s clearly cheating.
eyes open & thumbs up,
Ed Bosson
Long Link:
http://www.edsalert.com/wp-content/uploads/2010/02/VRS-DR.doc
or
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-10-314A1.pdf
I strongly disagree with the Commission’s decision. This places an unnecessary and undue burden on the employer that no other employer faces. This will create negative incentives to the hiring of Deaf and Hard of Hearing employees in the VRS industry. Further, it denies a Deaf/Hard of Hearing owner of a VRS business the right under law to access the nationwide telecommunications system.
These policies are off point and ultimately harm Deaf/Hard of Hearing citizens.
RE: VCO to connect 2 hearing users .. I agree with intent .. but what happen if hearing person call to VP .. Deaf person is not home, but hearing CODA answer the VP, but answer voice … maybe just to say “Mom not home, think she will be here in 20 minutes.” (Should VI hang up when hearing answer phone? or ??)
OR … Deaf person has VP, so get rid of regular phone … hearing son or daughter use VP to call to “Grandma” or other person (maybe even a local call) .. Should VRS companies instruct VI’s to refuse those calls?
Why does a VRS company need to assume the cost as a “Business expense” if there is a deaf person working within the company while there is no additional cost for any private company when a deaf employee makes a VRS call. It looks like an “unfair business practice” to VRS companies.
I can see that this is a clear motivation for VRS companies not to hire future deaf people because of additional “Business Expense”. It is a communication company so it is very expensive to pick up a phone. Management in the VRS industries may shift deaf people to perform other duties and let hearing people make the calls to save cost.
Also, this ruling is encouraging deaf people not to start up a VRS company due to higher additional overhead cost that a hearing company may not get.
Hmm.. What about VRS deaf employee making calls from home outside of their working hours? Allowed?
I don’t really disagree with the Commission’s decision. What bothers me is that the VRS companies are profiting from these business calls. I suspect this is why the commision made this decision. I don’t think the VRS companies should be profiting from the calls. When the VRS companies are profiting from these calls and the hearing companies are paying for such calls then that doesn’t look good and the.
Right now the issue is if NECA compensates for business calls then the VRS companies profit from them and if you stop compensation of these types of calls then the VRS companies are stuck with a much larger calling costs than other businesses.
I agree that it might be a little harsh to stop payment of calls altogether since doing so will drive up the cost of business and possibly affect the minute rate. I think it would be fair to pay these types of calls at a break even rate.
Nothing stops deaf employees from making vrs calls for legitimate business purposes. They can simply use another provider to make those calls. Maybe it will “ratchet up the rate” but fewer minutes will be claimed, so the net revenue effect (assuming all calls are legitimate) will be zero.
I guess that will affect the entire VRS industry to make the hirings of qualified deaf employees to be more undesirable due to the burdensome business expenses.
That is kinda “reverse effect” like what happened to many employers find propsective deaf applicants “too costly” after the ADA law being written.
More unemployment for talented and comptent deaf job seekers.
Robert L. Mason (RLM)
RLMDEAF blog
The TRS law is designed to promote telecom access for deaf people, not to promote employment of deaf people in the telecom industry. That may be a worthy goal but it is not the law.
If providers are really serious about employing more deaf people they will do it even if they are not profiting and double-dipping from it. In other words they will do it because it is right, not because they can use them to pump minutes.
Sadly some providers have employed deaf people simply to make themselves a profit even as they claim altruistic intentions. THAT is how we got here, and I find it distasteful that they are now claiming that the FCC is issuing a “lazy blanket statement.”
This does not resolve some of the fraudulent operations that had happened – there is nothing there to stop an unethical VRS operator from setting up a separate company for, say, marketing that has been constituted as a separate business entity, cram as many deaf people in it and then use their own VRS to make the calls to sell their VRS brand on a contractual basis, sit back and watch the dividends roll in. I may be cynical but I suspect that this will become a real labyrinthic mess as it goes on…. Good luck!
Norman,
For laptop users who work for VRS providers, who uses same laptop for home and work, the answer is not allowed.
eyes open & thumbs up…
Ed-
Your prognostication abilities are spot on. That, or you do have your ears on the ground as to what the FCC may do next. (You predicted that the FCC is acting soon.)
Earlier, I predicted that the FCC would issue a declaratory order w/o benefit of rulemaking on some issues impacting VRS reform. I just didn’t know what issues would be decided in this fashion. (I did strongly suspect employee-generated calls.) It is certainly disappointing that the FCC has issued this declaratory order w/o public comment and discourse.
As FCC orders goes, this one’s a doozy. No question, it will impact smaller VRS providers. it also destroys business models dependent on employee-generated calls. This order seems to be of retroactive nature? If so, the VRS industry can expect clawbacks and accounting offsets. I just hope that the Deaf-owned VRS companies can weather the resulting shakeout.
This would lead to further VRS industry consolidation and 100′s, if not in the low 1000′s, of people out of jobs. The ruling makes it more difficult for Deaf/HH people to seek employment in the very same industry that serves them. It would also disincentivize capital investment in the VRS industry.
However, all of this is just short term pain. Is the ruling good for a healthy and robust VRS industry in the long term? I would like to think so. Instead of VRS companies viewing Deaf/HH employees as ‘profit centers’, they would view them as invaluable contributors to their corporate structure, culture, and the bottom line. Employee morale, productivity, and corporate climate would also improve, having gained the veneer of legitimacy.
So many thoughts… Would have been nice to have this issue opened for public comment.
One other thing- What have you heard about FCC leaning towards a single vendor relay (TRS? VRS? Both?) system? It was brought up on Twitter. I certainly hope that it isn’t the case!
It’s really pointless. Deaf employee rely interpreters through VRS. Therefore VRS are entitled to reimbursement, not because it’s right thing to do. It’s a service required! Because VRS is paying interpreters !!!!
What about — Deaf employee work at “ACME company” and deaf request for interpreter service and ACME are happy to provide service. The interpreters make about easy 60 to 80 per hour.. minimum 2 hours even it lasts only 1 minutes or 1 hour. Therefore, ACME company is paying interpreter service!
Regardless, Deaf are treated same as hearing people. If hearing people work at VRS and use VRS interpreter service. just happened if hearing wanted talk to deaf boss, then VRS is paying interpreter service too!! I’ve seen hearing people work at technical service and call VRS to his deaf boss.
I see no different to me.
Why pointing only deaf? Come on.
Make sense?
CV,
Only one person is spreading a rumor on Twitter that FCC is “taking steps” toward a single vendor system. He has not stated what those “steps” are. It is worth noting that this person’s company has been hit very hard by today’s ruling. In fact, today’s ruling did everything but name his company outright.
Cousin Vinny -
I’m really sorry but i don’t see the logic with this impact on small providers. If a small provider has chosen to make the service available to the public from day 1 without any excessive employees usage and rely on an in-house interpreter, this should not affect them dramatically.
Jeff -
This is where the 10 digit number system comes into the picture. This should reduce fraud aspect dramatically.
Robin
I would like to point out or clarify something that you said which I think is a misreading of the order.
Ed said:
“Also, there are now several VRS providers who has mostly deaf employees and owned by deaf employees, does that mean they no longer can use VRS to make legitimate business calls? For example, hearing persons in other VRS providers only pay from 1/2 cents to several cents per min while VRS provider pay full cost of video interpreter (lot more than 1.2 cents to a few cents). Is that functionally equivalent?”
I believe this is incorrect. The ruling says that a deaf employee CAN make a VRS call but that such call must be compensated as a business expense rather than a per-minute basis. The example that a hearing person’s call is far much cheaper than a deaf person’s call is not accurate because a deaf person’s VRS call is being compensated as a business expense at an interpreter’s cost.
Here’s a very simple analysis:
Would the call have been made if that person was not an employee or independent contractor of Company X?
Employment is a financial incentive, and the FCC has repeatedly said that such incentives are not allowed as a pretext for making VRS calls. Also, the ADA under Title II mandates that the employers are to provide for the accommodations of their employees. That’s why the FCC consider in-house calls as business expenses.
I could be off; I’m just a VRS consumer. In replying to you, I’m not commenting on any specific provider. Let’s say that there’s a start-up VRS provider along the lines you describe…
Most likely, this VRS provider would have to ride the coattails of a certified VRS provider, and submit a petition to the FCC to get certified as well. I don’t know the turnaround time for this certification process; let’s say, 6 months? What happens to this startup VRS provider when the certified VRS provider decides to exit the VRS market? Goes out of business? All because of this order.
All of a sudden, the startup VRS provider has to find another certified VRS provider just to stay in business until FCC has certified them.
Another example… VRS is a capital intensive business. For a startup VRS provider, they would contract with an existing call center, rather than operating and financing a call center from scratch. Maybe the startup VRS provider can have an exclusivity arrangement with the call center, but I think it is unlikely.
What if the call center is not able to stay in business? What if the call center’s existing VRS partners are exiting the VRS business or being driven into bankruptcy? The call center itself may have to downsize as well, or even go out of business. The startup VRS provider is now without a call center and has to scramble to find another call center to contract with.
Bottom line is, this FCC declaratory ruling definitely has unintended consequences. There may even be consequences that you and I haven’t thought about. This ruling affects the entire VRS industry as a whole, including smaller and startup VRS providers.
Again, I could be off; I wouldn’t know how to start up a VRS company, much less on how to capitalize it, secure necessary contracts with existing participants in the industry, and much more. Maybe it is really that simple as you mean it to be. (I certainly hope so! I want Deaf startup VRS companies to succeed, even in this new regulatory environment.)
I was a former VRS independent contractor of two VRS companies that required all its Deaf employees to use its VRS services to generate a lot of minutes to bill to generate more profit for them. It is an illegal business practice for any VRS companies.
From the recently FCC ruling, FCC prevents any VRS companies to take advantage of having its Deaf employees to generate minutes for them by doing those illegal business practices.
From my point of view, FCC is doing right thing for both VRS companies and Deaf community because we will have those VRS services in the future by enforcing the VRS companies to do the legal business practices.
For the reason, from IRS website, Business expenses are the cost of carrying on a trade or business. These expenses are usually deductible if the business is operated to make a profit. So the VRS companies will make profit from the FCC ruling anyway.
I do not see any why VRS companies will not hire any Deaf employees in the future.
If a VRS company doe not hire any Deaf employee, I strongly, recommend you to not use their service period!
Thanks,
Former VRS independent contractor.
It is not accurate to say that this ruling was issued without public input. The docket is public and filled with petitions, comments and ex partes on this very topic. The FCC held a public forum on this topic in December and invited everyone to comment via the docket. Providers and consumers have had ample opportunity to comment.
Also, the declaratory ruling states no new rules. It merely reiterates and emphasizes what is and always has been the law. And it doesn’t even “clarify” anything because the rules have always been clear, notwithstanding the attempts of certain providers to claim that if they were breaking the rules they should not be liable because the rules were somehow not clear.
From my point of view, I undersand that FCC made decision to make a new rule on VCO. Basically I think VRS should not profit from this because I feel it is like VRS abusing the business. I
I must say lastly of all, WOW! VRS industry had skyrocket 500% when it first started. I think FCC should had done better than that. What about the VRS fraud?
More list goes on, see what I mean? I felt that FCC is poor managed.
Yeah it’s all the FCC’s fault. They were out there telling people to go on this big money grab. What-ever.
Any attempts to blame the FCC for lax enforcement are just a distraction that the providers would like the community to indulge in. Purple is the one who filed those ridiculous petitions and reconsiderations in the first place – while a dark cloud of fraud was hanging over the industry no less – and put the FCC on the spot. The FCC had no choice but to restate and reaffirm its rules. Seriously, was there any other answer to those petitions under the language of the statute?
Another red herring is the so-called impact on deaf employees. Title IV is not a deaf-employment-subsidization act, and one isn’t going to find a court in the US that will read it that broadly.
Finally, no one addresses the double-dipping. Providers will have to give up one or the other – the expense report or the per-minute reimbursement.
Most disinterested observers – especially general telecom providers – will be thinking “why is this such a big deal to these providers? If losing this revenue is going to sink providers, it just confirms that those providers’ operations were a sham.” Be realistic here. There isn’t going to be a lot of public sympathy for providers on this issue.
Hey Cousin Vinny-
You’re extremely perceptive and I have to agree with a lot of points you raised here. There are tons of approaches any start up companies can take going into the VRS industry.
One can always adopt a bootstrapping concept and work with existing vendors. Usually with this situation, there’s a potential conflict of vision and business goals which is unrelated to this ruling – but related to how a company can start up.
Personally, I hope other deaf owned companies will be able to start up their own companies. From my experience, it is possible to start up a company and manage funds well in order to meet certain traffic goals for each month. If someone starts saying “Yeah, if we do this, we will get that traffic next month” – that’s an extremely dangerous approach to take within the industry.
Probably the best tip I can think of is avoid looking at your competitors’ traffic and just simply focus on growing your own customer base. That’s the best way in avoiding falling into a trap. It’s also better this way – you get to listen to your customers locally and figure out how to make the service better for them.
Anyway, I’d love to chat with you offline about this – email me at robin (at)convorelay.com if you’re up for it as well.
Sorry for going off the point with the topic here!
Robin
Robin
I’m sure when a deaf person is employeed by a VRS industry they’ll personally favor the use of their VI instead of others. Which is a big no-no since its ranking up the employeer’s minutes, which should instead be used as a business expense.
…….I see a possible hole but not my place to say……..
I’ll like to clarify the “business expense”.
VRS providers are required to submit all expenses to the Fund Adminstrator (NECA) on an annual basis. FCC is saying that VRS staff using telephone system is “already” built into the “telephone expense”. I did little checking around (Convo has yet to submit expenses to NECA) on this and found out that cost of VRS staff utilizing VRS is NOT built into “telephone expense”.
So if the FCC expects VRS providers do that from now on, then the reimbursement rate will shoot up. Who gets to benefit from higher reimbursement rate? Not the VRS providers with lot of deaf/hoh employees, but the VRS provider with less number of deaf/hoh as they do not have to deal with deaf/hoh cost of using VRS.
I am saying FCC can’t have cake and eat it, too.
That said, be on the lookout for comments that I am now working that I strongly believe offers alternative resolution that is a win-win solution. The comments to the FCC should be filed by early next week.
A provider can’t be reimbursed for the calls a Deaf employee makes to their doctor during their lunch break? The ruling seems to be unnecessarily broad restriction. It also does not really address the underlying problems but only attempts to remove one tactic which has been where a Deaf employee calls a Deaf customer through VRS to leave a message. In my own research I have seen that done on more than one occasion by several providers. If that is problem then that should have been addressed. In my opinion this ruling goes too far.
What about the case of a line technician that works for AT&T in the local office (which is an unrelated business to VRS but is part of AT&T); does that person’s calls get counted against AT&T because they are also a VRS provider?
(this is only a hypothetical)
My concern is this ruling seems to place an undue burden on the employer and the Deaf employee. The employer does have to provide access to the telephone system.
Correct me if I’m wrong, the ADA does not say the employer must provide relay, that is in the realm of the telecommunication company. That is the exact stance I took when I petitioned for the certification program. As a telecommunications company there is a requirement to 1) provide relay, 2) contract out for it or 3) deem another provider to be doing it. If the third method, a phone company is paying into the fund without expectation of any recoupment.
In the event that a telecommunications company is also the employer that still does not change the employer’s requirement to provide access to a telephone but at the same time it would not seem to increase the burden on the employer.
Compare these two situations:
1) Company A, Deaf employee wants to use the phone. Company A provides an internet connection and a videophone. The employee is free to use any VRS provider they choose. The cost to the company $50 a month for the internet connection and $300 for the videophone. Assuming they purchase everything in the open market not free equipment.
2) Company B, Deaf employee wants to use the phone. Company B provides an internet connection and a videophone. The employee is free to use any VRS provider they choose. The cost to the company $50 a month for the internet connection and $300 for the videophone and $6 or $7 a minute.
Company B now has a negative incentive to hire Deaf employees. The Deaf employee and the employer are being penalized because of the type of business the company is in.
It seems to me the test is whether or not the call would have been made by an equally situated hearing employee. If yes, then it is a true relay call. I think it is alluded to in the first few paragraphs of the ruling when it is not meant to create “revenue” for a company.
My prediction is that this will perpetuate further discrimination against Deaf employees and applicants.
Furthermore, what about a Deaf owned VRS company. Is that person not entitled to equal access to telecommunications system? Under this regime they could only hope that one day they might recoup the associated costs. Comparing two Deaf business owners where one owns a telecommunications company and the other an advertising company they are not treated equally.
The FCC allowed for the costs to be included in the annual data collection whereby the rate is set. That only means the costs will be aggregated with every other provider’s costs. Then and only then, if NECA approves the cost to be used in calculating the rate will it be considered. However, we all know this does not mean full reimbursement for the line item. There are any number of factors that come into play including the competitive marketplace that effects the number of minutes whereby a provider would hope to recoup these costs.
Should a Deaf business owner have their equal access to the telephone network be decided by the marketplace? That is a hefty cost placed on the person with a disability by virtue of their disability.
Ed Bosson-
First of all, I will look forward to reading your comments as they appear in docket 10-51. Any win-win solution would be appreciated. However, I’m not so sure that the reimbursement rate will ‘shoot up’, accounting for VRS phone access costs by VRS employees. With creative accounting, anything’s possible, I guess.
However, this recent declaratory ruling shows FCC’s ‘hand’ in dealing with the VRS industry. I am not quite sure that the FCC is merely clarifying existing regulations, but rather, creating new ones. I find it troubling that the new regulatory regime is increasingly hostile to the VRS industry as a whole. They do have every reason to feel ‘burned’, but this declaratory ruling is not the way to go.
Daryl Crouse-
You’re absolutely spot on in your comments. Thank you for fully explaining the ramfications of this ruling in terms of affecting Deaf/HH participation in the VRS industry. (You did, however, lose me on the line technican hypothetical.) Hopefully, and thanks to advocacy efforts in the public docket by various stakeholders, consumers, and industry participants, the FCC will reconsider the wisdom of this ruling.
You are going to have to come up with reasons why the “business expense” reason the FCC applied does not apply to VRS providers. It applies to other companies such as Starbucks, IBM, GMC – if they need interpreters or other accommodations they pay for it and consider it a business expense. We (Deaf and people with disabilities) have been supporting this for years and it is what the law says and what courts have accepted. Why are VRS providers different?
Ed or Robin, does the order cover all forms of TRS? If not, why not? I’m just wondering if Sprint or CSD’s D/deaf and HH outreach reps’ use of text or CapTel relay services are similarly disallowed for reimbursement? Seems interesting if they are only showing concern over use of “premium” services.
Or is that system different because it’s handled by the States?
1 – Is this about the provider or about the employees effected?
My concerns are squarely on the employees that will be effected. There are certainly effects on the provider and they are entitled regardless of the past to the fair treatment of the law. There are providers who acted ethically and they should not be punished.
If you know my long history in the industry, I am the person who successfully petitioned the FCC to establish the certification program as the founder of a now certified provider telecommunications company. (See Snap filings in 2004, 2005 & part of 2006)
I also introduced the first SIP based videophone to the marketplace (Ojo). (See same Snap filings)
I am no longer allowed to run the company I started from the ground up. You can research the federal lawsuit that happened. I have sat across the table from venture capitalist and hedge fund managers considering investments in VRS.
I have no sympathy for providers here. My only consideration is the negative impact employees and their families will suffer.
2 – Business expense
The business expense considered by the ADA for employers is the cost of the additional equipment (i.e., videophone or internet connection).
No employer is required to provide relay, they are only required to provide access to the telephone. That has always meant a phone line, TTY, videophone, internet connection not the entire telephone network.
The ruling assumes the provider is now responsible for the entire telephone network as a workplace (and home?) accommodation.
Example 1 – Company A (VRS provider) has a staff meeting at the office where deaf and hearing employees are in attendance for one hour. All people are located at the office. The ADA would require the employer to hire an interpreter (if needed, assuming all could not sign). That is a business expense considered by the ADA. (~$120 cost of accommodation – interpreter)
Example 2 – Company B (not VRS provider) has a staff meeting by teleconference. All employees are hearing. All employees have access to the telephone network and use it to conduct the meeting for one hour. ($0.00 cost of accommodation)
Example 3 – Company X has a staff meeting by teleconference where some employees (Deaf or Hearing) are are in attendance by telephone and others in person. All employees have access to the telephone network and use it to conduct the meeting for one hour. (~$120 cost of accommodation)
Example 4 – Company Z has a staff meeting by teleconference where some employees (Deaf or Hearing) are are in attendance by telephone and others in person. All employees have access to the telephone network and use it to conduct the meeting (~$480 cost of accommodation)
Which company X or Z is a VRS provider? Can you tell by the cost of the accommodation to the employee? Company Z is the VRS provider but how is the situation any different from X? There is no difference except that a Deaf employee attended in person and by teleconference thus they had to pay for the on-site interpreter (example1) and the telephone network at what I assumed to be $6 a minute.
3 – What about the privacy rights of the employees and their calls?
The glaring question to me is on what basis does the FCC have enough information to identify that a call is or is not that of an employee?
The TDN should not be used to identify the caller by name. My employer does not have the right to use my home/mobile number for any use that I do not authorize.
Also, how is it determined that a call’s content is or is not “work related”? The content of calls is confidential, right?
Based on other comments (on a different blog) that seem to indicate that “calls made by or to employees of VRS providers and their subcontractors are not eligible for compensation from the TRS Fund on a per-minute basis whether at home or at work, whether for work or for personal purposes, ARE NOT BILLABLE” robs every Deaf person who happens to also work for a VRS provider in any capacity of an uninhibited right to use the telephone.
Furthermore, this also appears to strip the right of any Deaf employee of an interpreting agency that is a contractor to a provider of their uninhibited right to the use the telephone.
I believe the right is inhibited because their usage of the telephone system for any purpose would be tracked, documented, made dependent on their employer’s discretion as well. When the cash flow is thin the first “expense” to be cut will be this burdensome expense. In no other situation can I think of where a Deaf person or hearing person be forced to depend on their employer for private telephone use or even work related use.
many of you seem to have missed the footnote # 13 on page 3 of the order that clearly states personal calls made by the employee outside of the VRS office are allowable!
here is the footnote.
Paste
Employees’ reasonable use of the provider’s telephone services for personal or non-business related calls at the workplace would be consistent with standard business practice and would be a business expense for the provider. Personal or non-business related VRS calls placed by employees outside the workplace would not be business expenses of the provider and, therefore, would be compensable from the Fund on a per-minute basis.
unpaste
Not very clear language! But what it means to me is that such calls done from the VRS provider’s place of business will not be compensated. If the employee goes to the VRS payphone (yeah, ain’t any, eh) out on the street corner then it is compensable.
And most of the comments I have seen seem to be understanding this part of it correctly.
It’s very clear language and it means that if an employee makes a personal, non-business-related VRS call from home using his own employer’s VRS, those minutes ARE billable to the Fund. Make a call from work, it’s a business expense whether personal or work-related. Make a call from home, it’s a business expense if work-related and billable to the Fund if personal. Why is this confusing or unclear?
Cousin Vinny,
Your remark of “I am not quite sure that the FCC is merely clarifying existing regulations, but rather, creating new ones.” Is right on nose.
Theoretically speaking, whatever regulations traditiional TTY relay service has also should be applied to VRS. Well, FCC has allowed deaf/hoh employees from TRS to make business calls, but not for VRS. This is, in my opinion, not existing regulation but a new ruling – that being the case, requires rule making procedure and should ask for comments from public or industry.
eyes open & thumbs up…
Anon, On ur remark about calling from work and home as being different. Not that easy. I have and so did large number of VRS employees used laptops of which all VRS calls were made from. I have one 10 digit phone number for my laptop and I make VRS calls at work then at home I also make VRS calls from the same laptop. How can NECA tell the difference?
Of course, two phone numbers have been proposed, but I believe there is a regulation that does not allow two numbers of one device (this I admit I am not sure if there had been change of that rule via waiver or stay so anyone know that?). More and more deaf/hoh are opting for download-able programs to their netbooks, laptops, notebooks, etc., and using them as their main VRS use
Anyway, see the dilemma?
eyes open & thumbs up…
Ed,
I would not be surprised if NECA were able to tell from IP data whether a call was made from the workplace or elsewhere, regardless of whether it was the same phone number. Perhaps you could check with your sources about this?
Before everyone flies off the handle on retroactive application, keep in mind that under general APA principles, retroactivity is prohibited when the agency’s ruling is a departure from prior CLEAR policy.
Even assuming for the sake of argument the rules were somehow unclear and the interpretation is “new,” or a “clarification,” retroactive application of agency interpretations can still be allowed, and has been in other telecom ratemaking situations. There’s plenty of cases out there saying as much.
So it’s a hard argument to make, given that courts will generally defer to the agency and that the order is a reaffirmation.
Ed,
Per FCC comment, “First, we emphasize that VRS calls made by or to a VRS provider’s employee, or the employee of a provider’s subcontractor, are not eligible for compensation from the TRS Fund on a per-minute basis from the Fund, but rather as business expenses.”
Can you tell me how much percentage of VRS calls made by based on “made by or to a VRS provider’s employee… ” impacted on their VRS providers per month?
Thank you?
VRS Policies: http://bit.ly/cpF1NM via @addthis ~~ Greg Hlibok is on this video. I am pretty sure you have watched this video. I am puzzled that there is no impact on vrs, so said Greg.. You think differently. How come?
I don’t understand how Greg would say, no impact, while we know it is affecting our employment. We need to do something about this. I am sure that companies are not interesting in hiring us, due to the expenses of using VRS. Expenses add up rocketingly, definitely.
Shouldn’t employees at VRS have two phone numbers, one for work which the company will use for business expense, and other for home for personal use.
It’s not any different to me with non-VRS companies. The phones, whether it’s a videophone or device for video calls, with the local number, belongs to the VRS company, not for making personal calls therefore should be use for business only.
If a person needs to make personal VRS calls, it’s better off using the personal phone number, but that still won’t stop the person from making VRS calls from the company’s phone number, except that the VRS company will not be reimburse for it.
I understand a lot of hearing people have their own cell phones to make calls from their work place where deaf people don’t have this kind of access except using a device from the VRS provider, but those who uses laptops with the video conferencing software should be using their home local number to make personal calls. I am certain they can bring it to work except that some companys will not allow personal laptops on their network for security reason. Other option is to get a wireless connection serviced by the cell phone network carrier. Video calls from 3G/4G network are still surprisingly as good as WiFi connection.
Please watch this message of assurance that this Declaratory Ruling is intended to protect the integrity of VRS and that it won’t adversely impact consumers’ experience with VRS service.
http://www.fcc.gov/cgb/dro/vrs_policies.html
Thank you.
Greg Hlibok
FCC Attorney
CDG,
I would like to know, too. This type of info is proprietary. I know it varies: it depends on how many deaf/hoh VRS provider have. Lots of them, higher I am sure, fewer then less.
Greg said no impact on CONSUMERS experience. He did not say that those currently missusing VRS as part of their jobs would be able to keep those jobs. It will have an impact on VRS providers and their employees. I hope Greg and FCC are right in that adjustments will be made so that consumers will still be able to make VRS calls without problems.
It’s sad to watch some of the wild assertions and accusations being thrown around on Twitter and other places. One provider executive just claimed that employee calls were not billed as business expenses because “the forms didn’t ask for it.” Not true: box 4-b of the provider data collection form specifically asks providers to report “telecommunications expenses” for employees.
Also, it is irrelevant that one, some or even all providers have not actually been reporting those calls as business expenses. The point is, the FCC says that they could have, and should have, been doing so all along.
And once more on the issue of retroactivity: the caselaw says that the FCC cannot order retroactivity only when it has changed a prior CLEAR rule. Well, here the FCC is not changing any rules; it’s merely reaffirming them. And even if it was a new rule, certain providers have already boxed themselves into a corner because they’ve argued that the FCC rules were previously NOT clear.
Also, a prudent provider would have refused to collect reimbursement for calls about which it thought the rules were unclear. They would have suspended billing for those questionable calls until the FCC clarified that they were reimbursable. Instead, Purple continued to collect AND argued it was okay to collect because the rules were “not clear” to them. And now they’re going to have to pay it all back.
I’d like to mention that between July and October 2009, a total of 12,059,430 out of 33,085,599 VRS minutes were for calls terminating at a 1-800 number. That is 36 percent. Is that normal?
Also, we don’t have info on providers, but I think it would be safe to assume that a great majority of these 1-800 minutes are for conference calling.
CNW,
I don’t know how you got that info, but that indeed is high percentage. I would love to know if these 800s are conference calls or to customer supports of services and stores. Oh, to be a fly on the wall ;-]
I don’t want to duplicate any comments here since there are some that I’m in total agreement with. Yes, I think this ruling is detrimental to employment opportunities for deaf people not only in the VRS industry but the message could potentially be damaging for deaf people in all industries.
Is anyone doing anything about it other than write on blogs and have endless discussions amongst ourselves?
Thank you.
Jackie
As you know, Purple is one of 3 providers are going to pay FCC back and if this happens, we will loose these value deaf employees and seems that FCC does not care about deaf community because we are loosing jobs!! What is this? A Joke? We need to protect our communication system.
Ed, you are the founder and father of VRS, what you gonna say about this? How you can save this mess from these “big jerks” people at FCC?
You know, everyone including me are very pissed off and we blame FCC not bring this crap 3 years ago evenaully VRS has been asking but until now, why wait? This is totally unfair.
If this is going to close the VRS providers if they do not have any money to pay FCC back, we will go back to TDD old times, and we all don’t want to. Just think, this may happen. Just like what movie 2012 is like as everything crashes and we go back to square one and start all over again.
I have no time for this crap anymore, we need to be strong and voice a better statement against FCC and educate them and make sure that VRS is important to our community but they need to stop abuse and we need better people to lead the VRS business and FCC too.
Time to wake up and drink alot of coffee and see what we can save? Hmm?
I got that info from this file:
https://docs.google.com/fileview?id=0B6z9SnLd9QxVNDY3ZTU1OGUtNTY1Zi00MDhhLWI5NjQtMWQzODIyMTk4ZDZk&hl=en
I tried finding it again at the NECA website but wasn’t able to recall where exactly I found it. But had this PDF file saved on my computer, so here it is.
Recommend you all go to sec.gov and search for filings by Purple (PRPL). They filed a form 8-K today with a lot of bad news. Highlights: they owe the FCC $18.4M, payable immediately; the FCC has not only frozen their December payment from NECA but all future payments; and they are now in default on $48M worth of loans (!).
They have filed a request for emergency stay and review with the FCC, but I would not hold my breath waiting for it to succeed.
https://www.neca.org/cms400min/WorkArea/linkit.aspx?LinkIdentifier=id&ItemID=2684
“2. Utilities: Expenses associated with land and buildings, such as water, sewerage, fuel, T1 lines, internet connectivity and power. Telephone service expenses, such as center toll free numbers, local and foreign exchange should also be included here. Also see ITEM B. 4.
“4. Telecommunications Expenses: Expenses associated with inspecting, testing, analyzing and correcting trouble; repairing or reporting on telecommunications plant (switching, transmission, operator, cable and wire) to determine need for repairs, replacements, rearrangements, and changes; expenses for activities, such as controlling traffic flow, administering traffic
measuring and monitoring devices, assigning equipment and load balancing, collecting and summarizing traffic data, administering trunking, and assigning interoffice facilities and circuit layout work. Note: expenses reported here are in addition to the telephone service expenses reported in Section A 2.”
I am assuming that these are the two sections of the instructions referred to in the ruling and by @anon above.
Someone please explain how either of these paragraphs clearly indicate employee calls or even slightly infer that employee calls are included as an expense. I do not see it and I have never seen it interpreted that way.
Daryl, you should read the declaratory ruling again, especially section III-A and footnote 12. Section B-4 of the form is just one place where part of the expenses of providing telephone service to employees can be included. It’s clear that a provider who wanted to double-dip could have easily done so.
Note that no one is saying that Purple actually double-dipped. The $16.7 million the FCC is requiring them to pay back is probably mostly from those internal deaf-to-deaf conference calls that the FCC *already* said were not kosher.
And do the math, people: $16.7 million represents, at $6 per minute, almost TWO THOUSAND DAYS — over five years! — of 24/7 calling. By a company of 800 people, the majority of whom are hearing? Come on. Something was rotten in Denmark and you all know it.
The FCC has not been clear all along – until this recent declaratory ruling – that employee-generated calls all must be submitted as business expenses, not as billable per-minute expenses. The FCC has issued a number of rulings over the years detailing what calls are billable or not, and none of them sets forth any direction on how to submit employee-generated calls. That’s why I find their statement in the recent declaratory ruling that providers have had “ample notice” to be quite laughable. In fact they don’t even cite to any prior ruling for that statement, but to the cost reporting forms. Those cost reporting forms, however, were reasonably interpreted to not include VRS expenses for in-house interpreters, particularly when the predominant understanding was that employee calls were billable to the TRS Fund so long as they were legitimate – that is, they were not made solely for the purpose of inflating minutes.
Other than that I have no problem with the declaratory ruling other than it puts a disproportionate cost burden on VRS providers who use more deaf callers than average. (Those providers will only partially recoup their in-house interpreter costs under the new billing system.) What I don’t like is the FCC’s revisionist history regarding the clarity of how those calls were to be treated, and their applying it retroactively. “Ample notice”? Not true.
CNW,
I was looking at your document. It doesn’t say whether the calls are from hearing to deaf or deaf to hearing. Is it possible that many of these calls are being made from hearing to deaf on toll free VRS numbers (e.g. Sorenson 866 number)?
tired of watching. so I’m gonna say it………
If I was deaf person operating a VRS industry I’d be sweet enough to use a different VRS company to manage my calls, instead of using my personal VI’s.
Just as simple as that and that will not mark off as a business expense. The minutes will be reimbursed towards the other company.
A sweet deal to reduce competition and build friendship….
The intent of this ruling is to address fraud and protect the integrity of VRS. It simply reaffirms the compensability of employee generating calls where these calls should be covered as a business expense, not on a per-minute basis. This ruling should, in no way, discourage providers from employing deaf individuals. The argument that this ruling harms deaf employees is suggesting, in a subtle way, that had it not for providers receiving compensation for their employees’ VRS calls on a per-minute fee basis, VRS providers would not employ deaf employees. If it is the case, then why would any deaf employees want to work for a provider who embraces this perception and attitude?
Me likin’ Mr. Hlibok….
build ur own minutes from personal employees is a big no-no….use a diffrent service besides your own looks to be the best perception.
Shame on em’ VRS industries who “use” deaf employees to build up minutes.
Just saw Convo Relay’s recent video. I don’t have a YouTube account, so hopefully you all don’t mind me commenting here.
While the FCC’s Declaratory Ruling may have closed the door on a lot of opportunities, it also has opened new ones. And I’m glad to see companies like Convo Relay taking advantage of them and gaining market (& mind) share. Hopefully other similiarly situated VRS companies are doing the same.
Those with the correct business model (i.e., handling calls) in the VRS industry will prosper in this new regulatory regime. Here’s to best wishes for these VRS companies.
I have one other thought; surviving in the VRS industry all boils down to one point; execution.
Business plans that execute stand a chance of surviving in a free marketplace. The FCC placed an importance about handling calls (instead of placing them), and companies that best execute this vision will survive. Let’s look at the following scenarios, and you all tell me which business has the best execution:
Company A has an on-site meeting. All attend, and interpreters, if needed, are present. There is a free flow of information and ideas exchange at the speed of thought.
Company B has a teleconference call for all of its people at the office. All attend, and some participate with their own relay agents. Flow of information comes in sequentially and often, out of order. Ideas get interrupted, or worse, get lost.
Business schools, start your case studies!
cv,
how will business survive if FCC rules was not clear?
Please read the facts….
To Cousin Vinny (17:07:32) :
Clearly you do not get it. FCC ruling will set us back 15 years and keep in mind small VRS who are new will feel the ripple effect with in 45 days from now! If i was you think harder, look deeper and figure out real flow chat.
Yes, it all boils down to execution. Purple made several blunders and mismanagement mistakes:
1.) production of MVP
2.) Buying IP-Relay right before the 10 digit # scheme came into place. Registration reduced the number of fraudulent IP relay calls thus reducing the revenue.
3.) Bloated middle management. Please tell me why the hell Purple needs more than 10 vice presidents? A way to reward cronies?
4.) Hubris, greed, and disregard for the law.
And they ramped up the internal calls to make up for those losses. They think they’re so smart and can get away with it if things are fudged a bit. Unfortunately, the world does not work that way.
And let me tell you a secret. Do you know why Purple, in addition to TDI and the NAD, were strongly against registration for TRS? It was not because of privacy concerns as they (especially TDI) would claim. It was because of the revenue they got from doing those fraudulent IP calls.
Finally, Purple’s PR blitz is ill-advised. I don’t think Kelby realized that it was Congress who ordered the FCC/NECA to become more stringent with reviewing call records and also asked the FBI to get involved. So, how can Kelby realistically think that Congress would do something when getting those letters?
I’m sorry but no one really cares about Purple. If they went away, their traffic will go away too because 80% of their calls were internally generated so once Purple ceases to exist, then there would be no reason to make those calls anymore.
SHAME on Purple for all of those recent hires and with people moving to the Sacramento area in the past several weeks. Why hire more people if they have been under a cloud since August?
I am very disappointed with Kelby Brick. He was a great ADA advocate, and now, look at him. He claims that the rules are not clear. But he doesn’t realize that the very definition of TRS says it is to be between a hearing and deaf persopn, period and that was in place since 1990. Twisting words and trying to claim ignorance will not help you, Kelby. Shame on you. Being deaf is no excuse for your breaking the law.
Take it easy folks. Try to be civil in ur posts. I often do not allow posts that clearly smears a person with no rationale behind it. I got a few that I am not permitting to be posted. Just so as long it is not “out of control” emotion, I will permit it.
Joseph, to answer your question. Be on the lookout for a petition that I am working on which I hope will be a win-win solution. I have up to 25 days to do it before the effectiveness of the petition is gone.
eyes open & thumbs up…
Jsnrobinson,
It is not so much FCC is setting us back 15 years. It is more of trying to find a balancing act that FCC is trying to do.
When there are obvious cheating going on in a few of VRS providers, FCC has to take action (although I wish they had much sooner rather than to wait so long as it did).
I applaud FCC for doing that although I disagree on one main item on how to “fix” the problem. I have been in regulatory capacity for 19 years, so I can certainly empathize with FCC and the challenge it has to face.
It is not going to be easy to find a solution that is a good “fix” due to the very nature of TRS and the fact government subsidization exists. So really what FCC has to do is find balanced fix between deaf/hoh and hearing communities, VRS industry, political congress folks (representing both business and people) bearing on FCC folks, and complying with TRS regulations. I definitely do not envy the position FCC is in.
eyes open & thumbs up…
before you go on and make a petition… I’d like to add a few thoughts to ensure your petition does answer a few questions.
“…it means NECA would need to recalculate the reimbursement rate and the rate will likely shoot up.”
Why will it shoot up? just because a VRS industry favors their personal VI’s to rank up minutes? Why not use other VRS instead of the companies’ personal VI’s?
“Also, there are now several VRS providers who has mostly deaf employees and owned by deaf employees, does that mean they no longer can use VRS to make legitimate business calls?”
Again is it because the VRS provider uses their personal VI’s to rank up minutes? Why not use other VRS instead of the companies’ personal VI’s?
Business 101: A company using resources provided from the inside, is considered as a “business expense”.
This is why I have said it basically looks to be that the VRS “uses” a deaf employee.
Some comments here and other blogs have said that “it is the cost of doing business” and providers should just accept it. First of all, I want to say that I do not own, work for, related to, indebted to, etc. etc.. to any provider. However, I used to own a certified provider and I advocated for over a year personally for the certification program to be established.
Re: Cost of doing business, there are actually two paradigms happening simultaneously:
1) telecommunications companies (those that actually are! – that’s another discussion, another time) that are required by the ADA to make their services accessible by doing it themselves, contracting someone to do it for them or deeming another carrier for themselves. Regardless of the choice all carriers pay into the fund.
Those carriers that choose to do it themselves also pay into the fund but also exercise some level of influence on the contribution factor by their own operations and they recoup their expenses and maybe some towards their contribution. There is a natural balance and economic force involved there that encourages efficiency and cost effectiveness because the provider is also paying into the fund.
The problem I see of “providers gone wild” is the influx of pseudo-telecommunications carriers or a carrier that actually provides a minimal number of public telephone lines to their customers (less than 10 according to public records). These pseudo-telecommunications companies are not paying “into” the fund therefore they do not care how much they receive “out” of the fund.
The certification program was never intended to allow the system to be gamed in this way. I know this is the case because I am the one who spent more than a year making the case to establish the certification program for a telephone company I started but unfortunately am no longer involved with.
2) The few providers offering relay are assuming the financial risk, customer goodwill, litigation risk, potential for regulatory fines, etc. of offering relay when they could simply opt to join the group buying program (the fund). If everyone did that there would be no providers or relay except a socialized version; the single provider system or contracted provider by the FCC.
There is no reason for society to fulfill legal duties under the ADA of a telephone company. The same that society does not pay for a hotel to offer a TTY to Deaf guests.
I understand the law to say it is the responsibility of the telephone company to fulfill its duty to the public my making its services accessible to people with disabilities. The FCC said the same thing in the order establishing the certification program and many other places.
Social mechanisms are utilized when there is a public duty that is the responsibility of the public. Social mechanisms are not used when there is a duty to the publicthat is a private responsibility.
There is a risk being assumed by providers that all other telephone companies are not assuming by only contributing to the fund. The providers in essence become defacto contractors to the other carriers. In this instance, I believe the providers are right to expect a reward for their risk assumption and the other carriers owe it because as we can see from what the FCC is asking for there is a large monetary risk being assumed.
I know this analogy is going to sound simplistic, but I think it will create a better picture of what I mean. I borrow the analogy from similar techniques used to explain economics in Freakonomics books. (great books by the way and very interesting). In “( )” below I include the related concept to relay and VRS.
———-
“This Little Provider Went to the Market”
Imagine you and I worked together. Both of us had to pick up milk after work on the way home. We live beside each other. I ask you to pick up milk for me. (carrier decides to contribute only) We can’t remember how much it costs but think it is $2.00. (annual data collection, demand estimates and set rate)
I give you $2.00. (contribution factor to NECA)
You buy two gallons of milk at the store after work. (provider opted to contribute and provide relay)
Then, you arrive at my house with a gallon of milk for me and one for yourself. You find that my partner (another provider) has already gone shopping therefore I do not need the milk. (competitive marketplace for minutes).
You spent $4.00 when you only needed to spend $2.00 (provider could have opted to contribute only). The milk will go bad before you can use it. (payroll and capital expenditures to provide relay)
Instead, suppose I give you $2.00 and agree to pay you another $1.00 (reward) when you get to my house because I cannot contact my partner to tell him not to go shopping. I may not need the milk and you would be stuck with two gallons of milk (risk). At least half of the additional cost would be paid; you would only be out $1.00 instead of $2.00 (lack of efficiencies by a provider) You may decide to take the milk back to the store to get the $2.00 back. (efficiency of providers). Therefore you would be ahead by a $1.00 (reward).
You arrive to my house with the gallon of milk to find my partner has not gone shopping yet (consumer choice in marketplace). I take the gallon of milk I already paid for (provider reimbursed for costs). I also give you the additional $1.00. (reward for assuming the risk)
You would have received the extra $1.00 whether I needed the milk or not. You faced being stuck with two gallons of milk if I didn’t need it. (rate setting process – reasonable costs reimbursed).
However, you got me what I needed (satisfied the requirements of the rules) and you earned an extra dollar by helping me out. (performance + risk + reward).
Suppose that my brother (Deaf employees) is going to eat breakfast at my house tomorrow. My milk will be used (internal meetings not reimbursed) and I accept that cost.
If my brother goes out to eat should he have to take my milk to drink at the restaurant?
(personal calls and other calls via VRS that would otherwise be made without relay by a similarly situated hearing employee but for the Deaf employee’s disability)
No. The restaurant (marketplace and regulatory regime) will provide whatever he orders (consumer advocacy for functional equivalency).
——
The analogy can go on to further address many other topics but I think it creates an easy to understand parallel for the topics at hand right now.
http://www.doncullen.net/?p=392#comments
The end is nigh for Purple. Read the recent comments. Purple reps are complaining they don’t have access to their CRM now.
This is the end.
RIP: Purple Communications
1994-2010
Another thing that bothers me is that the providers are asking the FCC to hold their hand and help them figure out which calls are legitimate or not. If you need to ask that question, then what are you doing in this business?
Simply put:
If a provider does not:
1.) Bill inside calls to the NECA
2.) Set up 800 numbers for conference calling for its employees
3.) Hire independent contractors by the busload to market their programs
4.) Encourage customers to call podcasts and other recorded messages
5.) provide incentives for anyone to make a call
Then they will be fine. How hard is this? Do they really have to ask that?
A simple tip: if it feels wrong to you, it probably is. Also follow ethics.
What exactly is the definition of a “business call”? I would think somone who works at the VRS company that calls their doctor or family member during work hours would not be a business call but that is what several of these posts seem to imply. I would think of a business call as being a phone call that is used strictly for business purposes such as calls to material providers, calls for scheduling terps…etc.
Someone with a PACER account (CNW?) should try to find the motion that Purple filed today in the DC Circuit Court of Appeals asking for an emergency temporary restraining order against the FCC. It would probably make for some pretty interesting reading.
The motion is here: http://bit.ly/anQe7R
Thanks, cnw.
February 25, 2010 NEW FCC RULING affecting deaf and hard of hearing individuals and Small VRS companies. Starting with Purple, the FCC has put the number 2 VRS provider on the brink of declaring bankruptcy. Deaf and Hard of Hearing individual are fooled and confused on the facts. Government officials did not follow due process even though Purple for months inquired on a proper participatory decision making process.
See
http://fccruling.blogspot.com/2010/03/fcc-ruling-gives-me-no-confidence-in.html
I want to know when the VRS abuser going to jail and I also want to stipulate that any VRS abuser shouldn’t get SSDI, if they go to jail unless the $$$ is paid back to the FCC. I still feel they abuse our government and betrayed our deaf community. They also should be ban in servicing the deaf community. They lock up Madoff when he broke the law. Why are Yeh and DHIS employees still walking around and not lock up in prison? They should be lock up in Trenton, NJ. I still think the VRS industry should be run by the government because I know VRS abuse will continue cuz it s too easy to cheat the FCC.