Access to the Telephone for People with Hearing Loss: CaptionCall’s Case Against the FCC
Carolyn Smaka: Thanks for your time today, Bruce. Before we get into CaptionCall's court case against the FCC, can you give a brief overview of CaptionCall for our readers?
Bruce Peterson: Sure. CaptionCall entered the marketplace in January of 2011. CaptionCall is a telephone and service for people who have difficulty using the phone due to hearing loss. The CaptionCall phone and service allows qualified individuals with hearing loss to read written captions of what callers say on a large, easy-to-read screen – much like they might use closed captioned television. The caller’s words are converted to text that scrolls across the screen so they can read what their callers are saying. This conversion is done by one of our highly-trained Communications Assistants who revoices what the caller says and with the aid of voice recognition technology, creates the captions which are sent to the CaptionCall phone. The captioning service is free to all eligible consumers. Captioning is provided by CaptionCall as a result of the American’s with Disabilities Act (ADA) which mandates functionally equivalent telephone services be available to people who can’t hear on the telephone. The service is paid with funds collected from a surcharge levied on customers of all telecommunications providers. The fund and captioning services are administered by the Federal Communications Commission (FCC).
Carolyn: Thank you. Let’s get into the background of why CaptionCall decided to sue the FCC. What brought this on?
Bruce: In a nutshell, we feel that the ADA has been pushed aside by the FCC. The focus of the ADA, in this case, is to give people with hearing loss access and the opportunity to use the telephone in the same way as someone who doesn’t have a hearing loss. It seems that the FCC has shifted their focus, and is looking only at controlling costs. Of course they must act responsibly, but they are neglecting their primary directive which is to deliver this service to everyone who needs it. The FCC has erected barriers to functionally equivalent telephone services to people who are eligible for the service.
The federal support for captioned telephone service was approved by the FCC in March of 2008, and CaptionCall entered the market in January of 2011. Our success in finding and connecting people who are eligible for the service increased the amount that the FCC paid out of the Telecommunications Relay Services (TRS) fund. This rapid growth caused concerns among some at the FCC. They reacted to this growth by issuing an emergency order (a law that is put in place without the mandated notice and comment process) in January of 2013. This order restricted marketing practices and established new eligibility requirements that required recipients of the service to either pay a minimum of $75 or to receive a professional certification of their need for IP CTS (Internet Protocol Captioned Telephone Service).
Additionally, they required that phone users take an affirmative action by pressing a button at the start of each call to request the service, called the “default-off” requirement. Previously, a person could simply pick up the phone to answer or initiate a call and the captioning was engaged by default. That is not the case now. This emergency rule claimed to be in response to fraudulent and unqualified use of the service by individuals who were not eligible for it. Subsequent research conducted by Rehabilitation Engineering Research Center on Telecommunications Access (RERC) found no evidence of fraud or abuse of the service (You can see their report filed with the FCC at http://apps.fcc.gov/ecfs/document/view?id=7022272198). This barrier is a step backward in regard to the functional equivalence required by the ADA.
From the issuing of the emergency interim order until the publication of a final order in August of 2013, more than 6,000 comments from users and other interested parties were filed with the FCC to express dissatisfaction and concern regarding the $75 charge and the default-off requirement. Many of the complaints from hearing-impaired users themselves were poorly addressed or dismissed entirely by the FCC.
The final rules released in August of 2013 went even further to restrict access to IP CTS. The option to provide professional certification and to receive the phone free-of-charge was eliminated. The only way a customer could prove their need to use IP CTS was to pay a minimum of $75 for the phone.
CaptionCall felt that the $75 requirement was contrary to both the spirit and letter of the ADA. After exhausting the available measures to work with the FCC, CaptionCall filed a Stay Request in the DC Circuit Court. After a panel of the court evaluated the case based on the merits, they ruled that the $75 order must be stayed until the case was heard.
Carolyn: Wow. That’s a big change for consumers, and it sounds to me like these rules have created barriers to access of to a needed service for many of the people we see in our practices everyday as healthcare professionals.
Bruce: To your point, we had the great fortune to be joined by the two largest consumer advocacy organizations that represent over 40 million Americans with hearing loss or deafness: the Hearing Loss Association of America (HLAA) and the National Association of the Deaf (NAD). They cited their concerns, supported our position and also highlighted that the FCC has not done its due diligence in supporting consumers with hearing loss.
Not listening to the very people that such a ruling impacts is a very large concern for these consumer organizations. The FCC appears to be acting entirely backwards concerning their duty to support the ADA and serve the needs of people with hearing loss. It is unfortunate that they are dismissive of the concerns of real people who are just trying to live their life – trying to use the phone.
Carolyn: And from what I understand, this is retroactive for people who may have already had a caption phone, correct?
Bruce: Yes. Anyone who was a customer prior to March 7, 2013 must go through the new certification and registration process, including either paying for the phone or receiving a professional certification. There was a provision made in the final order that if you were an existing customer and could not afford the phone that you could receive it “for free” by obtaining a professional certification. “Free” means that you have to schedule an appointment with your audiologist, and many audiologists know that it is not a trivial thing to ask some of our senior patients to come in to the office.
Carolyn: Right – they may have health and transportation issues, to name a few. Is there anything that consumers or professionals can do today to help support you in this endeavor?
Bruce: They can always make comments to both the FCC as well as their elected officials. The FCC is empowered by Congress, and Congress passed the ADA more than 20 years ago. The FCC has the burden of regulating programs that fulfill the ADA mandate, and that is exactly what they should do. We are not averse to regulation at all. But it seems the FCC has lost its way. It is disappointing that with the technology available to help so many people with hearing loss to communicate on the phone better than ever, the FCC is actually restricting access and reducing availability of captioned telephone service.
Keepcaptions.com is a web site that will provide you the names and contact information of your elected officials based on your address. It also allows you to send your thoughts to both the FCC and those elected officials.
Carolyn: When do you expect a resolution on the case?
Bruce: Oral arguments will be heard on May 13th, and the court will make a final ruling later this summer. We’re very hopeful that the case will play out in a favorable way for consumers with hearing loss. It was successful through the initial review process where the stay was granted and we hope the panel who does the final review will come to the same conclusions.
Carolyn: I hope you will keep us updated on the progress. This affects so many people we work with everyday, so it’s certainly worthy of attention and support. Thanks for taking the time to give us the update today, Bruce.
Bruce: It’s been my pleasure, Carolyn.
CaptionCall has provided us with the following link to hear the oral arguments that were presented on May 16th: http://www.cadc.uscourts.gov/
A ruling from the court is anticipated at the end of the July, or shortly thereafter.