Most of VRS Order Upheld, But Will Force Reconsideration of Speed Requirements
The gradual reduction in video relay service rates approved by the FCC in 2013 was upheld by the U.S. Court of Appeals for the D.C. Circuit Tuesday (http://bit.ly/1nXGTQz). But the D.C. Circuit also required the agency to put on hold stricter standards for how quickly VRS calls must be answered.
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The 2013 order had tightened standards as of Jan. 1, requiring 85 percent of calls be answered by a sign language interpreter within 60 seconds, measured daily. The requirement was scheduled to become tighter Jan. 1, 2015, mandating 85 percent of VRS calls be answered within 30 seconds, measured daily. The 30-second requirement had originally been scheduled to go into effect July 1. But the agency in June deferred its implementation date by six months in response to request by the VRS industry, with the support of consumer groups.
With the court’s vacating of the stricter standards, the requirement reverts to requiring 80 percent of calls be answered within 120 seconds, measured monthly.
The decision sends that portion of the order to the commission to determine whether the tougher standard will increase providers’ costs, “and if so, whether having faster service is worth the concomitant increase in rates.” The agency will examine a range of options, said an FCC official. Under VRS, a deaf person is able to communicate through sign language with an interpreter who then communicates with the hearing person on the other end, the D.C. Circuit.
Another key aspect of the order, which sets a standard to ensure VRS devices are compatible with each other, was not challenged by the ruling. “We are pleased that the D.C. Circuit largely upheld the FCC’s unanimous comprehensive reforms to further protect and strengthen the” VRS program, “which enables people with disabilities to make a simple phone call,” said an FCC spokesman said in a statement. “We look forward to addressing the single issue that the court remanded to the FCC for further explanation."
Sorenson Communications, which appealed aspects of the 2013 order, had no comment Wednesday. According to the decision, Sorenson had challenged the rate order as “arbitrary and capricious,” and said the rates were too low. The challenge was “problematic,” wrote Judge Douglas Ginsburg, because Sorenson had made the same argument in contesting rates set by the FCC in 2010 and lost. Sorenson argued such factors as providing for a return on labor costs and a higher rate of return on capital than the 11.25 percent set by the agency should be factored into the rates, the decision said. It said Sorenson “failed to demonstrate” that the costs are necessary to the provision of VRS. The order is not arbitrary and capricious “for ignoring costs incurred unnecessarily,” the decision said. Ginsburg was joined in the decision by judges Karen LeCraft Henderson and Patricia Millett.
The ruling said the requirement to answer calls more quickly “likely entails additional labor costs,” which the D.C. Circuit noted was not addressed in the 2013 order. “By adopting the new speed-of-answer metric without evidence of the cost to comply with it, the Commission acted arbitrarily and capriciously,” the decision said. Sorenson had asked the court to throw out the entire rate order, the decision said. Vacating just the speed requirement is “more appropriate” because it “less disruptive course, more precisely tailored,” the decision said.
The FCC could reinstate the same speed requirement, said the D.C. Circuit, as long as the agency bases its decision on the required labor costs and adjusts the rates accordingly.