This week, the D.C. Circuit Court of Appeals held oral argument concerning a petition for review of FCC rules regarding the use of phone call captioning technology designed for persons with hearing impairments. Petitioner Sorenson Communications, Inc., is the parent company to CaptionCall a provider of Internet Protocol Captioned Telephone Service (IP CTS). IP CTS technology allows hearing impaired telephone users to read "captions" of what the other caller is saying.

Title IV of the ADA requires the FCC to ensure that telecommunications relay services, such as IP CTS, "are available, to the extent possible and in the most efficient manner, to hearing-impaired and speech-impaired individuals..." IP CTS is funded by contributions from common carriers into the Telecommunications Relay Service Interstate Fund (TRS Fund) administered by the FCC and providers such as CaptionCall are compensated from the TRS Fund for costs of the service.

In late 2012, there was a marked increase in the costs to the TRS Fund, and the FCC responded with rules to address what it called "questionable practices" by providers that encouraged use of the service by individuals who may not need it.

CaptionCall argues that the FCC lacked evidence supporting its conclusion that increasing costs to the Fund were caused by misuse by ineligible users, and contends that the FCC could have covered the costs with a slight increase in contributions. With respect to the specific rules, CaptionCall argues that (1) the requirement to sell IP CTS equipment for at least $75 does not impact whether a consumer has a legitimate need; (2) the default captions-off rule contravenes the ADA requirement to provide a functional equivalent to those who have impairments that affect their ability to turn the captions on before using the phone; and (3) the restrictions on marketing violates the First Amendment and the ADA.

The FCC responds that the ease and convenience of using IP CTS made it more susceptible to misuse and undermines the sustainability of the TRS Fund. According to the FCC, Title IV of the ADA grants it discretion in determining what rules are necessary to ensure the availability of IP CTS to those who need it and by reducing costs associated with misuse, and the new rules meet this purpose "in the most efficient manner."

This case is likely to set important precedent on an often forgotten section of the ADA. Oral argument was held this week before the D.C. Circuit Court of Appeals.

Sorenson Communications, Inc. v. FCC, Nos. 13-1122 & 12-1246 (D.C. Cir.)