Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C

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1 Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C In the Matter of ) ) Telecommunications Relay Services and ) CG Docket No Speech-to-Speech Services for Individuals ) With Hearing and Speech Disabilities ) ) Structure and Practices of the ) CG Docket No Video Relay Service Program ) ) THE REGISTRY OF INTERPRETERS FOR THE DEAF, INC. REPLY COMMENTS TO THE NOTICE OF INQUIRY AND FURTHER NOTICE OF PROPOSED RULEMAKING ON STRUCTURE AND PRACTICES OF THE VIDEO RELAY SERVICE PROGRAM AND TELECOMMUNICATIONS RELAY SERVICES AND SPEECH-TO-SPEECH SERVICES FOR INDIVIDUALS WITH HEARING AND SPEECH DISABILITIES The Registry of Interpreters for the Deaf, Inc. (RID) respectfully submit these reply comments in response to the Federal Communications Commission s ( Commission ) Notice of Inquiry (NOI) and Further Notice of Proposed Rulemaking ( FNPRM ) in the above-referenced proceedings. 1 In these Reply Comments, RID identifies certain gaps that must be addressed by the Video Relay Service (VRS) Program and then reinforces our responses to the Commission s specific questions in the ROI and FNPRM 2, as well as requests clarification from the Commission regarding VRS interpreters 1 Structure and Practice of the Video Relay Service Program, CG Docket No , Report and Order, Notice of Inquiry, Further Notice of Proposed Rulemaking, and Order, DA (rel. Mar. 23, 2017) (the FNPRM ). 2 Id 1

2 handling of scam calls, and addresses the Video Interpreter Survey submitted by Sarah Spencer, and Jeff Rosen. 3 Notice of Inquiry on service quality metrics for VRS I. Performance goals should be based on Consumer Groups definition of functional equivalency. RID, a national membership organization, plays a leading role in advocating for excellence in the delivery of interpretation and transliteration services among diverse users of signed and spoken languages. In collaboration with the deaf community, RID supports our members and encourages the growth of the profession. RID strongly believes that our mission, excellence in interpreting, makes a functionally equivalent VRS achievable by increasing the pool of qualified interpreters available to work in the field through the establishment of a national standard for qualified sign language interpreters and transliterators, ongoing professional development, and adherence to the NAD-RID Code of Professional Conduct (CPC). In their policy statement on functional equivalence, Consumer Groups aptly stated, Persons receiving or making relay calls are able to participate equally in the entire conversation with the other party or parties and they experience the same activity, emotional context, purpose, operation, work, service, or role (function) within the call as if the call is between individuals who are not using relay services on any end of the call. 4 We agree. It is RID s vision that provision of competent and qualified interpreted interactions between and among individuals who use signed and spoken languages be as rich 3 Comments: Video Interpreter Survey, CG Docket Nos , 10-51, ID , Sarah Spencer, Jeff Rosen, (visited June 26, 2017) 4 Consumer Groups TRS Policy Statement Functional Equivalency of Telecommunications Relay Services: Meeting the Mandate of the Americans with Disabilities Act, Attach. at 7 (filed April 12, 2011) (2011 Consumer Groups TRS Policy Statement). 2

3 as direct communication. It is our goal to support a functionally equivalent VRS by ensuring that interpreters are sufficiently qualified to support the equal participation of both parties in VRS calls. Accordingly, we support and endorse Consumer Groups definition of a functionally equivalent Telecommunications Relay Service (TRS),, including VRS, and the use of their definition should serve as the basis for any performance goals or quality metrics established by the Commission. It is our position that establishing performance goals is not only appropriate, but essential to ensuring a functionally equivalent VRS. RID strongly encourages the Commission to use the wealth of knowledge and expertise from the Disability Advisory Committee s (DAC) VRS Metrics Workgroup to guide its decisions on appropriate performance goals and measures around VRS Quality. II. Performance measures that take into account the quality and accuracy of interpretation are integral to achieving a functionally equivalent VRS. While we recognize that all the metrics proposed by the Commission in this NOI are important to measuring the functional equivalence of VRS, RID s area of expertise is interpreting, and thus is the only metric on which we will comment. We strongly support the Commission using the quality and accuracy of interpretation as a performance metric for VRS. Again, RID encourages the Commission to leverage the expertise available to it through the DAC s VRS Metrics Work Group to further define this performance measure. Further, RID supports the use of an independent third party to oversee VRS service quality and believes that it is appropriate to make the results of these measurements available to the public. To date, the key performance indicators used by VRS companies, such as the number of minutes per hour a video interpreter is required to produce billable minutes, are often treated as proprietary information by most providers. This means that video interpreters are not allowed to discuss, outside of their workplace, performance indicators that are impeding their ability to deliver excellence in interpreting. Further, we have received anecdotal evidence that failing to meet key performance 3

4 indicators often leads to punishment in the form of reduced hours or undesirable schedules. This is regrettable in that such criteria is not a measure of quality and accurate interpretation of call content. The FCC has acknowledged in this NOI 5 the concerns Consumer Groups continue to raise regarding interpreter quality. These concerns are evidence that the current criteria used is not an adequate metric of competence or quality of service delivered. Accordingly, RID strongly supports the establishment of a system by which the actual users of the service can rate the quality and performance of interpreters providing VRS calls. It is our position that this information should be used to support interpreter development, not as a basis for punitive action against video interpreters. We believe that greater transparency in the quality assurance data collected will allow consumers the information necessary to make an informed choice about a VRS provider. It will also provide video interpreters information about the company or companies for which they are working or are considering joining, so they too can make responsible choices. Further, it provides access to critical knowledge by researchers and educators in the field of interpreting that can foster recognition of evidenced-based best practices in video interpreting. All of these will better support a functionally equivalent VRS. Quality and Accuracy of Interpretation We believe that quality and accuracy of interpretation is an essential metric for VRS performance. We also believe that these metrics must be based on the needs of consumers, balanced with what video interpreters are effectively able to achieve. The Commission s mandatory minimum standards, which prohibit CAs from intentionally altering a relayed conversation and further require that they relay all conversation verbatim unless the relay user specifically requests summarization, 6 is an example of why it is inappropriate to classify video interpreters as Communication Assistants. As stated in our standard practice paper on professional interpreting, interpreting is a complex process that 5 Id CFR (a)(2). 4

5 requires a high degree of linguistic, cognitive and technical skills in both English and American Sign Language (ASL). Sign language interpreting, like spoken language interpreting, involves more than simply replacing a word of spoken English with a signed representation of that English word. 7 Thus, a video interpreter will not relay the conversation verbatim and it is unreasonable, if not impossible, to apply this standard to VRS interpreting. Commission rules also require that VRS CAs be qualified to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. 8 Although this borrowing of the ADA definition of a qualified interpreter better captures the unique nature of video interpreting, it is still insufficient to ensure quality in VRS interpreting. As the Commission recognized in this ROI, consumer organizations have continued to show concern about the quality of VRS interpretation. 9 The Commission now seeks comment on how interpretation quality can effectively be measured. It is our position that the foundation of measuring interpreter quality is setting a minimum standard for interpreters to be qualified to work in VRS. The dialogue as to what this standard should be is appropriate exists within the DAC s VRS Metrics Work Group, which is comprised of consumers, providers, and interpreting-field representation. We believe it is the outcome of this dialogue which should serve as the basis for a quality metrics. A critical element of determining interpretation quality is the inclusion of a system that fosters professional development for video interpreters. Continued growth of this workforce is important to the long-term success of the VRS program. Often, video interpreters work in isolation and rarely have access to a colleague or supervisor from whom they can receive feedback or support. Furthermore, we 7 Registry of Interpreters for the Deaf, Inc. Professional Standards Committee. Standard Practice Paper for Professional Sign Language Interpreting. Updated (Visited May 30, 2017) 8 Id (a)(iv). 9 ROI at 12 5

6 have received anecdotal information that some companies discourage the use of interpreters working in teams altogether. Thus, the Commission must be more deliberate in how it decides to evaluate interpretation quality and promote interpreter development. There are several established methods of evaluation that could be used to achieve this dual outcome. One is the mean opinion score mentioned in the NOI. Currently, when a consumer is displeased with a VRS interpreter, they disconnect the call and reconnect to receive a new Video Interpreter. Having the ability to provide feedback as in the Likert scale suggested in the NOI would provide more data about overall interpretation quality, both for providers and for individual interpreters. Another method is random monitoring of VRS calls for quality assurance. Again, we believe it is appropriate for a full dialogue about the benefits and shortcomings of various methods of evaluation to happen within the DAC s VRS Metrics Workgroup. We emphasize that regardless of the method that is ultimately adopted, the information collected about quality of interpretation should be used to foster interpreter development in support of the overall quality of VRS not as a basis for punitive measures against individual interpreters. III. PHONY VRS CALLS/ SCAM CALLS RID is aware of VRS interpreters receiving phony/ scam calls. In order to ensure functional equivalence, VRS interpreters must interpret these calls during the normal course of business. Some VRS interpreters have voiced grave concern over the requirement to interpret calls they believe may be in violation of the law. Understandably, the delivery of functional equivalence in this matter may result in interpreters perceiving they are contributing to the exploitation of the deaf community and/or instill a fear of criminal liability in those VRS interpreters for knowingly facilitating a crime. On November 8, 2016, Sorenson Communications LLC filed a, Petition for Declaratory Ruling or Alternatively A Rulemaking Regarding Call Handling Obligations. 10 RID respectfully requests the Commission provide clarification in this matter pertaining to VRS interpreters. 10 SORENSON S PETITION FOR A DECLARATORY RULING OR ALTERNATIVELY A RULEMAKING 6

7 FURTHER NOTICE OF PROPOSED RULEMAKING I. SETTING RATES WITHOUT ESTABLISHING QUALITY STANDARDS IS ANTITHETICAL TO ACHIEVING FUNCTIONAL EQUIVALENCE The Commission seeks comment on its tiered rate structure. 11 While we can appreciate the Commission s efforts to eliminate waste, fraud, and abuse and its desire to make a decision about the rate structure, we are concerned that the Commission is continuing to make decisions about compensation rates without a definition of functional equivalence and with no established quality standards for VRS calls, particularly metrics to ensure interpreting quality. We believe that making any decision about the tiered rate system prior to resolving some of the questions posed in this NOI and FNPRM would be premature and ultimately contravene the Commission s work in providing a functionally equivalent VRS. And while RID is not in a position to say whether any given rate is too high or too low, we strongly believe that the reimbursement rate should be guided by what Consumer Groups recommend and what video interpreters are reasonably able to achieve. We believe that setting or cutting a rate without addressing issues such as interpreting quality and considering the DAC s VRS Metrics Workgroup is antithetical to the Commission s work to improve VRS. II. A PORTION OF THE RESEARCH AND DEVELOPMENT FUND SHOULD BE EARMARKED SPECIFICALLY FOR RESEARCH RELATED VRS INTERPRETERS RID applauds the Commission for their commitment to supporting research related to VRS. While we recognize the importance of research and development around the technical aspects of VRS, we urge the Commission to earmark a portion of the research funds to support research directly related REGARDING CALL HANDLING OBLIGATIONS. Docket Nos , Wright, Nakahata, Davis- Counsel for Sorenson Communications LLC. (Accessed June 26, 2017) 11 FNPRM at 38. 7

8 to interpreters in VRS. Since the inception of VRS just over a decade ago, there has been a dearth of research about the work interpreters in this industry perform. Furthermore, there has been limited research on the mental, physical, and emotional impact working in a VRS call center has on interpreters. Currently, the Trauma, Mental Health and Recovery Lab at Northern Illinois University, comprised of Dr. Michelle Lilly and a team of graduate and undergraduate students, are conducting research to examine the impact of handling emergency calls that involve live video as the field transitions to NG The study is currently enrolling a sample of video interpreters who have handled an emergency call while working in video relay services. This research is a tremendous start to examining the work of VRS interpreters, but it is not enough. RID recognizes the urgent need for research to address topics such as stress and burn-out, vicarious trauma/compassion fatigue, repetitive motion injury, and minimum qualification standards. Until there is evidence-based data to guide a full understanding of the work of the interpreter; and the associated physical, mental, and emotional impact of providing interpreting services within this industry, interpreters will continue to face the risk of injury, burnout, and fatigue which leads to consumers receiving inadequate service. RID stands ready to partner with the Commission to help guide this important research. III. VIDEO INTERPRETER SURVEY The independent survey developed by Sarah Spencer, CI and CT, NIC, offers a starting place by which the Commission can discern the need for a more robust method of data collection for the purpose of developing VRS metrics 12. Ms. Spencer and Mr. Rosen emphasize that the results of the survey provide guidance for the continuing dialogue necessary to develop VRS metrics. As stated above, RID is willing to partner with the Commission and incorporate our largest member section- the 12 Id. Comments: Video Interpreter Survey 8

9 Video Interpreter Members Section (VIMS)- which has over 1,250 members in order to assist with the development of these metrics. IV. NON-COMPETITION AGREEMENTS IN VRS INTERPRETER EMPLOYMENT CONTRACTS ARE UNREASONABLE AND UNDERMINE FUNCTIONAL EQUIVALENCE RID opposes the use of non-competition agreements in VRS interpreter contracts. RID believes that such non-competes, which are typically used to protect trade secrets, are unreasonable and undermine functional equivalence by limiting the pool of qualified interpreters available to work in the VRS industry. Interpreters working in VRS are privy to minimal, if any, trade secrets about their employer. In Sorenson s comments 13 filed May 30, they recognize a shortage of qualified Video Interpreters (VIs), yet defend the time parameters of their non-compete clause which bars VIs from obtaining employment from a competitor within the same state six months from severing employment. It is disingenuous to claim a shortage of qualified VIs while simultaneously instituting practices, in this case requiring VIs to sign a restrictive non-compete agreement, that artificially limits the pool of qualified workers. Ultimately, it is consumers and video interpreters who bear the brunt of such duplicity. The desire to retain recently trained employees is insufficient to justify a restrictive and overly broad non-compete clause. Applying this principle, any company that provides on the job training could bar their employee from working in a particular industry, thereby creating a workforce shortage. 14 This is particularly dangerous in the VRS industry in light of the U.S. Department of Labor prediction that the demand for American Sign Language interpreters is 13 Comments of Sorenson Communications LLC Regarding Part III and Sections IV.C-E and G-H of The Further Notice of Proposed Rulemaking. Docket Nos , Nakahata, Wright, Simeone, Davis, Miller- Counsel for Sorenson Communications, LLC. (Accessed June 26, 2017) 14 Bureau of Labor Statistics, U.S. Department of Labor, Occupational Outlook Handbook, Edition, Interpreters and Translators, on the Internet at andcommunication/interpreters-and-translators.htm (visited May 30, 2017). 9

10 expected to grow rapidly, driven by the increasing use of video relay services, which allow people to conduct online video calls and use a sign language interpreter. 15 If the intent of the noncompete clauses is to protect legitimate trade secrets and not training investments, then that goal can be met by agreements less restrictive than overly broad non-competition clauses that act as a nationwide bar on interpreting in VRS and other settings for a year. Non-competition agreements in VRS undermine functional equivalence by limiting the pool of qualified interpreters available to work in VRS. There are a finite number of interpreters qualified to work as VRS interpreters so any restriction on when and where these individuals work creates an artificial decrease in the supply of VRS interpreters. As a result, under qualified or unqualified interpreters may be hired by VRS providers. A VRS interpreter who has decided to discontinue employment with a VRS provider based on adverse working conditions or relocation would be unreasonably barred from working in their field for up to a year, thus shrinking the pool of qualified interpreters available to work in VRS or other settings as restricted by the non-compete. Forcing an interpreter to stay in adverse working conditions because of an overly restrictive non-competition agreement also undermines functional equivalence because unhappy workers are generally less productive. 16 If interpreters are not able to perform at their best, the consumer experience is degraded and functional equivalence is not achieved. RID opposes noncompetition agreements in VRS interpreter employment contracts and believes that they undermine functional equivalence. However, if the Commission decides to allow non-competition agreements, then these agreements should be limited based on: 15 Bureau of Labor Statistics, U.S. Department of Labor, Occupational Outlook Handbook, Edition, Interpreters and Translators, on the Internet at andcommunication/interpreters-and-translators.htm (visited May 30, 2017). 16 Oswald, Andrew J., Proto, Eugenio and Sgroi, Daniel, Happiness and Productivity. IZA Discussion Paper No Available at SSRN: 10

11 the geographic scope of the non-compete, the duration of the non-compete, and the type of activity the ex-employee is precluded from engaging in. The scope of non-competition agreements must be limited to prevent a shortage in available interpreters and to protect the interests of the interpreters. The Commission should limit the geographic scope of the non-compete clause so that if an interpreter moves to an area where their current employer does not have a VRS call center, they are able to continue working without threat of reprisal. The Commission should also limit the duration of the non-compete clause so that the available supply of interpreters keeps pace with the increased demand for VRS interpreters. Finally, the Commission should limit the type of activity the ex-employee is precluded from engaging in, for example: does the non-compete address only VRS or are there clauses that would limit or restrict video remote interpreting (VRI) or community interpreting? Recent research conducted by Kathryn Bower as a part of her Master's thesis project at Gallaudet University recommends a balance between VRS and community interpreting in order to lessen the stress and resulting burnout interpreters in video relay experience. 17 The Commission should not force interpreters into a model in which the VRS provider maintains sole control over the settings within which interpreters are able to work. Instead, the Commission should reject non-competition agreements in VRS interpreter contracts so that functional equivalence is achieved. I. Conclusion RID strongly urges the Commission to adopt Consumer Groups definition of functional equivalency so that the definition may serve as a foundation for establishing performance measures that take into 17 Bower, K. (2013, May). Stress and burnout in video relay service (VRS) interpreting. Presentation given at the Annual Student Research Forum, Gallaudet University. Washington, DC 11

12 account the quality and accuracy of interpretation. We also urge the Commission to allocate research and development funds for research about video interpreting and take the Video Interpreters Survey into consideration while doing so. Additionally, we encourage the Commission to prohibit the use of non-competes in VRS. We also believe the Commission must adopt quality standards for VRS before making any permanent decision about reimbursement rates. Finally, we request the Commission to provide clarification in the matter of VIs interpreting phony/ scam calls. Respectfully Submitted, Neal P. Tucker Policy and Compliance Coordinator 12