9. Finally, the Commission declines, in document FCC 13-118, to make a general determination regarding the scope of provider payments that will be denied when a provider fails to comply with the incentives prohibition. Instead, the Commission will make case-by-case determinations of the appropriate amount of withholdings. Moreover, the Commission will not allow third party certification to serve as a means of curing a provider's failure to comply with its prohibition of referrals for rewards and other incentives. The Commission advises that such providers may also be subject to other remedies, including but not limited to forfeitures and revocation of their certification to provide IP CTS pursuant to SEC 64.606(e)(2) of its rules.
10. Document FCC 13-118 also adopts on a permanent basis, with some modification, the interim rules relating to registration, certification, equipment and eligibility requirements. First, Commission amends the interim rule requiring that providers that give away, or sell at a cost of less than $75, equipment to potential or existing IP CTS users must require such users to submit to the provider a certification from a professional that the user needs IP CTS in order to achieve functionally equivalent telephone service. The rule adopted in document FCC 13-118 prohibits TRS providers from receiving compensation from the Fund for any IP CTS minutes of use generated by IP CTS equipment that they distribute, directly or indirectly, for free or for less than $75 to consumers after the effective date of the rule. The alternative of professional certification is thus eliminated. The prohibition also applies to any officer, director, partner, employee, agent, subcontractor, or sponsoring organization or entity (collectively "affiliate") of any TRS provider. Further, any type of arrangement by an IP CTS provider, directly or indirectly through any third party (other than through a state or local equipment distribution program), to distribute equipment at no charge or for less than $75 to consumers is likewise prohibited. The Commission notes that many IP CTS devices are modern and attractive, and often provide enhanced sound amplification--features that are likely to entice consumers with or without hearing loss to seek their acquisition if they are given away for free or at low cost. Once the device is in a consumer's possession, consumers may routinely use the device with captions--as might others in the consumer's household--even if they do not actually need the service for effective communication. In fact, the unobtrusive nature of IP CTS is such that consumers may not even be aware that captions are turned on or that they have the ability to turn them off. In this manner, the free distribution of such devices is likely to contribute to IP CTS usage by persons who do not have a sufficient degree of hearing loss to require this service to understand conversation over the phone. Paying at least $75 for IP CTS equipment, by contrast, provides a concrete indication that the consumer has thought the transaction through sufficiently to have concluded that she or he needs IP CTS for effective communication.
11. In adopting this rule, the Commission also concludes that overall, as a practical matter, consumer self-screening based on having to make a significant investment in equipment is likely to be a more effective approach to screening than is third-party certification. The Commission's interim rule, requiring certification by an independent professional when equipment is provided for free or for less than $75, had been designed to prevent the distribution of IP CTS equipment to individuals who do not actually need IP CTS. However, experience with this approach suggests that it may not be very effective in achieving adequate screening of such individuals. Under the interim rule, determining whether a person qualifies for free or low-cost distribution of IP CTS necessarily involves the exercise of professional judgment by numerous individuals about whom the Commission has little information. The Commission cannot effectively oversee the performance of this important gatekeeping function by hundreds or thousands of hearing health and other professionals. Further, where free IP CTS phones have been offered directly or indirectly by a provider under the interim rules, the advertising for such phones continues to focus on the availability of a "free" IP CTS phone, with the need for third-party certification alluded to only vaguely, if at all. Thus, the professional's role is likely to change from helping the consumer select on their merits from a number of alternative assistive technologies, to accepting or vetoing a choice already made by the consumer, based on exposure to ads promoting the free availability of an IP CTS phone. Moreover, contrary to the Commission's clearly stated intent that the screening third party professional be independent of any provider, the Commission is aware of numerous instances in which sessions are arranged by a provider, to which consumers are invited to obtain a free hearing analysis and a free IP CTS phone at the same time and location. Professionals who participate in such sessions, whether for compensation, the prospect of meeting potential new clients, or for other reasons, are linked to the sponsoring provider (or are so perceived by potential customers and clients), and thus are not "independent" as contemplated by the interim rules.