III. The Record¹¹

We initiated this proceeding in May 2000. We received public input in four ways: in formal written comments, during public participation hearings (PPHs), by letter and e-mail from interested members of the public, and during a day-long workshop held in San Francisco.

A. Formal Comments

We received formal written comments from six individuals or entities: The current DDTP Committees,¹² the California Association of the Deaf,¹³ the California Coalition of Agencies Serving the Deaf/Hard of Hearing,¹⁴ GTE California,¹⁵ Pacific Bell,¹⁶ and Wayne Baker (member of the EPAC).¹⁷ The commenters made the following suggestions:

1. DDTP Committee Comments

The DDTP Committees filed opening and reply comments. They suggested that SB 669 was intended to apply solely to the financial operations of the DDTP, and not to advisory functions. They criticized past Commission performance in approving DDTP budgets and working cooperatively with DDTP program staff, and consequently expressed concern about service interruption should Commission involvement in the program increase. They advocated more cooperative Commission-DDTPAC interaction. They expressed deep concern about the effects on program services should program vendors not receive prompt payment from the State Treasury.

Finally, they suggested increased representation by the disabled community on the DDTP Committees, since the current disabled representatives (one each) on the DDTPAC and EPAC are charged with representing the needs of consumers with speech, vision, motion and cognitive disabilities: "Such a large and diverse group cannot be effectively represented by one individual who simply could not have experience with all of these disabilities. This consumer representative seat may need to be restructured."¹⁸

2. CAD Comments

CAD asked that we no longer have utility representatives as members of the DDTP Committees since the DDTP is centralizing its functions. It likewise asked for the removal of Commission employees from the Committees in view of the Commission's already considerable role in voting on DDTP matters.

CAD also asked for additional deaf representation on the Committees, and suggested that under-representation on the Committees has led to under-representation of deaf and hearing-impaired employees on DDTP's staff. While the latter point is beyond the scope of this proceeding to implement SB 669, we believe that the changes we make to the Committees will increase consumer participation.

In its reply comments, CAD recommended creation of a position for a Speech-to-Speech representative: "The CAD . . . agrees with the DDTPAC that because of the specialized needs of consumers who are . . . speech-impaired, it may be appropriate to require their representation in spite of being few in number."¹⁹

CAD expressed concern about delay in vendor payments, and suggested a revolving fund, a suggestion we adopt here.

CAD also addressed a letter the California State Employees Association (CSEA) submitted to the Commission.²⁰ CSEA argued that most employees of the DDTP should be civil servants. In rebuttal, CAD argued that most DDTP positions fall within an exception to the civil service requirement and may remain within the DDTP.

3. Deaf/Hard of Hearing Coalition Comments

The Deaf/Hard of Hearing Coalition attested to the long history of consumer control of the DDTP, pointing for support to the independent living movement of the 1960s. The Coalition asked the Commission to reconstitute the DDTP Committees to fully reflect the consumer population they serve. They, as others, recommend removing telephone companies and Commission employees from the Committees. They asserted that "the deaf community should have the greatest representation on the DDTP committees." While we do not add new deaf representatives to the Committees, our removal of telephone company and Commission representatives as voting members preserves a deaf community voting majority on the Committees.

4. GTE/Pacific Bell Comments

GTE (now known as Verizon) advocated increasing the level of business expertise represented on the DDTP Committees:

It is evident from a reading of SB 669 that the DDTPAC is responsible for substantial operational, financial, budgeting and administrative functions that benefit the deaf and disabled community. . . . Therefore, GTE believes the Commission should review the make-up of the committees to insure that they are constituted in a manner that will bring sufficient knowledge and expertise to bear on the responsibilities before them.²¹

We are concerned that imposing a requirement of business expertise on the deaf and disabled community representatives will make it difficult to attract people to the Committee given that the per diem reimbursement for service on the Committees is quite modest. Therefore, we urge, but do not require, that at least one member of each Committee have demonstrated business expertise.

Pacific Bell recommended few changes in current DDTP organization and governance. It suggested that Commission members and telephone companies remain members of the DDTP Committees, stating that "[s]ome utility membership is probably necessary because the utilities will continue to collect the surcharge and should be available to make recommendations on service provisioning."²² We agree that telephone company, CRS provider and Commission expertise should remain with the Committees. While these representatives will no longer have voting membership, we expect they will continue to provide valuable information and insight as Committee participants.

5. Wayne Baker Comments

Wayne Baker, the current disabled community representative to the EPAC, suggested that a different division within this Commission from the Telecommunications Division (TD) interact with the DDTP. He echoed several public comments criticizing the TD and seeking a more positive working relationship with Commission staff. He made the observation that "DDTP is being held accountable for running the Program, but authority to do so has been increasingly restricted."²³ He strongly recommended retaining consumer control of the program. We retain consumer control of the DDTP in this decision but do not pass on which division of the Commission should take responsibility for the changes we mandate.

B. Public Hearings²⁴

We held PPHs during the month of September 2000 in Oakland, Sacramento, Ontario and San Diego. We had telephone companies serving those areas mail notice of the hearings to all customers,²⁵ issued press releases and sent word of the hearings to various deaf and disabled groups. Approximately 40 people addressed us at these hearings. We provided sign language interpreters and real time captioners at the PPHs to ensure participation by consumers of DDTP services.

During the hearings, we handed out copies of the legislation as well as a list of questions to which we desired answers.²⁶ Because of the focused nature of the questioning, we received many responses that were to the point and helpful to our decision.

The public comments - with approximately 40 people commenting - broke out roughly as follows:²⁷

1. Committees

a. Seven commenters felt the telephone companies should be removed from the DDTP Committees, or at least not have a vote.

b. Six commenters felt Commission staff should be removed from the DDTP Committees, or at least not have a vote.

c. Eight commenters felt the Commission should add additional deaf and disabled community representation, with three favoring a Speech-to-Speech representative, including Dr. Robert Segalman, the originator of Speech-to-Speech service.

2. Staffing/Program Operations

Most commenters felt the DDTP as currently constituted runs well, is consumer driven and focused, and should not change. A common refrain was "if it ain't broke, don't fix it." Several speakers attributed innovation in DDTP services to consumer input. Others pointed to the fact that California's program is a model for the nation, and was recently commended by Federal Communications Commission Chairman William Kennard.²⁸ DDTP staff was consistently praised. Many consumers worried that increasing Commission involvement in the program would slow innovation, lessen the program's consumer focus, and reduce the high level of service the DDTP currently delivers.

There were a few criticisms of the current program. Because some relate to program services, we mention them here. We heard several times that there is not enough consumer outreach about DDTP's services, especially in the Southern part of the state. While this issue is not directly related to SB 669 implementation, we suggest additional outreach in this decision. Public commenters specifically referred to a need to enhance outreach about the Speech-to-Speech program, and to increase the amount of educational and informational material the DDTP distributes.

A second recurring theme focused on equipment. Several consumers noted that innovation in DDTP services does not move quickly enough. One commenter noted that North Carolina and Texas have launched Video Relay Service (VRS), while California has not. (California currently is conducting a VRS trial, however.) Others commented about outdated or consistently malfunctioning equipment. Still others suggested more use of pilot programs to test new equipment. We will work with the DDTP program on these suggestions and, if appropriate, open a proceeding to consider program enhancements.

3. Fiscal Matters

Commenters almost universally expressed concern about how the program would be affected by the movement of funds from a bank trust fund - which the DDTPAC under Commission supervision controls - to the State Treasury. Suggestions included implementing a revolving fund for small vendor payments and payments to non-profit entities; studying other programs in State government that work with significant numbers of outside contractors (e.g., the California courts and the Department of Rehabilitation); and using an electronic funds transfer system to speed vendor payments. One speaker noted that it is usually the individual State agency, and not the Controller's office, which causes payment delays. Thus, to the extent we add Commission staff to oversee program funds, we must do so in a way that assures prompt processing of payment requests.

C. Other Public Comment²⁹

The public responded to the bill inserts noted in Section III (B) primarily by sending letters and emails to the Commission. We received approximately 400 letters and e-mails.

Perhaps because of the brevity of the bill inserts, many of the comments reflected a misunderstanding of our authority to alter the legislation. The vast majority of commenters objected to transfer of the funds to the State Treasury. Since the transfer is legislatively mandated, we have no power to change this outcome.

Almost an equal number of commenters expressed concern that the State Treasury would "raid" the DDTP funds and use them for purposes other than the DDTP. However, SB 669 provides very explicitly that DDTP funds are dedicated to the DDTP and to no other purpose:

Moneys appropriated from the Deaf and Disabled Telecommunications Program Administrative Committee Fund to the commission shall be utilized exclusively by the commission for the program specified in subdivision (a), including all costs of the board and the commission associated with the administration and oversight of the program and the fund.³⁰

Subdivision (a), referenced in the foregoing section, refers to the DDTP. Further bolstering this conclusion is Section 281: "Any revenues that are deposited in funds created pursuant to this chapter [the chapter establishing the DDTP fund and other "public purpose" funds] shall not be used by the state for any purpose other than as specified in this chapter."³¹ Thus, we are confident that the DDTP fund created in SB 669 is a dedicated fund for the exclusive use of the DDTP and its administration.

Other comments focused more on the DDTP. Commenters consistently praised the program, lauded program staff, and urged us not to make any significant changes. One DDTP consumer stated: "Please keep the DDTP's current governance and structure. . . Program customers must continue to be in charge . . . If it ain't broke, don't fix it!" An independent living organization stated: "To maintain continued success of the program, consumers must continue to be in charge." To the extent individuals or groups commented on program specifics, virtually all comments favored little governance or organizational change. We heard many times that the consumer-focused nature of the program is what makes it work, and just as often that making the program more clearly a "government bureaucracy" would harm, not help, deaf and disabled consumers.

D. Workshop

On October 2, 2000, the Commission held a workshop in San Francisco to examine more closely how to effect the changes SB 669 requires. Almost 30 people participated. Both sign language interpreters and real time captioners were present throughout the day. ³²

Workshop participants included members of the current DDTP staff, DDTP Committee members, representatives of the parties who filed formal comments in this proceeding, consumers of deaf and disabled services, deaf/disabled community leaders and telephone company representatives. Commissioner Henry Duque presided over the workshop, and Strategic Planning Division staff person Mark Vandervelden served as moderator.

The workshop focused on three areas: accommodating the fiscal changes required by SB 669, constituting the DDTP Committees so as to "achieve appropriate representation [on the DDTP Administrative Committee] by the consumers of telecommunications services for the deaf and disabled."

1. Committees

The workshop participants were asked whether there is a need to change the composition of the three DDTP Committees. Several parties expressed support for removing telephone companies and Commission staff as voting members of the Committees, including the telephone companies themselves. Pacific Bell's representative stated: "Pacific Bell does not feel like it needs a voting presence on the Committee in order to provide technical expertise. . . ." GTE/Verizon's representative stated: "I think it would be good to have the telcos represented [on the Committees] but not necessarily have a voting - a voting [sic]." WorldCom's representative stated: "It would eliminate the possibility of conflict of interest on the part of the telcos by their not being voting members of the Committee."

We agree that the telephone companies' (and CRS providers') key contribution to the Committee is their technical and operational knowledge. Thus, we will retain the telephone company (and CRS) slots on the Committees, but make them non-voting slots. The telephone companies and other companies with expertise in the evolution of telecommunications technology should retain a role in the DDTP. As the DDTP's Executive Director stated:

One of the reasons why this is among if not the most successful program of its kind in the country is because there has over the last 20 years been an ongoing working partnership between the [telecommunications] carriers and the community being served. And it would be, I think, tragic to lose that partnership. . . . As it stands now, it's kind [of] an imposed partnership because people have voting rights on subcommittees and so on and so forth. . . . [T]here ought to be someway [sic] we can effect a mechanism that effectively deals with potential conflict of interest [presented if the carriers have a vote, but] gives those who benefit the program some real representation and keeps this program on the cutting edge, technologically. (Emphasis added.)

We believe the best way of retaining the technological edge and yet reducing the concerns of those who believe the telephone companies should not have a voting role is to retain telephone company representation on the Committees as non-voting members. While there was some concern expressed (although not by the companies themselves) that losing the vote would lessen the companies' impact, on balance we believe our solution is the best one.

Other suggestions on Committee composition (with the suggesting party in parentheses) included the following:

a. Increase deaf representation on the DDTPAC. (CAD) CAD expressed concern that because of the voting slots currently allotted to telephone companies and other non-consumers, deaf consumers currently are a minority on the DDTPAC. With the changes we make today, deaf and hard-of-hearing consumers will represent a majority of voting members of the DDTPAC.

b. Add a Speech-to-Speech representative to the DDTPAC: "I had trouble getting the Committee to take speech disabled issues seriously." (Dr. Robert Segalman) We agree with this suggestion.

c. Change the slot on the DDTPAC for a "statewide deaf organization" to a "consumer" slot, on the theory that organizations are not "consumers." (Tom Davinroy) We do not see a basis for this change. Presumably, an organization brings the perspective of its constituents, leveraging the one allotted slot into a slot representative of the views of many. We see this as a benefit, not a detriment.

d. Increase disabled representation on the DDTPAC, which currently has one disabled representative: "I don't know how we can expect one disabled consumer to represent vision, speech, mobility, manipulation and cognition." (John Darby) We agree that one disabled slot on the DDTPAC is insufficient to represent this diverse group of disabled consumers, and increase the representation by two slots, one of which shall be a Speech-to-Speech representative and the other a disabled representative.

e. Increase the business expertise on the DDTPAC by adding two outside business representatives from non-utility and non-consumer groups. We would tend to concur with John Darby, who commented that while business expertise is important to the Committees, the $100 per diem limit for Committee members may deter people with such expertise from serving.

f. Rethink the entire Committee structure from the bottom up. Retool the Committees so they pass on policy matters rather than gathering factual information and doing day-to-day decision making about the DDTP. (WorldCom and CAD). We do not think we have an adequate record to make such sweeping changes.

g. Add a non-voting member to the EPAC with expertise in new technology. (Pacific Bell) An alternate suggestion was to add such a position to the DDTP staff. We believe the examination of equipment and technology issues we prescribe in this decision is a better place to consider this issue.

2. Staffing/Program Operations

Workshop participants expressed concern that placing all or most of the operational responsibility for the DDTP within the Commission would contradict the language in SB 669 empowering the DDTPAC to "carry out" the program.³³ As one participant put it: "How can [the] Administrative Committee carry out programs if it has no authority over the employees providing the services?"

Participants also expressed concern at the ability of the Commission to replicate DDTP staffing. A DDTP staff person explained that one-third of current DDTP employees are deaf or disabled. She stated that the rest of the staff, except 5-10%, are conversant in American Sign Language, children of deaf adults, or parents of deaf or disabled children. She expressed concern that the Commission might not be able to hire such a diverse staff or a staff with the skill and sensitivity to work closely with a deaf and disabled population.

In the same vein, several workshop participants expressed concern about the Commission's historical treatment of the DDTP. Typical was the following statement: "[T]he CPUC not being about to finish our budget until next year is the latest example of how they treat us as their step child. That's why it terrified me to give the CPUC a larger role in running our program."

A CAD representative made the point that since the DDTP is a Commission program - even though DDTP staff members are not members of the civil service and are not technically employed by this Commission - leaving DDTP employees in charge of all DDTP functions is consistent with the intent of the legislation. That is, the "Commission" will still have oversight over the program even though the program staff resides elsewhere: "I don't know why somebody else in the Commission has to do this . . . . if the DDTP is part of the Commission."

Commission legal staff responded to this point by noting that the Commission had been advised by various State control agencies and the Attorney General's office that the manner in which the funds were presently being administered was not legal. She advised that State civil service staff must perform financial oversight functions such as approving fund disbursements.

3. Fiscal Matters

Representatives of the DDTP attending the workshop explained the current process for approving invoices. Currently, vendors submit their invoice to the DDTP's Executive Director. She takes the invoices to the DDTPAC once a month, which reviews them, approves them if appropriate, signs a letter authorizing payment, and sends the letter to the Bank of America, which then pays the invoice. Invoices submitted by the 15^th of the month are reviewed and, if appropriate, approved during the first week of the following month.

One DDTP representative assumed that with the transfer of funds to the State Treasury, the DDTPAC would continue to review invoices and recommend payment, but would then send them to the Commission for review. The Commission would then forward the invoices to the Controller, which would in turn make payment in accordance with the provisions of the Prompt Payment Act, California Government Code § 927 et seq.³⁴

Several participants voiced support for a continuation of this practice, at least with a portion of the DDTP funds, which would be characterized as a revolving fund. Some suggested that the DDTP use the revolving fund to pay small vendors; others suggested the DDTP be allowed a revolving fund to cover a certain number of months of operational expenses.

The DDTP's Executive Director made the suggestion that Commission staff and the DDTPAC review invoices at the same time so as to expedite the review process. We think this is a good suggestion, but are not sure it would work in practice, given that Commission staff presumably will review expenditures for many different Commission programs.

Finally, one workshop participant summed things up nicely:

[I]f it isn't broke, don't fix it. You can fine tune it . . ., but I think we should look at it from the fine tune point rather than to fix a lot of stuff. I think the program is working pretty well. It's consumer responsive. We've got a lot of expertise, a lot of technology coming into the decision-making process. . . . That's my final thought.

We believe our decision reflects the spirit of those remarks.

²⁸ "Here in California, the California Deaf and Disabled Telecommunications Program Advisory Committee is a model for the nation." "The Americans With Disabilities Act: Lessons For The Virtual World," Remarks By William E. Kennard, Chairman, Federal Communications Commission, for the 10^th Anniversary of the Americans with Disabilities Act, Los Angeles Convention Center, Los Angeles, California, June 19, 2000 (as Prepared for Delivery). The speech is available at http://www.fcc.gov/commissioners/kennard/speeches.html.