Proposed Rule2022-24597
Rates for Interstate Inmate Calling Services
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 15, 2022
Issuing agencies
Federal Communications Commission
Abstract
In this document, the Commission seeks to obtain detailed comment to enable it to make further progress toward ensuring that the rates, charges, and practices for and in connection with interstate and international inmate calling services meet applicable statutory standard. In this document FCC 22-76, the Commission seeks comment on whether to adopt a form of enterprise registration for IP CTS, whether to increase inmate services providers' TRS-related access obligations to include providing access to advanced forms of TRS in jurisdictions with an average daily population of less than 50 incarcerated persons, and whether inmate calling services providers should disclose their charges in an accessible format for disabled incarcerated people. The Commission also seeks comment on whether it should refine its rules concerning the treatment of unused funds in accounts that consumers use to pay for interstate and international inmate calling services and related ancillary services charges, on how it might improve its consumer disclosure rules, and on how the Commission should use the responses to the Third Mandatory Data Collection to establish reasonable, permanent caps on rates and ancillary service charges for interstate and international calling services for incarcerated people. The Commission seeks further comment on whether to allow inmate calling services providers to offer pilot programs that offer consumers the ability to purchase inmate calling services under alternative pricing structures. Last, the Commission also seeks comment on whether it should expand its definitions of "Jail" and "Prison" and on how its proposals may promote or inhibit advances in diversity, equity, inclusion, and accessibility.
Full Text
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[Federal Register Volume 87, Number 219 (Tuesday, November 15, 2022)]
[Proposed Rules]
[Pages 68416-68432]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-24597]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 64
[WC Docket No. 12-375, FCC 22-76; FR ID 111465]
Rates for Interstate Inmate Calling Services
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Commission seeks to obtain detailed
comment to enable it to make further progress toward ensuring that the
rates, charges, and practices for and in connection with interstate and
international inmate calling services meet applicable statutory
standard. In this document FCC 22-76, the Commission seeks comment on
whether to adopt a form of enterprise registration for IP CTS, whether
to increase inmate services providers' TRS-related access obligations
to include providing access to advanced forms of TRS in jurisdictions
with an average daily population of less than 50 incarcerated persons,
and whether inmate calling services providers should disclose their
charges in an accessible format for disabled incarcerated people. The
Commission also seeks comment on whether it should refine its rules
concerning the treatment of unused
[[Page 68417]]
funds in accounts that consumers use to pay for interstate and
international inmate calling services and related ancillary services
charges, on how it might improve its consumer disclosure rules, and on
how the Commission should use the responses to the Third Mandatory Data
Collection to establish reasonable, permanent caps on rates and
ancillary service charges for interstate and international calling
services for incarcerated people. The Commission seeks further comment
on whether to allow inmate calling services providers to offer pilot
programs that offer consumers the ability to purchase inmate calling
services under alternative pricing structures. Last, the Commission
also seeks comment on whether it should expand its definitions of
``Jail'' and ``Prison'' and on how its proposals may promote or inhibit
advances in diversity, equity, inclusion, and accessibility.
DATES: Comments are due on or before December 15, 2022; and reply
comments are due on or before January 17, 2023.
ADDRESSES: You may submit comments, identified by WC Docket No. 12-375,
by either of the following methods:
<bullet> Federal Communications Commission's Website: <a href="https://www.fcc.gov/ecfs/filings">https://www.fcc.gov/ecfs/filings</a>. Follow the instructions for submitting
comments.
<bullet> Paper Filers: Parties who choose to file by paper must
file an original and one copy of each filing. Filings can be sent by
hand or messenger delivery, by commercial overnight courier, or by
first-class or overnight U.S. Postal Service mail. Currently, the
Commission does not accept any hand delivered or messenger delivered
filings as a temporary measure taken to help protect the health and
safety of individuals, and to mitigate the transmission of COVID-19.
All filings must be addressed to the Commission's Secretary, Office of
the Secretary, Federal Communications Commission.
For detailed instructions on submitting comments and additional
information on the rulemaking process, see the Commission's Sixth
Further Notice of Proposed Rulemaking, FCC 22-76 at: <a href="https://docs.fcc.gov/public/attachments/FCC-22-76A1.pdf">https://docs.fcc.gov/public/attachments/FCC-22-76A1.pdf</a>.
FOR FURTHER INFORMATION CONTACT: Michael Scott, Disability Rights
Office of the Consumer and Governmental Affairs Bureau, at (202) 418-
1264 or via email at <a href="/cdn-cgi/l/email-protection#117c78727970747d3f62727e6565517772723f767e67"><span class="__cf_email__" data-cfemail="214c48424940444d0f52424e5555614742420f464e57">[email protected]</span></a> regarding portions of the
Sixth Further Notice of Proposed Rulemaking relating specifically to
the provision of communications services for incarcerated people with
hearing and speech disabilities and Jennifer Best Vickers, Pricing
Policy Division of the Wireline Communications Bureau, at (202) 418-
1526 or via email at <a href="/cdn-cgi/l/email-protection#1e747b707077787b6c3068777d757b6c6d5e787d7d30797168"><span class="__cf_email__" data-cfemail="711b141f1f181714035f0718121a140302311712125f161e07">[email protected]</span></a> regarding other portions
of the Sixth Further Notice of Proposed Rulemaking.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Sixth
Further Notice of Proposed Rulemaking, document FCC 22-76, released
September 30, 2022. This summary is based on the public redacted
version of document FCC 22-76, the full text of which can be obtained
from the following internet address: <a href="https://docs.fcc.gov/public/attachments/FCC-22-76A1.pdf">https://docs.fcc.gov/public/attachments/FCC-22-76A1.pdf</a>. To request materials in accessible formats
for people with disabilities (Braille, large print, electronic files,
audio format), send an email to <a href="/cdn-cgi/l/email-protection#771114144247433711141459101801"><span class="__cf_email__" data-cfemail="f5939696c0c5c1b5939696db929a83">[email protected]</span></a>, or call the Consumer
and Governmental Affairs Bureau at (202) 418-0530 (voice) or (202) 418-
0432 (TTY).
This proceeding shall be treated as a ``permit-but-disclose''
proceeding in accordance with the Commission's ex parte rules. 47 CFR
1.1200 et seq. Persons making ex parte presentations must file a copy
of any written presentation or a memorandum summarizing any oral
presentation within two business days after the presentation (unless a
different deadline applicable to the Sunshine period applies). Persons
making oral ex parte presentations are reminded that memoranda
summarizing the presentation must (1) list all persons attending or
otherwise participating in the meeting at which the ex parte
presentation was made, and (2) summarize all data presented and
arguments made during the presentation. If the presentation consisted
in whole or in part of the presentation of data or arguments already
reflected in the presenter's written comments, memoranda or other
filings in the proceeding, the presenter may provide citations to such
data or arguments in his or her prior comments, memoranda, or other
filings (specifying the relevant page and/or paragraph numbers where
such data or arguments can be found) in lieu of summarizing them in the
memorandum. Documents shown or given to Commission staff during ex
parte meetings are deemed to be written ex parte presentations and must
be filed consistent with Sec. 1.1206(b). In proceedings governed by
Sec. 1.49(f) or for which the Commission has made available a method
of electronic filing, written ex parte presentations and memoranda
summarizing oral ex parte presentations, and all attachments thereto,
must be filed through the electronic comment filing system available
for that proceeding, and must be filed in their native format (e.g.,
.doc, .xml, .ppt, searchable .pdf). Participants in this proceeding
should familiarize themselves with the Commission's ex parte rules.
Synopsis
1. The ability to make telephone calls is essential to allowing
incarcerated people to stay connected to their family and loved ones,
clergy, counsel, and other critical support systems. While unreasonable
rates, charges, and practices associated with calling services present
significant barriers to all incarcerated people, the obstacles are much
larger for those who are deaf, hard of hearing, deaf-blind, or who have
a speech disability. The Commission refers to this class of people
generally as incarcerated people with communication disabilities.
Because functionally equivalent means of communication with the outside
world are often unavailable to incarcerated people with communication
disabilities, they are effectively trapped in a prison within a prison.
Consistent with the Commission's statutory obligations, in document FCC
22-76, the Commission takes strides to improve access to communications
services for incarcerated people with communication disabilities.
2. The Commission has an obligation under section 225 of the
Communications Act of 1934, as amended (the Act), to ensure those with
communication disabilities receive service that is functionally
equivalent to that received by those without such disabilities. This
obligation supplements and focuses the Commission's obligation under
section 201(b) of the Act to ensure all people, including incarcerated
people, have access to calling services under just and reasonable
rates, terms, and practices. In May 2021, the Commission reaffirmed its
commitment to ensure that incarcerated people with disabilities have
access to functionally equivalent telecommunications services. That
Order also lowered, on an interim basis, the Commission's caps on the
amounts inmate calling services (ICS) providers serving prisons or
jails with 1,000 or more incarcerated people may charge for interstate
calls and capped, for the first time, the providers' charges for
international calls. To enable the Commission to set permanent, cost-
based interstate and international rate caps for facilities of all
sizes and to, if appropriate, adjust its caps on ancillary services
fees, that Order required all
[[Page 68418]]
calling services providers to submit detailed cost data based on
prescribed allocation methodologies. The Commission also issued an
accompanying document proposing to expand access to all eligible relay
services for incarcerated people with communication disabilities and
seeking comment on a number of other issues, including the methodology
to be used in setting permanent interstate and international rate caps,
the need for periodic data collections, and additional reforms to the
ancillary service charge rules.
3. The Commission seeks comment on various matters to build on the
actions it takes today and to obtain additional stakeholder input
required to implement further reforms for incarcerated people with
communication disabilities. The Commission seeks additional comment on
whether to allow enterprise registration for internet Protocol
Captioned Telephone Service (IP CTS) in carceral settings and how to
address the special circumstances faced by some inmate calling services
providers in jurisdictions with average daily populations of fewer than
50 incarcerated persons. IP CTS is a captioned telephone service in
which captions are delivered via the internet to an internet Protocol-
enabled device.
4. The Commission also seeks additional evidence and comment from
stakeholders to enable further reforms concerning providers' rates,
charges, and practices in connection with interstate and international
inmate calling services. First, the Commission seeks comment on
refining the rules adopted today concerning the treatment of balances
in inactive accounts. Second, it seeks comment on expanding the breadth
and scope of the Commission's existing consumer disclosure
requirements. Third, it asks the stakeholders to update the record on
certain issues in light of the providers' data collection responses.
Specifically, the Commission seeks comment on how the Commission should
use the data to establish just and reasonable permanent caps on
interstate and international rates and associated ancillary service
charges consistent with the statute. The Commission invites further
comment on allowing inmate calling services providers to offer pilot
programs allowing consumers to purchase calling services under
alternative pricing structures. Finally, the Commission seeks comment
on whether it should expand the definitions of ``Jail'' and ``Prison''
to ensure that they capture the full universe of confinement facilities
with residents who may access interstate and international
communications services, and on how its proposals may promote or
inhibit digital equity and inclusion.
5. The Commission expects these actions will bring much-needed
relief to incarcerated people with communication disabilities by easing
the obstacles these individuals face in communicating with loved ones.
At the same time, the Commission expects its other reforms aimed at
reducing certain charges and curtailing abusive practices to benefit
all incarcerated people by easing the financial burdens that such
charges and practices place on the incarcerated and those they call.
Background
6. The impact that unjust and unreasonable rates, fees, and
practices have on incarcerated people, as well as the Commission's
efforts to ameliorate that impact, are well-documented, and need not be
repeated here.
7. Communication Disabilities and Calling Services for Incarcerated
People. Telecommunications Relay Services (TRS) are telephone
transmission services that provide the ability for an individual who is
deaf, hard of hearing, deaf-blind or who has a speech disability to
engage in communication by wire or radio in a manner that is
functionally equivalent to the ability of a hearing person who does not
have a speech disability to communicate using voice communication
services. In 2013, the Commission clarified that section 225 of the Act
and the Commission's implementing regulations prohibit inmate calling
services providers from assessing an additional charge for a TRS call,
in excess of the charge for an equivalent voice inmate calling services
call. In 2015, the Commission went further, amending its rules to
prohibit inmate calling services providers from levying or collecting
any charge at all for a TRS call placed by an incarcerated individual
using a text telephone (TTY) device. The Commission reasoned that, by
exempting TRS calls from the fair compensation mandate of section 276
of the Act, Congress indicated an intent that such calls be provided
for no charge.
8. In 2015, the Commission affirmed that the general obligation of
common carriers to ensure the availability of ``mandatory'' forms of
TRS--TTY-based TRS and speech-to-speech relay service (STS)--applies to
inmate calling services providers. TTY-based TRS allows an individual
with a communication disability to communicate by telephone with
another party, such as a hearing individual, by using a TTY device to
send text to a communications assistant (CA) over a circuit-switched
telephone network. To connect a hearing individual as the other party
to the call, the CA establishes a separate voice service link with the
hearing party and converts the TTY user's text to speech. The CA
listens to the hearing party's voice response and converts that speech
to text for the TTY user. A TTY is a machine that employs graphic
communication in the transmission of coded signals through a wire or
radio communication system. STS allows individuals with speech
disabilities to communicate with voice telephone users through the use
of specially trained CAs who understand the speech patterns of persons
with speech disabilities and can repeat the words spoken by that
person. This obligation to ensure the availability of TRS also applies
to providers of interconnected Voice over internet Protocol (VoIP)
services. However, the Commission did not require those providers to
provide access to other relay services--Video Relay Service (VRS),
Captioned Telephone Service (CTS), IP CTS, and internet Protocol Relay
Service (IP Relay). VRS is a form of TRS that allows people with
hearing and speech disabilities who use sign language to communicate
with voice telephone users through video equipment. The video link
allows the CA to view and interpret the party's signed conversation and
relay the conversation back and forth with a voice caller. CTS is used
by persons who can speak but who have difficulty hearing over the
telephone. Placing a telephone call from a screen-equipped telephone,
the user can simultaneously listen to the other party to the call and
read captions of what the other party is saying. IP Relay is a form of
TRS that permits an individual with a hearing or a speech disability to
communicate in text using an internet Protocol-enabled device via the
internet. For consumers who are deaf-blind, IP Relay service is often
the sole or primary means of communicating via telephone. The
Commission reasoned that, because it had not required that all common
carriers provide access to these services, it was not able to require
inmate calling services providers to do so. In 2015, the Commission
sought additional comment on the implications of video calling and
video visitation services for incarcerated individuals who are deaf or
hard of hearing. In 2020, the Commission sought comment on whether
additional forms of TRS should be made available to incarcerated
individuals, and what the Commission could do to facilitate such
access.
[[Page 68419]]
9. In 2021, after reviewing the record of this proceeding, and
noting that there is far more demand for ``non-mandatory'' relay
services, such as VRS and IP CTS, than for ``mandatory'' TTY-based
relay service, the Commission found that access to commonly used,
widely available relay services, such as VRS and IP CTS, is equally or
more important for incarcerated people with communication disabilities
than it is for the general population. Therefore, to ensure that such
individuals have functionally equivalent access to communications, the
Commission proposed to amend its rules to require that inmate calling
services providers give access wherever feasible to all relay services
eligible for TRS Fund support. The Commission also sought comment on
whether changes to its TRS rules would be necessary in conjunction with
expanded TRS access for incarcerated people, and the Commission
proposed to amend section 64.6040 of its rules to clarify that the
prohibition on inmate calling services providers charging for TRS calls
applies to all forms of TRS, and that such charges must not be assessed
on any party to a TRS call for either the relay service itself or the
device used. In addition, the Commission also sought comment on whether
to require inmate calling services providers to give access to direct,
or point-to-point, video communication for eligible incarcerated
individuals wherever they provide access to VRS, and whether to limit
the charges that may be assessed for such point-to-point video service.
Point-to-point video service enables two or more ASL users to place and
receive video calls without the assistance of a CA. See 47 CFR
64.601(a)(32). In a 2021 document, the Commission primarily used the
term direct video to refer to such calls. While the Commission
considers direct and point-to-point to be synonymous in this context,
the Commission uses the term point-to-point in this Order and its final
rules, to avoid any risk that some parties might assume this service
could only be provided by a Qualified Direct Video Entity pursuant to
section 64.613(c) of its rules. Finally, the Commission sought comment
on whether to extend its reporting requirements from just TTY service
to all other forms of TRS.
Additional Calling Services Reforms
10. Rate and Ancillary Services Fee Caps. Beyond the disability
context, in the 2021 ICS document, the Commission took a number of
actions that warrant specific attention here. Structurally, that Order
applied separate rate caps to prisons, jails having average daily
populations of 1,000 or more incarcerated people, and jails with lower
average daily populations. Additionally, the Commission established
interim interstate and international rate caps for prisons and for
jails having average daily populations of 1,000 or more. Those rate
caps are interim because flaws in the data submitted in response to the
Second Mandatory Data Collection prevented the Commission from setting
permanent caps for interstate and international inmate calling services
and associated ancillary services that accurately reflect the costs of
providing those services.
11. To account for this problem, the Commission directed the
Wireline Competition Bureau (WCB) and Office of Economics and Analytics
(OEA) to develop an additional data collection--the Third Mandatory
Data Collection--to enable the Commission to set permanent rate caps
for interstate and international inmate calling services that
accurately reflect the providers' costs of providing those services,
and to inform the evaluation and potential revision of the Commission's
caps on ancillary service charges. After seeking public comment, WCB
and OEA issued an Order requiring each inmate calling services provider
to submit, among other information, detailed information regarding its
inmate calling services operations, costs, revenues, site commission
payments, security services, and ancillary services costs and
practices. The providers' data collection responses were due June 30,
2022. The Commission has received responses from 14 providers, and WCB
and OEA are analyzing those responses.
12. Looking forward, in 2021 the Commission sought comment on the
methodology the Commission should use to adopt permanent per-minute
rate caps for interstate and international inmate calling services,
including seeking comment on certain aspects of reported costs, such as
on site commission costs and other site commission reforms for
facilities of all sizes, and on the costs of providing calling services
to jails with average daily populations of fewer than 1,000
incarcerated people.
13. Ancillary Services Fee Caps and Practices. Building on the
ancillary services charge rules that the Commission had adopted in
2015, in 2021 the Commission capped, on an interim basis, the third-
party fees inmate calling services providers may pass through to
consumers for single-call services and third-party financial
transactions at $6.95 per transaction. The rules adopted in 2015
limited permissible ancillary services charges to only five types and
capped the charges for each: (1) Fees for Single Call and Related
Services--billing arrangements whereby an incarcerated person's collect
calls are billed through a third party on a per-call basis, where the
called party does not have an account with the inmate calling services
provider or does not want to establish an account; (2) Automated
Payment Fees--credit card payment, debit card payment, and bill
processing fees, including fees for payments made by interactive voice
response, web, or kiosk; (3) Third-Party Financial Transaction Fees--
the exact fees, with no markup, that providers of calling services used
by incarcerated people are charged by third parties to transfer money
or process financial transactions to facilitate a consumer's ability to
make account payments via a third party; (4) Live Agent Fees--fees
associated with the optional use of a live operator to complete inmate
calling services transactions; and (5) Paper Bill/Statement Fees--fees
associated with providing customers of inmate calling services an
optional paper billing statement. The Commission also sought comment on
the relationship between these two ancillary services, and on reducing
the caps for single-call services fees and third-party financial
transactions fees for automated transactions to $3.00 and the cap for
live agent fees to $5.95.
14. Consumer Disclosures. In 2021, the Commission adopted three new
consumer disclosure requirements to promote transparency regarding the
total rates charged consumers of inmate calling services. First, the
Commission required providers to clearly, accurately, and conspicuously
disclose any separate charge (i.e., any rate component) for terminating
international calls to each country where they terminate international
calls on their websites or in another reasonable manner readily
available to consumers. Second, the Commission required providers to
clearly label any site commission fees they charged consumers as
separate line items on consumer bills and set standards for determining
when the fees would be considered clearly labeled. Finally, the
Commission required providers to clearly label all charges for
international calls, as separate line items on consumer bills.
15. Other Relevant Topics. In the 2021 ICS document, the Commission
invited comment regarding several additional issues on which it takes
action today. The Commission expressed concern about providers'
practices regarding unused funds in inactive accounts and
[[Page 68420]]
invited comment on whether the Commission should require refunds after
a certain period of inactivity. The Commission proposed to amend the
definitions of ``Jail'' and ``Prison'' in its rules by, among other
actions, explicitly including facilities of the U.S. Immigration and
Customs Enforcement (ICE) and the Federal Bureau of Prisons (BOP),
whether operated by the law enforcement agency or pursuant to a
contract, in its definition of ``Jail,'' and by adding the terms
``juvenile detention facilities'' and ``secure mental health
facilities'' to that definition. The Commission also highlighted record
evidence that some providers of inmate calling services may have been
imposing duplicate transaction costs on the same payments, such as
charging both an automated payment fee when a consumer makes an
automated payment to fund its account, as well as charging a third-
party financial transaction fee to cover credit/debit card processing
costs on the same transaction. The Commission sought comment on whether
providers engaged in such ``double dipping,'' as had been alleged in
the record, and whether the Commission's rules clearly prohibit
assessing multiple ancillary service charges per transaction or should
be amended to implement such a prohibition. The Commission similarly
sought comment on whether the credit card processing fees encompassed
in the automated payment fee are the same credit card processing fees
referred to in the third-party financial transaction fee.
16. Finally, the Commission sought comment in the 2021 ICS document
on whether alternative pricing structures (i.e., those that are
independent of per-minute usage pricing) would benefit incarcerated
people and their families. The Commission asked commenters to address
the relative merits of different pricing structures, such as one under
which an incarcerated person would have a specified--or unlimited--
number of monthly minutes of use for a predetermined monthly charge.
The Commission also asked whether it should allow providers to offer
different optional pricing structures as long as one of their options
would ensure that all consumers of inmate calling services have the
ability to choose a plan subject to the Commission's prescribed rate
caps. Relatedly, in response to a proposal from Securus, the Commission
sought comment on whether the Commission should adopt a process for
waiving the per-minute rate requirement to allow for the development of
alternative pricing structures.
Disability Access Requirements for Calling Services Providers
17. Enterprise Registration for IP CTS. The Commission seeks
comment on whether to adopt a form of enterprise registration for IP
CTS, limited to the correctional context, as advocated by some
commenters to simplify the commencement of service to eligible
incarcerated users. Do the modifications made in the accompanying Order
to the Commission's registration requirements sufficiently address any
registration-related barriers to the use of IP CTS in the incarceration
context? Are there significant difficulties with individual
registration that an enterprise registration option could overcome? If
needed, how could an enterprise registration option be crafted to
protect against waste, fraud, and abuse? What are the costs and
benefits of allowing enterprise registration for IP CTS in the
incarceration context?
18. Expanding the Scope of Inmate Calling Services Providers' TRS-
Related Access Obligations. The Commission proposes to extend inmate
calling services providers' TRS-related access obligations to require
that access to advanced forms of TRS--VRS, IP Relay, and IP CTS as well
as ASL point-to-point video calling, where broadband is available, and
CTS where broadband is not available--be provided in jurisdictions with
an average daily population of less than 50 incarcerated persons. The
Commission seeks comment on this proposal. The Commission explains in
the Order, to ensure that TRS and ASL point-to-point video are
available to incarcerated persons to the fullest extent possible, the
Commission believe the TRS-related access requirements of inmate
calling services providers should be at least coextensive with those of
correctional authorities--which are not subject to any population size
limitation. As noted above, to justify less than full compliance with
the Department of Justice's regulations implementing Title II of the
ADA, a correctional authority has the burden of proving that compliance
with this subpart would result in a fundamental alteration in the
nature of a service, program, or activity or in undue financial and
administrative burdens.
19. In the Order, the Commission set an average daily population of
50 as an initial threshold for the obligation to provide access to
additional forms of TRS and ASL point-to-point video calling. Have
video visitation systems continued to proliferate, or have other
factors changed, such that broadband connections and video devices are
now routinely provided to a broader range of city or county facilities?
20. What additional factors may determine the feasibility of
providing access to internet-based forms of TRS? What specific
additional costs, for devices or other resources, are incurred by
correctional authorities in jurisdictions of this size in making
internet-based TRS available? The Commission seeks additional
information, for example, on the cost of tablets and other user devices
suitable for allowing incarcerated individuals to access internet-based
forms of TRS. What is the range of monthly inmate calling services
revenue typically generated by city or county jails housing a daily
population of fewer than 50 incarcerated people?
21. Is an average daily population of 50 the appropriate threshold
for requiring access to all forms of TRS and point-to-point video
service, or is a different threshold warranted? If the Commission
adopts a lower threshold, how long a period should the Commission allow
for providers to comply? Should the Commission require that an inmate
calling services provider serving a smaller jurisdiction ensure that,
to the maximum extent possible, individuals with disabilities have
access to appropriate forms of TRS?
22. Disclosure of Charges in Accessible Formats. The Commission
believes that providers of inmate calling services are subject to the
same obligations as providers of telecommunications services and
advanced communications services to provide information and
documentation in a manner that is accessible to individuals with
disabilities. To help ensure individuals with disabilities are fully
informed about the costs of inmate calling services, the Commission
proposes that any charges for inmate calling services, whether for
voice, TRS, TTY-to-TTY, or point-to-point video, be disclosed to
current and potential consumers of inmate calling services with
disabilities in accessible formats. Accessible formats include, but are
not limited to, large print, Braille, videos in American Sign Language
and that are captioned and video described, emails, and printed
materials. The Commission seeks comment on this proposal and belief.
Refining the Rules for the Treatment of Balances in Inactive Accounts
23. The Commission seeks comment on whether it should refine the
rules it adopt today concerning the treatment of unused funds in
accounts that consumers use to pay for interstate and
[[Page 68421]]
international inmate calling services and related ancillary services
charges, including on whether the Commission should take any further
steps to protect consumers from unjust and unreasonable practices
regarding those funds. In the Order, the Commission exercises its
authority under section 201(b) of the Act and prohibits providers of
inmate calling services from seizing or otherwise disposing of unused
funds in any account used to pay for interstate or international inmate
calling services--except through a full refund to the account holder--
until the account has been inactive for at least 180 consecutive days.
At that point, the provider must make reasonable efforts to refund the
balance in the account to the account holder and, if those efforts
fail, must treat any remaining funds in accordance with applicable
state law requirements. Should the Commission refine these rules to
increase consumer protection? Why or why not? Should the Commission
create exceptions to these rules? If so, what exceptions should the
Commission allow? Are there additional requirements the Commission
should adopt concerning the disposition of balances in inactive
accounts? If so, what additional requirements do commenters recommend
and why? Are there situations where refunds are impractical,
impossible, or otherwise unduly burdensome, and, if so, what rules
should apply in those situations?
24. Inactive Period. In the Order, the Commission adopts a rule
requiring 180 days to pass before a provider may determine that an
account has become inactive. Is this an appropriate time frame? Why or
why not? The Commission also requires that the 180-day inactivity
period be continuous, with any of the following actions by a consumer
or an incarcerated person being sufficient to demonstrate activity: (i)
depositing, crediting, or otherwise adding funds to an account; (ii)
withdrawing, spending, debiting, transferring, or otherwise removing
funds from an account; or (iii) expressing an interest in retaining,
receiving, or transferring the funds in an account, or otherwise
attempting to exert or exerting ownership or control over the account
or the funds held within the account. The Commission seeks comment on
what other actions should constitute expressing an interest in the
deposited funds. Similarly, how would an account holder or incarcerated
person exert control over the account? Are there other events that the
Commission has not already identified that should demonstrate activity
and cause the 180-day clock to restart? If so, what are they?
25. Timing of Refunds. The Commission's rules require that a
provider must make reasonable efforts to refund the balance in the
account to the account holder. Should the Commission require providers
to issue refunds within a specified period of time after an account
becomes inactive? Should the Commission consider a different period of
time after some other event, such as release from incarceration? If so,
what period would give providers sufficient time to process the refunds
while ensuring that consumers receive their money in a timely manner?
If the account holder requests a refund before the account becomes
inactive, what is a reasonable time frame in which to issue such
refund? Do providers need time to process a refund request after they
receive the request? If so, what is that time frame? Do providers have
the ability to issue a refund immediately upon request in some
circumstances? If so, what would those circumstances be? Are there
situations that should lead providers to immediately refund remaining
amounts to account holders, even if the account has not been inactive
for 180 days? If so, what are they? In particular, should the
Commission require automatic refunds when the incarcerated person is
released or transferred to a facility served by another provider? If
so, should the situation vary if the account is held by a consumer
other than the incarcerated person and can still be used by another
incarcerated person? If not, what steps, if any, should the Commission
take to ensure that the account holder has the opportunity to make an
informed choice regarding whether to receive a refund?
26. Are there circumstances in which Commission intervention is
unnecessary or an automatic refund would be impracticable or
inappropriate? For example, Securus argues that the process for
deactivating, and making refunds from, debit accounts when an
incarcerated person is released or transferred is largely controlled by
the facility and that the Commission should seek more information about
such refunds. How, if at all, should the Commission refine its refund
rules to recognize a facility's role in the refund process? Similarly,
are there situations where a provider may not be aware that an
incarcerated person has been released or transferred? If so, how can
the Commission ensure that account holders have an opportunity to
request refunds in those situations, or in other situations where an
automatic refund is not feasible or sensible? Should the account holder
be required to request a refund in writing, either by mail or email? Or
would a telephonic request or some other type of request be preferable?
What information would a provider need in order to verify the
legitimacy of a refund request?
27. Release and Transfer Processes. The Commission seeks comment on
the release and transfer processes to better understand the need for
rules addressing those areas. Do providers receive notice when an
incarcerated person is released or transferred and, if so, does the
notice include the incarcerated person's future contact information? If
not, what steps would be needed to ensure that providers receive all
needed information about a release or transfer on a timely basis in
order to efficiently refund money?
28. Contact Information. The Commission next invites comment on
whether providers routinely receive the type of contact information
they would need to notify account holders about inactive accounts and
to refund unused balances to account holders. Should the Commission
require providers to collect such information? What information is
necessary to ensure that a notification actually reaches an account
holder? Are the account holder's email address, physical mail address,
or phone number each sufficient? Does the necessary information vary
depending on whether the account holder is an incarcerated person who
at some point will be released from incarceration, as opposed to a
person who maintains an account for the incarcerated person's use? If
so, how does the necessary information differ in those circumstances,
and what information would be necessary in the different circumstances?
29. Notice to Account Holders. The Commission seeks comment on the
need for rules addressing the manner in which providers notify
consumers regarding matters affecting their accounts, as well as the
content of any such notices. Should the Commission require providers to
notify account holders regarding their inactive account and refund
policies, and the status of their accounts, including when the accounts
have been deemed inactive? If so, when and how should those notices be
provided, and what information beyond the account balance and the
account holder's right to a refund should the Commission require to be
disclosed? What sort of notice, if any, should the Commission require
providers to give account holders in situations where refunds are not
automatic or where attempts to provide a refund have been ineffective?
Should
[[Page 68422]]
these notices include an explanation of any state unclaimed property
laws, or other state laws, that may apply to the funds in their
accounts? Should the Commission require providers to notify the
incarcerated person in addition to the account holder? Should the
Commission require providers to send additional notices to account
holders who do not respond to the initial notices? Should the
Commission specify the timing, content, and mode of dissemination of
any additional notices? How should the subsequent notices inform the
account holder that if they do not respond, their account may be
subject to state unclaimed property law, or such other law affecting
the account holder's rights to the balance?
30. Refund Mechanisms. The Commission seeks comment on the
different methods providers can use to refund unused funds and on the
relative benefits and burdens of each method. For instance, are
providers able to refund payments made by credit card or from a bank
account directly to the card or account? What other refund methods are
available to the providers? When the account holder is an incarcerated
person who has been released, how should the provider send a refund?
Should it send a prepaid debit card or check to the person's forwarding
address? What requirements should the Commission adopt to ensure
providers quickly send refunds to recently released account holders?
When the account holder is not the incarcerated person, would mailing a
prepaid debit card or check to the account holder's billing address
suffice? Why or why not? Which refund mechanisms are the most effective
in returning funds to account holders while also minimizing the burdens
on providers?
31. Controlling Judicial or Administrative Mandate. The
Commission's rule regarding the disposition of funds in inactive
accounts does not apply where a provider is acting in accordance with a
controlling judicial or administrative mandate. The Commission proposes
to retain this exception. The Commission also proposes to continue to
treat as a controlling judicial mandate any court order requiring the
incarcerated person to pay restitution, any fine imposed as part of a
criminal sentence, and any fee imposed in connection with a criminal
conviction to the extent these payments are made from the same account
used to pay for calling services. The Commission invites comment on
these proposals. Do they capture the full universe of judicial actions
that a court may impose on an incarcerated person? If not, what
language should the Commission incorporate into its rules to capture
that universe?
32. The Commission also invites comment on whether it should
consider a controlling judicial or administrative mandate to include a
court or administrative agency order allowing or requiring the provider
to act in a manner that would otherwise violate the Commission's rules
regarding the disposition of funds in inactive accounts. The
Commission's rule does not apply to the extent a court or
administrative agency determines that a contract the provider and the
account holder entered into prior to the release of today's Order
allows or requires a different outcome. Is this the correct approach?
Or should the Commission instead preclude enforcement of any such
contract as contrary to section 201(b) of the Act's prohibition against
unjust and unreasonable practices in connection with the provision of
inmate calling services? Conversely, should the Commission allow
account holders to knowingly and voluntarily waive any protections the
Commission's rules provide regarding the disposition of funds in
inactive accounts? If so, what notice and record keeping requirements,
if any, should the Commission adopt to ensure that it will be able to
determine whether account holders are fully informed of, and
voluntarily waive, their rights under the Commission's rules?
33. Ultimate Disposition of Unclaimed Funds. The Commission invites
comment on the ultimate disposition of unclaimed funds in a debit
calling or prepaid calling account in circumstances where a provider's
refund efforts fail and state law does not affirmatively require any
particular disposition. What legal authority does the Commission have
to act in this regard? Should the Commission adopt rules addressing
that situation and, if so, what should those rules require? Are there
any elements of state law, including state unclaimed property law, or
provisions of the Uniform Unclaimed Property Act that the Commission
should incorporate into the Commission's rules? Are there any state
laws that provide inmate calling services-specific exceptions to
otherwise applicable state unclaimed property? If so, what states have
such laws and what do those laws say? Are there other types of consumer
protection laws regarding the distribution or retention of balances in
inactive accounts that the Commission should consider? If so,
commenters should cite these other types of laws and explain their
potential applicability in the inmate calling services context.
Reforming the Consumer Disclosure Requirements
34. The Commission seeks comment on how it might improve its
consumer disclosure rules, including extending the scope of those rules
to reach more inmate calling services consumers. Specifically, the
Commission proposes to build on prior reforms by requiring inmate
calling services providers to make the same required disclosures of
information available to all consumers, regardless of whether they
receive an actual bill from a provider. The Commission seeks comment on
a number of questions regarding how providers presently disseminate
information regarding inmate calling services accounts to consumers and
on whether it should make additional changes to its consumer disclosure
rules. The reforms the Commission contemplates will help ensure that
incarcerated people and those they call will receive clear and
transparent information about providers' charges and fees that inmate
calling service consumers need to make informed choices regarding their
calling services options.
35. Background. Transparency regarding the charges and fees for
inmate calling services and associated ancillary services is critical
because it ensures that incarcerated persons and their families
understand the prices they are, or will be, charged for the services
they use, enabling them to make informed decisions when purchasing
those services. The Commission's inmate calling services rules require
a variety of consumer disclosures designed to improve transparency. The
Commission first adopted inmate calling services consumer disclosure
rules in 1998, requiring providers to make certain oral disclosures
prior to the completion of interstate inmate calling services calls.
The Commission also required that, prior to connecting a call,
providers of inmate operator services are required to disclose orally
the total cost of the call, including any surcharges or premise-imposed
fees that may apply to the call, as well as methods by which to make
complaints concerning the charges or collection practices upon request.
Since that time, the Commission has expanded its inmate calling
services rules, including the scope of the required consumer
disclosures. In 2015, the Commission required calling services
providers to clearly, accurately, and conspicuously disclose their
rates and ancillary service charges to consumers on their websites or
in another reasonable manner readily available to consumers.
[[Page 68423]]
36. As described above, in 2021, the Commission imposed two
additional consumer disclosure requirements pertaining to consumer
bills: (i) requiring providers to clearly label any site commission
fees they charged consumers as separate line items on consumer bills
and set standards for determining when the fees would be considered
clearly labeled, and (ii) requiring providers to clearly label all
charges for international calls, as separate line items on consumer
bills. The Commission found these two requirements--the consumer
billing rules--necessary to provide consumers with the ability to
evaluate their bills and monitor whether they are receiving the
protections of the Commission rate caps to which they are entitled.
Since the Commission adopted these additional requirements, it has
learned that consumers of inmate calling services often do not receive
``bills'' from their providers given the nature of their calling
arrangements. As one party points out, an incarcerated individual using
a debit or commissary account to pay for inmate calling services does
not receive a ``bill'' from an inmate calling services provider.
Indeed, many such consumers may not receive a statement of any kind
after having paid for their calls. As a result, the information the
Commission deems important regarding separate site commission rate
components and international call charges may not be received by many
calling service consumers.
37. Disclosures for Consumers Who Do Not Receive Bills. The
Commission proposes to expand its consumer disclosure rules to cover
consumers who do not receive bills from their inmate calling services
providers. The Commission invites comment on this proposal and ask for
detailed comment on how providers might implement it. The Commission
also seeks comment on the timing and frequency of disclosures that are
not included directly on consumers' bills. How should consumers be made
aware of the availability of the information if it is not automatically
provided? Should the information be disclosed to consumers
automatically and on an ongoing basis, for example on any online
account statement available to that consumer? Alternatively, would
including the information on the providers' websites for each facility
suffice to inform interested consumers? Or should such information be
provided only upon request? If so, upon receiving a consumer request,
how quickly should a provider be required to supply the consumer with
the requested information? Would three to five business days be
sufficient or do consumers need more timely receipt of the disclosures
in order to manage their accounts effectively? Are inmate calling
services providers able to respond to requests for charges for site
commissions and international calls within three to five business days?
If not, why not? Do consumers who do not receive bills currently
receive disclosures regarding providers' charges for site commissions
and international calls in some other way? When, if at all, do
providers disseminate such information outside the billing context and
how frequently is such information updated? Is it available today only
upon request?
38. Who Should Receive Disclosures? The Commission seeks comment on
whether account holders should receive disclosures from inmate calling
services providers. The Commission's rules define a ``consumer'' as the
party that pays for the inmate calling services. Should the Commission
extend its consumer disclosure rules to include incarcerated persons
who use inmate calling services accounts that others fund on the
incarcerated persons' behalf? Should both the account holder and the
incarcerated person have access to the bill or be able to obtain
account-related information from the provider when the incarcerated
person is not the account holder? Who should be permitted to request
the disclosures in such circumstances, the account holder, the
incarcerated person, or both? The Commission seeks comment on whether
anyone other than consumers and incarcerated persons should have access
to the required disclosures. Are there other parties who should have
access to any required disclosures? The Commission proposes to require
providers to make information about their rates, terms, and conditions
of service, including information about site commissions and
international rate components, available generally to the public
through either the provider's website or other publicly available
source. Making this information publicly available provides maximum
transparency and helps ensure that prospective consumers and other
interested parties have visibility into the inmate calling service
rates and charges at each facility. Do commenters agree? Why or why
not?
39. Statements of Account. The Commission seeks detailed
information about how consumers who do not receive traditional bills
access information regarding their accounts. Do all such consumers
receive a ``statement of account'' or other account summary setting
forth, among other information, the account balance and the charges
they have incurred? If so, how are statements of account or similar
documents provided to consumers? Are they provided in hard copy,
electronically, or both? Are they available only upon request? How
often are such statements or disclosures generated and updated? What
type of hardware or software is required to produce these statements?
Are they only available online such that consumers not having internet
access are unable to retrieve them? Who has access to them, the
incarcerated person, the consumer, or both? The Commission proposes to
require that consumers of inmate calling services and/or incarcerated
individuals must have available to them statements of account or
similar disclosures if they do not receive bills. To the extent
providers do not presently provide statements of account or other
account summaries, how costly would it be to make them available? Would
the cost be outweighed by the public interest benefits of such
statements?
40. To the extent that consumers receive statements of account or
other account summaries, the Commission seeks comment on what
information, including inmate calling services-related expenditures, is
disclosed in them. Is the information provided in an itemized list or
only as a total amount charged? If the information is currently
provided only on an aggregate basis, how burdensome would it be to
provide an itemized statement? How burdensome would it be to add
information regarding providers' charges for site commissions and
international calls to statements of account or other account
summaries?
41. What are the advantages and disadvantages of using statements
of account or other account summaries to provide information to
consumers rather than statements with itemized disclosures? What
challenges do consumers currently face in accessing their account
information, including specifically the information required by the
Commission's consumer disclosure rules? Are there other challenges the
Commission should consider in deciding how best to increase
transparency in providers' charges and fees? How else can the
Commission improve consumers' access to relevant information through
changes to the Commission's consumer disclosure rules?
42. Reasonableness. The Commission seeks comment on what factors it
should consider in assessing the reasonableness of different disclosure
mechanisms. Are the Commission's
[[Page 68424]]
current rules effective in providing information regarding rates,
charges, and fees to people who are deaf, hard of hearing, deaf-blind,
or have a speech disability? If not, how should the Commission revise
those rules to make sure that its disclosure requirements are effective
for all consumers? The Commission asks commenters to include details as
to what form disclosures should take, how often they should be
generated, how they could be accessed, and any other details needed to
better inform its understanding. The Commission proposes that all
disclosures, including those regarding reporting requirements and
charges, be made in an accessible format for incarcerated persons with
disabilities and invite comment on what steps it should take to
implement this proposal. The Commission also asks for detailed
proposals on how it can address any deficiencies in the current
disclosure mechanisms to ensure that all consumers receive the clear,
accurate, and timely information they need to make calling decisions
and manage their accounts.
43. Methods of Dissemination. The Commission seeks comment on the
best methods for ensuring that required disclosures reach consumers who
do not receive bills. What are the differences in cost between
providing disclosures on bills versus other methods? What other methods
are available to providers and consumers? Do providers presently use
paper statements, kiosks, or other means? What other methods should the
Commission consider and why? Which methods are most effective in
providing consumers with clear, accurate, and timely information
regarding their accounts?
44. If providers do not distribute paper bills, do they disclose
account-related information through other means? If so, what means do
they use? Should providers be permitted to make required disclosures
using only electronic means, such as websites or email, rather than on
printed documents? If so, what specific alternative methods do
commenters suggest the Commission allow? Should the Commission's rules
specify how consumers may request copies of their bills, statements of
account, or similar disclosures; and if so, how should such a request
be made? Commenters are encouraged to explain how a request system
would work and to describe any alternative suggestions in detail.
45. The Commission seeks comment on how consumers who lack access
to the internet can receive information about the charges to their
accounts and their account balances if it is not provided on paper
bills. Do consumers have reasonable access to information made
available over the internet or via electronic means? What alternatives
are used? How do consumers inform the provider that they do not have
consistent or reliable internet access and, thus, need an alternative
method to access their account information and any relevant
disclosures? If the only alternative method available is a paper bill
or statement, should the Commission require that the provider deliver
it to the consumer without charge? Consumers should be entitled to
receive their bills and account statements in some accessible format
free of charge. What specific changes should the Commission make to its
rule permitting providers to charge consumers $2.00 per use when they
provide optional paper billing statements?
46. Other Rule Changes. The Commission seeks comment on other ways
its consumer disclosure rules could be amended to more effectively and
efficiently provide consumers information that would help them
understand the charges for inmate calling services and associated
ancillary services. What, if any, other changes should the Commission
make to its rules, beyond those the Commission already describes in
document 22-76? Should other line-item disclosures be required on bills
or other account statements? If so, what should those items be? Should
the Commission adopt new billing requirements? Should the Commission
require that inmate calling services providers issue bills on a
periodic basis to all consumers, such as every month? Would it be
helpful to add definitions for ``bill,'' ``statement of account,'' or
any other terms in the Commission's rules? If so, what definitions do
commenters propose?
47. The Commission's rules require inmate calling services
providers to break out in separate line items any site commission fees
and international call charges. Are there other rates or fees that the
Commission should require providers to disclose as separate line items?
Is there other information that the Commission should require providers
to disclose? If so, commenters should make specific suggestions. The
Commission invites commenters to suggest other proposed actions,
alternatives, and rule modifications that it should consider, and to
describe issues arising from the foregoing matters. The Commission
encourages commenters to address whether any disclosures it requires
should be part of an aggregate statement of account that includes all
charges and fees incurred at the facility, for example commissary or
other non-telecom-related charges, or whether the Commission should
require a separate statement limited solely to inmate calling services-
related disclosures. The Commission encourages commenters to offer
specific language concerning any conforming rule changes in relation to
any of the foregoing proposals.
48. Disclosing Rates and Charges. Finally, the Commission's current
rules require inmate calling services providers to clearly, accurately,
and conspicuously disclose their rates and ancillary service charges on
their websites or in another reasonable manner readily available to
consumers. Inmate calling services providers that offer interstate toll
service are required to post their rates on their websites, and, to the
extent they offer inmate operator services, their live agents are
already required to make certain notifications to customers. The
Commission seeks comment on how effective these disclosures have been
at providing consumers with the information they need. To what extent
do providers use websites to provide this information? Are the website
disclosures easy for consumers--particularly those with less technical
expertise--to navigate? Are there ways that inmate calling services
provider websites could be modified for easier accessibility? If so,
what steps would providers need to take to make those modifications? Do
any providers use non-website disclosure methods? If so, what are those
methods and how effective are they? Should the Commission mandate
disclosures via website to the extent providers maintain a website and
in some other manner to ensure that all current or potential inmate
calling service consumers can access the required disclosures?
Adopting Permanent Caps on Rates and Ancillary Service Charges
49. The Commission seeks further comment on how it should use the
responses to the Third Mandatory Data Collection to establish
reasonable, permanent caps on rates and ancillary service charges for
interstate and international calling services for incarcerated people.
That data collection required each inmate calling services provider to
report, among other information, detailed company-wide and facility-
specific data reflecting the costs they incurred in providing, and the
revenues they received from providing, inmate calling services and
associated ancillary services. In the 2021, the Commission sought
comment on various issues relating to the establishment of such caps,
and the
[[Page 68425]]
Commission renews its request for comment on these and additional
issues to assist with deciding whether to establish rate caps and
suggest additional changes to its rules.
50. Mandatory Data Collection Responses. The Commission begins by
seeking comment on the providers' responses to the Third Mandatory Data
Collection, because the Commission expects to rely on these responses
when evaluating the appropriate changes to its rules. The Commission
asks whether the information in those responses meets the standard that
the Commission applied in the Rates for Interstate Inmate Calling
Services, Final Rule, 86 FR 40682 (July 28, 2021) (2021 ICS Order),
where it examined the providers' responses to the Second Mandatory Data
Collection for completeness, internal consistency, and credibility,
among other criteria. Do any of the responses deviate from the
collection instructions in a way that undermines the value and
usefulness of the information provided? If so, how should the
Commission correct for such deviations in its evaluation of the
information? Are any of the Mandatory Data Collection responses
similarly incomplete in that they omit material information? If so,
which ones and how are they incomplete? One commenter suggests that
certain providers' Annual Reports state that the providers charge no
ancillary service fees, when they actually do charge such fees. How
should the Commission respond if any provider failed to file a
response? Because providers have unique access to such information,
what, if any, evidentiary presumptions should the Commission apply if
providers failed to file required information?
51. The Commission also seeks comment on whether the data included
in the responses appear accurate and reliable, and properly reflect the
providers' actual costs of providing interstate and international
inmate calling services and associated ancillary services. Are there
deficiencies in the provided data, such that the Commission should
remove apparent invalid or otherwise anomalous data from its analyses?
Should the Commission exclude information submitted by providers that
is materially deficient and use the responses from the remaining
providers in a manner that, if practicable, compensates for the missing
data to set permanent caps for all providers? If not, why not and what
should the Commission do in the alternative?
52. Are there data for particular providers or facilities that
appear so atypical or implausible as to warrant adjustment or
exclusion? For example, if there are any providers whose reported
annual total costs exceed their reported annual total revenues, should
the Commission adjust the providers' reported costs by treating their
reported revenues as an upper bound on those providers' actual costs?
If the Commission makes such an adjustment, should it reduce the
reported costs allocated to each facility by the same proportion by
which reported annual total costs exceed reported annual total
revenues? Similarly, if there are any facilities or contracts whose
reported annual costs exceed their reported annual revenues, should the
Commission treat the reported revenues as an upper bound on those
facilities' or contracts' actual costs? If the Commission makes such an
adjustment, how should it reallocate the difference among the remaining
facilities or contracts? Conversely, is there any evidence that
providers have reported costs at the facility level that exceed
revenues during the early years of contracts, and proceed to make up
the deficits during later years? If so, how should the Commission
account for that? How else might the Commission adjust reported costs
that exceed reported revenues?
53. Do any providers allocate costs in a manner that overstates
costs for certain types of facilities and understates them for others,
or otherwise misallocates costs? If so, would relying on those
providers' cost allocations lead to rate caps that are unreasonably
high for certain facility or contract types but unreasonably low for
others? Should the Commission adjust reported costs in such instances,
and if so, how?
54. Allowable Costs. The Commission invites comment on how it
should ensure that providers' reported costs of providing inmate
calling services and associated ancillary services reflect prudently
incurred investments and expenses that are ``used and useful'' in the
provision of those services. The Commission has historically treated
costs as used and useful only to the extent they are necessary to the
efficient conduct of a utility's business, presently or within a
reasonable future period. Do the providers' reported costs meet this
standard? In particular, are any provider's reported costs outside the
range that a reasonably efficient provider would be expected to incur,
given the types of facilities it serves? The DC Circuit did not
foreclose an efficient provider approach, but in relevant part held
only that the data on which the Commission had relied in developing the
efficient provider approach that was before the court was flawed, and
that the Commission had not adequately accounted for conflicting data.
Precisely what adjustments, if any, should the Commission make to
exclude costs that are not used and useful from its rate cap
calculations?
55. Some commenters have suggested that certain types of
expenditures, such as those for providers' security and surveillance
services, should be excluded from providers' costs, as they are
attributable to functions or services that are distinct from the
provision of calling services. The Commission invites comment on this
view. In particular, which of the security and surveillance costs that
providers included in their filings relate to functions that meet the
used and useful standard? Worth Rises suggests that any security or
surveillance functions, beyond those that the Communications Assistance
for Law Enforcement Act (CALEA) imposes on communications providers
generally, are neither necessary for the provision of inmate calling
services nor of services to consumers or the general public.
56. Factors Affecting Costs. The Commission also seeks further
comment on factors that affect providers' costs and how it can
practicably account for those factors in its analysis. Do the data
support the size and facility tiers the Commission adopted in the 2021
ICS Order, or do they lend themselves to other alternative tiers?
Should the Commission consider eliminating tiers altogether in favor of
a single interstate rate cap for all facilities, regardless of size?
The Commission also seeks comment on whether average daily population,
as opposed to another measure, is the best variable to use if it
divides jails into tiers. Commenters should explain how use of
alternatives to average daily population would be administratively
feasible.
57. Certain commenters suggest that relying on a facility's average
daily population fails to account for the additional costs rapid
turnover imposes on providers at smaller facilities. Do the data
collection responses show that variations in turnover rates, or similar
measures such as accounts opened and closed or admissions and releases,
result in variations in provider costs that the Commission should
consider? Commenters identify certain additional factors, including the
greater likelihood of damage to equipment and the need to rely on
contract technicians rather than full-time employees, as cost drivers
for providers serving smaller facilities. Do the data collection
responses sufficiently capture these factors? Do those responses
indicate that other
[[Page 68426]]
variables, such as geographic location or rurality, affect providers'
costs of providing calling services and associated ancillary services?
How can the Commission account for the various cost drivers in an
administratively feasible way in setting permanent interstate and
international rate caps?
58. Permanent Rate Caps. The Commission asks parties to present
their own analyses of the data in providers' data collection responses
and to suggest methodologies it might use to set reasonable interstate
and international provider-related rate caps. The interim rate caps
adopted in the 2021 ICS Order have two components: a provider-related
rate component, designed to allow providers to recover the costs they
incur in providing interstate and international inmate calling
services; and a facility-related rate component designed to compensate
providers for certain site commission payments they are obligated to
make to facilities. The 2021 ICS Order employed a zone of
reasonableness approach in setting separate interim provider-related
rate caps, a process that involved three distinct steps. The Commission
first used the cost data that providers had submitted in response to
the Second Mandatory Data Collection to establish the maximum upper
bounds of providers' reported costs to set interstate provider-related
rate caps for prisons and larger jails. Because the data the Commission
used in setting the upper bounds may have overstated the providers'
prudently incurred and used and useful costs of providing inmate
calling services, the Commission then made reasonable, conservative
adjustments to the reported data and used the adjusted data to
establish the lower bounds of its zones of reasonableness. Finally, the
Commission relied on its analysis of the record evidence and on the
Commission's agency expertise to pick, from within those zones,
reasonable interim interstate rate caps for prisons and larger jails.
59. Should the Commission similarly employ a zone of reasonableness
approach in setting permanent provider-related rate caps? If so, what
data should the Commission use to set the upper and lower bounds of
each zone of reasonableness? In the 2021 ICS Order, the Commission set
the upper bounds of the zones of reasonableness using industry-wide
mean contract costs per minute, plus one standard deviation relative to
that mean. The Commission set the lower bounds relying on widely
accepted statistical tools, including the k-nearest neighbor method, to
adjust for deficiencies in the provided data. If not, what alternative
should the Commission use instead? If the Commission continues to
employ a zone of reasonableness approach, is it necessary or
appropriate to retain the one standard deviation above and below
industry-wide mean costs in setting the upper and lower bounds of each
zone? Alternatively, should the Commission simply establish its upper
and lower bounds based on industry-wide mean costs, and develop an
alternative process to ensure an opportunity for cost recovery for
high-cost providers? If so, what should that process be? Or should the
Commission use another measure to set the bounds instead, such as the
interquartile range statistical methodology that one commenter
suggests? Should the Commission disregard providers, contracts, or
facilities with costs that vary significantly from the costs of other
similarly situated providers, contracts, or facilities in setting its
upper and lower bounds? How should the Commission determine whether
this significant variation reflects costs that are prudently incurred
and used and useful in the provision of inmate calling services? What
adjustments should the Commission make to exclude reported costs that
were not prudently incurred or are not used and useful from its rate
cap calculations?
60. The Commission seeks comment on the appropriate permanent rate
caps given providers' responses to the Third Mandatory Data Collection.
If the Commission employs a zone of reasonableness approach, what
factors should the Commission consider in selecting permanent rate caps
from within the zone for each rate tier? In particular, how should the
Commission ensure that each provider is fairly compensated for its
prudently incurred costs that are used and useful in the provision of
inmate calling services and ensure that consumers are charged just and
reasonable interstate and international rates? Should the Commission
set rate caps that would ensure that the majority of providers,
contracts, and facilities are able to recover their prudently incurred,
used and useful costs, while avoiding overcompensation, and use a
separate process to address outliers? If so, what process should the
Commission use to ensure that the outliers are not compensated for
their inefficiencies? For example, should the Commission separate
providers, contracts, or facilities according to factors that drive
costs such as size, turnover, or other factors, and then conclude that
providers, contracts, or facilities within each group should have
largely similar costs? Should such an approach also account for
possible differences in providers' cost allocation methodologies, as
set forth in their reported costs? Would it be appropriate to establish
separate rate caps for each provider, or groups of providers? Would
this similarly allow for cost recovery without the need to include a
buffer? Would that change in approach distort the bidding market by,
for example, giving providers with higher rate caps an advantage in
seeking new or renewed contracts? Would it raise other new concerns,
such as a heightened risk of abuse in providers' future cost reporting?
61. The Commission also seeks comment on how the collected data
should affect its resolution of other issues relating to its rate cap
calculations. The Commission seeks comment on the benefits, issues, and
obstacles of analyzing the collected data at the contract or company-
wide level, as opposed to the facility level. Would analyzing the data
at the contract level help to develop cost allocations that better
reflect commercial reality? Alternatively, would a focus on contract-
level costs increase the likelihood of widespread overcompensation?
Could the Commission segregate contracts according to size, inmate
turnover, composition of facilities, or other factors that drive costs?
If the Commission's rate caps were to allow every provider to fully
recover its allowable costs at the contract or the company-wide level,
would there be any concern that the costs allocated to some facilities
would exceed the provider's revenues from those facilities? Or would it
suffice, in those circumstances, if the provider's revenues from each
facility equaled the portion of its allowable costs directly assigned
or directly attributed to the facility plus an additional amount to
offset a portion of the provider's other costs?
62. Treatment of Ancillary Services. The Commission seeks comment
on how it should use the responses to the Mandatory Data Collection to
reevaluate and, if appropriate, revise its ancillary services rules and
fee caps. The Commission's current rules permit providers to charge
fees for ancillary services in addition to the per-minute fees they
charge consumers for interstate and international calls. Do the
reported data provide a reasonable allocation of costs between inmate
calling services and various ancillary services? If so, do those data
demonstrate that the current ancillary services fee caps are
commensurate with the reasonable costs
[[Page 68427]]
of those services? If not, how can the Commission cap ancillary service
charges to levels that more accurately reflect costs?
63. Some commenters suggest the Commission should remove costs
related to ancillary services from its calculations of its per-minute
rate caps. Should the Commission take that approach? Alternatively, are
some or all of these services an inherent part of providing inmate
calling services, and consequently should the Commission include those
costs in its per-minute rate cap calculations and eliminate some or all
charges for ancillary services? For instance, would it be reasonable
for the Commission to include all costs that providers incur in
processing credit and debit card payments in the Commission's per-
minute rate cap calculations and preclude providers from imposing
separate charges in connection with those payments? Would it make sense
for providers to recover all their billing costs through per-minute
charges, rather than splitting that recovery among calling services and
the providers' ancillary services? Should the Commission instead
analyze both sets of services together, and require that total revenues
from both inmate calling services and permissible ancillary services
not exceed the combined reasonable costs of both service types? Which
approach would provide the best overall rate structure?
64. Under what circumstances should the Commission continue to
permit separate ancillary service fees? For example, should the
Commission do so where the service is only supplied at the customer's
discretion? For ancillary services that commenters recommend that the
Commission continues to separate fees, the Commission seeks comment on
whether it should adjust the current caps. The Commission asks
commenters to present their own analyses of ancillary services cost and
revenue data and to suggest methodologies it might use to adjust the
ancillary services fee caps. Should the Commission develop separate
zones of reasonableness for each type of permissible ancillary service?
If so, how should the Commission calculate the upper and lower bounds
of each service, and what factors should the Commission consider in
picking a new cap from within the zone? If not, why not and what
alternative approach should the Commission use?
65. The Commission seeks further comment on whether the reported
data reveal a need for additional revisions to its ancillary service
charges rules. In 2021, the Commission highlighted record evidence
concerning the assessment of duplicate transaction costs on the same
payments, and it sought comment on whether the credit card processing
fees encompassed in the automated payment fee are the same credit card
processing fees referred to in the third-party financial transaction
fee. The Commission sought comment on whether providers engaged in such
``double dipping,'' as alleged in the record, and whether the
Commission's rules clearly prohibit assessing multiple ancillary
service charges per transaction or should be amended to implement such
a prohibition. In response, PPI urges the Commission to prohibit inmate
calling services providers from charging both automated fee payments
and third-party transaction fees arising from the same transaction
because, carriers are recouping payment-card processing costs twice
over. PPI contends that when carriers impose the $3 fee allowed under
47 CFR 64.6020(b)(1) while also making customers pay the carrier's card
processing costs under 47 CFR 64.6020(b)(5), this constitutes an
unreasonable charge, unjust enrichment, and circumvention of the
Commission's stated purpose in promulgating ICS rules. Similarly, NCIC
asks the Commission to prohibit third-party transaction fees which lead
to double billing of inmate calling services customers. Several parties
also argue that including credit card processing fees as part of the
third-party pass-through allowance was a mistake and has led to abuse.
Securus agrees that such double recovery, if it is occurring, would be
inappropriate and the Commission should clarify that a credit card
processing fee may only be imposed once for the same transaction or
payment. On the other hand, Securus claims that it may impose an
automated payment fee that recovers the internal costs in managing
accounts and may also impose a third-party credit card processing fee
to cover the costs imposed on Securus by a third-party credit card
payment processing company if a credit card is used to fund a prepaid
account. Securus agrees that a straightforward requirement barring
duplication of the same charges for the same transaction or payment
would be appropriate, but contends that it should be entitled to
recover that third-party cost. Securus and GTL also argue that the
Commission should not assume that the assessment of more than one
transaction fee for a single transaction means that double recovery is
taking place. Similarly, GTL asserts that the Commission consistently
has maintained a distinction between Automated Payment Fees assessed by
an inmate calling services provider on a qualifying transaction and the
attendant Third-Party Financial Transaction Fees a provider may pass
through to the consumer to facilitate the completion of that
transaction.
66. The Commission invites comment on these issues related to
transactions that involve credit card processing, including whether the
data show that providers assess multiple ancillary services charges for
a single transaction. Do the data from the Third Mandatory Data
Collection demonstrate that providers are recovering payment card
processing costs twice? If so, which data show this double recovery? Do
commenters agree with NCIC and PPI that the inclusion of credit card
processing in connection with third-party financial transaction fees
was a mistake? Why or why not? Should the Commission clarify that
payment card processing fees may not be imposed multiple times for a
single transaction or payment, but still allow providers to charge both
an automated payment fee as well as a third-party financial transaction
fee for a single transaction, in order to recover costs imposed by a
third-party credit card payment processing company, as Securus
suggests? Or should the Commission disallow the inclusion of payment
card processing costs in connection with third-party financial
transaction fees?
67. Do the data show evidence of other forms of potentially
duplicative charges with respect to ancillary service charges? The
Commission likewise seeks comment on whether there are scenarios in
which the imposition of more than one ancillary service charge may be
appropriate. If so, which data? NCIC offers documentation that certain
inmate calling services providers may be imposing additional ancillary
fees on inmate calling services consumers in contravention of the
Commission's rules. NCIC alleges that the imposition of additional
transactional fees has grown to be a significant revenue generator for
certain inmate calling services providers and provides evidence that
certain providers may be tacking on additional fees for online
deposits. For example, in one instance, a provider appears to have
charged a $3.00 transaction fee and a 6% credit card processing fee
(among other fees) on a $10 deposit. The Commission invites comment on
these purported practices, and whether these fees recover valid costs
or are leading to double recovery for providers.
68. The Commission seeks comment on further reforms it should make
to
[[Page 68428]]
fees for single-call services and third-party financial transaction
fees to ensure that charges are just and reasonable. As an initial
matter, in the Order, the Commission lowers the caps on fees for
single-call services and third-party financial transaction fees to
$3.00 for automated payment transactions and $5.95 for live agent
transactions. PPI suggests that the Commission should impose even lower
caps after the conclusion of the data collection. Do the data from the
Third Mandatory Data Collection support lowering these caps, as PPI
suggests? If so, to what levels? Securus on the other hand asserts that
the automated payment fee recovers the internal costs in managing
accounts. What are the costs associated with managing accounts? Should
those costs be recoverable through the automated payment fee? Or should
those costs be factored into the per-minute inmate calling services
rates? Commenters should be as specific as possible identifying
circumstances under which any such costs should be factored into the
per-minute inmate calling services rates.
69. Some commenters argue that live agents may not be available in
single-call services. Do other commenters agree with this assessment?
One commenter suggests that the fee for single-call services should be
no more than $0.25 to cover credit card transaction fees. The
Commission seeks comment on this cap. Should the Commission consider
prohibiting inmate calling services providers from imposing anticipated
taxes on consumers at the time of a deposit? NCIC suggests that without
knowing each call's end point, the provider cannot determine the actual
tax obligation arising from a call, resulting in overcollection by the
provider. How should the Commission ensure that consumers are not
overcharged by providers for anticipated federal, state, or local
taxes?
70. PPI asserts that single-call services are losing popularity and
are becoming uncommon in the industry, given that, by definition, they
require third-party billing. PPI contends that carriers still commonly
allow or encourage customers to pay for calls on a one-off basis, but
billing is typically done directly by the carrier without the
involvement of a third party. Do commenters agree? How prevalent are
single-call services? For those who are newly incarcerated, are single
calls the only way to make initial contact with loved ones outside of
the correctional facility? If not, what other options are available?
How do providers bill for single-call services? If a provider uses a
third party to bill for single-call services, and also assesses an
automated payment fee on consumers who elect to pay by credit card,
should the Commission allow providers to assess both a third-party
payment fee and an automated payment fee for the same transaction?
Relatedly, the Commission is concerned that consumers without a credit
or debit card may be unable to pay for single calls from an
incarcerated individual because payment using a credit or debit card
appears to be the only option for consumers to pay for such calls at
the time the call is made. NCIC conducted test calls and discovered
that a consumer without an account or enough funds to pay for a call
could either pay using a payment card or decline the call. Do
commenters agree that consumers must use a payment card to pay for
single calls? If not, how can consumers pay for single calls if they do
not have a credit or debit card? How can the Commission ensure that
incarcerated people are able to successfully initiate communication
using single-call products? Should the Commission prohibit any
transaction fees on single calls?
71. Finally, the Commission seeks comment on how its ancillary
service charges caps should be adjusted to better reflect the actual
cost of providing particular ancillary services, in light of the data
from the Third Mandatory Data Collection. In 2021, the Commission
sought comment on proposals to reduce its ancillary service charge caps
and whether it should adjust the caps based on the data from the Third
Mandatory Data Collection. In response, PPI supports lowering the caps
on third-party financial transaction fees, fees for single-call
services, automated payment fees, and live-agent fees, following
completion of the Third Mandatory Data Collection. Do the data from the
Third Mandatory Data Collection support reductions of these fees? If
so, to what levels? Commenters should provide their own analyses of the
reported data in support of any proposed caps. NCIC argues that certain
ancillary costs have increased. NCIC points to the fact that credit
card processing fees have not decreased in the past six years, but
certain compliance requirements such as Payment Card Industry
Certification requires more rigorous network intrusion testing than
what was required six years ago when the ancillary caps were first
adopted. NCIC also posits that labor costs have increased by at least
20% in the past 6 years. Do commenters agree with these assertions? Do
the data from the Third Mandatory Data Collection support a conclusion
that ancillary services costs have increased? If so, how? To account
for increasing costs, NCIC suggests that there should be a process for
the Commission's ancillary fee caps to be adjusted to account for
inflation and labor costs. Do commenters support this proposal? If so,
what mechanism could the Commission adopt to implement such a proposal
and how could that mechanism be incorporated into its rules?
Potential Pilot Programs Offering Alternative Pricing Structures
72. The Commission seeks further comment on whether to allow inmate
calling services providers to offer optional pilot programs that offer
consumers the ability to purchase inmate calling services under
alternative pricing structures, in addition to the traditional per-
minute pricing model required by its rules. The Commission invites
comment on whether, as several parties suggest, pilot programs offering
alternative pricing structures, generally, would benefit incarcerated
people and their families by lowering calling costs and increasing
connectivity. The Commission also invites commenters to elaborate on
the specific elements and attributes it should require of any pilot it
might allow, and how it can ensure that providers structure such pilot
offerings in a manner that does not harm consumers. In particular, the
Commission seeks comment on how to ensure that any such pilot programs
would not undermine its caps on interstate and international rates and
ancillary services charges. In addition, the Commission seeks comment
on whether it should permit any such pilot programs only subject to
certain specified conditions.
73. Background. The Commission's rules prohibit inmate calling
service providers from charging for calls on a per-call or per-
connection basis and require the providers to price their interstate,
international, and jurisdictionally indeterminate calling services at
or below specific per-minute rate caps. For convenience, the Commission
refers to 47 CFR 64.6030, 64.6080, 64.6090 as the pricing structure
rules. Separately, the Commission's rules allow inmate calling service
providers to charge consumers for any of five specified types of
ancillary services charges, each subject to their own respective caps.
This structure results in incarcerated persons and their families
paying for their interstate and international phone calls on a per-
minute basis. Outside of correctional facilities, however, most phone
users no longer pay per-minute rates for the phone calls they place.
[[Page 68429]]
74. In document FCC 22-76, the Commission sought comment on
alternative pricing structures that depart from traditional per-minute
pricing. Among other questions, the Commission asked whether it should
allow providers to offer different optional pricing structures subject
to the Commission's prescribed rate caps and whether the Commission
should adopt a process for waiving the per-minute rate requirement to
allow for the development of alternative pricing structures. Shortly
after the release of the 2021 ICS Order, Securus filed a petition
asking the Commission to waive its pricing structure rules to allow
Securus and other providers to offer alternative rate options.
According to the Petition, Securus had offered pilot programs at
certain facilities that gave consumers the option to purchase
intrastate inmate calling services pursuant to subscription pricing
plans. The correctional institution determined the maximum amount of
time available for each call, and the maximum call duration typically
varied between 15 and 30 minutes. For a flat fee, consumers who elected
to participate could buy packages of 25 telephone calls per week or 100
calls per month. This flat rate consists of a base rate plus a charge
for the recovery of site commissions if applicable. Securus also
charged a $3.00 automated payment fee upon enrolling in or renewing a
subscription plan. Securus explains that the effective price of these
packages ranged from $0.02 to $0.07 per minute for consumers who used
every available minute, lower than the rate caps applicable to
interstate calls made from the same facilities. If consumers used less
than half of their available calling minutes, Securus asserts that the
effective per-minute price increased to a range of $0.03 to $0.13 per
minute. Securus notes, however, that because many of the calls made
using the subscription plans were to wireless phones whose exact
physical location was difficult to determine, it had to treat
potentially in-state but jurisdictionally indeterminate calls as
interstate calls whose rates are limited to per-minute charges,
jeopardizing the development and availability of flat-rate subscription
plans for multiple calls. WCB sought comment on Securus's Petition.
Although the Commission does not resolve Securus's Petition in document
FCC 22-76, it does seek further comment on the benefits of the
subscription calling pilot program as described therein, and on other
pilot programs that providers may offer under the Commission's rules.
75. Although several commenters recognized the potential benefits
of pilot programs, such as the ones Securus has offered, other
commenters sought more information about the company's pilot programs
and expressed concerns that incarcerated people and their families may
not have received enough information to make informed decisions about
whether the programs would meet their needs. Specifically, commenters
ask that Securus be required to provide consumers with more complete
disclosures regarding prices, fees, call metrics, and the terms and
conditions relating to renewal and cancellation of its alternative
calling plans. Commenters also urge the Commission to require any pilot
program to adhere to certain pricing, disclosure, and other conditions
to protect incarcerated persons and their families from abuse.
76. Potential Pilot Programs. The Commission seeks comment on
whether it should amend its rules to permit providers--subject to
certain conditions--to offer pilot programs for inmate calling services
that use pricing structures other than per-minute rates. The Commission
seeks comment on the types of alternative programs that would be most
beneficial to incarcerated people and on the reasons why such programs
would be superior to the current per-minute pricing structure. Would a
flat-rate package, such as a single price for an allotment of minutes,
offer the most benefits? The Commission encourages commenters to fully
explain how any pricing model would operate, how it would benefit
consumers, and how the Commission can ensure that it would not harm
consumers. The Commission encourages commenters to describe potential
pilot programs in detail, including both the pricing and other
operational features of any program.
77. What would be the costs and benefits of various types of
alternative pricing structures? Would certain alternative pricing
structures offer incarcerated people and their families more
predictable, reliable, or affordable calling rates than others? If so,
which rate structures would be most advantageous to consumers and why?
Which types of offerings would give providers greater certainty
regarding their inmate calling services revenues or offer other
benefits tied to predictability? What type of consumer outreach or
education would be needed to ensure that consumers are able to choose
the pricing structure that best meets their needs?
78. Potential Conditions. The Commission seeks comment on whether
and how it could ensure that all pilot programs offer rates that, on a
per-minute basis, are less than its current per-minute rate caps. What
measures, if any, would be needed to protect consumers against
unreasonably high interstate and international rates in connection with
pilot programs? How should the Commission determine whether the rate
offered under any proposed alternative pricing structure is, on a per-
minute basis, less than its rate caps? Should the Commission take the
total price of the pilot program offering and divide it by the total
amount of minutes available under that program? How else might the
Commission determine whether a specific alternative pricing structure
results in higher effective rates for consumers than what they would
pay under the applicable per-minute caps? Should the Commission provide
for true-up procedures, under which providers would be required to
refund any revenues exceeding those permitted under its rules? The
Commission encourages commenters to be specific and to demonstrate how
any given structure would be consistent with its caps. Should the
Commission assume that each consumer will use every call and minute
available under an alternative pricing program? Or should the
Commission require that the consumer's actual usage be taken into
account? If the Commission takes the latter approach, how should the
Commission assess whether a pilot program's pricing is consistent with
its caps? Should the Commission require that any alternative plan offer
consumers a discount compared to what they would pay for the same usage
under its existing per-minute rate caps? If so, what should the minimum
discount be? Finally, how should the Commission treat plans that offer
an unlimited number of minutes or have indefinite terms?
79. The Commission seeks further comment on whether all pilot
programs should be optional, so that incarcerated people and their
families always are able to choose to purchase interstate and
international calling services at per-minute prices that do not exceed
its rate caps. If so, how should the Commission implement this
condition for different types of pilot programs? The Commission also
seeks comment on whether there are specific policies it should adopt to
protect consumers and on whether there are specific features or
attributes that different pilot programs should include. Should the
Commission require providers to offer a set minimum number of calls or
minutes per month, or other time period? Should the
[[Page 68430]]
Commission require providers to allow consumers to roll over any unused
minutes into each successive subscription period? Are there other
specific parameters the Commission should require? Should providers be
required to provide credits or otherwise make consumers whole for any
calls that are not completed or that are dropped? If a pilot program
offers calling services on a periodic subscription basis, should
consumers be able to opt out of automatic renewals of their
subscriptions? Should providers be required to provide more than one
opt-out method? Should consumers be permitted to cancel a subscription
before the end of the subscription period? If so, should providers be
required to offer refunds? If providers are required to offer refunds,
how should they provide such refunds in the event of cancellation prior
to the end of a subscription term?
80. Disclosures and Consumer Awareness. The Commission invites
comment on what rules, if any, it should adopt to ensure that providers
clearly, accurately, and conspicuously disclose the details of any
alternative pricing plans, while at the same time clearly conveying to
consumers the continued availability of per-minute calling plans. Since
providers may implement different types of alternative pricing
structures, it is critical that incarcerated people and their families
understand their provider's alternative offerings and how they differ
from per-minute usage. The Commission seeks comment on what information
consumers would need about providers' pilot programs to help them make
informed choices between a pilot program and traditional per-minute
pricing. Should the Commission require providers to inform consumers
how a pilot program's prices translate on a per-minute basis, to enable
consumers to make an informed decision between the program and the
traditional per-minute pricing model? If not based on an equivalent
per-minute price, how should any price comparison be made? More
generally, how should providers present the prices under alternative
plans, and what specific elements should be itemized? What sort of
terms and conditions would help consumers understand what a given plan
entails? Various terms and conditions could include, but are not
limited to: pilot program costs, ancillary service charges, automatic
renewal terms, cancellation policies, and refund policies. Should the
Commission adopt additional rules governing how providers should
disclose to consumers the rates, terms, and conditions associated with
any pilot program? If so, what specific information should providers be
required to disclose? Should the Commission require a written or
electronic disclosure, or otherwise specify the manner in which
providers must make any required disclosures?
81. The Commission seeks comment on these potential conditions, and
on any other conditions that might be necessary in order to preserve
the protections for incarcerated people under its rules. Should the
Commission require providers to inform it of their intent to offer a
pilot program and the details of that program, or require other
notification steps? Are there any other constraints or requirements the
Commission should adopt? Conversely, are there other rules the
Commission might need to waive in order for pilot programs using
alternative pricing structures to be commercially viable?
82. Pilot Period. The Commission seeks comment on whether it should
authorize pilot programs for a limited period, for example two years.
Would such a time period provide sufficient time to allow incarcerated
people and their families to adjust to the offerings and for the
Commission to more fully evaluate the costs and benefits of any
individual program? Would two years allow the market to adjust to any
new offerings? Should the Commission adopt a longer or shorter period?
Why or why not? Are there relevant performance metrics, such as rate of
adoption or usage, that will be most affected by the duration it
chooses? When should any period commence?
83. Program Continuance. The Commission invites comment on what
factors it should consider in deciding whether to extend a pilot
program beyond the initial permitted period to make that program
permanent. What information should the Commission focus on in
evaluating the efficacy of such programs? What, if any, information
should the Commission require providers to submit regarding their pilot
programs so that the Commission can make an informed judgement on
extending the pilot programs or amending its rules to allow them to
continue permanently?
84. Burden of Demonstrating Compliance with Existing Rate Caps.
Finally, the Commission seeks comment on whether to require providers
to bear the burden of demonstrating that any pilot programs comply with
its inmate calling service rate and ancillary services fee caps. If the
Commission does adopt such a requirement, what should the consequences
be if the provider fails to meet that burden? Should the consumer then
be entitled to a refund of the charges over and above those that would
have been assessed on a per-minute basis? What would the appropriate
period be for determining whether a pilot program has complied with the
Commission's rate caps, and how can this burden be met for calling
plans that are not dependent upon a given period (such as a fixed fee
for a number of calls)? For example, should the Commission evaluate
compliance with its rate and ancillary fee caps on a three-month basis
to account for normal variations in calling patterns that on average
would end up complying with the Commission's rate caps if calls had
been billed on a per-minute basis over the three-month period? Should
the Commission adopt a shorter or longer period and, if so, why? What
other factors should the Commission consider regarding the burden of
proof?
Definitions of ``Jail'' and ``Prison''
85. The Commission seeks comment on whether it should expand its
definitions of ``Jail'' and ``Prison'' to ensure that they capture the
full universe of confinement facilities with residents who access
interstate or international communications services. Specifically, the
Commission invites comment on whether it should include in those
definitions civil commitment facilities, residential facilities, group
facilities, and nursing facilities in which people with disabilities,
substance abuse problems, or other conditions are routinely detained.
The Commission asks that commenters address in detail whether residents
of such facilities are able to access voice and other communications
services through providers of their own choice, as opposed to being
limited to the providers selected by third parties. The Commission
seeks comment on its authority to apply its inmate calling services
rules, including those addressing communication disabilities, to these
facilities. Does that authority, if any, vary depending on whether a
facility is a non-governmental, as opposed to governmental, facility?
The Commission also seeks comment on the costs and benefits of applying
its rules to these facilities and on any practical problems that such
application might create. The Commission asks, in addition, whether it
should tailor any of its non-definitional rules to address the specific
circumstances of these facilities and, if so, how it can best ensure
that their residents have access to interstate and international voice
and other communications services at rates, and
[[Page 68431]]
on terms and conditions, that are just and reasonable.
Digital Equity and Inclusion
86. The Commission, as part of its continuing effort to advance
digital equity for all, including people of color, persons with
disabilities, persons who live in rural or Tribal areas, and others who
are or have been historically underserved, marginalized, or adversely
affected by persistent poverty or inequality, invites comment on any
equity-related considerations and benefits (if any) that may be
associated with the proposals and issues discussed in document 22-76.
Section 1 of the Act provides that the FCC regulates interstate and
foreign commerce in communication by wire and radio so as to make such
service available, so far as possible, to all the people of the United
States, without discrimination on the basis of race, color, religion,
national origin, or sex. The term ``equity'' is used here consistent
with Executive Order 13985 as the consistent and systematic fair, just,
and impartial treatment of all individuals, including individuals who
belong to underserved communities that have been denied such treatment,
such as Black, Latino, and Indigenous and Native American persons,
Asian Americans and Pacific Islanders and other persons of color;
members of religious minorities; lesbian, gay, bisexual, transgender,
and queer (LGBTQ+) persons; persons with disabilities; persons who live
in rural areas; and persons otherwise adversely affected by persistent
poverty or inequality. Specifically, the Commission seeks comment on
how its proposals may promote or inhibit advances in diversity, equity,
inclusion, and accessibility, as well the scope of the Commission's
relevant legal authority.
Initial Regulatory Flexibility Analysis
87. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), the Commission has prepared this Initial Regulatory
Flexibility Analysis (IRFA) of the possible significant economic impact
on small entities by the policies and rules proposed in document FCC
22-76. The Commission requests written public comments on the IRFA.
Comments must be identified as responses to the IRFA and must be filed
by the deadlines for comments provided in the Dates section of document
22-76. The Commission will send a copy of the document, including the
IRFA, to the Chief Counsel for Advocacy of the Small Business
Administration (SBA).
Need for, and Objectives of, the Proposed Rules
88. In document FCC 22-76 the Commission seeks additional comment
on whether to allow a simplified form of registration for using IP CTS
in correctional facilities, similar to enterprise phone registration
currently allowed for VRS. The Commission seeks comment on whether it
should require inmate calling services providers to provide access to
additional forms of TRS in jurisdictions with average daily populations
of fewer than 50 incarcerated people. The Commission also proposes and
seeks comment on requiring that charges for inmate calling services be
disclosed in accessible formats.
89. The Commission also seeks additional evidence and comment from
stakeholders to enable further reforms concerning providers' rates,
charges, and practices. First, the Commission seeks comment on refining
the rules adopted in document 22-76 concerning the treatment of
balances in inactive accounts. Second, the Commission seeks comment on
expanding the breadth and scope of existing consumer disclosure
requirements. Third, the Commission addresses certain issues that arose
from the providers' 2022 data collection responses. Specifically, the
Commission seeks comment on how data collected by the Commission should
be used to establish just and reasonable permanent caps on interstate
and international rates and associated ancillary service charges
consistent with the statute. The Commission seeks comment on whether to
allow inmate calling services providers to offer pilot programs
allowing consumers to purchase calling services under alternative
pricing structures. Finally, the Commission seeks comment on revisions
to its definitions of ``Prison'' and ``Jail,'' and on how the proposals
in document 22-76 may promote or inhibit digital equity and inclusion.
Legal Basis
90. The legal basis for any action that may be taken pursuant to
document 22-76 is contained in sections 1, 2, 4(i)-(j), 201(b), 218,
220, 225, 255, 276, and 403 of the Communications Act of 1934, as
amended, 47 U.S.C. 151, 152, 154(i)-(j), 201(b), 218, 220, 225, 255,
276, and 403.
91. The types of entities affected are: wired telecommunications
carriers; local exchange carriers; incumbent local exchange carriers;
competitive local exchange carriers; interexchange carriers; local
resellers; toll resellers; other toll carriers; payphone service
providers; TRS providers; and other telecommunications.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements for Small Entities
92. Compliance with Requirements to Provide Access and Expanded
Registration Requirements. The Commission seeks comment on whether to
allow enterprise registration for IP CTS use, limited to the
correctional context. If adopted, IP CTS providers would have an
alternative registration method for incarcerated people with
communication disabilities to access TRS. The Commission also seeks
further comment on whether to modify the scope of inmate calling
services providers' TRS obligations as determined in document 22-76. In
particular, the Commission seeks comment on requiring those providers
to provide access to additional forms of TRS (VRS, IP Relay, IP CTS,
and CTS) when they serve facilities in a jurisdiction with average
daily populations of fewer than 50 inmates. If adopted, inmate calling
services providers that do not all already provide these additional
forms of TRS to smaller facilities may have additional data to report
as a part of the Commission's Annual Reporting and Certification
Requirement to comply with requirements adopted in the Report and Order
portion of document FCC 22-76. The Commission also proposes to require
that charges for inmate calling services be disclosed in accessible
formats. If adopted, inmate calling services providers that do not all
already provide such information in accessible formats would need to do
so.
93. Other Potential Requirements. The Commission seeks comment on
refining the rules adopted in document 22-76 concerning the treatment
of unused funds in accounts consumers use to pay for interstate and
international inmate calling services and related ancillary services
charges, as well as on amendments to those rules which aim at
protecting inmate calling services account holders against unreasonable
practices in related to those funds. The Commission also seeks comment
on the appropriate permanent interstate and international rate and
ancillary services fee caps given providers' responses to the Third
Mandatory Data Collection, as well as on other amendments to its
ancillary services rules.
94. The Commission seeks comment on how amending its current
consumer disclosure rules could improve and expand the current rules
and reach more inmate calling services consumers. The potential changes
include mandating
[[Page 68432]]
that all inmate calling services providers to make the same required
disclosures of information available to all consumers, regardless of
whether they receive an actual bill from a provider. The Commission
invites comment on whether to allow inmate calling services providers
to supplement traditional per-minute pricing and develop optional pilot
programs that offer consumers the ability to purchase inmate calling
services under alternative pricing structures. The Commission invites
comment on whether it should authorize such programs subject to certain
specified conditions, including conditions protecting against
unreasonably high charges for interstate and international calling
services. The Commission seeks comment on whether it should expand its
definitions of ``Jail'' and ``Prison'' to ensure that they capture any
confinement facilities with residents who may access interstate and
international communications services, and on how its proposals may
promote or inhibit digital equity and inclusion.
Steps Taken To Minimize the Significant Economic Impact on Small
Entities and Significant Alternatives Considered
95. The RFA requires an agency to describe any significant
alternatives that it has considered in reaching its proposed approach,
which may include the following four alternatives (among others): (1)
the establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) the clarification, consolidation, or simplification of
compliance and reporting requirements under the rules for such small
entities; (3) the use of performance rather than design standards; and
(4) an exemption from coverage of the rule, or any part thereof, for
such small entities. The Commission will consider all of these factors
when it receives substantive comment from the public and potentially
affected small entities. In particular, the Commission will consider
the economic impact on small entities, as identified in comments filed
in response to Document FCC 22-76 and the IRFA, in reaching its final
conclusions and promulgating rules in this proceeding.
96. The Commission seeks comment on allowing enterprise
registration for IP CTS so that incarcerated people with communication
disabilities can access TRS. If adopted, this alternative form of
registration could reduce the burden on IP CTS providers by allowing
providers to register the relay service at a facility that maintains a
list of users. The Commission also seeks further comment on requiring
inmate calling services providers to provide access to all forms of TRS
in a jurisdiction with an average daily population of fewer than 50
incarcerated people. The request for comment includes asking for cost
data to assist the Commission with its analysis of the issue. The cost
data will help the Commission ensure it is achieving its statutory
obligation of ensuring TRS are available to extent possible, while
appropriately considering the burden on affected entities.
97. The comments that stakeholders submit in response to the
Commission's requests for comment on refining its rules on the
treatment of funds in inactive inmate calling services accounts, the
appropriate permanent interstate and international rate and ancillary
services fee caps, and other potential amendments to its ancillary
services rules, will supplement comments previously filed in this
proceeding. Collectively, these comments will help the Commission meet
its statutory obligation to ensure that providers' rates, terms, and
practices for interstate and international inmate calling services are
reasonable. Small entities can provide input in these areas addressing
whether, among other considerations, the Commission should adjust its
rules to address any particular financial or implementation challenges
faced by small entities.
98. Similarly, the Commission's requests for comment regarding
possible amendments to its consumer disclosure rules, regarding
potential pilot programs for inmate calling services that use pricing
structures other than per-minute rates, regarding possible amendments
to its definitions of ``Jail'' and ``Prison,'' and regarding digital
equity and inclusion will provide an opportunity for small entities, as
well as other stakeholders, to voice any concerns they may have. The
Commission will consider any comments small entities file regarding
these matters as part of its efforts to ensure that consumers of
calling services for incarcerated people have the information they need
to make informed purchasing decisions. In particular, it will consider
whether any concerns small entities raise regarding possible changes to
the consumer disclose rules and the potential pilot programs as part of
its overall evaluation of these areas.
99. The Commission will consider the economic impact on small
entities, as identified in comments filed in response to document FCC
22-76 and the IRFA, in reaching its final conclusions and promulgating
rules in this proceeding.
Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
100. None.
101. Initial Paperwork Reduction Act of 1995 Analysis. The Sixth
Notice of Proposed Rulemaking may contain modified information
collection(s) subject to the Paperwork Reduction Act of 1995 (PRA). If
the Commission adopts any modified information collection requirements,
the Commission will publish another document in the Federal Register
inviting the public to comment on the requirements, as required by the
Paperwork Reduction Act. Public Law 104-13; 44 U.S.C. 3501-3520. In
addition, pursuant to the Small Business Paperwork Relief Act of 2002,
the Commission seeks specific comment on how it might further reduce
the information collection burden for small business concerns with
fewer than 25 employees.
Federal Communications Commission.
Marlene Dortch,
Secretary, Office of the Secretary.
[FR Doc. 2022-24597 Filed 11-14-22; 8:45 am]
BILLING CODE 6712-01-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.