Rule2022-25192
Rates for Interstate Inmate Calling Services
Primary source
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Published
December 9, 2022
Effective
January 9, 2023
Issuing agencies
Federal Communications Commission
Abstract
The Federal Communications Commission (FCC or Commission) amends its rules to: require inmate calling services providers to provide access to all relay services eligible for Telecommunications Relay Service (TRS) Fund support, as well as American Sign Language (ASL) point-to-point video communication, where broadband internet access service is available, in jurisdictions with an average daily population of 50 or more incarcerated persons; clarify and expand the scope of restrictions on inmate calling services providers assessing charges for TRS and ASL point-to-point video calls; expand the scope of inmate calling services providers' required Annual Reports; and facilitate registration for carceral use of TRS. The Commission also amends its rules to: prohibit inmate calling services providers from seizing or otherwise disposing of funds in inactive calling services accounts until at least 180 calendar days of continuous inactivity has passed; lower the caps on provider charges for single-call services and third-party financial transactions; and clarify the definitions of "Jail" and "Prison." These actions will improve communications access for incarcerated people with disabilities and lessen the financial burdens incarcerated people and their loved ones face when using calling services.
Full Text
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<title>Federal Register, Volume 87 Issue 236 (Friday, December 9, 2022)</title>
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[Federal Register Volume 87, Number 236 (Friday, December 9, 2022)]
[Rules and Regulations]
[Pages 75496-75516]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-25192]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 64
[WC Docket No. 12-375; FCC 22-76; FR ID 113660]
Rates for Interstate Inmate Calling Services
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: The Federal Communications Commission (FCC or Commission)
amends its rules to: require inmate calling services providers to
provide access to all relay services eligible for Telecommunications
Relay Service (TRS) Fund support, as well as American Sign Language
(ASL) point-to-point video communication, where broadband internet
access service is available, in jurisdictions with an average daily
population of 50 or more incarcerated persons; clarify and expand the
scope of restrictions on inmate calling services providers assessing
charges for TRS and ASL point-to-point video calls; expand the scope of
inmate calling services providers' required Annual Reports; and
facilitate registration for carceral use of TRS. The Commission also
amends its rules to: prohibit inmate calling services providers from
seizing or otherwise disposing of funds in inactive calling services
accounts until at least 180 calendar days of continuous inactivity has
passed; lower the caps on provider charges for single-call services and
third-party financial transactions; and clarify the definitions of
``Jail'' and ``Prison.'' These actions will improve communications
access for incarcerated people with disabilities and lessen the
financial burdens incarcerated people and their loved ones face when
using calling services.
DATES:
Effective date: The amendments to the rules are effective January
9, 2023, except for the amendments codified as Sec. Sec.
64.611(k)(1)(i) through (iii) (amendatory instruction 6), 64.6040(c)
(amendatory instruction 11), and 64.6060(a)(5) through (7) (amendatory
instruction 12), which are delayed. The Commission will publish a
document in the Federal Register announcing the effective date for
these delayed amendments.
Compliance date: Compliance with Sec. 64.6040(b)(2) of the rules
is required by January 1, 2024.
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#92dffbf1faf3f7febcc1f1fde6e6d2f4f1f1bcf5fde4"><span class="__cf_email__" data-cfemail="81cce8e2e9e0e4edafd2e2eef5f5c1e7e2e2afe6eef7">[email protected]</span></a>, regarding portions of this
document relating to communications services for incarcerated people
with hearing or speech disabilities, and Jennifer Best Vickers, Pricing
Policy Division of the Wireline Competition Bureau, at (202) 418-1526
or via email at <a href="/cdn-cgi/l/email-protection#6f050a010106090a1d4119060c040a1d1c2f090c0c41080019"><span class="__cf_email__" data-cfemail="660c0308080f00031448100f050d0314152600050548010910">[email protected]</span></a>, regarding other matters.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Fourth
Report and Order, document FCC 22-76, adopted September 29, 2022,
released September 30, 2022, in WC Docket No. 12-375. The Commission
previously sought comment on these issues in Rates for Interstate
Inmate Calling Services, Fifth Further Notice of Proposed Rulemaking,
WC Docket No. 12-375, FCC 21-60, published at 86 FR 40416, July 28,
2021. This summary is based on the public redacted version of document
FCC 22-76, the full text of which can be accessed electronically via
the FCC's Electronic Document Management System (EDOCS) website at
<a href="http://www.fcc.gov/edocs">www.fcc.gov/edocs</a> or via the FCC's Electronic Comment Filing System
(ECFS) website at <a href="http://www.fcc.gov/ecfs">www.fcc.gov/ecfs</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#8fe9ececbabfbbcfe9ececa1e8e0f9"><span class="__cf_email__" data-cfemail="ed8b8e8ed8ddd9ad8b8e8ec38a829b">[email protected]</span></a>, or call the
Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice).
Synopsis
1. The Commission adopts several requirements to improve access to
communications services for incarcerated people with communication
disabilities. The Commission requires that inmate calling services
providers provide access to all relay services eligible for TRS Fund
support in any correctional facility where broadband is available and
where the average daily population incarcerated in that jurisdiction
(i.e., in
[[Page 75497]]
that city, county, state, or the United States) totals 50 or more
persons. The Commission also requires that where inmate calling
services providers are required to provide access to all forms of TRS,
they also must allow ASL direct, or point-to-point, video
communication. The Commission clarifies and expands the scope of the
restrictions on inmate calling services providers assessing charges for
TRS calls, expands the scope of the required Annual Reports to reflect
the above changes, and modifies TRS user registration requirements to
facilitate the use of TRS by eligible incarcerated persons.
2. The Commission also adopts other reforms to lessen the financial
burden incarcerated people and their loved ones face when using calling
services. To address allegations of abusive provider practices, the
Commission prohibits providers from seizing or otherwise disposing of
funds in inactive calling services accounts until at least 180 calendar
days of continuous inactivity has passed in such accounts, after which
providers must refund the balance or treat the funds in accordance with
any applicable state law requirements. The Commission lowers its cap on
provider charges for individual calls when neither the incarcerated
person nor the person being called has an account with the provider, as
well as its cap on provider charges for processing credit card, debit
card, and other payments to calling services accounts. Finally, the
Commission amends the definitions of ``Jail'' and ``Prison'' in its
rules to conform the wording of those rules with the Commission's
intent in adopting them in 2015.
Background
3. Communication Disabilities and Calling Services for Incarcerated
People. 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. Rates for Interstate Inmate Calling Services, published at 78 FR
67956, November 13, 2013. 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. Rates for
Interstate Inmate Calling Services, published at 80 FR 79135, December
18, 2015 (2015 ICS Order). 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.
4. 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. However, the Commission did not
require those providers to provide access to other relay services--
Video Relay Service (VRS), Captioned Telephone Service (CTS), internet
Protocol Captioned Telephone Service (IP CTS), and internet Protocol
Relay Service (IP Relay). 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.
5. 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 proposed to amend
Sec. 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 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. Finally, the Commission
sought comment on whether to extend its reporting requirements from
just TTY service to all other forms of TRS.
6. Rate and Ancillary Services Fee Caps. Beyond the disability
context, in 2021, the Commission took a number of actions that warrant
specific attention. Structurally, the Commission 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. Rates for Interstate Inmate Calling Services, published at
86 FR 40682, July 28, 2021 (2021 ICS Order). 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.
7. 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, published at 87 FR 16560, March 23, 2022,
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.
8. Looking forward, 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.
9. Ancillary Services Fee Caps and Practices. The Commission
adopted ancillary services charge rules in 2015 which limited
permissible ancillary
[[Page 75498]]
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. Building on these rules in the 2021 ICS Order, 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 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.
10. Consumer Disclosures. In the 2021 ICS Order, 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 item[s] on [c]onsumer bills'' and set standards for determining
when the fees would be considered ``clearly label[ed].'' Finally, the
Commission required providers to ``clearly label'' all charges for
international calls, as ``separate line item[s] on [c]onsumer bills.''
11. Other Relevant Topics. In 2021, the Commission expressed
concern about providers' practices regarding unused funds in inactive
accounts and invited comment on whether to 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 the rules' 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 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.''
12. Finally, the Commission sought comment 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, the
Commission sought comment on whether it 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
13. Making Additional Forms of TRS Available to Incarcerated
People. The Commission amends its rules to require that inmate calling
services providers must provide incarcerated, TRS-eligible users the
ability to access any relay service eligible for TRS Fund support. The
record amply demonstrates that, in the incarceration setting just as in
other environments, access to traditional, TTY-based TRS alone is
insufficient to ensure the availability of functionally equivalent
communication. Access to more technologically advanced forms of TRS--
VRS, IP Relay, and IP CTS or CTS--is necessary to ensure that
incarcerated people with hearing or speech disabilities have access to
services that are functionally equivalent to the telephone service
available to incarcerated people without such disabilities. These four
forms of TRS are widely available to, and relied upon by, persons with
disabilities nationwide. VRS enables individuals who are deaf and use
ASL to communicate in their primary language. CTS and IP CTS enable
individuals who are hard of hearing and can speak to communicate by
telephone with minimal disruption to the natural flow of conversation.
IP Relay offers a text-based relay service that is faster than TTY-
based TRS and more immune to the technical problems affecting TTY use
on IP networks. Collectively, these four forms of TRS, along with TTY-
based TRS and STS, are essential for ensuring that all segments of the
TRS-eligible population have access to functionally equivalent
communication.
14. The Commission revisits its interpretation in the 2015 ICS
Order of the Commission's authority to mandate the provision of VRS,
CTS, IP CTS, and IP Relay by inmate calling services providers. The
Commission now changes course and rejects that interpretation to the
extent it could be read to indicate that the Commission lacks authority
to mandate the provision of these services in carceral settings. The
absence of a general mandate in the Commission's rules for the
provision of VRS, CTS, IP CTS, and IP Relay by carriers and
interconnected Voice over internet Protocol (VoIP) service providers
does not preclude the Commission from adopting a rule requiring that
inmate calling services providers provide access to these relay
services in the special context of carceral settings. TRS Fund support
for these services has been sufficient to ensure their wide
availability to the general public, rendering such a general mandate
unnecessary. However, the Commission now finds that the incentives
resulting in providers' near-universal provision of these services to
[[Page 75499]]
the general public are not present in the special context of inmate
calling.
15. As explained in document FCC 21-60, VRS, CTS, IP CTS, and IP
Relay are ``non-mandatory'' only in the limited sense that carriers and
VoIP service providers do not have an obligation to provide these
services themselves, and that Commission-certified state TRS programs
are not required to include these services. To ensure their
availability to the general public, the Commission requires that all
telecommunications carriers and VoIP service providers support the
provision of VRS, IP Relay, IP CTS, and CTS through mandatory
contributions to the TRS Fund. 47 CFR 64.604(c)(5)(iii)(A), (B). As a
consequence, VRS, IP Relay, and IP CTS are available to every broadband
user at no additional cost. Indeed, people who are deaf or hard of
hearing or those with speech disabilities use VRS and IP CTS far more
often than they use the ``mandatory'' forms of TRS. In addition, CTS,
even though not ``mandatory,'' is currently included in every state TRS
program and is thereby available to every telephone service subscriber.
And while the near-universal availability of such relay services
outside the walls of correctional facilities may make it unnecessary to
formally mandate their availability to the general population, the
uneven record of access to such services in correctional facilities
establishes that a mandate is needed to ensure their availability to
people who are incarcerated. Although the Commission recognizes that
the provision of any communication service to incarcerated people
requires the consent of the relevant correctional authority, the
Commission requires inmate calling services providers to ensure that
these services are made available to incarcerated people in all
facilities within the scope of the rule, absent the refusal of such
consent by a correctional authority.
16. Further, in requiring inmate calling services providers to
provide access to all TRS Fund-supported relay services, the Commission
also helps ensure the availability of relay services that enable
Federal, state, and local correctional authorities to carry out their
parallel obligations under Federal law. Under Title II of the Americans
with Disabilities Act (ADA), Public Law 101-336, title II, sec. 202,
codified at 42 U.S.C. 12131 et seq., state and local correctional
authorities, as well as other government agencies, must provide
nondiscriminatory access to their services, programs, and activities,
including telephone service. 42 U.S.C. 12132. Federal correctional
authorities are subject to similar obligations. See 29 U.S.C. 794.
Further, U.S. Department of Justice regulations implementing Title II
of the ADA provide that state agencies, including correctional
authorities, must ``furnish appropriate auxiliary aids and services
where necessary to afford [incarcerated individuals with disabilities]
an equal opportunity to participate in, and enjoy the benefits of, a
service, program, or activity of a public entity,'' and such
``auxiliary aids and services'' are defined to include, among other
things, ``[q]ualified interpreters on-site or through video remote
interpreting (VRI) services,'' and ``voice, text, and video-based
telecommunications products and systems, including [TTYs], videophones,
and captioned telephones, or equally effective telecommunications
devices.'' 28 CFR 35.104. The Justice Department has entered numerous
settlement agreements to enforce these requirements in the
incarceration context, and in recent years many of these agreements
specifically provide for access to advanced communications products
such as captioned telephones and videophones, as well as services such
as VRS.
17. As noted above, the Commission does not require inmate calling
services providers to provide access to any form of TRS for which the
correctional authority withholds consent. The Commission understands
that under Title II of the ADA and the Department of Justice's
implementing regulations, generally speaking, a correctional authority
would need to have a strong justification--presumably based on evidence
of ``undue financial and administrative burdens''--for withholding
consent to an inmate calling services provider's provision of access to
the most effective forms of TRS. The burden is on the correctional
authority to establish undue burden, and the authority must still
``take any other action that would not result in . . . such burdens but
would nevertheless ensure that, to the maximum extent possible,
individuals with disabilities receive the benefits or services provided
by the [correctional authority].'' 28 CFR 35.164.
18. Some commenters suggest that responsibility for making TRS
available should lie exclusively with correctional authorities and
certified TRS providers. However, the record shows that active inmate
calling services involvement can be critical to ensuring that advanced
forms of TRS actually are made available in a facility. The Commission
concludes that the imposition of this service obligation on inmate
calling services providers is necessary to ensure that relay services
are available in the incarceration setting ``to the extent possible and
in the most efficient manner.'' The Commission does not, however,
preclude an inmate calling services provider from satisfying its TRS
access obligations by delegating the performance of some of those
responsibilities to the correctional authority, provided that the end
result of such delegation complies with the Commission's rules.
19. The record also shows that, due to recent changes in
correctional visitation practices, it is now feasible for inmate
calling services providers to make VRS and other advanced forms of TRS
available, without undue cost or security risk, in any correctional
facility with a substantial population. Indeed, as a number of
commenters point out, inmate calling services and TRS providers are
already partnering to provide access to internet-based forms of TRS in
hundreds of facilities. Further, it appears that the availability at
correctional facilities of the broadband connections needed for
internet-based TRS has increased dramatically since the onset of the
COVID-19 pandemic, due to the ``exponentially'' growing demand for
video visitation services, which also require a broadband connection.
According to a commenter, ``[t]he only jails not requiring video
visitation are the small city and county facilities, generally with a
population below 50 average daily population (ADP).'' As for user
devices, in contrast to the situation ten years ago, when this
proceeding commenced, ``now almost all [inmate calling services] bids
include the provision of tablets to permit incarcerated persons to
access [inmate calling services] within their cells.''
20. In general, internet-based TRS can be accessed from such
tablets through downloadable software applications available from TRS
providers. A commenter questions the accuracy of this statement in the
incarceration context, noting that ``correctional institutions require
[inmate calling services] providers to block third-party apps from
being accessible by inmates on tablets provided to inmates'' and that
unsecured messaging capabilities ``would allow the incarcerated to
contact and harass victims, witnesses, minors, and judges.'' The
Commission recognizes that TRS software applications used by the
general public may require modification for use in correctional
facilities. However, as discussed in the text, the current use of
internet-based TRS in hundreds of correctional facilities indicates
that TRS providers are able to offer modified
[[Page 75500]]
software that meets the security needs of correctional authorities.
21. Providing access to internet-based TRS that meets the security
needs of correctional facilities may pose some technical challenges,
but the record indicates that by working together, inmate calling
services and TRS providers have been able to overcome such challenges.
For example, a VRS provider states that, due to the call recording and
monitoring capabilities that inmate calling services providers already
have in place, it ``has not had any security problems providing VRS to
incarcerated people.''
22. Therefore, the Commission requires that inmate calling services
providers take all steps necessary to ensure that access to an
appropriate relay service is made available promptly to each inmate who
has a communication disability. In particular, inmate calling services
providers must:
<bullet> Make all necessary contractual and technical arrangements
to ensure that, consistent with the security needs of a correctional
facility, incarcerated individuals eligible to use TRS can access at
least one certified provider of each form of TRS.
<bullet> Work with correctional authorities, equipment vendors, and
TRS providers to ensure that screen-equipped communications devices
such as tablets, smartphones, or videophones are available to
incarcerated people who need to use TRS; and that all necessary TRS
provider software applications are included, with any adjustments
needed to meet the security needs of the institution, provide
compatibility with institutional communication systems, and allow
operability over the inmate calling services provider's network.
<bullet> Provide assistance as needed by TRS providers in
collecting the required registration information and documentation from
users and from the correctional facility. Further, when an incarcerated
person who has individually registered to use VRS, IP Relay, or IP CTS
is released from incarceration or transferred to another correctional
authority, the inmate calling services provider shall notify the TRS
provider(s) with which the incarcerated person is registered.
23. The Commission notes that the rule adopted does not require the
inmate calling services provider to make determinations of eligibility.
The Commission also notes that it permits, but does not require, that
inmate calling services providers establish connections with more than
one VRS or IP CTS provider. The Commission expects that the
registration information and documentation that TRS providers need to
collect will be readily available from inmate calling services
providers and correctional authorities. In those instances where some
additional effort might be necessary to collect such information and
documentation, inmate calling services providers--which have
contractual relationships with correctional authorities and billing
relationships with incarcerated persons--are well situated to provide
such assistance. Therefore, the Commission declines a commenter's
invitation to ``clarify that [inmate calling services] providers need
not collect information that they do not reasonably collect in the
normal course of business.''
24. Scope of the TRS Access Requirement. The Commission initially
applies this requirement to inmate calling services providers serving
any facility where broadband internet access service is available, if
the average daily population of all facilities in the governing
jurisdiction totals 50 or more incarcerated persons.
25. Broadband internet access service is a mass-market retail
service by wire or radio that provides the capability to transmit data
to and receive data from all or substantially all internet endpoints,
including any capabilities that are incidental to and enable the
operation of the communications service, but excluding dial-up internet
access service. 47 CFR 8.1(b). Congress has recently acted to make
broadband more widely available. See 47 U.S.C. ch. 16; 47 CFR 54.1900
through 54.1904. Because the bandwidth required for various forms of
TRS can change as technology develops, the rule does not specify a
minimum speed or bandwidth for broadband service. To the extent an
inmate calling services provider is uncertain about whether the
internet access service can support all forms of TRS, the inmate
calling services provider should obtain documentary support from a
certified TRS provider as to whether the available speed or bandwidth
is sufficient to support each form of internet-based TRS.
26. By ``jurisdiction,'' the Commission means the state, city,
county, or territory operating or contracting for the operation of a
correctional facility (or for Federal correctional facilities, the
United States). The rule applies, for example, to a state correctional
facility with an average daily population of fewer than 50 incarcerated
persons, where broadband service is available, if the total average
daily population for all facilities in the state is 50 or more
incarcerated persons. As noted above, the current record indicates that
in such facilities, the broadband connections and video-capable devices
needed for, e.g., VRS access are already being routinely provided for
inmate use as part of video visitation systems. In such facilities,
where broadband is not available, the Commission does not require an
inmate calling services provider to provide access to the three
internet-based forms of TRS--VRS, IP CTS, and IP Relay--but does
require that inmate calling services providers provide access to non-
internet Protocol CTS, as well as TTY-based TRS and STS, as broadband
service is not needed for these forms of TRS. Conversely, where
broadband service is available and the provision of IP CTS access is
required by the Commission's rules and provided by the inmate calling
services provider in the facility, the Commission does not require
inmate calling services providers to provide access to non-internet
Protocol CTS in that facility. To consolidate the rule provisions
addressing the specific TRS access obligations of inmate calling
services providers, the Commission amends Sec. 64.6040 of its rules to
incorporate the existing obligation to provide access to TTY-based TRS
and STS. Because this change merely codifies an existing obligation,
additional comment is unnecessary, and the Commission has good cause to
forgo seeking such comment under 5 U.S.C. 553(b).
27. In recent ex parte communications, some inmate calling services
providers assert that even in jurisdictions with average daily
populations of 50 or more incarcerated persons, providing VRS access
may be burdensome in some instances. According to one provider, many
short-term facilities with average daily populations of 50 or more,
such as city jails and holding facilities, do not offer video
visitation systems. Assuming there are such facilities, the record does
not justify a finding indicating that the cost of providing video-
capable devices and appropriate security are so substantial as to make
it infeasible or unreasonable to require the provision of essential
communication capabilities for incarcerated people with communication
disabilities. As noted above, access to VRS and other internet-based
forms of TRS is currently available in hundreds of correctional
facilities. The Commission notes that parties claiming that substantial
costs would be imposed on providers serving jurisdictions with average
daily populations of 50 or more incarcerated persons have provided no
specific evidence of such costs. Again, the Commission does not require
inmate calling services providers to provide
[[Page 75501]]
access to any form of TRS for which the correctional authority refuses
consent, and ADA regulations do not require correctional authorities to
take action that they can demonstrate would result in undue financial
and administrative burdens. The Commission also notes that providers
may supplement their responses to the Third Mandatory Data Collection
to separately document, on an annualized basis, any increased costs
they will incur in implementing document FCC 22-76's requirements
relating to disability access.
28. The Commission defers a decision on the application of this
requirement in those jurisdictions where the average daily population
of incarcerated persons is less than 50, to allow further consideration
of the costs and benefits of expanded TRS access in such facilities,
based on a more fulsome record. Two commenters have raised concerns
that a broadened TRS access requirement could impose substantial costs
on small rural jails. Although the current record contains little
quantitative evidence regarding the extent of this alleged burden, the
Commission believes it is appropriate to seek further comment before
determining whether to extend the TRS access rule to this relatively
small subset of the incarcerated population. While there are 1,100
jurisdictions with jail populations below 50, the average daily
population of these jurisdictions comprises only 3.6% of the total
population of jails. And because there are approximately twice as many
people incarcerated in state or Federal prisons as in city or county
jails, the jail population in these 1,100 jurisdictions represents only
1.2% of all incarcerated people. The Commission stresses that every
correctional system to which the rule applies is covered as to all
facilities in the system, regardless of the population of inmates in
any particular facility within that jurisdiction. The Commission does
not find record support for the argument that correctional authorities
would transfer incarcerated people with disabilities across
jurisdictional lines, to rural county jails not subject to the rule, in
an effort to avoid their TRS access obligations.
29. However, the Commission stresses that the TRS-related access
obligations of correctional authorities under Title II of the ADA (and
analogous laws governing Federal authorities) are not subject to any
population size limitation. Accordingly, to ensure that TRS and point-
to-point video calling are available to incarcerated persons to the
fullest extent possible, the Commission believes the TRS-related access
requirements of inmate calling services providers should be at least
coextensive with those of correctional authorities. Therefore, in the
Sixth Further Notice of Proposed Rulemaking (Sixth FNPRM), WC Docket
No. 12-375, FCC 22-76, FR ID 111465, published at 87 FR 68416, November
15, 2022, the Commission seeks further comment on extending the
obligation to provide access to additional forms of TRS and point-to-
point video calling, to include jurisdictions with an average daily
population of fewer than 50 incarcerated persons. The Commission also
notes that the current rule remains universally applicable; therefore,
an inmate calling services provider must ensure that access to the
``mandatory'' forms of TRS, traditional TRS and STS, is universally
available, including in jurisdictions with average daily populations
below 50.
30. Legal Authority. The Commission finds that it has legal
authority to adopt this rule. Section 225(b) of the Act directs the
Commission to ``ensure that interstate and intrastate
telecommunications relay services are available, to the extent possible
and in the most efficient manner, to [individuals with communication
disabilities] in the United States,'' 47 U.S.C. 225(b)(1), and no party
contends that incarcerated people are excluded from this mandate. In
addition, section 225(c) of the Act requires that each carrier provide
TRS in compliance with the Commission's regulations ``throughout the
area in which it offers service.'' A carrier may satisfy its obligation
by providing TRS ``individually, through designees, through a
competitively selected vendor, or in concert with other carriers.'' 47
U.S.C. 225(c).
31. To the extent that the 2015 ICS Order could be read to indicate
that the Commission lacked authority to mandate the provision of VRS,
IP Relay, CTS, and IP CTS in a carceral setting in the absence of a
general mandate, the Commission changes course from such
interpretation. The Commission has long held that these services are
TRS, and as noted above, section 225(c) of the Act requires common
carriers to offer TRS in compliance with the Commission's TRS
regulations. The Commission therefore finds that it has authority to
adopt rules requiring that access to these services be provided by
inmate calling services providers, notwithstanding the Commission's
prior discretionary determinations not to mandate the provision of such
services by carriers serving the general population.
32. The Commission also finds that inmate calling services
providers that are classified as providers of interconnected VoIP
service are subject to these requirements pursuant to the Commission's
Title I ancillary jurisdiction. Ancillary jurisdiction may be employed,
in the Commission's discretion, where Title I of the Act gives the
agency subject matter jurisdiction over the service to be regulated and
the assertion of jurisdiction is reasonably ancillary to the effective
performance of its various responsibilities. More specifically, as the
Commission has previously held, Title I of the Act gives the Commission
subject matter jurisdiction over ``all interstate and foreign commerce
in communication by wire or radio'' and ``all persons engaged within
the United States in such communication,'' 47 U.S.C. 152(a), and
interconnected VoIP services are covered by the statutory definitions
of ``wire'' and ``radio.'' In 2007, the Commission also held that
imposing the statutory TRS obligations of common carriers on
interconnected VoIP service providers is reasonably ancillary to the
Commission's responsibility to ensure the availability of TRS under
section 225(b)(1) of the Act and would give full effect to the purposes
underlying section 225(b)(1), as enumerated in that section. For the
same reasons, asserting ancillary jurisdiction to impose TRS
obligations on ICS providers is likewise reasonably ancillary to the
Commission's section 225(b)(1) responsibilities and will serve the core
objectives of section 225 of the Act and the Commission's TRS rules by
making TRS widely available and by providing functionally equivalent
services for the benefit of individuals with hearing or speech
disabilities.
33. Point-to-Point Video Communication in ASL by Incarcerated
People with Communication Disabilities. The Commission also requires
that where inmate calling services providers are required to offer
access to all forms of TRS (i.e., in jurisdictions with average daily
populations of 50 or more, where broadband service is available), they
also must provide access to point-to-point video communication for ASL
users with communication disabilities. Many people who are deaf and
whose primary language is ASL, and who are thus eligible to use VRS,
have family, friends, and associates who are also deaf and whose
primary language is ASL. To facilitate functionally equivalent
communication among ASL users, the Commission has long required VRS
providers to allow point-to-point calls
[[Page 75502]]
between ASL users who have been assigned VRS telephone numbers.
34. The record indicates that access to point-to-point video
communication is similarly critical to ensuring functionally equivalent
communication between incarcerated VRS users and the important people
in their lives. As a commenter observes, ``because Deaf individuals who
use sign language do not need assistance from a relay service to
understand one another, they are able to communicate most effectively
through direct, face-to-face conversation.'' Similarly, another
commenter notes that ``[p]roviding direct communication services will .
. . ensure that incarcerated people with disabilities are able to avoid
further isolation within carceral facilities by allowing them to
practice their primary form of communication.'' Therefore, incarcerated
individuals with hearing and speech disabilities who require the use of
video calling for effective communication must be afforded the same
access to point-to-point video calling that incarcerated individuals
without hearing and speech disabilities are given for voice calling.
The record indicates that providing access to ASL point-to-point video
communication, in addition to VRS, would not impose a significant
additional cost or other burden on inmate calling services providers,
as VRS providers already have the capability to provide this service in
conjunction with VRS.
35. The Commission has authority to adopt this requirement pursuant
to its Title I ancillary jurisdiction. As the Commission has previously
explained, requiring that providers facilitate point-to-point
communications between persons with hearing or speech disabilities is
reasonably ancillary to the Commission's responsibilities in several
parts of the Act. While point-to-point services are not themselves
relay services, point-to-point services even more directly support the
named purposes of sections 1 and 225 of the Act, 47 U.S.C. 151, 225, to
make available to all individuals in the United States a rapid,
efficient nationwide communication service, and to increase the utility
of the telephone system of the Nation: they are more rapid in that they
involve direct, rather than interpreted, communication; they are more
efficient in that they do not trigger the costs involved with
interpretation or unnecessary routing; and they increase the utility of
the Nation's telephone system in that they provide direct
communication--including all visual cues that are so important to
persons with hearing and speech disabilities.
36. The Accessibility Coalition requests that the Commission allow
entities other than VRS providers--e.g., inmate calling services
providers--to provide point-to-point video calling for incarcerated
persons. The Commission notes that, to allow dialing of a ten-digit
telephone number to connect an ASL point-to-point call between
incarcerated persons and parties approved for telephone communication
with them, a video communication platform must be able to access the
TRS Numbering directory for information on routing such ASL point-to-
point video calls to and from the TRS telephone number of an approved
party. See 47 CFR 64.613. The Commission's current rules allow parties
other than TRS providers to access the TRS Numbering Directory if they
receive Commission authorization as a Qualified Direct Video Entity
providing ``direct video customer support.'' See 47 CFR
64.613(c)(1)(v); see also 47 CFR 64.601(a)(15), (32). The Commission
agrees that an inmate calling services provider wishing to provide ASL
point-to-point video communication without the involvement of a VRS
provider may request authorization as a Qualified Direct Video Entity.
The Commission amends the rule governing access to the TRS Numbering
directory to expressly provide for inmate calling services providers to
request Qualified Direct Video Entity authorization to provide point-
to-point video service in correctional facilities that enable
incarcerated people to engage in real-time direct video communication
in ASL.
37. Compliance Date for Certain Amendments to Sec. 64.6040. To
allow a reasonable time for inmate calling services providers that do
not currently provide access to additional forms of TRS and to ASL
point-to-point video communication in accordance with the rules adopted
herein, the Commission sets January 1, 2024, as the deadline for
compliance with the above-discussed amendments to Sec. 64.6040 of its
rules. To the extent that some providers' current contractual
arrangements do not enable compliance with that rule as amended, this
extended compliance date will allow inmate calling services providers a
reasonable time to negotiate and implement any necessary changes to
contracts with correctional authorities and TRS providers, and to make
arrangements for the provision of user devices, secure TRS software,
and any other necessary changes in their operations.
38. Charges for TRS and ASL Point-to-Point Video Calls. The
Commission amends its rules to clarify the provision prohibiting inmate
calling services providers from assessing charges for intrastate,
interstate, or international TTY-based TRS calls, and to expand the
scope of that rule to cover all forms of TRS, as well as point-to-point
video calls conducted in ASL.
39. Clarifying Amendment on Charging for TTY-based TRS. Section
64.6040 of the Commission's rules currently states that ``[n]o [inmate
calling services] Provider shall levy or collect any charge or fee for
TRS-to-voice or voice-to-TTY calls.'' However, it appears that some
inmate calling services providers may be interpreting this rule to
allow the assessment of a charge on the called party, or a separate fee
for using or accessing TTY equipment. Such stratagems contravene the
rule's purpose to ensure that incarcerated people have free access to
relay service. Therefore, the Commission amends Sec. 64.6040 of its
rules to expressly prohibit inmate calling services providers from
levying or collecting any charge on any party to an intrastate,
interstate, or international TTY-based TRS call, regardless of whether
the party is the caller or the recipient and whether the party is an
incarcerated person or is communicating with such individual, and
regardless of whether the charge is characterized as a charge for the
call itself or for the use of a device needed to make the call.
40. Prohibition of Charges for Intrastate, Interstate, and
International VRS, STS, and IP Relay. In light of its action above to
expand the kinds of relay services available to incarcerated people,
the Commission also amends Sec. 64.6040 of its rules to prohibit
inmate calling services providers from charging either party to a VRS,
STS, or IP Relay call, whether intrastate, interstate, or
international, and whether characterized as a charge for the call
itself or for use of a device to make such a call. The Commission notes
that, to the extent that an inmate calling services provider incurs
costs associated with the provision of access to TRS and point-to-point
video, the Commission does not prohibit recovery of such costs in the
provider's generally applicable rates for voice calls, provided such
generally applicable rates comply with the Commission's rate-cap and
other rules.
41. The Commission takes this step for several reasons. First, as
discussed further below, Congress has clearly expressed its intent that
consumers in general must not be subject to charges that discourage the
use of relay services, and that inmate calling services providers in
particular are not entitled
[[Page 75503]]
to compensation for each TRS call they carry. See 47 U.S.C.
225(d)(1)(D), 276(b)(1)(A). Second, while the Commission's rules permit
limited charges to be assessed for the use of TRS in other contexts, 47
CFR 64.604(c)(4), the incarceration setting presents special
considerations not present elsewhere. Incarcerated people tend to have
extremely limited financial resources, and, due to their incarceration,
do not have the same ability as other telephone users to choose among
competitive telephone service offerings. Further, as the history of
this proceeding amply demonstrates, telephone charges for inmate
calling services are typically much higher than for ordinary telephone
service. Also, due to the iterative nature of a communications
assistant's (CA's) intermediating interactions with callers using VRS,
STS, IP Relay, and TTY-based TRS, these types of TRS calls take longer
than a voice call to communicate the same information. Therefore, if
the per-minute inmate calling services rate for a voice call were
applicable, total charges for such TRS calls would be substantially
greater than for an equivalent voice call. Additionally, the Commission
finds support in the record for prohibiting such charges.
42. Finally, in contrast with CTS and IP CTS (which present special
considerations that are discussed below), due to the inherent nature of
these services, the Commission finds it unlikely that VRS, STS, and IP
Relay would be overused by incarcerated individuals who do not need
these services. Like TTY-based TRS, VRS, STS, and IP Relay subject
callers to recurring delays while a CA converts voice to text or ASL,
and the reverse. These delays interrupt the natural flow of
conversation and substantially lengthen the duration of the call. In
addition, VRS requires the use of ASL, making it unlikely that
incarcerated people who do not need VRS for functionally equivalent
communication will seek to use it. Although IP Relay has been abused in
the past, it is unlikely to be abused in the incarceration setting
given the ability of inmate calling services providers and correctional
authorities to supervise such use and monitor the content of
conversations. Therefore, to ensure that incarcerated individuals who
need these services are not deterred from using them by unaffordable
costs, the Commission prohibits the imposition of charges on any party
to an inmate calling services call for the use of these relay services
or the devices needed to access them. Given the substantial
justification for requiring that VRS access be provided free of charge,
the Commission declines to allow charges for VRS of up to 25% of the
per-minute calling rate to recover providers' additional costs of VRS
access.
43. Legal Authority. The Commission concludes that it has statutory
authority to take this step under section 225 of the Act, which
expressly directs the Commission to ensure the availability of
interstate and intrastate TRS. See 47 U.S.C. 225(b)(1). In addition,
under section 201 of the Act, the Commission has authority to regulate
the interstate charges and practices of common carriers. 47 U.S.C. 201.
Congress expressly carved section 225 out from the Act's general
reservation of state authority over intrastate communications. 47
U.S.C. 152(b). Responsibility for administering TRS is shared with the
states only to the extent that a state applies for and receives
Commission approval to exercise such responsibility. See 47 U.S.C.
225(c), (f)-(g). Indeed, section 225 of the Act affords the Commission,
without limitation, ``the same authority, power, and functions with
respect to common carriers engaged in intrastate communication as the
Commission has in administering and enforcing the provisions of this
[Act] with respect to any common carrier engaged in interstate
communication.'' 47 U.S.C. 225(b)(2) (emphasis added). And as discussed
above, the Commission has previously ruled it has authority to apply
such regulations to providers of interconnected VoIP service pursuant
to Title I ancillary jurisdiction. Section 225 of the Act also directs
the Commission to ensure that the rates paid for TRS are no greater
than the rates for functionally equivalent voice services, 47 U.S.C.
225(d)(1)(D), but does not preclude the Commission from setting a lower
limit where necessary or appropriate to ensure that TRS is available in
a particular setting.
44. Further, such a prohibition is consistent with section 276 of
the Act, which requires the Commission to ensure that inmate calling
services providers ``are fairly compensated for each and every
completed intrastate and interstate call.'' 47 U.S.C. 276(b)(1)(A).
Because TRS calls are expressly excluded from this mandate, section 276
of the Act does not entitle inmate calling services providers to
receive any compensation for TRS calls. The regulation of intrastate
TRS rates is also consistent with the D.C. Circuit's decision regarding
the limits of the Commission's authority to regulate charges for
intrastate inmate calling services under section 276 of the Act. In GTL
v. FCC, the D.C. Circuit ruled that section 276 of the Act, by
requiring that payphone service providers (including inmate calling
services providers) be ``fairly compensated'' for every call using
their phones, did not grant the Commission authority to cap intrastate
rates based on a broader ``just, reasonable, and fair'' test. See GTL
v. FCC, 866 F.3d 397, 402-12 (D.C. Cir. 2017). Here, the Commission
does not purport to regulate intrastate rates under such a test;
rather, as discussed above, the Commission relies on section 225 of the
Act, which both explicitly applies to intrastate service and directs
the Commission to set limits on charges for TRS calls.
45. The Commission does not apply this absolute prohibition to CTS
and IP CTS calls. Unlike VRS, STS, and IP Relay, use of CTS and IP CTS
does not require callers to accept delays in the natural flow of
conversation or impose other inherent limitations, such as the
necessity for VRS users to be able to sign in ASL. As a result, a
telephone call using CTS or IP CTS is not significantly less convenient
for a user than is an ordinary voice call, and unlike the other
services discussed above, CTS and IP CTS are technically (although not
legally) usable for ordinary phone calling by consumers who have no
hearing or speech disabilities. Because voice services and telephones
are relatively inexpensive for the general public, ordinarily there may
be no particular incentive for a person without such disabilities to
register for or use CTS and IP CTS. However, in the incarceration
setting, where callers face unusually high telephone charges that they
often can ill afford to pay, making the service available without
charge could make it attractive for incarcerated people to request
access to these services regardless of need, solely to make calls free
of charge. Such requests for access could result in the imposition of
administrative barriers that deter use of captioned telephone services
by those who do need them. Therefore, rather than prohibiting any
charge for the use of these services, the Commission requires adherence
to the statutory ceiling on TRS charges. In other words, the Commission
prohibits an inmate calling services provider from assessing--on either
party to a CTS or IP CTS call, for either the service or the device(s)
used--any charge in excess of the total amount that the inmate calling
services provider charges, in the same correctional facility, for a
non-relay voice telephone call of the same duration, time-of-day,
jurisdiction, and distance. In effect, the Commission is
[[Page 75504]]
permitting ICS providers to charge for the voice component (but not for
the TRS component) of the CTS or IP CTS call at the same rate charged
to hearing users for an equivalent stand-alone voice call. The
Commission notes that, although section 276 of the Act does not entitle
inmate calling services providers to receive compensation for TRS
calls, it does not prohibit the Commission from allowing providers to
assess charges for such calls that are consistent with the limits set
by section 225 of the Act.
46. Similarly, the Commission prohibits inmate calling services
providers from assessing, on either party to a point-to-point video
call conducted in ASL, any charge in excess of the total amount that
the inmate calling services provider charges, in the same correctional
facility, for a non-relay voice telephone call of the same duration,
time of day, jurisdiction, and distance. Although ASL point-to-point
video calls are not relay calls per se, placing such calls is necessary
to ensure that functionally equivalent communication is available to
persons who are deaf or hard of hearing and whose primary language is
ASL. Therefore, for the same reason underlying the statutory
prohibition on charging more for a relay call than for an equivalent
voice call, the Commission concludes that its rules should similarly
prohibit inmate calling services providers from charging more for an
ASL point-to-point video call than for an equivalent voice call.
47. The Commission declines to prohibit all charges for ASL point-
to-point video calls, as urged by the Accessibility Coalition. It is
true that ASL point-to-point video does not pose the same eligibility
determination concerns as those described above regarding captioned
telephone service. However, because the Commission allows entities
other than TRS providers to provide such services, the Commission
permits the assessment of charges that do not exceed those for an
equivalent voice call.
48. Expanding Reporting Requirements Regarding TRS and Disability
Access. As a part of the Commission's Annual Reporting requirement,
inmate calling services providers must submit certain information
related to accessibility: ``[t]he number of TTY-based Inmate Calling
Services calls provided per facility during the reporting period'';
``[t]he number of dropped calls the . . . provider experienced with
TTY-based calls''; and ``[t]he number of complaints that the . . .
provider received related to[,] e.g., dropped calls, [or] poor call
quality[,] and the number of incidents of each by TTY and TRS users.''
47 CFR 64.6060. WCB recently revised the instructions and reporting
template to require that providers report, on a facility-by-facility
basis, any ancillary service charges they impose specifically for
accessing and using TTY equipment and other disability-related inmate
calling services technologies.
49. Given that the Commission is expanding the scope of its access
mandate to all forms of TRS, and consistent with the language including
other disability-related inmate calling services technologies in the
revised reporting instructions, the Commission expands these reporting
requirements to include all relay services. The Commission requires
inmate calling services providers to list, at a minimum, for each
facility served, the types of TRS that can be accessed from the
facility and the number of completed calls and complaints for TTY-TTY
calls, ASL point-to-point video calls, and each type of TRS for which
access is provided. As in the 2015 ICS Order, where the Commission
applied these reporting requirements to TTY-based TRS calls, the
Commission concludes that requiring this limited amount of reporting by
inmate calling services providers will facilitate monitoring of call-
related issues, encourage greater engagement by the advocacy community,
and provide the Commission the basis to take further action, if
necessary, to improve incarcerated persons' access to TRS. Moreover, in
the event that some correctional authorities refuse to allow access to
TRS, such reporting will provide the Commission with valuable data
showing to what extent the rules adopted here are successfully
implemented. With respect to the number of calls completed, the
facility-by-facility approach is subject to possible modification by
the Consumer and Governmental Affairs Bureau (CGB) and WCB in their
exercise of the authority delegated to those Bureaus. The Commission
directs CGB and WCB to consider the alternative of permitting reporting
on a contract basis, in lieu of facility-by-facility reporting, in
implementing the data collection requirements adopted in this final
rule.
50. There is robust support in the record for this step. The
Commission finds that the additional burden associated with providing
limited reporting on this small category of calls is unlikely to be
large and is outweighed by the benefits such reporting will offer in
terms of greater transparency and heightened accountability on the part
of inmate calling services providers. The Commission is not persuaded
that expanded reporting requirements would discourage inmate calling
services and TRS providers from providing access to additional forms of
TRS--given that its amended rules require inmate calling services
providers to provide such expanded access in any jurisdiction with an
average daily population of more than 50, where broadband service is
available. The Commission also declines the suggestion that complaints
be reported in the aggregate and not by type. Complaints can be an
important indicator of the presence of specific compliance issues;
therefore, it is important that providers submit specific information
identifying the nature of the complaint, the type of TRS, and the
facility involved.
51. However, the Commission does not find it necessary to require
inmate calling services providers to report the amount of call time
spent on each form of accessible communication and the number of
individuals in each carceral facility registered to use each service.
The Commission is not convinced at this time that the additional
benefits from collecting such information would justify the extra
burden involved in gathering it. In addition, the Commission agrees
that reporting the number of dropped calls is of little value, given
that calls can be disconnected for a variety of reasons that do not
necessarily reflect on the quality of the service provided, and
therefore the Commission deletes this requirement.
52. Removal of the Safe Harbor. In adopting the reporting
requirement for TTY-based TRS in 2015, the Commission stated that ``if
an [inmate calling services] provider either . . . operates in a
facility that allows the offering of additional forms of TRS beyond
those we currently mandate or . . . has not received any complaints
related to TRS calls, then it will not have to include any TRS-related
reporting in [its] Annual Report . . . provided that it includes a
certification from an officer of the company stating which prong(s) of
the safe harbor it has met.'' 2015 ICS Order. Given the expanded
reporting requirement for additional forms of TRS, and the importance
of transparency into the state of accessible communications in
incarceration settings, the Commission concludes that this safe harbor
is no longer appropriate. To assess the effectiveness of its policies
and assist with enforcement, the Commission needs information on the
extent to which TRS access is available throughout correctional
systems. Further, given the inherently coercive
[[Page 75505]]
nature of corrections, lack of complaints from a particular
jurisdiction or facility can be due to a number of factors and does not
automatically indicate compliance with the Commission's rules.
53. Delegation of Authority. The Commission delegates authority to
the Consumer and Governmental Affairs Bureau and WCB to implement this
expanded reporting obligation and to develop a reporting form that will
most efficiently and effectively elicit the information the Commission
seeks. This delegation shall take effect on December 9, 2022. The
Commission finds good cause for making this delegation take effect at
that time because doing so will enable the Bureaus to move as
expeditiously as practicable toward revising the instructions and
reporting template for inmate calling services providers' Annual
Reports, as set forth above. Given the importance of this expanded
reporting to the Commission's efforts to ensure that incarcerated
people with communication disabilities receive service that is
functionally equivalent to that received by those without such
disabilities, any unnecessary delay in this initiative would be
inconsistent with the public interest.
Disability Access Requirements for TRS Providers--TRS Registration
54. To prevent waste, fraud, and abuse and allow the collection of
data on TRS usage, the Commission's rules generally require that each
individual using VRS, IP CTS, or IP Relay must be registered with a TRS
provider. Further, VRS providers must submit user registration data to
a central User Registration Database (User Database) administered under
Commission supervision. Similar User Database registration and
verification requirements apply to IP CTS providers. However,
compliance with these requirements is not required until the User
Database has been activated for registration of IP CTS users.
Currently, the Commission's rules do not require that IP Relay
registrations be submitted to the User Database.
55. As an alternative to individual registration, VRS providers may
register videophones maintained by businesses, organizations,
government agencies, or other entities and designated for use in
private or restricted areas as ``enterprise videophones.'' 47 CFR
64.611(a)(6). This alternative form of registration is not available to
IP CTS providers.
56. Based on the record, the Commission concludes that these TRS
registration processes can be adapted to the incarceration context
without major changes.
57. Individual Registration. To register individuals to use VRS, IP
CTS, or IP Relay, a TRS provider must collect and maintain certain
registration information from or regarding each prospective user. For
VRS and IP CTS, this includes: the user's full name; residential
address; telephone number; last four digits of the social security
number or Tribal Identification number; date of birth; Registered
Location (if applicable); dates of service initiation and (if
applicable) termination; the date on which the user's identification
was verified; and (for existing users only) the date on which the
registered internet-based TRS user last placed a point-to-point or
relay call. 47 CFR 64.611(a), (j). For IP CTS, a provider must also
assign a unique identifier such as the electronic serial number (ESN)
of the user's IP CTS device, the user's log-in identification, or the
user's email address. 47 CFR 64.611(j)(2)(i)(D). This is not required
for VRS because each VRS user is assigned a unique telephone number
that is usable specifically for VRS. 47 CFR 64.611(a)(1). For IP Relay,
the required registration is not expressly stated in the rules, but the
Commission has interpreted the rule as requiring similar information.
58. In addition, to register individuals to use VRS or IP CTS, a
TRS provider must obtain from each prospective user a certification,
under penalty of perjury, that the user needs that form of TRS for
effective communication and understands that the cost of the service is
paid by a Federal program. 47 CFR 64.611(a)(3), (j)(1)(v). In addition,
as part of the IP CTS user certification, a TRS provider must obtain
certification that ``[t]he consumer understands that the captioning on
captioned telephone service is provided by a live communications
assistant who listens to the other party on the line and provides the
text on the captioned phone,'' and that ``[t]he consumer will not
permit, to the best of the consumer's ability, persons who have not
registered to use internet protocol captioned telephone service to make
captioned telephone calls on the consumer's registered IP captioned
telephone service or device.'' 47 CFR 64.611(j)(1)(v)(B), (D).
59. For registration of VRS and IP CTS users, the above
registration data and certifications also must be submitted to the User
Database. 47 CFR 64.611(a)(4), (j)(2). Compensation for service to a
new user is not paid until the user's identity has been verified by the
administrator of the User Database. 47 CFR 64.615(a)(6). As noted
above, the database for IP CTS user registration has not yet been
activated.
60. Enterprise Registration for VRS. The rules on VRS enterprise
registration presuppose that telephone numbers will be assigned to
specific video-capable devices (videophones). Before service can be
provided pursuant to an enterprise registration, an individual must be
designated by the business or agency as responsible for the videophone,
and must provide a certification to the VRS provider that the
individual ``understands the functions of the videophone, [that] the
cost of VRS calls made on the videophone is financed by the federally
regulated Interstate TRS Fund, and . . . that the organization,
business, or agency will make reasonable efforts to ensure that only
persons with a hearing or speech disability are permitted to use the
phone for VRS.'' 47 CFR 64.611(a)(6)(ii)(A). The certification may be
signed and transmitted electronically. 47 CFR 64.611(a)(6)(ii)(B). For
each such device, in addition to the assigned telephone number, the VRS
provider must submit to the User Database: ``[t]he name and physical
address of the organization, business, or agency where the enterprise .
. . videophone is located''; ``the Registered Location of the phone if
that is different from the physical address''; ``the type of location
where the videophone is located''; the date of initiation of service;
``[t]he name of the individual responsible for the videophone'';
``confirmation that the provider has obtained the required
certification'' from that individual; ``the date the certification was
obtained by the provider''; and ``[w]hether the device is assigned to a
hearing individual who knows sign language.'' 47 CFR 64.611(a)(6)(iii).
61. Changes in TRS Registration Rules. The Commission intends that
incarcerated VRS users may be registered under either individual or
enterprise registrations. Because the Commission's rules do not
authorize enterprise registration for IP CTS and IP Relay users,
incarcerated users of those services currently must have individual
registrations. To facilitate the use of these registration procedures
in the correctional setting, the Commission amends the TRS registration
rules as described below.
62. Individual Registration. The Commission amends its rules to
facilitate individual registration of eligible incarcerated people with
disabilities for any form of internet-based TRS. The Commission notes
that if an incarcerated individual is already registered to use VRS, IP
Relay, or IP
[[Page 75506]]
CTS, then the TRS provider may continue to provide service to a user
under that individual registration--unless such registration is
dependent on conditions that no longer apply during incarceration
(e.g., if an IP CTS registration is tied to the electronic serial
number (ESN) of a device that is no longer available to the
individual). See 47 CFR 64.611(j)(2)(i)(D).
63. The Commission amends the rules to provide that the
``residential address'' specified for an incarcerated individual who
has not previously registered with the VRS or IP CTS provider serving
the facility shall be the address of the responsible correctional
authority. Further, because 911 calls by incarcerated individuals are
not permitted in a correctional facility, ``Registered Location''--that
is, the physical location of the user--need not be included. For IP
CTS, the telephone number specified shall be the same telephone number
used by the inmate calling services provider to identify ordinary voice
telephone calls placed to or from persons incarcerated in the
correctional facility. Further, given that devices are not uniquely
assigned to users, the unique user identifier specified in an IP CTS
registration should be a log-in ID, email address (if available and
unique to the user), or other unique identifier, rather than the
electronic serial number of the user's device. In addition, for
incarcerated persons who do not have a social security number or Tribal
Identification number, the Commission allows TRS providers, as an
alternative in such cases, to collect, and submit to the User Database,
an identification number issued by the correctional authority. The TRS
provider should obtain and provide to the TRS Fund administrator the
incarcerated person's identification number and the name and address of
the correctional facility providing the documentation.
64. To ensure that eligible incarcerated individuals can be
promptly registered to use VRS and IP CTS, the Commission also amends
the rule on verification of user registration data to allow TRS
providers and the User Database administrator to accept documentation
provided by an appropriate official of a correctional facility, such as
a letter or statement from the official stating the name of the
individual and that the individual resides in the facility, as
verification of the identity and residence of an incarcerated
individual seeking to use VRS or IP CTS. This change will prevent delay
or denial of registration of an incarcerated individual to use these
forms of TRS, due to lack of credit history or acceptable alternative
documentation verification of the information provided to the User
Database. The Commission does not require that the TRS provider receive
such documentation directly from the issuing correctional official. As
discussed above, the Commission requires inmate calling services
providers to assist TRS providers in collecting the required
registration information and documentation from users and from the
correctional facility.
65. The Commission does not find that additional changes to its
individual registration rules are needed. By requiring inmate calling
services providers to assist TRS providers in collecting the required
registration information and documentation, the Commission believes it
has sufficiently addressed concerns about TRS providers' ability to
collect such information on their own.
66. Enterprise Registration for Incarcerated VRS Users. There are
significant differences between correctional facilities and other
enterprise contexts. For example, as one commenter states,
``[i]ncarcerated individuals are regularly moved among facilities, and
the inmate calling services equipment they use may not move with
them.'' To facilitate enterprise registration for VRS in the
correctional context, the Commission agrees with another commenter that
``a VRS provider should be able to register all the videophones and
telephone numbers providing service to a single system's correctional
facilities under a single account. A VRS provider should then be able
to register a pool of telephone numbers under that account. It should
also be able to register the main or administrative address for the
correctional system in question, and that address would be considered
to be the location of each kiosk used in that system.'' Given the
security measures available to inmate calling services providers and
correctional facilities, the Commission concludes that these changes to
enterprise registration are unlikely to increase significantly the risk
of waste, fraud, and abuse in TRS. The Commission accordingly adopts
rule language consistent with the above proposals.
Disability Access Requirements for TRS Providers--Other Rules
67. Confidentiality Rule Clarifications. The Commission concludes
that no amendment to its TRS confidentiality rule is necessary to
address the security concerns of correctional institutions. Section
64.604(a)(2) of the Commission's rules, which applies to TRS providers
and their CAs, does not impose obligations on other parties, such as
inmate calling services providers, that are not eligible for TRS Fund
compensation and are only providing a communications link to an
authorized TRS provider. Specifically, the rule does not prohibit an
inmate calling services provider or correctional facility from
monitoring and recording the transmissions sent and received between an
incarcerated person and the TRS provider's CA, in the same way as they
monitor and record other inmate calling services calls, provided that
the TRS provider and CA are not conducting such monitoring and
recording. The comments confirm that it is common practice for inmate
calling services providers to configure communications systems to allow
monitoring or recording of calls, including TRS calls, by the inmate
calling services provider or the correctional facility. For example,
one TRS provider acknowledges that ``[while] Commission rules prohibit
IP CTS providers from recording calls or retaining a transcript of the
call after it has concluded . . . [f]or security reasons, [inmate
calling services] providers often monitor and record calls.''
Similarly, another TRS provider states that it ``does not interpret the
current confidentiality rules to prohibit an [inmate calling services]
provider or a correctional facility from monitoring the transmissions
between an incarcerated person and the VRS providers' CA so long as the
VRS provider and the CA are not directly engaging in such monitoring.''
68. Other TRS Rules. The Commission also amends its rules to make
clear that certain minimum TRS standards are not applicable to the
incarceration setting. Specifically, the Commission amends its rules to
provide that the types of calls, call durations, and calling features
that TRS providers must offer incarcerated users are limited to those
types of calls and call durations permitted for hearing people
incarcerated in the correctional facility being served. In addition,
the Commission does not require VRS providers to allow incarcerated
users to choose their ``default provider'' or to place ``dial-around''
calls. See 47 CFR 64.611(a).
69. The Commission also notes that, as incarceration facilities do
not allow incarcerated people to place 911 calls, TRS providers will
not need to handle 911 calls from such facilities.
70. Finally, the Commission reminds TRS providers that its rules
prohibiting the offering or provision of incentives to use TRS and
other practices that encourage improper use of TRS are
[[Page 75507]]
applicable in the incarceration context as well as elsewhere. See 47
CFR 64.604(c)(8), (13).
Adopting Rules for the Treatment of Balances in Inactive Accounts
71. Overview. The Commission finds that all funds deposited into a
debit-calling or prepaid-calling account and not spent on products or
services shall remain the account holder's property unless they are
disposed of in accordance with either a controlling judicial or
administrative mandate, or applicable state law requirements. The
Commission also finds that any action inconsistent with this finding
(whether by a provider or an entity acting on a provider's behalf)
constitutes an unjust and unreasonable practice within the meaning of
section 201(b) of the Act. 47 U.S.C. 201(b). To protect account holders
and incarcerated people pending further consideration of this matter
based on the record to be developed in response to the requests for
comment in the Sixth FNPRM, the Commission prohibits providers of
inmate calling services from seizing or otherwise disposing of unused
funds in a debit-calling or prepaid-calling account, except through a
full refund to the account holder, until at least 180 calendar days of
continuous account inactivity has passed. At that point in time (or at
the end of any alternative time frame set by state law), the provider
must make reasonable efforts to refund the balance in the account to
the account holder and, if those efforts fail, must treat funds
remaining in the inactive account in accordance with any controlling
judicial or administrative mandate or applicable state law
requirements. To clarify, while providers may elect to issue refunds to
account holders they consider inactive during the 180-day inactivity
period, in no event, unless required by any controlling judicial or
administrative mandate or state law, may a provider deem funds
unclaimed or abandoned prior to the 180-day period.
72. The Commission disagrees with the argument by Securus
Technologies, LLC (Securus) that further record development is required
before the Commission may act concerning the refund of debit accounts,
nor does the Commission find merit in the other reasons they offer for
delay. To the extent that the refund of funds in such debit accounts is
``based on agreements between providers and correctional authorities,''
Securus has offered no reasons why providers would be unable to revise
such agreements within the requisite 180-day window. To the contrary,
rather than demonstrate that such refunds ``do[ ] not work'' as they
claim, Securus admits that ``an incarcerated person is provided with
the balance on their debit account, either by the agency or Securus''
upon release or transfer, and adds that ``Securus is already making
reasonable efforts to refund the balance in such accounts to the
releasing individual.'' These assertions undercut Securus's request for
delay, and at any rate, the refund rules the Commission adopts in this
final rule appear to be consistent with Securus's debit account refund
practices.
73. Background. The Commission's rules contemplate two types of
advance payments for inmate calling services and associated permissible
ancillary service fees. These arrangements are chiefly distinguishable
by the difference in the identity of the payor and the holder of the
account. Under the first type of advance payment--debit calling--the
incarcerated person is the account holder, and the incarcerated person
(or someone acting on their behalf) deposits funds into a provider
account that can be used to pay for the incarcerated person's calls and
other expenses. By contrast, the second type of advance payment--
prepaid calling--involves a provider account in which calling expenses
may be paid in advance, which is held and funded by a consumer other
than the incarcerated person. The purpose behind depositing funds under
either arrangement is to pay for inmate calling and associated
ancillary services.
74. Commenters have long alleged that providers have implemented
opaque debit-calling and prepaid-calling account balance policies that
harm consumers. Among other alleged abuses, commenters previously had
contended that providers ``are actually taking prepaid monies from
prisoner accounts if for whatever reason the account is `inactive.' ''
In response to these and other allegations of abusive ancillary charges
the Commission prohibited providers of inmate calling services from
charging consumers any ancillary service charges other than the five
types specifically permitted by the Commission's rules, but did not
directly address the treatment of unused funds remaining in consumer
accounts after a period of inactivity. Consequently, the prohibitions
on certain types of ancillary service charges did not eliminate all
problems related to debit or prepaid account maintenance and closures.
75. In document FCC 21-60, the Commission expressed concern
regarding providers' practices with respect to unused funds in inactive
accounts and invited comment on whether the Commission should require
refunds after a certain period of inactivity and, if so, what timeframe
would be appropriate. The record shows that some providers treat a
debit or prepaid account as ``inactive'' after a certain period of
time--as little as 90 days--then take possession of any funds remaining
in the ``inactive'' account. Thus, the account holder loses deposited
funds merely by inaction. While the individual sums involved may be
modest by some standards, they likely represent meaningful amounts to
many of the individuals and families who are being unjustly deprived of
these funds. The record also establishes that, collectively, the
amounts involved can represent a significant windfall to the providers,
which have strong incentives to retain these funds for themselves.
76. Discussion. The Commission finds that all funds deposited into
any account that can be used to pay for interstate or international
inmate calling services remain the property of the account holder
unless or until they are either: used to pay for products or services
purchased by the account holder or the incarcerated person for whose
benefit the account was established; or disposed of in accordance with
a controlling judicial or administrative mandate or applicable state
law requirements, including, but not limited to, requirements governing
unclaimed property. Any action by a provider, or other entity acting on
a provider's behalf, that is inconsistent with this finding constitutes
an unjust and unreasonable practice that the Commission prohibits
pursuant to section 201(b) of the Act.
77. The Commission's actions extend to commingled accounts that can
be used to pay for both interstate and international calling services
and nonregulated services such as tablets and commissary services. As
the Commission explained in the 2020 ICS Order on Remand, where the
Commission has jurisdiction under section 201(b) of the Act to regulate
the rates, charges, and practices of interstate communications
services, ``the impossibility exception extends that authority to the
intrastate portion of jurisdictionally mixed services `where it is
impossible or impractical to separate the service's intrastate from
interstate components' and state regulation of the intrastate component
would interfere with valid federal rules applicable to the interstate
component.'' Rates for Interstate Inmate Calling Services, published at
85 FR 67450, October 23, 2020 (2020 ICS Order on Remand). In
[[Page 75508]]
the 2020 ICS Order on Remand, the Commission found that ancillary
service charges ``generally cannot be practically segregated between
the interstate and intrastate jurisdiction'' except in a limited number
of cases where the ancillary service charge clearly applies to an
intrastate-only call. Applying the impossibility exception, the
Commission concluded that providers generally may not impose any
ancillary service charges other than those specified in the
Commission's rules and are generally prohibited from imposing charges
in excess of the ancillary service fee caps. Here, commingled accounts
contain funds that can be used to pay for interstate and international
calling, over which the Commission has jurisdiction, as well as
intrastate calling and nonregulated services. The Commission concludes
that it cannot practically segregate the portion of the funds in those
accounts that may be used to pay for interstate or international
calling services from the portion that may be used to pay for
intrastate calling services and nonregulated services. Because the
Commission cannot practically segregate funds in commingled accounts,
the Commission concludes that such accounts are subject to the actions
the Commission takes therein; and rejects any suggestion to the
contrary. By contrast, the Commission's rules do not prevent providers
from creating separate accounts for use with nonregulated services.
78. Sections 201 and 202 of the Act set out broad standards of
conduct, and the Commission gives the standards meaning by defining
practices that run afoul of carriers' obligations, either by rulemaking
or by case-by-case adjudication. Acting pursuant to section 201(b) of
the Act, the Commission has generally found carrier practices unjust
and unreasonable where necessary to protect competition and consumers
against carrier practices for which there was either no cognizable
justification for the action or where the public interest in banning
the practice outweighed any countervailing policy concerns. Here, when
providers take possession of unused funds in customers' accounts, they
deprive[ ] consumers of money that is rightfully theirs. While
``consumer'' is defined in the Commission's rules as ``the party paying
a Provider of Inmate Calling Services,'' the Commission notes that it
uses the term customer herein to denote an incarcerated person who uses
the calling services offered to place a call, regardless of whether a
separate party has actually paid for the service. No commenter supports
this practice, and the Commission finds no countervailing policy
concerns or cognizable justification for this practice sufficient to
outweigh the public interest in ensuring that consumers have access to
funds that are rightfully theirs. Pay Tel Communications, Inc. (Pay
Tel) suggests that high turnover in jails increases the likelihood that
a pre-funded account will require a refund, leading to higher costs
associated with administering such refunds. Nevertheless, Pay Tel
``strongly believes that monies placed in inmate accounts that are
unused should be refunded to the customer rather than absorbed by the
[inmate calling services] provider as service `revenue.' '' And these
practices are even more clearly unjust and unreasonable if providers
violate state laws when managing these accounts, which has been alleged
in some instances. For these reasons, the Commission finds the practice
of taking possession of unused funds in customer accounts to be unjust
and unreasonable under section 201(b) of the Act and prohibits it.
79. In the Sixth FNPRM, the Commission seeks comment on how it can
best prevent providers of inmate calling services from engaging in
unjust and unreasonable practices related to unused funds in any
customer account that can be used to pay for interstate or
international calls. To protect account holders and incarcerated people
from such practices, pending a full consideration of the record to be
developed in response to the Further Notice, the Commission prohibits
providers of inmate calling services from seizing or otherwise
disposing of funds deposited in a debit calling or prepaid calling
account until at least 180 calendar days of continuous account
inactivity has passed, except when funds are tendered for services
rendered, refunded to the customer, or disposed of in accordance with a
controlling judicial or administrative mandate or applicable state law
requirements, including, but not limited to, requirements concerning
unclaimed property in such accounts. The Commission has revised Sec.
64.6130(b) of its rules to make clear that during this 180-day period a
provider may make refunds or dispose of funds in accordance with a
controlling judicial or administrative mandate or an applicable state
law requirement. A controlling judicial or administrative mandate
includes, in this context, any final (i.e., no longer appealable) 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. It also includes any final court
or administrative agency order adjudicating a valid contract between
the provider and the account holder, entered into prior to the release
of document FCC 22-76, that allows or requires that the provider act in
a manner that would otherwise violate the Commission's rule on the
disposition of funds in inactive accounts. The Commission does not
address in document FCC 22-76 the ultimate disposition of unclaimed
funds in a debit calling or prepaid calling account in circumstances
where there is no controlling judicial or administrative mandate and
state law does not affirmatively require any particular disposition.
Instead, the Commission reserves that issue for further consideration
based on the record to be developed in response to the requests for
comment in the Sixth FNPRM. In reserving this issue, the Commission
addresses two commenters' opposition to the Commission's proposal that
providers must dispose of unused funds in debit or prepaid accounts in
accordance with the Uniform Unclaimed Property Act in circumstances
where the providers' refund efforts fail and state law is unclear. The
Commission declines, however, to adopt draft rules that would terminate
account holders' property interests in those funds in such
circumstances. As the Commission has noted, it seeks to obtain a more
robust record on this issue before adopting final rules to govern such
situations.
80. The period of inactivity (or dormancy) must be continuous, such
that any of the following actions by an account holder or an
incarcerated person will restart the 180-day clock: depositing,
crediting, or otherwise adding funds to an account; withdrawing,
spending, debiting, transferring, or otherwise removing funds from an
account; or 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 disagrees with Securus's contention
that ``an expression of interest'' is unduly vague. The Commission
finds instead that the successive activities it lists--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--are more than sufficiently
descriptive under standard principles of construction. To the extent
[[Page 75509]]
an account holder requests a refund of the account balance at any time
during the 180-day period, the Commission expects the provider to
promptly issue such refund. The Commission finds that a 180-day
timeframe is a reasonable period of time that offers account holders
and incarcerated persons an adequate window during which they may exert
custody or control before they risk forfeiting their funds, and the
Commission clarifies that this timeframe will not begin to run until
the effective date of this final rule. The record shows that a 180-day
period is a reasonable amount of time before deeming an account
inactive. This window provides more time than the shortest ``inactive''
period of which the Commission is aware, reducing the risk that
providers will seize funds inappropriately or prematurely. It is also
similar to the time frame several inmate calling services providers
currently appear to follow, suggesting that implementation of this time
frame is unlikely to cause providers undue burdens. Certain providers
find the burden so low that their policy is to hold consumer deposits
indefinitely. No commenter suggests that a 180-day time frame and an
obligation to process refunds would impose a significant burden on
providers. Instead, the record now before the Commission indicates that
processing refunds after 180 days of inactivity will impose only a
marginal burden on providers.
81. Although Securus requests that providers be granted 90 days
after the effective date of the final rule to comply with the refund
requirement, clarifying that the 180-day period of inactivity begins on
the final rule's effective date will provide an even greater period of
time for Securus and other providers to implement the refund
requirement, as they will not have to take action to track accounts to
issue refunds until 180 days after the Commission's refund rules become
effective. Thus, Securus and other providers actually have more than
180 days to make any necessary system, contractual or tariff-related
adjustments, well more than the 90 days Securus seeks.
82. At the conclusion of the 180-day period (or at the end of any
alternative time frame set by state law), the provider must make
reasonable efforts to refund the balance in the account to the account
holder and, if those efforts fail, the provider must treat that balance
in accordance with applicable state law requirements, including, but
not limited to, state consumer protection laws. Providers need not
comply with the Uniform Unclaimed Property Act except to the extent it
has been incorporated into state law. If the provider has adopted a
shorter period of time for attempting refunds for accounts, these rules
do not disturb the ability of account-holders to obtain a refund upon
request or within the 180-day period. Under no circumstances, however,
except to the extent required by state law, can a provider consider
funds in an inactive account abandoned prior to 180 days of continuous
inactivity. Stated differently, 180 days of continuous inactivity, as
defined above, is the minimum amount of time that must pass before
providers may treat funds in an account used to pay for interstate or
international inmate calling services as ``abandoned,'' except where
state law provides a different period. Together, these steps will help
ensure that account holders are not deprived of funds that are
rightfully theirs.
83. These measures will remain in place until the Commission takes
further action on these issues pursuant to the requests for comment in
the Sixth FNPRM. In document FCC 21-60, the Commission sought comment
on whether it should adopt rules requiring refunds ``after a certain
period of inactivity''. In light of the Commission's finding under
section 201(b) of the Act, the Commission finds these standstill steps
necessary to ensure that funds are not disbursed or otherwise
irretrievably lost while the Commission considers additional rules. In
the meantime, the actions the Commission takes in this final rule will
help prevent providers from unjustly enriching themselves by taking
possession of account holder funds or otherwise engaging in unjust or
unreasonable practices in relation to those funds. The Commission makes
no finding in this final rule regarding whether funds in an inactive
account are ``unclaimed property'' within the meaning of any state law
or otherwise addresses the requirements of any state law. Instead, the
Commission decides, pursuant to its authority under section 201(b) of
the Act, that those funds remain the account holder's property under
certain circumstances and, to make clear that the Commission is not
ruling on any question arising under state law, the Commission excludes
from those circumstances the disposal of the funds in accordance with
applicable state law, including any state laws governing unclaimed
property. Thus, Securus's observations that document FCC 21-60
``provided no notice that the Commission intended to address the
treatment of unclaimed property'' and that the Commission lacks
jurisdiction to ``interpret state property law'' are inapplicable.
84. The Commission declines to expand these prohibitions at this
time as it is still developing the record. The Commission needs
additional information before it can evaluate proposals to require
providers to issue refunds ``automatically.'' Although the record
suggests that issuing account refunds for consumers who paid by credit
card would be relatively nonburdensome, it does not address in detail
the burdens involved in issuing refunds under other circumstances. For
example, the record does not illustrate the costs nor methods of
providing refunds to a consumer who paid in cash or via a third party
and cannot be located at a last known address. Likewise, the Commission
will need to develop a more complete record before deciding whether to
require providers to notify consumers before designating accounts as
``inactive'' or ``dormant.'' To that end, the Commission seeks comment
in the Sixth FNPRM on specific questions that are designed to develop a
fuller record on these and other issues related to the disposition of
unused funds in calling services accounts.
85. Finally, the Commission reiterates that its ancillary service
charges rules preclude providers from charging consumers for
maintaining inactive debit-calling or prepaid-calling accounts that
were established, in whole or in part, to pay for interstate or
international inmate calling services and associated ancillary
services. The record contains various examples of such charges, such as
``[p]repaid refund processing fees,'' ``Western Union Debit Refund
Processing Fee,'' and ``monthly account maintenance fee[s].'' Because
such services are not among the five enumerated types of ancillary
services for which providers are permitted to assess charges, any fees
for such services in connection with accounts that can be used for
interstate or international inmate calling services and associated
ancillary services are barred under the Commission's rules. Those rules
also prohibit providers from charging consumers fees to close or obtain
refunds from such calling services accounts. The Commission has already
considered this issue, declining to allow such recovery as part of the
2015 ICS Order adopting the current list of permissible ancillary
service charges. The Commission sees no reason to revisit that issue
now. The Commission therefore declines Securus's request that it allow
providers to recover third-party fees incurred when refunding amounts
to a consumer. To the extent any provider is imposing such charges, it
[[Page 75510]]
may be subject to an enforcement action.
Lowering the Single-Call Services and Third-Party Financial Transaction
Fee Caps
86. To reduce the economic burdens on incarcerated people and their
loved ones from unnecessarily high ancillary service charges, the
Commission lowers the maximum amount for third-party fees that inmate
calling services providers may pass on to consumers for single-call
services and third-party financial transactions. For the purpose of
this Synopsis and in the interest of brevity, the Commission refers to
single-call and all related services as ``single call services.'' The
Commission's use of this terminology is merely for convenience and does
not reflect any changes to the rules other than those specifically set
forth in the revised rules set out at the end of this final rule. In
the 2021 ICS Order, the Commission set both of these caps at $6.95 on
an interim basis. The Commission now adopts lower permanent caps
limiting these fees to a maximum amount of $3.00 when the fee is paid
through an automated payment system and $5.95 when the fee is paid
through a live agent. The Commission finds that this approach, which is
unopposed in the record, will provide immediate financial relief to
incarcerated people and their loved ones while the Commission continues
to consider further reforms to its ancillary service charges rules.
87. Background. In the 2021 ICS Order, 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 Commission set
these caps based on record evidence that this amount reflected the rate
that one of the most prominent third-party money transfer services
charged the largest inmate calling services provider, reasoning that
fixed interim caps were necessary to close loopholes in the
Commission's rules that had encouraged providers to seek out, as part
of revenue-sharing schemes, artificially high rates for these services
from third parties. In adopting the interim caps, the Commission found
that it lacked sufficient record evidence to adopt a proposal from NCIC
Inmate Communications (NCIC) to cap single-call services fees at $3.00
for automated credit card payments, debit card payments, and bank
payments (collectively, automated transactions) and $5.95 for payments
made through live agents, including payment through money transmittal
services. Following the adoption of the 2021 ICS Order, NCIC filed a
Petition for Reconsideration expounding upon its prior proposal and
arguing that the Commission had erred in adopting the $6.95 cap by
``confus[ing] two distinct and separate transaction fees.'' NCIC
explained that single-call services are ``generally billed such that a
provider may add up to a $3.00 automated transaction fee for each
call'' and that third-party financial transaction fees ``relate to cash
and online deposits with Western Union, MoneyGram, and other money
transmittal services that had permitted certain [inmate calling
services] providers to add `kickbacks' on top of their normal
transaction fees.'' NCIC further explained that the $6.95 cap
applicable to third-party fees ``may offset all the efforts of the
[Commission] in trying to reduce costs to inmates and their families''
and encouraged the Commission to ``use the ancillary caps of $3.00 for
automated transactions and $5.95 for live agent fees, as the baseline
for any further changes.'' Now that the Commission has sufficient
notice and a better record, the Commission is revising its interim caps
for single call services and third-party financial transaction fees, as
NCIC urges. In view of this action, the Commission dismisses as moot
NCIC's Petition for Reconsideration to the extent it relates to those
interim caps. The Commission presently declines to act on the remainder
of that petition as it is unrelated to the issues that are the focus of
document FCC 22-76.
88. In document FCC 21-60, however, the Commission sought comment
on NCIC's proposal. To the extent a $6.95 fee is assessed by a third-
party money transmittal service in conjunction with funding an inmate
calling services account, the record confirms that such fees are
charged directly by the money transmittal company to the consumer.
89. Discussion. The Commission reduces to $3.00 the maximum amount
that inmate calling services providers may pass through to a consumer
for single-call services and any third-party financial transactions
where the transaction involves the use of an automated payment system,
and the Commission reduces to $5.95 the maximum amount where the
transaction involves the use of a live agent.
90. When it adopted the interim $6.95 caps in the 2021 ICS Order,
the Commission admittedly lacked a sufficient record to fully evaluate
NCIC's proposal calling for lower rates. At the time of the 2021 ICS
Order, the Commission also lacked sufficient information about the
relationship between fees for single-call services and third-party
financial transactions and the automated payment and live agent fee
caps. This led the Commission to seek comment on that relationship in
document FCC 21-60. In response, commenters clarify that fees for
single-call services and third-party financial transactions can be paid
through an automated payment system (corresponding with the $3.00
automated payment fee) or via a live agent (corresponding with the
$5.95 live agent fee). Under the current definition, single calls are
billed through a third party when the called party does not have an
account with the inmate calling services provider. The Commission seeks
comment on third-party involvement in single call scenarios in the
Sixth FNPRM. The record confirms that payment for these calls can be
made through either an automated payment system or via a live agent.
91. By contrast, third-party financial transaction fees are fees
charged by third parties to inmate calling services providers to
``transfer money or process financial transactions'' to facilitate
payments to consumers' accounts with inmate calling services providers.
In those situations, account payments can be made through either an
automated system or via a live agent that directs the consumer to a
third party to process the account payment. In both cases, payments are
being made through one of two payment channels: through an automated
payment system or via a live agent. These clarifications persuade the
Commission that the interim $6.95 caps exceed the costs incurred for
such transactions and do not appropriately reflect the type of payment
channels actually used in connection with single-call services and
third-party financial transactions. The Commission thus reduces the
maximum amount that providers can pass through to consumers. These
measures will reduce inmate calling services providers' ability to
overcharge consumers for single-call services and third-party financial
transactions, as the Commission further weighs other proposals related
to its ancillary service charges rules and analyzes the providers'
responses to the Third Mandatory Data Collection.
92. One of the Commission's goals in replacing the pass-through
caps for single-call services and third-party financial transaction
fees with fixed caps in the 2021 ICS Order was to curtail the
incentives for providers to engage in revenue-sharing schemes, i.e.,
abusive provider practices that drive up prices for consumers.
Commenters now highlight that the $6.95 cap the Commission adopted in
the 2021 ICS Order, while reducing the financial
[[Page 75511]]
incentives to engage in these schemes stemming from the prior absence
of any limit on the third-party charges that could be passed through to
consumers, may have actually incentivized providers to increase charges
for consumers. Other commenters argue that this $6.95 cap incentivized
providers to rely on third parties for processing such payments more
frequently, pursuant to revenue-sharing agreements. Reducing the $6.95
cap to $5.95 will reduce these incentives. Given evidence in the record
that both single-call services and third-party financial transactions
involve payment through an automated payment system or a live agent,
the Commission finds that, pending its analysis of the data submitted
in response to the Third Mandatory Data Collection, the amounts
providers may charge for those services may not exceed the amounts
providers are already permitted to charge for automated payment
services (capped at $3.00) and live agent services (capped at $5.95).
93. The Commission declines suggestions that it defer any action on
its ancillary service charges rules to a later date or that it
undertake more sweeping reforms at this time. On the one hand, some
commenters suggest that the Commission wait before taking any actions
regarding ancillary service charges to observe how the market reacts to
changes from the Commission's prior actions. The record offers no
reason why the market should require time beyond today to stabilize,
particularly where providers have previously found 90 days to be a
sufficient transition period (and when the Commission's revised rules
have been in effect for even longer). The Commission finds no reason
for such delay. Nor is the Commission required to await perfect data
before acting. On the other hand, other commenters encourage us to
lower the $3.00 cap on automated payment fees, to prohibit single call
fees altogether, to take a more forceful actions to prevent ``double-
dipping,'' and to require that each newly incarcerated person receive
two free calls.
Amending the Definitions of ``Jail'' and ``Prison''
94. The Commission next amends the definitions of ``Jail'' and
``Prison'' in Sec. 64.6000(m) and (r) of its rules to conform those
definitions with the Commission's intent to include every type of
facility where individuals can be incarcerated or detained, as
explained in the 2015 ICS Order. In document FCC 21-60, the Commission
proposed to amend its definition of ``Jail'' by explicitly including
facilities of ICE and the BOP, whether operated by the law enforcement
agency or pursuant to a contract. The Commission also proposed to add
the term ``juvenile detention facilities'' and ``secure mental health
facilities'' to the definition of ``Jail'' and asked whether it should
make other changes to its definitions of ``Jail'' or ``Prison.'' The
Commission adopts the proposed changes to ensure that its inmate
calling services rules apply to all incarceration facilities.
95. The Commission revises the definition of ``Jail'' to explicitly
include detention facilities operated by ICE. In the 2015 ICS Order,
the Commission explained that the term ``Jail'' was meant to include,
among other facilities, ``facilities used to detain individuals
pursuant to a contract with [ICE] and facilities operated by ICE.'' The
relevant part of the codified definition, however, encompasses only
``facilities used to detain individuals pursuant to a contract'' with
ICE, failing to specifically include facilities operated by the agency,
creating a gap in the Commission's rules. Encompassing facilities
operated by ICE aligns the definition with the Commission's intended
meaning and ensures that the Commission's inmate calling services rules
protect individuals detained in all ICE facilities regardless of how
they are operated.
96. Similarly, the Commission revises the definition of ``Jail'' to
explicitly include detention facilities operated by the BOP or pursuant
to a contract with the BOP. As the Commission explained in the 2015 ICS
Order, the term ``Jail'' was meant to include facilities operated by
Federal law enforcement agencies that are used primarily to hold
individuals who are ``awaiting adjudication of criminal charges,'' are
``committed to confinement to sentences of one year or less,'' or are
``post-conviction and awaiting transfer to another facility.'' The
codified definition, however, fails to mention the BOP, thus creating
potential confusion as to whether facilities of the type described in
the definition should be classified as ``Jails'' if they are operated
by the BOP or pursuant to contracts with the BOP, given the use of the
word ``Prison'' in the name of the facility. To eliminate this
potential confusion, the Commission amends its definition of ``Jail''
to explicitly include facilities operated by the BOP, or pursuant to a
contract with the BOP, that otherwise meet the existing definition of
``Jail.''
97. The Commission also revises its definition of ``Jail'' to
explicitly include all ``juvenile detention facilities'' and ``secure
mental health facilities'' that operate outside of facilities that are
otherwise classified as prisons or jails under the Commission's rules.
In the 2015 ICS Order, the Commission found that providing inmate
calling services in juvenile detention facilities and secure mental
health facilities was ``more akin to providing service to jail
facilities'' and instructed that ``[t]o the extent that juvenile
detention facilities and secure mental health facilities operate
outside of jail or prison institutions'' they would be subject to the
rate caps applicable to jails. The codified definition of ``Jail,''
however, does not mention either ``juvenile detention facilities'' or
``secure mental health facilities.'' The Commission's revised
definition of ``Jail'' explicitly lists all such facilities, thus
ensuring that individuals held in those facilities will be covered by
the Commission's rules, as the Commission intended.
98. Finally, in document FCC 21-60, the Commission sought comment
on whether there are types of correctional facilities, in addition to
those discussed above, that should be explicitly added to the codified
definitions of ``Jail'' or ``Prison.'' The Commission now amends the
definition of ``Prison'' in Sec. 64.6000(r) of its rules to avoid
potential confusion. In the 2015 ICS Order, the Commission made clear
that the term ``Prison'' should be restricted to facilities in which
the majority of incarcerated people are sentenced to terms in excess of
one year. This criterion is reflected in the first sentence of Sec.
64.6000(r) of the Commission's rules. The second sentence of that rule
states, however, that the term ``Prison'' includes certain facilities
``in which the majority of'' incarcerated people ``are post-conviction
or are committed to confinement for sentences of longer than one
year.'' The Commission replaces the disjunctive (``or'') with the
conjunctive (``and'') in this sentence to make clear that a facility
that otherwise meets the definition of ``Jail'' should be classified as
a ``Prison'' only if the majority of its incarcerated people are both
post-conviction and confined for more than one year. This change
ensures that the definition conforms with the Commission's intent when
it first adopted the rule.
99. Because Sec. 64.6020 of the Commission's rules addresses five
different types of ancillary service charges, the Commission also
amends the heading of that rule to read ``Ancillary Service Charges,''
rather than ``Ancillary Service Charge.'' The Commission finds good
cause to make this revision without notice and comment because it is
editorial and
[[Page 75512]]
non-substantive, and therefore notice and comment is unnecessary.
Supplemental Final Regulatory Flexibility Analysis
Need for, and Objectives of, the 2022 Fourth Report and Order
100. Document FCC 22-76 adopts rules to improve access to
communications services for incarcerated people with communication
disabilities. Through these rules, the Commission requires that all
inmate calling services providers provide access to all relay services
eligible for TRS Fund support in any correctional facility in a
jurisdiction with an average daily population of 50 or more inmates,
where broadband is available, with the exception of non-IP CTS in
facilities where IP CTS is offered. Non-IP CTS is required in any
facility in a jurisdiction with an average daily population of 50 or
more inmates, where IP CTS is not provided. The Commission also
requires that where inmate calling services providers are required to
provide access to all forms of TRS, they also must allow ASL point-to-
point, video communication. Document FCC 22-76 amends the Commission's
rules to clarify the rule prohibiting inmate calling services providers
from assessing charges for TTY-based TRS calls. The Commission further
expands the requirements under this section to prohibit inmate calling
services providers from charging either party to VRS calls, STS calls,
and internet Protocol Relay Service (IP Relay) calls, and adopts limits
on the charges for internet Protocol Captioned Telephone Service calls,
TTY-to-TTY calls, and point-to-point video calls conducted in ASL. The
Commission also expands inmate calling services providers' annual
reporting requirements to include all relay services. The Commission
requires providers to list, for each facility served, the types of TRS
that can be accessed from the facility and the number of completed
calls and complaints for TTY-to-TTY calls, ASL point-to-point video
calls, and each type of TRS for which access is provided. The
Commission expands these reporting requirements regarding TRS and
disability access to increase transparency and accountability into
deployment and usage of TRS by incarcerated people with communication
disabilities. The Commission also amends TRS user registration
requirements to facilitate the use of TRS by eligible incarcerated
individuals.
101. Document FCC 22-76 adopts other reforms to lessen the
financial burden incarcerated people and their loved ones face when
using calling services, as contemplated by document FCC 21-60. First,
document FCC 22-76 prohibits providers from seizing or otherwise
disposing of funds in inactive calling services accounts until at least
180 calendar days of continuous inactivity has passed in such accounts,
except when funds are tendered for services rendered, disposed of in
accordance with a controlling judicial or administrative mandate or
state law requirement, or refunded to the customer. Second, document
FCC 22-76 lowers certain ancillary service rate caps on provider
charges for individual calls when neither the incarcerated person nor
the person being called has an account with the provider. Document FCC
22-76 also lowers rate caps on provider charges for processing credit
card, debit card, and other payments to calling services accounts.
Finally, document FCC 22-76 amends the definitions of ``Jail'' and
``Prison'' to include institutions that the Commission has long
intended to include in those definitions. See 47 U.S.C. 201, 225, 276.
Response to Comments by the Chief Counsel for Advocacy of the Small
Business Administration
102. The Chief Counsel did not file any comments in response to the
proposed rules in this proceeding.
Types of Small Entities to Which Rules Will Apply
103. 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
104. Document FCC 22-76 requires inmate calling services providers
to provide incarcerated, TRS-eligible users the ability to access any
relay service eligible for TRS Fund support, subject to some
limitations. Providers must take all steps necessary to ensure that
access to an appropriate relay service is made available promptly to
each inmate who has a disability. In any correctional facility in a
jurisdiction with an average daily population of 50 or more, located
where broadband service is available, they must offer access to all
forms of TRS and to ASL point-to-point video communication service.
105. As a part of the Commission's Annual Reporting and
Certification Requirements, inmate calling services providers are
required to submit certain information related to accessibility,
including all relay services. Providers must list, for each facility
served, the types of TRS that can be accessed from the facility and the
number of completed calls and complaints for TTY-to-TTY calls, ASL
point-to-point video calls, and each type of TRS for which access is
provided. To facilitate TRS registration of eligible, incarcerated
individuals, the Commission revises the data that TRS providers must
collect. The Commission also allows enterprise registration for
incarcerated VRS users.
106. Document FCC 22-76 prevents inmate calling services providers
from seizing or otherwise disposing of funds deposited in a debit
calling or prepaid calling account until at least 180 calendar days of
continuous account inactivity has passed, except when funds are
tendered for services rendered, disposed of in accordance with a
controlling judicial or administrative mandate or state law
requirement, or refunded to the customer. This rule is adopted on an
interim basis, pending the Commission's analysis of additional
information. Document FCC 22-76 also refines the interim rate caps for
certain ancillary service charges. Specifically, it lowers the maximum
ancillary services fees for single-call services and third-party
financial transactions to $3.00 for single-call services and third-
party financial transactions that involve automated payments, and to
$5.95 for payments facilitated by a live agent.
Steps Taken To Minimize the Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
107. To address concerns raised by an inmate calling services
provider that serves small rural jails, the Commission limits the scope
of a provider's obligation to provide access to additional forms of
TRS, pending further consideration of the costs, benefits, and
alternatives to such obligations. The Commission does not require
inmate calling services providers to offer such access in jurisdictions
with an average daily population of fewer than 50 incarcerated
individuals. The new rules requiring providers to provide access to ASL
point-to-point video communication, in addition to VRS, will not impose
a significant cost or other burden on inmate calling services
[[Page 75513]]
providers, as VRS providers already have the capability to comply with
this requirement.
108. The Commission adopts an interim rule on the treatment of
balances in inmate calling services accounts under which an account is
considered ``inactive'' only after 180 days of continuous inactivity.
This period is similar to the time frames several inmate calling
services providers currently appear to follow, suggesting that
implementation of this time frame is unlikely to cause inmate calling
services providers, including those that may be small entities, undue
burdens. The Commission's action lowering the maximum ancillary
services fees providers may charge for single-call services and third-
party financial transactions reflects a record that contains no
suggestion that the lower fees will prevent inmate calling services
providers, including those that may be small entities, from recovering
their costs of providing those services.
Ordering Clauses
109. Pursuant to the authority contained in sections 1, 2, 4(i)-
(j), 201(b), 218, 220, 225, 255, 276, 403, and 716 of the
Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i)-(j),
201(b), 218, 220, 225, 255, 276, 403, 617, the Fourth Report and Order
in document FCC 22-76 is adopted.
110. Pursuant to sections 4(i) and 4(j) of the Communications Act
of 1934, as amended, 47 U.S.C. 154(i)-(j), the Petition for
Reconsideration that NCIC Inmate Communications filed on August 27,
2021, in WC Docket No. 12-375, is dismissed as moot to the extent
stated in document FCC 22-76.
Congressional Review Act
111. The Commission sent a copy of document FCC 22-76 to Congress
and the Government Accountability Office pursuant to the Congressional
Review Act, 5 U.S.C. 801(a)(1)(A).
Final Paperwork Reduction Act of 1995 Analysis
112. Document FCC 22-76 contains modified information collection
requirements, which are not effective until approval is obtained from
the Office of Management and Budget (OMB). As part of its continuing
effort to reduce paperwork burdens, the Commission will invite the
general public to comment on the information collection requirements as
required by the Paperwork Reduction Act of 1995, Public Law 104-13. The
Commission will publish a separate document in the Federal Register
announcing approval of the information collection requirements.
Pursuant to the Small Business Paperwork Relief Act of 2002, Public Law
107-198, 44 U.S.C. 3506(c)(4), the Commission previously sought comment
on how the Commission might ``further reduce the information burden for
small business concerns with fewer than 25 employees.'' 86 FR 40416,
July 28, 2021.
List of Subjects in 47 CFR Part 64
Communications common carriers, Individuals with disabilities,
Prisoners, Reporting and recordkeeping requirements,
Telecommunications, Telephone.
Federal Communications Commission.
Marlene Dortch,
Secretary, Office of the Secretary.
Final Regulations
For the reasons set forth above, the Federal Communications
Commission amends 47 CFR part 64 as follows:
PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS
0
1. The authority citation for part 64 is revised to read as follows:
Authority: 47 U.S.C. 151, 152, 154, 201, 202, 217, 218, 220,
222, 225, 226, 227, 227b, 228, 251(a), 251(e), 254(k), 255, 262,
276, 403(b)(2)(B), (c), 616, 617, 620, 1401-1473, unless otherwise
noted; Pub. L. 115-141, Div. P, sec. 503, 132 Stat. 348, 1091.
Subpart F--Telecommunications Relay Services and Related Customer
Premises Equipment for Persons With Disabilities
0
2. The authority citation for subpart F continues to read as follows:
Authority: 47 U.S.C. 151-154; 225, 255, 303(r), 616, and 620.
0
3. Amend Sec. 64.601 by:
0
a. Redesignating paragraphs (a)(11) through (54) as paragraphs (a)(12)
through (55);
0
b. Adding new paragraph (a)(11); and
0
c. Revising newly redesignated paragraph (a)(35).
The addition and revision read as follows:
Sec. 64.601 Definitions and provisions of general applicability.
(a) * * *
(11) Carceral point-to-point video service. A point-to-point video
service that enables incarcerated people to engage in real-time direct
video communication in ASL with another ASL speaker.
* * * * *
(35) Qualified Direct Video Entity. An individual or entity that is
approved by the Commission for access to the TRS Numbering Database
that is engaged in:
(i) Direct video customer support and that is the end-user customer
that has been assigned a telephone number used for direct video
customer support calls or is the designee of such entity; or
(ii) Carceral point-to-point video service as that term is defined
in this section.
* * * * *
0
4. Amend Sec. 64.604 by revising paragraph (a)(3)(i) and adding
paragraph (a)(3)(ix) to read as follows:
Sec. 64.604 Mandatory minimum standards.
* * * * *
(a) * * *
(3) * * *
(i) Consistent with the obligations of telecommunications carrier
operators, CAs are prohibited from refusing single or sequential calls
or limiting the length of calls utilizing relay services, except that
the number and duration of calls to or from incarcerated persons may be
limited in accordance with a correctional authority's generally
applicable policies regarding telephone calling by incarcerated
persons.
* * * * *
(ix) This paragraph (a)(3) does not require that TRS providers
serving incarcerated persons allow types of calls or calling features
that are not permitted for hearing people incarcerated in the
correctional facility being served.
* * * * *
0
5. Amend Sec. 64.611 by adding paragraph (k) to read as follows:
Sec. 64.611 Internet-based TRS registration.
* * * * *
(k) Registration for use of TRS in correctional facilities--(1)
Individual user registration. (i) through (iii) [Reserved]
(iv) Dial-around calls for VRS. VRS providers shall not allow dial-
around calls by incarcerated persons.
(2) Enterprise user registration for VRS. Notwithstanding the other
provisions of this section, for the purpose of providing VRS to
incarcerated individuals under enterprise registration, pursuant to
paragraph (a)(6) of this section, a TRS provider may assign to a
correctional authority a pool of telephone numbers that may be used
interchangeably with any videophone or other user device made available
for the use of VRS in correctional facilities overseen by such
authority. For the purpose of such enterprise registration, the address
of the organization specified pursuant to paragraph (a)(6)(iii) of this
section may be the main or administrative address of the correctional
authority, and a Registered Location need not be provided.
[[Page 75514]]
0
6. Delayed indefinitely, further amend Sec. 64.611 by adding
paragraphs (k)(1)(i) through (iii) to read as follows:
Sec. 64.611 Internet-based TRS registration.
* * * * *
(k) * * *
(1) * * *--
(i) Registration information and documentation. If an individual
eligible to use TRS registers with an internet-based TRS provider while
incarcerated, the provider shall collect and transmit to the TRS User
Registration Database the information and documentation required by the
applicable provisions of this section, except that:
(A) The residential address specified for such incarcerated person
shall be the name of the correctional authority with custody of that
person along with the main or administrative address of such authority;
(B) A Registered Location need not be provided; and
(C) If an incarcerated person has no Social Security number or
Tribal Identification number, an identification number assigned by the
correctional authority along with the facility identification number,
if there is one, may be provided in lieu of the last four digits of a
Social Security number or a Tribal Identification number.
(ii) Verification of VRS and IP CTS registration data. An
incarcerated person's identity and address may be verified pursuant to
Sec. 64.615(a)(6), for purposes of VRS or IP CTS registration, based
on documentation, such as a letter or statement, provided by an
official of a correctional authority that states the name of the
person; the person's identification number assigned by the correctional
authority; the name of the correctional authority; and the address of
the correctional facility. The VRS or IP CTS provider shall transmit
such documentation to the TRS User Registration Database administrator.
(iii) Release or transfer of incarcerated person. Upon release (or
transfer to a different correctional authority) of an incarcerated
person who has registered for VRS or IP CTS, the VRS or IP CTS provider
with which such person has registered shall update the person's
registration information within 30 days after such release or transfer.
Such updated information shall include, in the case of release, the
individual's full residential address and (if required by this section
or part 9 of this chapter) Registered Location, and in the case of
transfer, shall include the information required by paragraph
(k)(1)(ii) of this section.
* * * * *
0
7. Amend Sec. 64.613 by:
0
a. Revising paragraphs (a)(2), (c) heading, (c)(1)(v), (c)(3)(ii), and
(c)(5)(ii);
0
b. Redesignating paragraphs (c)(5)(iii) through (v) as paragraphs
(c)(5)(iv) through (vi);
0
c. Adding new paragraph (c)(5)(iii); and
0
d. Revising paragraphs (c)(6) and (c)(7)(iii) and (iv).
The addition and revisions read as follows:
Sec. 64.613 Numbering directory for Internet-based TRS users.
(a) * * *
(2) For each record associated with a geographically appropriate
NANP telephone number for a registered VRS user, enterprise videophone,
public videophone, direct video customer support center, carceral
point-to-point video service, or hearing point-to-point video user, the
URI shall contain a server domain name or the IP address of the user's
device. For each record associated with an IP Relay user's
geographically appropriate NANP telephone number, the URI shall contain
the user's user name and domain name that can be subsequently resolved
to reach the user.
* * * * *
(c) Direct video customer support and carceral point-to-point video
service--(1) * * *
(v) Certification that the applicant's description of service meets
the definition of direct video customer support or carceral point-to-
point video service and that the information provided is accurate and
complete.
* * * * *
(3) * * *
(ii) Automatically if one year elapses with no call-routing queries
received regarding any of the Qualified Direct Video Entity's NANP
telephone numbers for direct video customer support; or
* * * * *
(5) * * *
(ii) Being able to make point-to-point calls to any VRS user in
accordance with all interoperability standards applicable to VRS
providers, including, but not limited to, the relevant technical
standards specified in Sec. 64.621(b);
(iii) For direct video customer support being able to receive
point-to-point or VRS calls from any VRS user in accordance with all
interoperability standards applicable to VRS providers, including, but
not limited to, the relevant technical standards specified in Sec.
64.621(b);
* * * * *
(6) Call transfer capability. A Qualified Direct Video Entity
engaged in direct video customer support shall ensure that each
customer support center is able to initiate a call transfer that
converts a point-to-point video call into a VRS call, in the event that
a VRS user communicating with a direct video customer agent needs to be
transferred to a hearing person while the call is in progress. Each VRS
provider shall be capable of activating an effective call transfer
procedure within 60 days after receiving a request to do so from a
Qualified Direct Video Entity engaged in direct video customer support.
(7) * * *
(iii) The name of the correctional facility or end-user customer
support center (if different from the Qualified Direct Video Entity);
(iv) Contact information for the correction facility or end-user
customer support call center(s); and
* * * * *
Subpart FF--Inmate Calling Services
0
8. Amend Sec. 64.6000 by revising paragraphs (m)(3) and (r) and adding
paragraphs (y) and (z) to read as follows:
Sec. 64.6000 Definitions.
* * * * *
(m) * * *
(3) Post-conviction and awaiting transfer to another facility. The
term also includes city, county, or regional facilities that have
contracted with a private company to manage day-to-day operations;
privately owned and operated facilities primarily engaged in housing
city, county or regional Inmates; facilities used to detain
individuals, operated directly by the Federal Bureau of Prisons or U.S.
Immigration and Customs Enforcement, or pursuant to a contract with
those agencies; juvenile detention centers; and secure mental health
facilities.
* * * * *
(r) Prison means a facility operated by a territorial, state, or
Federal agency that is used primarily to confine individuals convicted
of felonies and sentenced to terms in excess of one year. The term also
includes public and private facilities that provide outsource housing
to other agencies such as the State Departments of Correction and the
Federal Bureau of Prisons; and facilities that would otherwise fall
under the definition of a Jail but in which the majority of inmates are
post-conviction and are committed to confinement for sentences of
longer than one year.
* * * * *
(y) Controlling Judicial or Administrative Mandate means:
(1) A final court order requiring an incarcerated person to pay
restitution;
[[Page 75515]]
(2) A fine imposed as part of a criminal sentence;
(3) A fee imposed in connection with a criminal conviction; or
(4) A final court or administrative agency order adjudicating a
valid contract between the provider and the account holder, entered
into prior to September 30, 2022, that allows or requires that an
Inmate Calling Services Provider act in a manner that would otherwise
violate Sec. 64.6130.
(z) Jurisdiction means:
(1) The state, city, county, or territory where a law enforcement
authority is operating or contracting for the operation of a
Correctional Facility; or
(2) The United States for a Correctional Facility operated by or
under the contracting authority of a Federal law enforcement agency.
0
9. Amend Sec. 64.6020 by revising the section heading and paragraphs
(b)(2) and (5) to read as follows:
Sec. 64.6020 Ancillary Service Charges.
* * * * *
(b) * * *
(2) For Single-Call and Related Services--when the transaction is
paid for through an automated payment system, $3.00 per transaction,
plus the effective, per-minute rate; or when the transaction is paid
via a live agent, $5.95 per transaction, plus the effective, per-minute
rate;
* * * * *
(5) For Third-Party Financial Transaction Fees--when the
transaction is paid through an automated payment system, $3.00 per
transaction; or when the transaction is paid via a live agent, $5.95
per transaction.
0
10. Revise Sec. 64.6040 to read as follows:
Sec. 64.6040 Communications access for incarcerated people with
communication disabilities.
(a) A Provider shall provide incarcerated people access to TRS and
related communication services as described in this section, except
where the correctional authority overseeing a facility prohibits such
access.
(b)(1) A Provider shall provide access for incarcerated people with
communication disabilities to Traditional (TTY-Based) TRS and STS.
(2) Beginning January 1, 2024, a Provider serving a correctional
facility in any jurisdiction with an Average Daily Population of 50 or
more incarcerated persons shall:
(i) Where broadband internet access service is available, provide
access to any form of TRS (in addition to Traditional TRS and STS) that
is eligible for TRS Fund support (except that a Provider need not
provide access to non-internet Protocol Captioned Telephone Service in
any facility where it provides access to IP CTS); and
(ii) Where broadband internet access service is available, provide
access to a point-to-point video service, as defined in Sec.
64.601(a)(33), that allows communication in American Sign Language
(ASL) with other ASL users; and
(iii) Where broadband internet access service is not available,
provide access to non-internet Protocol Captioned Telephone Service, in
addition to Traditional TRS and STS.
(c) [Reserved]
(d)(1) Except as provided in this paragraph (d), no Provider shall
levy or collect any charge or fee on or from any party to a TRS call to
or from an incarcerated person, or any charge for the use of a device
or transmission service when used to access TRS from a Correctional
Facility.
(2) When providing access to IP CTS or CTS, a Provider may assess a
charge for such IP CTS or CTS call that does not exceed the charge
levied or collected by the Provider for a voice telephone call of the
same duration, distance, Jurisdiction, and time-of-day placed to or
from an individual incarcerated at the same Correctional Facility.
(3) When providing access to a point-to-point video service, as
defined in Sec. 64.601(a)(33), for incarcerated individuals with
communication disabilities who can use ASL, the total charges or fees
that a Provider levies on or collects from any party to such point-to-
point video call, including any charge for the use of a device or
transmission service, shall not exceed the charge levied or collected
by the Provider for a voice telephone call of the same duration,
distance, Jurisdiction, and time-of-day placed to or from an individual
incarcerated at the same Correctional Facility.
(4) No Provider shall levy or collect any charge in excess of 25
percent of the applicable per-minute rate for TTY-to-TTY calls when
such calls are associated with Inmate Calling Services.
0
11. Delayed indefinitely, further amend Sec. 64.6040 by adding
paragraph (c) to read as follows:
Sec. 64.6040 Communications access for incarcerated people with
communication disabilities.
* * * * *
(c) As part of its obligation to provide access to TRS, a Provider
shall:
(1) Make all necessary contractual and technical arrangements to
ensure that, consistent with the security needs of a Correctional
Facility, incarcerated individuals eligible to use TRS can access at
least one certified Provider of each form of TRS required by this
section;
(2) Work with correctional authorities, equipment vendors, and TRS
providers to ensure that screen-equipped communications devices such as
tablets, smartphones, or videophones are available to incarcerated
people who need to use TRS for effective communication, and all
necessary TRS provider software applications are included, with any
adjustments needed to meet the security needs of the institution,
provide compatibility with institutional communication systems, and
allow operability over the Inmate Calling Services Provider's network;
(3) Provide any assistance needed by TRS providers in collecting
the registration information and documentation required by Sec. 64.611
from incarcerated users and correctional authorities; and
(4) When an incarcerated person who has individually registered to
use VRS, IP Relay, or IP CTS is released from incarceration or
transferred to another correctional authority, notify the TRS
provider(s) with which the incarcerated person has registered.
* * * * *
0
12. Delayed indefinitely, amend Sec. 64.6060 by revising paragraphs
(a)(5), (6), and (7) to read as follows:
Sec. 64.6060 Annual reporting and certification requirement.
(a) * * *
(5) For each facility served, the kinds of TRS that may be accessed
from the facility;
(6) For each facility served, the number of calls completed during
the reporting period in each of the following categories:
(i) TTY-to-TTY calls;
(ii) Point-to-point video calls placed or received by ASL users as
those terms are defined in Sec. 64.601(a); and
(iii) TRS calls, broken down by each form of TRS that can be
accessed from the facility; and
(7) For each facility served, the number of complaints that the
reporting Provider received in each of the categories set forth in
paragraph (a)(6) of this section.
* * * * *
0
13. Add Sec. 64.6130 to read as follows:
Sec. 64.6130 Interim protections of consumer funds in inactive
accounts.
(a) All funds deposited into a debit calling or prepaid calling
account that can be used to pay for interstate or
[[Page 75516]]
international Inmate Calling Services or associated ancillary services
shall remain the property of the account holder unless or until the
funds are either:
(1) Used to pay for products or services purchased by the account
holder or the incarcerated person for whose benefit the account was
established;
(2) Disposed of in accordance with a Controlling Judicial or
Administrative Mandate; or
(3) Disposed of in accordance with applicable state law
requirements, including, but not limited to, requirements governing
unclaimed property.
(b) No provider may seize or otherwise dispose of unused funds in a
debit calling or prepaid calling account until at least 180 calendar
days of continuous account inactivity has passed, or at the end of any
alternative period set by state law, except as provided in paragraph
(a) of this section or through a refund to the customer.
(c) The 180-day period, or alternative period set by state law,
must be continuous. Any of the following actions by the account holder
or the incarcerated person for whose benefit the account was
established ends the period of inactivity and restarts the 180-day
period:
(1) Depositing, crediting, or otherwise adding funds to an account;
(2) Withdrawing, spending, debiting, transferring, or otherwise
removing funds from an account; or
(3) 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.
(d) After 180 days of continuous account inactivity have passed, or
at the end of any alternative period set by state law, the provider
must make reasonable efforts to refund the balance in the account to
the account holder.
(e) If a provider's reasonable efforts to refund the balance of the
account fail, the provider must treat the remaining funds in accordance
with applicable state consumer protection law requirements concerning
unclaimed funds or the disposition of such funds.
[FR Doc. 2022-25192 Filed 12-8-22; 8:45 am]
BILLING CODE 6712-01-P
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</html>Indexed from Federal Register on December 9, 2022.
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.