Proposed Rule2023-09502
Incarcerated People's Communications Services; Implementation of the Martha Wright-Reed Act; Rates for Interstate Inmate Calling Services
Primary source
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Published
May 3, 2023
Issuing agencies
Federal Communications Commission
Abstract
The Federal Communications Commission (Commission) seeks comment on the contours and specific requirements of the proposed 2023 Mandatory Data Collection for incarcerated people's communications services. The Commission has drafted proposed instructions, templates, and a certification form for the proposed 2023 Mandatory Data Collection. The Commission seeks comment on all aspects of these documents.
Full Text
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<title>Federal Register, Volume 88 Issue 85 (Wednesday, May 3, 2023)</title>
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[Federal Register Volume 88, Number 85 (Wednesday, May 3, 2023)]
[Proposed Rules]
[Pages 27850-27856]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-09502]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 64
[WC Docket Nos. 12-375, 23-62; DA 23-355; FR ID [139745]]
Incarcerated People's Communications Services; Implementation of
the Martha Wright-Reed Act; Rates for Interstate Inmate Calling
Services
AGENCY: Federal Communications Commission.
ACTION: Proposed rule; solicitation of comments.
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SUMMARY: The Federal Communications Commission (Commission) seeks
comment on the contours and specific requirements of the proposed 2023
Mandatory Data Collection for incarcerated people's communications
services. The Commission has drafted proposed instructions, templates,
and a certification form for the proposed 2023 Mandatory Data
Collection. The Commission seeks comment on all aspects of these
documents.
DATES: Comments are due June 2, 2023. Reply comments are due June 20,
2023.
ADDRESSES: You may submit comments, identified by WC Docket Nos. 12-375
and 23-62, by either of the following methods:
<bullet> Electronic Filers: Comments may be filed electronically
using the internet by accessing the Electronic Comment Filing System
(ECFS): <a href="https://www.fcc.gov/ecfs/">https://www.fcc.gov/ecfs/</a>.
<bullet> Paper Filers: Parties who choose to file by paper must
file an original and one copy of each filing. Filings can be sent by
commercial overnight courier, or by first-class or overnight U.S.
Postal Service mail. Currently, the Commission does not accept any hand
or messenger delivered filings as a temporary measure taken to help
protect the health and safety of individuals, and to mitigate the
transmission of COVID-19. All filings must be addressed to the
Commission's Secretary, Office of the Secretary, Federal Communications
Commission.
The Commission adopted a new Protective Order in this proceeding
which incorporates all materials previously designated by the parties
as confidential. Filings that contain confidential information should
be appropriately redacted and filed pursuant to the procedure described
in that Order.
People with Disabilities: The Commission asks that requests for
accommodations be made as soon as possible in order to allow the agency
to satisfy such requests whenever possible. Send an email to
<a href="/cdn-cgi/l/email-protection#bed8dddd8b8e8afed8dddd90d9d1c8"><span class="__cf_email__" data-cfemail="aec8cdcd9b9e9aeec8cdcd80c9c1d8">[email protected]</span></a> or call the Consumer and Governmental Affairs Bureau at
(202) 418-0530.
FOR FURTHER INFORMATION CONTACT: Ahuva Battams, Pricing Policy Division
of the Wireline Competition Bureau, at (202) 418-1565 or via email at
<a href="/cdn-cgi/l/email-protection#a2c3cad7d4c38cc0c3d6d6c3cfd1e2c4c1c18cc5cdd4"><span class="__cf_email__" data-cfemail="2041485556410e42415454414d53604643430e474f56">[email protected]</span></a>. Please copy <a href="/cdn-cgi/l/email-protection#4528242b2124312a373c21243124262a29292026312c2a2b052326266b222a33"><span class="__cf_email__" data-cfemail="224f434c4643564d505b46435643414d4e4e4741564b4d4c624441410c454d54">[email protected]</span></a> on
any email correspondence.
SUPPLEMENTARY INFORMATION: This is a summary of a document that the
Federal Communications Commission's Wireline Competition Bureau
released on April 28, 2023. A full-text version of the document is
available at the following internet address: <a href="https://www.fcc.gov/document/proposed-2023-ipcs-mandatory-data-collection-public-notice">https://www.fcc.gov/document/proposed-2023-ipcs-mandatory-data-collection-public-notice</a>.
Synopsis
Introduction and Background
1. By this document, the Wireline Competition Bureau (WCB) and
Office of Economics and Analytics (OEA) (collectively, WCB/OEA) seek
comment on the contours and specific requirements of the proposed 2023
Mandatory Data Collection for incarcerated people's communications
services (IPCS). In issuing this document, they act pursuant to the
Federal Communications Commission's (Commission) directive so that it
is able to implement the Martha Wright-Reed Just and Reasonable
Communications Act of 2022 (Martha Wright-Reed Act or Act).
Incarcerated People's Communications Services; Implementation of the
Martha Wright-Reed Act; Rates for Interstate Inmate Calling Services,
Order, 88 FR 19001, March 30, 2023 (2023 IPCS Order), and Notice of
Proposed Rulemaking, 88 FR 20804, April 7, 2023 (2023 IPCS Notice);
Martha Wright-Reed Act, Public Law 117-338, 136 Stat. 6156.
2. The Martha Wright-Reed Act directs the Commission to
``promulgate any regulations necessary to implement'' the Act,
including its mandate that the Commission establish a ``compensation
plan'' ensuring that all rates and charges for IPCS ``are just and
reasonable,'' not earlier than 18 months and not later than 24 months
after the Act's January 5, 2023 enactment. The Act requires the
Commission to consider, as part of its implementation, the costs of
``necessary'' safety and security measures, as well as ``differences in
costs'' based on facility size, or ``other characteristics.'' It also
allows the Commission to ``use industry-wide average costs of telephone
service and advanced communications services and the average costs of
service of a communications service provider'' in determining just and
reasonable rates.
3. In recent years, the Commission has collected data from
providers of calling services for incarcerated people as part of its
ongoing efforts to establish just and reasonable rates for those
services that reduce the financial burdens imposed on incarcerated
people and their loved ones, while ensuring that providers are fairly
compensated for their services. In requiring or allowing the Commission
to consider certain types of costs, the new Act contemplates that the
Commission would undertake an additional data collection. To ensure
that it has the data it needs to meet its substantive and procedural
responsibilities under the Act, in the 2023 IPCS Order the Commission
delegated authority to WCB/OEA to ``update and restructure'' the
Commission's most recent data collection (the Third Mandatory Data
Collection) ``as appropriate in light of the requirements of the new
statute.'' This delegation requires that WCB/OEA collect ``data on all
incarcerated people's communications services from all providers of
those services now subject to'' the Commission's ratemaking authority,
including, but not limited to, requesting ``more recent data for
additional years not covered by the [Third Mandatory Data
Collection].'' The Commission directed WCB/OEA to modify the template
and instructions of the most recent data collection to the extent
appropriate to timely collect such information to cover the additional
services and providers now subject to the Commission's authority.
4. In seeking comment on their proposals for the proposed 2023
Mandatory Data Collection, WCB/OEA do not seek additional comment on
the questions and other issues previously raised in other relevant
Commission notices. Such comment is more appropriately submitted during
the comment period specifically established for those notices. Thus,
comments in response to this document need not include advocacy
regarding issues raised in those notices, including how the Commission
should interpret the language of the Martha Wright-Reed Act to ensure
that it implements the statute in a manner that fulfills Congress's
intent, the extent to which particular types of safety and security
measures are necessary to provide IPCS, or the appropriate treatment of
site commissions.
Overall Approach
5. Pursuant to their delegated authority, WCB/OEA propose updated
[[Page 27851]]
instructions, a template, and a certification form for the proposed
2023 Mandatory Data Collection, as posted on the Commission's website.
The template consists of a Word document (Word template) and Excel
spreadsheets (Excel template). WCB/OEA seek comment on all aspects of
these proposed documents. Do the proposed documents seek all the
information the Commission will need to establish a compensation plan
ensuring that IPCS rates and charges are just and reasonable and that
IPCS providers are fairly compensated, consistent with the Martha
Wright-Reed Act? If not, what steps should WCB/OEA take to improve the
proposed documents? The Commission's prior data collections have
demonstrated that detailed and specific instructions and templates are
essential to ensure that providers use comparable procedures to
determine and report their costs, revenues, demand units, and other
data. WCB/OEA invite comment on whether the proposed instructions and
template are sufficiently detailed to accomplish this objective. If
not, what additional instructions, inquiries, or fields should be
added? Conversely, are there any instructions, inquiries, or fields
that could be removed because they are unnecessary?
6. WCB/OEA propose to retain the overall structure of the Third
Mandatory Data Collection, while revising and supplementing the
definitions, instructions, and template to accommodate the Commission's
expanded authority. To a large extent, the specific information they
propose to collect, and the related instructions (including those
relating to cost allocation), parallel the information collected by,
and the instructions for, the Third Mandatory Data Collection. WCB/OEA
invite comment on this approach. They ask that any commenter supporting
an alternative approach, either with regard to the data collection as a
whole or a particular aspect, explain in detail how that alternative
approach would enable the Commission to discharge its responsibilities
under the Martha Wright-Reed Act and the Communications Act of 1934, as
amended (the Communications Act).
7. Reporting Period. In the Third Mandatory Data Collection, WCB/
OEA required providers to submit data and other information for
calendar years 2019, 2020, and 2021. WCB/OEA propose to generally limit
the forthcoming data collection to calendar year 2022 data. They invite
comment on this proposal. Does it properly balance the need for
information, including cost data, on the video and intrastate services
that were not previously subject to the Commission's ratemaking
authority against the additional burdens providers would encounter in
developing that information for years prior to 2022? Should WCB/OEA
instead require providers to incorporate information on their video and
intrastate IPCS operations into their data collection responses for
2020 and 2021, and to report that information in addition to
information for 2022?
8. Cost Categories. The Martha Wright-Reed Act expands the
Commission's authority under section 276(b)(1)(A) of the Communications
Act to include ``advanced communications services,'' as defined in
section 3(1)(A), (B), (D), and new (E) of the Communications Act. Those
provisions of section 3(1), in turn, define ``advanced communications
services'' as including (1) ``interconnected VoIP [Voice over internet
Protocol] service,'' (2) ``non-interconnected VoIP service,'' (3)
``interoperable video conferencing service,'' and (4) ``any audio or
video communications service used by inmates for the purpose of
communicating with individuals outside the correctional institution
where the inmate is held, regardless of technology used.'' The Act also
extends the Commission's ratemaking authority to intrastate as well as
interstate and international IPCS.
9. WCB/OEA propose to require providers to allocate their
investments and expenses among audio IPCS, video IPCS, safety and
security measures, various types of ancillary services, and other
services and products, on both a company-wide and a facility-specific
basis for 2022 (the types of ancillary services are automated payment
services, live agent service, paper bill/statement service, single-call
and related services, third-party financial transaction services, and
other ancillary services). WCB/OEA invite comment on this proposal.
Should any additional categories be specified for providers to use?
Alternatively, would a more limited group of cost categories still
allow the Commission to discharge its ratemaking responsibilities?
10. Are separate cost data for audio IPCS and video IPCS services
necessary, or sufficient, for the Commission to ensure just and
reasonable rates for those services? If not, what alternative approach
should be used? What are the challenges of allocating IPCS costs
between audio and video services? Do IPCS providers maintain sufficient
records to directly assign or directly attribute significant
percentages of their costs to audio IPCS and video IPCS? If not, how
should providers allocate their IPCS costs between these two categories
of services?
11. The proposed instructions and template would not require
providers to subdivide their audio IPCS costs or their video IPCS costs
into more discrete categories. WCB/OEA seek comment on this approach.
What different types of audio and video services do IPCS providers
offer to incarcerated people? Do the costs of providing audio IPCS vary
depending on whether it is a traditional voice service, an
interconnected VoIP service, a non-interconnected VoIP service, or
another type of audio service used by incarcerated people to
communicate with the non-incarcerated? For example, do providers pay
intercarrier compensation charges for some types of IPCS but not for
others? Do non-interconnected voice services have their own unique
costs? Are the net cost differences among types of video IPCS
sufficiently significant and measurable in a meaningful way to justify
the additional burden of separate reporting? If separate reporting is
justified, how should the proposed instructions and template be revised
to capture those cost differences? Similarly, do the costs of providing
video IPCS vary depending on the nature of the video service? To the
extent there are such variations, how should WCB/OEA revise the
instructions and templates to capture them?
12. Intrastate and International IPCS. In the Third Mandatory Data
Collection, WCB/OEA required providers to report the costs of providing
inmate calling services on a total company basis, without separating
them into interstate/international and intrastate components. Although
companies had the option to allocate their total company costs between
interstate/international and intrastate inmate calling services, no
provider exercised this option. Accordingly, WCB/OEA propose to follow
their previous approach and require companies to report costs for IPCS
without separation between these jurisdictions and provide an option
for separate reporting for companies that elect to do so. WCB/OEA seek
comment on this proposal. Do the costs of either audio IPCS or video
IPCS vary significantly depending on whether they are interstate,
intrastate, or international? If so, how should WCB/OEA revise the
proposed instructions and templates to capture those differences? In
the Third Mandatory Data Collection, WCB/OEA required inmate calling
services providers to report their payments to carriers for terminating
international communications as an operating
[[Page 27852]]
expense without jurisdictional separation on both a total-company and a
facility-by-facility basis. The proposed instructions and Excel
template would continue this approach.
13. The proposed instructions also require providers to separately
report expenses related to routing and completing communications to
international destinations as operating expenses. Will the proposed
instructions yield accurate and usable data sufficient for the
Commission to evaluate these expenses? Why or why not? Are there
changes WCB/OEA should consider to the proposed instructions in this
regard? If so, what are they?
14. Costs of Providers' Safety and Security Measures. The Martha
Wright-Reed Act specifies that the Commission ``shall consider,'' as
part of its ratemaking, ``costs associated with any safety and security
measures necessary to provide'' telephone service and advanced
communications services in correctional institutions. To facilitate the
Commission's consideration of such costs, WCB/OEA propose to require
providers to report the costs they incurred to provide safety and
security measures during 2022, both in the aggregate and in specific
categories. Determining those costs would involve several steps.
15. First, the proposed instructions would require providers to
allocate a portion of their total-company investments and expenses to a
company-wide ``safety and security measures'' category and to exclude
those investments and expenses from all other cost categories. This
allocation would be done in accordance with the detailed cost
allocation hierarchy set forth in the instructions. The ``safety and
security measures'' category thus would encompass all safety and
security services and products that the companies provide, regardless
of whether they are provided in connection with audio, video, or
nonregulated services, or in connection with traditional telephone or
advanced communications services. Do commenters agree with this
approach? Instead, should providers be required to report their costs
of safety and security measures separately for different categories of
services? Why or why not? If safety and security costs are not treated
as a separate service or as multiple separate services, then how should
the Commission organize the data collection to be able to consider the
costs of necessary safety and security measures?
16. Second, the proposed instructions would require each provider
to allocate their annual total expenses incurred in providing safety
and security measures among seven company-level categories using the
provider's best estimate of the percentage of those expenses
attributable to each category. As set out in the proposed instructions,
annual total expenses are the sum of annual operating expenses and
annual capital expenses. The seven company-level categories are: (1)
expenses related to Communications Assistance for Law Enforcement Act,
(2) law enforcement support services, (3) communication security
services, (4) communication recording services, (5) communication
monitoring services, (6) voice biometrics services, and (7) other
safety and security measures. WCB/OEA seek comment on the benefits and
burdens of this approach. They invite comment on the categories of
safety and security measures in the proposed instructions. How, if at
all, should these categories be changed? Are there other examples of
specific safety and security measures that should be included in the
illustrative lists included in each of the categories? If so, what are
these measures and how should they be categorized? Are there other
categories of safety and security measures that should be included? If
so, which ones? Alternatively, are there categories that should be
removed? If so, which ones should be removed and why? Do commenters
agree with the proposed approach of requiring providers to allocate
annual total expenses on an estimated percentage basis or should WCB/
OEA instead require providers to perform a detailed allocation of
actual investments and expenses among the seven categories? To the
extent commenters argue that a more detailed cost allocation would be
more appropriate, commenters should explain and justify in detail the
cost allocation method they propose and the benefits and burdens of
their approach.
17. Third, after reporting the best estimate of the percentage of
the company's annual total expenses of providing safety and security
measures for each category, the proposed instructions would direct
providers to report for each of those same categories the company's
best estimate of the percentage of safety and security expenses
attributable to audio IPCS, video IPCS, ancillary services, and other
services and products. Would this approach provide reasonably accurate
data on the portions of each category of providers' safety and security
costs that are attributable to audio IPCS, video IPCS, ancillary
services, and other services and products? Why or why not? If not, is
there another allocation method WCB/OEA should consider? If so, what do
commenters propose and why would it be preferable to the allocation set
forth in the proposed instructions?
18. Providers would also report facility-level safety and security
costs for each facility. The proposed instructions would require
providers to first identify whether they provide safety and security
measures at each facility they serve. Providers would do so by
indicating ``Yes'' or ``No'' in the appropriate cell on the Excel
template for each of the seven identified categories of safety and
security measures at each facility. Wherever providers offer a given
safety and security measure, the proposed instructions would then
require the provider to allocate its company-wide safety and security
annual total expenses for that category among the individual facilities
at which that service is offered. Providers would then further allocate
those amounts at each facility between audio IPCS, video IPCS,
ancillary services, and other services and products. WCB/OEA seek
comment on this approach. Would it accurately capture the costs of
providing the seven identified categories of safety and security
measures at each facility? Why or why not? If not, how could the
facility-level reporting be changed to identify the safety and security
measures providers offer at the facilities they serve and the cost of
providing those measures? Will the subsequent allocation between audio
IPCS, video IPCS, ancillary services, and other services and products
be sufficiently accurate to capture the costs of providing those safety
and security measures in connection with these other services? Why or
why not? Are there other methods WCB/OEA should consider that would
allow the Commission to evaluate the costs of safety and security
measures offered in connection with audio IPCS, video IPCS, ancillary
services and other services and products, to the extent cost
differences exist? If so, what do commenters propose and why?
19. Costs of Facilities' Safety and Security Measures. In the 2023
IPCS Notice, the Commission sought comment on how it could determine
the costs associated with necessary safety and security measures ``to
the extent resources of the facilities are used to provide these
measures.'' Consistent with that request, WCB/OEA propose to require
providers to report any verifiable, reliable, and accurate information
in their possession about the costs the facilities they serve incur
[[Page 27853]]
to provide safety and security measures in connection with the
provision of IPCS. To the extent providers have such information for
any specific facility, the instructions would direct providers to
report the annual total expenses facilities incur using the same seven
categories proposed in connection with reporting provider-incurred
safety and security costs. WCB/OEA seek comment on the benefits and
burdens of this approach. Is there a better approach the Commission
could use to obtain the costs facilities incur in providing safety and
security measures? The proposed instructions require providers to be
able to reproduce, on request, documentation sufficient to explain and
justify the accuracy and reliability of any data they report regarding
the expenses incurred by facilities for safety and security measures.
Do commenters agree with this approach? Will it enable the Commission
to evaluate the reliability and accuracy of any data receives? If not,
how should providers be required to demonstrate the accuracy and
reliability of the data they provide regarding the costs facilities
incur to provide safety and security measures? To the extent providers
are not able to establish the accuracy and reliability of the data they
rely on, how should the Commission accurately account for these
expenses?
20. To assist the Commission in obtaining the broadest possible
view of the costs that facilities incur, the proposed instructions also
ask providers to indicate whether they have any verifiable, reliable,
and accurate information on other facility-incurred costs that are not
safety and security costs. To the extent providers have such
information, the proposed instructions require that providers be able
to reproduce, on request, documentation sufficient to fully explain and
justify the accuracy and reliability of any data they report regarding
the expenses incurred by facilities that are not safety and security
costs.
Specific Instructions
21. WCB/OEA seek comment on the proposed instructions and whether
they provide sufficient guidance to ensure that providers use uniform
methodologies and report the required information in a consistent
manner. Are there any changes that would clarify the proposed
instructions or increase uniformity across providers' responses,
particularly regarding how to report and allocate their costs? If so,
what specific changes should be made? Is there alternative or
additional language that would minimize ambiguity in any instruction?
Commenters should explain the potential benefits and burdens of
alternative or additional language they propose.
22. The proposed instructions also address many data requests that
are not specifically described below. WCB/OEA seek comment on all
aspects of the proposed instructions, including on requests that they
do not specifically seek comment on in this document.
23. Definitions. The proposed instructions contain new and revised
definitions reflecting the Commission's expanded authority over IPCS.
WCB/OEA seek comment on these definitions. Are they sufficiently clear?
If not, how should they be modified? Are there any undefined terms that
should be defined? Are there any terms that should be added to the
proposed instructions that would assist filers in furnishing the
Commission with the relevant data? If so, what are they and how should
they be defined? Should any proposed definitions be removed?
24. Required Information. The proposed instructions would provide
guidance for the collection of a variety of data on audio IPCS, video
IPCS, safety and security measures, various types of ancillary
services, and other services and products. WCB/OEA seek detailed
comment on whether additional data should be collected or, conversely,
whether the data providers are required to submit be reduced.
Commenters urging that WCB/OEA should request different data should
explain how their proposals would affect the Commission's ability to
meet its responsibilities under the Martha Wright-Reed Act and the
Communications Act. Would the benefits of requesting different data
justify the costs? Why or why not?
25. Response Granularity. WCB/OEA propose that all providers submit
data both at the company-wide level and for each correctional facility
in which the provider offered IPCS during 2022. They seek comment on
this approach. WCB/OEA propose this method to fully account in a
coherent way for the shared costs providers incur as some of the assets
or labor they use to provide IPCS are also used to provide other
services, and are used to provide IPCS to multiple facilities. If
parties believe that a different level of granularity is appropriate,
please explain. Assuming WCB/OEA should require providers to report
data on a facility-level basis, how should providers that do not track
costs on a facility level be required to respond? Are the cost
allocation procedures set forth in the proposed instructions sufficient
to enable these providers to allocate costs down to the facility and,
if not, what additional procedures should be required? Are there any
additional data WCB/OEA should seek that would help ensure that
providers allocate costs to facilities in a manner that more accurately
reflects how such costs are incurred?
26. Cost Allocation. WCB/OEA propose several steps for providers to
follow in allocating their costs among various services, as set forth
in the proposed instructions. What refinements, if any, should be made
to the proposed cost allocation methodology? Is there an alternative
methodology that would better ensure that providers allocate their
costs in a manner consistent with how they are incurred? If so, what is
that methodology and why would it produce more accurate results than
the proposed method? Would the benefits of an alternative methodology
justify the costs?
27. Financial Information. The proposed instructions retain the
requirements that providers report financial data in accordance with
generally accepted accounting principles (GAAP) and asset values that
reflect the results of recent impairment testing. Under GAAP, an asset
or asset group is impaired when its carrying amount, that is, the value
reflected on the balance sheet, net of depreciation or amortization,
exceeds its fair market value. In that case, the value of the impaired
asset or asset group is written down and the reduced value is reflected
on the balance sheet and a loss is recorded on the income statement. Is
this the correct approach? If not, why not? Are other or additional
instructions needed to ensure that the carrying value of any provider's
assets is not misstated? If so, what other instructions should be
adopted?
28. Site Commissions. The proposed instructions retain in large
part the questions concerning company-wide and facility-level site
commission data from the Third Mandatory Data Collection. Are there
specific changes WCB/OEA should consider, either to the overall
structure or level of disaggregation for site commission data? If so,
what changes do commenters suggest and why? As explained in the
proposed instructions, WCB/OEA propose new narrative questions in a
separate Word template designed to obtain information about interstate,
intrastate, and international site commissions, including whether and
how the formulas providers use to calculate monetary site commissions
differ among interstate, intrastate, and international communications.
WCB/OEA also propose a new Word template question seeking information
about
[[Page 27854]]
whether providers pay site commissions separately on audio and video
services and how those site commissions are calculated. WCB/OEA invite
comment on these proposed questions and ask commenters to suggest
alternative questions that would help the Commission obtain reliable
and accurate data and information on site commission payments for
interstate, intrastate, and international, as well as for audio and
video, communications.
29. Ancillary Services. While the proposed instructions retain
essentially the same company-wide and facility-level questions about
ancillary services that were asked as part of the Third Mandatory Data
Collection, WCB/OEA invite comment on potential changes that they
should consider. Do commenters suggest that WCB/OEA add or remove
questions in these sections? If so, what should be added or removed? Is
there a better structure or approach that would yield more accurate,
reliable, or useful data? If so, what do commenters propose? Given the
Commission's expanded authority under the Martha Wright-Reed Act, WCB/
OEA propose new Word template questions that would seek information on
how providers assess ancillary service charges on interstate,
intrastate, and international communications, in light of the
Commission's previous conclusion that ``ancillary service charges
generally cannot be practically segregated between the interstate and
intrastate jurisdiction.'' WCB/OEA also propose to add Word template
questions regarding the ancillary service charges or other charges
assessed in connection with video services and whether there are any
differences between the types of ancillary service charges assessed in
connection with video and audio IPCS. WCB/OEA invite comment on these
questions. Are there other questions they should ask that would assist
the Commission in evaluating any differences based on either the
jurisdiction of the communications service or whether the charges are
being assessed in connection with an audio or video service? Are
providers currently assessing any other charges in connection with
video communications that fall outside of the five ancillary service
charges permitted under the Commission's rules? If so, what are they
and how should they be addressed in the data collection? Are there
particular questions WCB/OEA should ask to help the Commission
understand how providers assess ancillary service charges in
circumstances where service offerings might be mixed between audio and
video services?
Reporting Template
30. WCB/OEA propose to require providers to submit the requisite
data using a reporting template, to be filed through the Commission's
Electronic Comment Filing System (ECFS). The proposed template consists
of a Word document (Appendix A to the instructions) for responses
requiring narrative information and Excel spreadsheets (Appendix B to
the instructions) for responses that require numeric or other
information. WCB/OEA seek comment on proposed modifications in the
template seeking data relevant to the Commission's expanded
jurisdiction, including modifications to collect data on video IPCS and
safety and security measures. WCB/OEA also seek suggestions for
improvements they can make to the template. Is there an alternative
organization that would reduce any perceived burdens, without
compromising the reliability and accuracy of the data WCB/OEA are able
to collect? Are there other organizational or substantive improvements
they can make to the reporting template? Do any questions require
clarification?
Timeframe for Provider Responses to the Data Collection
31. WCB/OEA invite comment on the timeframe for provider responses
to the data collection. In the 2023 IPCS Order, the Commission
explained that ``[a]ny new or modified requirements that require
approval from the Office of Management and Budget (OMB) under the
Paperwork Reduction Act shall be effective on the date specified in a
notice published in the Federal Register announcing OMB's approval.''
Importantly, the Martha Wright-Reed Act imposes a statutory requirement
that the Commission ``promulgate any regulations necessary to
implement'' the Act, not earlier than 18 months and not later than 24
months after the Act's January 5, 2023 enactment. As the Commission
explained in the 2023 IPCS Order, ``[a]ny unnecessary delay in our
efforts to collect appropriate information would be inconsistent with,
and undermine the Commission's ability to meet the deadlines contained
in, the Act.'' Given these constraints, WCB/OEA propose to require
providers to file their responses to the data collection within 90 days
of the release of the order approving the data collection. Do
commenters agree with this timeframe? Would it afford providers
sufficient time to prepare and submit their responses while also
allowing the Commission to act expeditiously to implement the Martha
Wright-Reed Act within the statutory timeframe? Why or why not? Should
WCB/OEA instead consider a shorter, or longer, timeframe for providers
to respond to the data collection? If so, what timeframe do commenters
propose and why?
Digital Equity and Inclusion
32. As part of the Commission's continuing effort to advance
communications equity for all, including people of color and others who
have been historically underserved, marginalized, and adversely
affected by persistent poverty and inequality, WCB/OEA invite comment
on any equity-related considerations and benefits that may be
associated with the upcoming data collection. Specifically, WCB/OEA
seek comment on how their proposals for that collection may promote or
inhibit advances in diversity, equity, inclusion, and accessibility.
WCB/OEA define the term ``equity'' consistent with Executive Order
13985 as the consistent and systematic fair, just, and impartial
treatment of all individuals, including individuals who belong to
underserved communities that have been denied such treatment, such as
Black, Latino, and Indigenous and Native American persons, Asian
Americans and Pacific Islanders and other persons of color; members of
religious minorities; lesbian, gay, bisexual, transgender, and queer
(LGBTQ+) persons; persons with disabilities; persons who live in rural
areas; and persons otherwise adversely affected by persistent poverty
or inequality. Exec. Order No. 13985, 86 FR 7009, Executive Order on
Advancing Racial Equity and Support for Underserved Communities Through
the Federal Government (Jan. 20, 2021).
Procedural Matters
33. Ex Parte Presentations. This proceeding shall be treated as a
``permit-but-disclose'' proceeding in accordance with the Commission's
ex parte rules. Persons making ex parte presentations must file a copy
of any written presentation or a memorandum summarizing any oral
presentation within two business days after the presentation (unless a
different deadline applicable to the Sunshine period applies). Persons
making oral ex parte presentations are reminded that memoranda
summarizing the presentation must (1) list all persons attending or
otherwise participating in the meeting at which the ex parte
presentation was made, and (2) summarize all data presented and
arguments made during the presentation. If the presentation
[[Page 27855]]
consisted in whole or in part of the presentation of data or arguments
already reflected in the presenter's written comments, memoranda, or
other filings in the proceeding, the presenter may provide citations to
such data or arguments in the prior comments, memoranda, or other
filings (specifying the relevant page and/or paragraph numbers where
such data or arguments can be found) in lieu of summarizing them in the
memorandum. Documents shown or given to Commission staff during ex
parte meetings are deemed to be written ex parte presentations and must
be filed consistent with Sec. 1.1206(b) of the Commission's rules.
Participants in this proceeding should familiarize themselves with the
Commission's ex parte rules.
34. Supplemental Initial Regulatory Flexibility Act Analysis. As
required by the Regulatory Flexibility Act, the Commission has prepared
a Supplemental Initial Regulatory Flexibility Analysis (Supplemental
IRFA) of the possible significant economic impact on small entities by
the policies and rules proposed in this document. The Commission
requests written public comments on the Supplemental IRFA. Comments
must be identified as responses to the Supplemental IRFA and must be
filed by the deadlines for comments provided in this document. The
Commission will send a copy of this document, including this
Supplemental IRFA, to the Chief Counsel for Advocacy of the Small
Business Administration (SBA). In addition, summaries of this document
and the Supplemental IRFA will be published in the Federal Register.
35. Initial Paperwork Reduction Act Analysis. This document, and
the instructions and templates, contain new or modified information
collection requirements subject to the Paperwork Reduction Act of 1995
(PRA), Public Law 104-13. It will be submitted to OMB for review under
section 3507(d) of the PRA. OMB, the general public, and other Federal
agencies are invited to comment on the new or modified information
collection requirements contained in this proceeding. Contemporaneously
with the publication of this Notice in the Federal Register, WCB/OEA
will publish a notice in the Federal Register seeking comment pursuant
to the PRA on the information collection requirements for the proposed
2023 Mandatory Data Collection in the 2023 IPCS Notice and this
document. WCB/OEA will consider comments submitted in response to both
Federal Register notices in finalizing this information collection for
submission to OMB. In addition, WCB/OGC note that pursuant to the Small
Business Paperwork Relief Act of 2002, Public Law 107-198; see 44
U.S.C. 3506(4), they seek comment on how the Commission may further
reduce the information collection burden for small business concerns
with fewer than 25 employees.
Supplemental Initial Regulatory Flexibility Analysis
36. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), WCB/OEA have prepared this Supplemental IRFA of the
possible significant economic impact on small entities by the policies
and rules proposed in this document to supplement the Commission's
Regulatory Flexibility Analyses completed in the 2023 IPCS Notice and
2023 IPCS Order. WCB/OEA request written public comment on this
Supplemental IRFA. Comments must be identified as responses to the
Supplemental IRFA and must be filed by the deadlines for comments
provided in this document. The Commission will send a copy of this
document, including this Supplemental IRFA, to the Chief Counsel for
Advocacy of the SBA. This present Supplemental IRFA conforms to the
RFA.
Need for, and Objectives of, the Proposed Rules
37. In this document, WCB/OEA seek comment on the contours and
specific requirements of the proposed 2023 Mandatory Data Collection
for IPCS. In issuing this document, WCB/OEA act pursuant to the
Commission's directive so that it will be able to implement the Martha
Wright-Reed Act. The Commission determined that this data collection
would enable it to ``meet both [its] procedural obligations (to
consider certain types of data) and [its] substantive responsibilities
(to set just and reasonable rates and charges)'' under the Martha
Wright-Reed Act and the Communications Act. Likewise, it directed WCB/
OEA ``to update and restructure the most recent data collection as
appropriate to implement the Martha Wright-Reed Act.''
38. Pursuant to their delegated authority, WCB/OEA have drafted
instructions, a template, and a certification form for the proposed
2023 Mandatory Data Collection and are issuing this document to seek
comment on all aspects of these proposed documents.
Legal Basis
39. The proposed action is pursuant sections 1, 2, 4(i)-(j), 5(c),
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), 155(c), 201(b),
218, 220, 225, 255, 276, 403, and 617, and the Martha Wright-Reed Act,
Public Law 117-338, 136 Stat. 6156 (2022).
Description and Estimate of the Number of Small Entities to Which the
Proposed 2023 Rules Would Apply
40. The RFA directs agencies to provide a description of, and where
feasible, an estimate of the number of small entities that may be
affected by the proposed 2023 Mandatory Data Collection. The RFA
generally defines the term ``small entity'' as having the same meaning
as the terms ``small business,'' ``small organization,'' and ``small
governmental jurisdiction.'' In addition, the term ``small business''
has the same meaning as the term ``small-business concern'' under the
Small Business Act. A ``small-business concern'' is one which: (1) is
independently owned and operated; (2) is not dominant in its field of
operation; and (3) satisfies any additional criteria established by the
SBA.
41. As noted above, an IRFA was incorporated in the 2023 IPCS
Notice. In that analysis, the Commission described in detail the small
entities that might be affected. Accordingly, in this document, for the
Supplemental IRFA, WCB/OEA hereby incorporate by reference the
descriptions and estimates of the number of small entities from the
2023 IPCS Notice's IRFA.
Description of Project Reporting, Recordkeeping, and Other Compliance
Requirements for Small Entities
42. This document seeks comment on the specifics of the proposed
2023 Mandatory Data Collection to ensure that the Commission receives
the data it needs to meet its substantive and procedural
responsibilities under the Act. The proposed 2023 Mandatory Data
Collection would require IPCS providers to submit, among other things,
data and other information on calls, demand, operations, company and
contract information, information about facilities served, revenues,
site commission payments, the costs of safety and security measures,
video IPCS, and ancillary fees. The proposed 2023 Mandatory Data
Collection may require entities, including small entities and IPCS
providers of all sizes, currently subject to the Commission's inmate
calling services rules to be subject to modified or new reporting or
other compliance obligations. This may also be the case for providers
newly subject to the Commission's expanded regulatory authority, such
as providers
[[Page 27856]]
offering only intrastate or certain advanced communications. In
addition, WCB/OEA recognize that their actions in this proceeding may
affect the reporting, recordkeeping, and other compliance requirements
for several groups of small entities. In assessing the cost of
compliance for small entities and for providers of incarcerated
people's communications services of all sizes, at this time WCB/OEA are
not in a position to determine whether the proposed 2023 Mandatory Data
Collection will impose any significant costs for compliance in general.
WCB/OEA anticipate the information they receive in comments, including
any cost and benefit analyses, will help the Commission identify and
evaluate relevant compliance matters for small entities, including
compliance costs and other burdens that may result from the proposals
and inquiries they make in this document.
Steps Taken To Minimize the Significant Economic Impact on Small
Entities and Significant Alternatives Considered
43. The RFA requires an agency to describe any significant
alternatives that it has considered in reaching its proposed approach,
which may include the following four alternatives (among others): ``(1)
the establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) the clarification, consolidation, or simplification of
compliance and reporting requirements under the rules for such small
entities; (3) the use of performance rather than design standards; and
(4) an exemption from coverage of the rule, or any part thereof, for
such small entities.'' WCB/OEA will consider all of these factors when
they receive substantive comment from the public and potentially
affected entities.
44. The proposed 2023 Mandatory Data Collection is a one-time
request and does not impose a recurring obligation on providers.
Because the Commission's 2023 IPCS Order requires all IPCS providers to
comply with the proposed 2023 Mandatory Data Collection, the collection
will affect smaller as well as larger IPCS providers. WCB/OEA have
taken steps to ensure that the data collection template is
competitively neutral and not unduly burdensome for any set of
providers. For example, this document proposes to collect data for a
single calendar year instead of three calendar years, as in the
previous data collection. Additionally, this document asks whether
there are ways of minimizing the burden of the data collection on
providers while still ensuring that the Commission collects all the
data needed to meet its goals.
45. WCB/OEA will consider the economic impact on small entities, as
identified in comments filed in response to this document and this
Supplemental IRFA, in reaching their final conclusions and finalizing
the instructions, the template, and certification form for the proposed
2023 Mandatory Data Collection.
Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
46. None.
(Authority: 47 U.S.C. 151-63)
Federal Communications Commission.
Lynne Engledow,
Deputy Chief, Pricing Policy Division, Wireline Competition Bureau.
[FR Doc. 2023-09502 Filed 5-2-23; 8:45 am]
BILLING CODE 6712-01-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.