Rule2023-16305
2023 Mandatory Data Collection for Incarcerated People's Communications Services
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 3, 2023
Issuing agencies
Federal Communications Commission
Abstract
In this document, the Wireline Competition Bureau and the Office of Economics and Analytics (WCB and OEA) adopt an Order defining the contours and specific requirements of the forthcoming 2023 Mandatory Data Collection for incarcerated people's communications services.
Full Text
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<title>Federal Register, Volume 88 Issue 148 (Thursday, August 3, 2023)</title>
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[Federal Register Volume 88, Number 148 (Thursday, August 3, 2023)]
[Rules and Regulations]
[Pages 51240-51249]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-16305]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 64
[WC Docket Nos. 12-375, 23-62; DA 23-638; FR ID [159602]]
2023 Mandatory Data Collection for Incarcerated People's
Communications Services
AGENCY: Federal Communications Commission.
ACTION: Final order.
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SUMMARY: In this document, the Wireline Competition Bureau and the
Office of Economics and Analytics (WCB and OEA) adopt an Order defining
the contours and specific requirements of the forthcoming 2023
Mandatory Data Collection for incarcerated people's communications
services.
DATES: The Order was adopted and released on July 26, 2023. The
effective date of the Order is delayed indefinitely. The Federal
Communications Commission will publish a document in the Federal
Register announcing the effective date.
ADDRESSES: You may submit comments, identified by WC Docket Nos. 12-375
and 23-62, by either of the following methods:
<bullet<ls-thn-eq> 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: 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#395f5a5a0c090d795f5a5a175e564f"><span class="__cf_email__" data-cfemail="3a5c59590f0a0e7a5c5959145d554c">[email protected]</span></a>, or call the
Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice) or
(202) 418-0432 (TTY).
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#a8c9c0dddec986cac9dcdcc9c5dbe8cecbcb86cfc7de"><span class="__cf_email__" data-cfemail="debfb6aba8bff0bcbfaaaabfb3ad9eb8bdbdf0b9b1a8">[email protected]</span></a>. Please copy <a href="/cdn-cgi/l/email-protection#c2afa3aca6a3b6adb0bba6a3b6a3a1adaeaea7a1b6abadac82a4a1a1eca5adb4"><span class="__cf_email__" data-cfemail="0c616d62686d78637e75686d786d6f636060696f786563624c6a6f6f226b637a">[email protected]</span></a> on
any email correspondence.
SUPPLEMENTARY INFORMATION: This is a summary of the FCC's Order, DA 23-
638, released on July 26, 2023. A full-text version of this Order is
available at the following internet address: <a href="https://www.fcc.gov/document/2023-ipcs-mandatory-data-collection-order">https://www.fcc.gov/document/2023-ipcs-mandatory-data-collection-order</a>.
The effective date of the Order is delayed indefinitely. The
Commission will publish a document in the Federal Register announcing
the effective date once the Office of Management and Budget (OMB) has
completed any review required by the Paperwork Reduction Act (PRA).
Synopsis
I. Introduction and Background
1. By this Order, the Wireline Competition Bureau (WCB) and the
Office of Economics and Analytics (OEA) adopt instructions, a reporting
template, and a certification form to implement the 2023 Mandatory Data
Collection related to incarcerated people's communications services
(IPCS). WCB and OEA's actions today are taken pursuant to the authority
delegated to WCB and OEA by the Commission and largely implement the
proposals set forth in the 2023 IPCS Mandatory Data Collection Public
Notice, with refinements and reevaluations responsive to record
comments. Rates for Interstate Inmate Calling Services, Notice of
Proposed Rulemaking, 88 FR 27850, May 3, 2023 (2023 IPCS Mandatory Data
Collection Public Notice or Public Notice); Incarcerated People's
Communications Services; Implementation of the Martha Wright-Reed Act;
Rates for Interstate Inmate Calling Services, Delegations of Authority;
Reaffirmation and Modification, 88 FR 19001, March 30, 2023 (2023 IPCS
Order); Incarcerated People's Communications Services; Implementation
of the Martha Wright-Reed Act; Rates for Interstate Inmate Calling
Services, Notice of Proposed Rulemaking, 88 FR 20804, April 7, 2023
(2023 IPCS Notice); Incarcerated People's Communications Services;
Implementation of the Martha Wright-Reed Act; Martha Wright-Reed Act,
Public Law number 117-338, 136 Stat. 6156 (Martha Wright-Reed Act or
Act).
2. On January 5, 2023, the President signed into law the Martha
Wright-Reed Just and Reasonable Communications Act, which expanded the
Commission's statutory authority over communications between
incarcerated people and the non-incarcerated, including ``any audio or
video communications service used by inmates . . . regardless of
technology used.'' The new Act also amends section 2(b) of the
Communications Act of 1934, as amended (Communications Act), to make
clear that the Commission's authority extends to intrastate as well as
interstate and international communications services used by
incarcerated people.
3. 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.
4. The Martha Wright-Reed Act contemplates an additional data
collection by requiring or allowing the Commission to consider certain
types of other costs necessary to its implementation. Prior to the
enactment
[[Page 51241]]
of the Martha Wright-Reed Act, the Commission had sought provider data
related to audio communications services provided to incarcerated
persons on three occasions, as part of its ongoing efforts to establish
just and reasonable rates for those services, while ensuring that
providers are fairly compensated for such services. To ensure that it
will have the data it needs to meet its substantive and procedural
responsibilities under the Act, the Commission delegated authority to
WCB and OEA to ``update and restructure'' its 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 and OEA collect ``data on all incarcerated people's
communications services from all providers of those services now
subject to'' the Commission's authority, including, but not limited to,
requesting ``more recent data for additional years not covered by the
[Third Mandatory Data Collection].''
5. In accordance with this delegation, WCB and OEA developed
proposals for the 2023 Mandatory Data Collection that updated and
expanded the instructions and reporting templates from the Third
Mandatory Data Collection, and issued a Public Notice seeking comments
on all aspects of the proposed revisions to the collection.
Concurrently, in accordance with the Paperwork Reduction Act of 1995
(PRA), WCB and OEA published a notice in the Federal Register seeking
comment on potential burdens of the proposed reporting requirements.
Information Collection Being Reviewed by the Federal Communications
Commission, Notice and Request for Comments, 88 FR 27885, May 3, 2023.
6. WCB and OEA received comments from several IPCS providers,
public interest advocates, and other interested parties in response to
the Public Notice, and one comment in response to the PRA notice. WCB
and OEA have thoroughly considered all of these filings in adopting the
requirements for the final 2023 Mandatory Data Collection.
II. Discussion
A. Implementing the 2023 Mandatory Data Collection
7. Pursuant to their delegated authority, WCB and OEA adopt the
2023 Mandatory Data Collection Instructions, Word and Excel templates,
and certification form as proposed in the Public Notice, with some
exceptions discussed below. Commenters generally support the broad
contours and specific requirements of the data collection as proposed
and do not challenge the proposal to retain the overall reporting
structure and organization of the Third Mandatory Data Collection as
the basis for this collection.
8. Commenters offer various suggestions that, in their view, would
improve the proposed data collection. In light of these comments, WCB
and OEA reevaluate some of their proposals and refine certain aspects
of the instructions and templates, as set forth in greater detail
below, while retaining the overall structure of the data collection as
proposed. These refinements include modifying the treatment of video
IPCS and safety and security measures, clarifying the reporting of
costs related to site commissions, and revising certain proposed
definitions. WCB and OEA conclude that the modifications
``appropriately balance the need for `detailed and specific
instructions and templates' and the desire to avoid unduly burdening
providers.''
9. In finalizing the requirements for the data collection, WCB and
OEA do not resolve issues pending in the 2023 IPCS Notice as some
commenters propose. Doing so would exceed the authority the Commission
delegated to WCB and OEA. The Public Notice expressly foreclosed
``seek[ing] additional comment on the questions and other issues
previously raised in the 2023 IPCS Notice or in relevant prior
Commission or Bureau notices,'' and WCB and OEA do not address
commenters' proposals to the contrary in this Order. Instead, the
purpose of the data collection is to provide the Commission with an
objective foundation for addressing the issues it must resolve to
implement the Martha Wright-Reed Act.
10. In the sections that follow, WCB and OEA first address the
overall scope of the data collection and then turn to proposals to
revise specific instructions.
B. Overall Scope of the Data Collection
1. Reporting Period
11. WCB and OEA limit the data collection to calendar year 2022,
consistent with their proposal in the Public Notice. WCB and OEA find
that the data from 2022 will provide the most pertinent and the best
indicator of relevant costs. Some commenters propose that WCB and OEA
expand the data collection reporting period beyond just 2022. Others
argue that the burden of requiring additional years of data would
``outweigh[] any material benefit.'' WCB and OEA decline to expand the
reporting period. Data from 2022 represent the most recent data
available, and are therefore likely to be more representative of future
operations by IPCS providers than data from prior years. To the extent
that data from prior years would be useful in determining just and
reasonable rates, WCB and OEA already have data regarding audio IPCS,
including investments, expenses, revenues, demand, site commission
payments, and ancillary services charges and practices, from the Third
Mandatory Data Collection. WCB and OEA recognize that those data are
limited to audio IPCS, but find that the burdens associated with
collecting video data for prior years would outweigh any potential
benefit. In particular, the pandemic had a substantial impact on
providers' operations and likely accelerated the implementation of (and
therefore increased the costs and revenues associated with) video IPCS
as a substitute for in-person visitation, such that data from those
prior years may not be representative of providers' future operations.
As a result, WCB and OEA find that collecting data solely for 2022 will
best equip us to set rate caps that reflect providers' operations going
forward and avoid the burdens associated with collecting additional
data that may not be representative or are already available for prior
periods.
12. While WCB and OEA recognize the incremental benefits of having
more comprehensive cost data, most of the categories of data that WCB
and OEA seek in this data collection were addressed in the previous
data collection, such that collecting these data from years prior to
2022 would be largely redundant. To the extent WCB and OEA seek new
categories of data, the burden on providers to produce those data would
be significant. Given the burdens already imposed by this revised data
collection which are necessary to implement the new statute, as well as
the comparatively shorter timeframe for submitting responses, WCB and
OEA decline to impose an additional burden by expanding the reporting
period as some commenters propose.
2. Cost Reporting and Cost Allocation
13. In the Public Notice, WCB and OEA proposed to adapt the cost
reporting and cost allocation methodologies specified for the Third
Mandatory Data Collection for use in the 2023 Mandatory Data
Collection. No commenter challenges this overall approach or suggests
fundamental changes to the proposals for applying those methodologies
to video IPCS. Instead, commenters suggest relatively discrete
modifications to the proposed instructions for reporting company-wide
[[Page 51242]]
cost data and for allocating reported costs among cost categories.
After considering these comments, WCB and OEA adopt the cost allocation
methodology essentially as proposed, with modifications to the
instructions designed to help providers understand the cost allocation
methodology and to obtain further information on how providers
implement it. WCB and OEA also modify the instructions to establish, at
the facility-specific level, the same reporting structure for capital
assets and expenses that is in place at the company-wide level.
14. As a general matter, the changes to the cost reporting and cost
allocation instructions reflect an understanding, from WCB and OEA's
review of the Third Mandatory Data Collection submissions, that certain
providers' internal accounting and recordkeeping systems limit those
providers' ability to provide highly disaggregated cost data and to
finely tune their cost allocation procedures. Given these limitations,
the revised instructions generally require providers to describe in
greater detail their implementation of the cost reporting and cost
allocation instructions, rather than prescribe additional cost
reporting and cost allocation requirements for which certain providers
may not have the internal accounting systems needed to comply with such
requests.
15. For example, WCB and OEA require providers to describe the
types of costs they include in various capital and operating expense
categories, rather than list the types of costs that are to be included
in each category, as one commenter suggests. WCB and OEA also require
providers to describe in greater detail the factors they use to
allocate certain types of shared and common costs among audio IPCS,
video IPCS, and nonregulated services, rather than specifying factors
for providers to use in performing those allocations. WCB and OEA find
that these revisions will help the Commission understand the nature of
the reported costs, without imposing significant additional burdens on
providers that would be unlikely to result in more useful information.
16. WCB and OEA reject, however, ViaPath's proposal that WCB and
OEA permit providers to ``use the allocation methodologies that best
reflect [their] business and the way in which [they] keep[] [their]
books and records as long as the provider[s] document[] and explain[]
[such] methodologies in [their] MDC response[s].'' The detailed cost
allocation hierarchy set forth in the proposed instructions was carried
forward from the instructions for the Third Mandatory Data Collection
and, as such, reflects the Commission's directive that the Third
Mandatory Data Collection collect, ``to the extent possible, uniform
cost . . . data from each provider. In directing that WCB and OEA
``update and restructure'' that prior data collection, the Commission
did not propose or suggest that WCB and OEA should undertake wholesale
revisions to the core methodologies of the Third Mandatory Data
Collection by allowing each provider to devise its own allocation
methodology. As the Wright Petitioners point out, allowing providers to
devise their own cost allocation methodologies in the previous data
collection led to ``large discrepancies between costs allocated towards
capital expenses and operating expenses,'' with providers assigning
costs inconsistently among the categories provided and reporting
nonregulated service costs as inmate calling services costs. Allowing
providers to use their own allocation methodologies also would
substantially increase the back-end burden on all parties that want to
process and analyze the reported data, because of the extent and
complexity of the adjustments that would be necessary to correct for
inconsistencies among providers' responses. The cost allocation
hierarchy set forth in the instructions provides a necessary and
workable framework within which to standardize and compare the data
submitted, while, as WCB and OEA recognize above, affording providers
flexibility to implement the cost allocation instructions in a manner
that reflects their accounting and recordkeeping systems.
3. Overall Reporting Categories
17. WCB and OEA adopt their proposal 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. WCB and OEA find, subject to certain
refinements related to safety and security measures, that these
categories are well-suited to provide the Commission with the
information it needs to comply with its ratemaking responsibilities
under the Communications Act and the Martha Wright-Reed Act without
unduly burdening providers.
18. WCB and OEA decline to require providers to subdivide their
audio and video IPCS costs into more discrete categories based on the
type of audio or video service being provided, as some parties suggest.
While WCB and OEA recognize that video IPCS costs may vary based on the
equipment used to provide the service, WCB and OEA find that the best
way to address this possibility is to ask providers to report the per-
unit costs of the devices used for video IPCS. This information,
combined with the requirement that providers report their video IPCS
costs on a facility-by-facility basis while describing the video
services provided at each facility, should provide sufficient
information to measure any cost differentials among different video
services without imposing on providers the burden of subdividing video
IPCS costs into more discrete categories.
19. WCB and OEA adopt their proposal to allow, but not require,
providers to subdivide their investments and expenses for audio IPCS,
video IPCS, safety and security measures, and ancillary services
between interstate/international and intrastate services. While WCB and
OEA recognize that providers likely experience ``no meaningful
difference[s]'' between the costs of providing interstate/international
and intrastate IPCS (other than the costs of terminating audio
communications in foreign destinations), WCB and OEA find this option
properly allows providers the flexibility to inform the Commission if
they do incur different costs based on the jurisdictional nature of the
services they provide.
4. Safety and Security Measures
20. WCB and OEA adopt their proposal to require providers to
allocate the annual total expenses they incurred in providing safety
and security measures among seven categories using the provider's best
estimate of the percentage of those expenses attributable to each
category. After considering the comments regarding this proposed
allocation process, WCB and OEA modify the instructions for this
allocation to make them clearer and more comprehensive.
21. Some providers take issue with WCB and OEA's proposed seven-
category framework for reporting safety and security measure costs,
claiming that their internal accounting systems do not align with these
categories and that providers will have difficulty allocating their
costs in the manner proposed. WCB and OEA do not find these arguments
persuasive. As Securus concedes, the cost categories WCB and OEA
proposed are similar to categories employed in the Third Mandatory Data
Collection. Accordingly, WCB and OEA find, as they did with the Third
Mandatory Data Collection, that the proposed categories provide a
comprehensive and workable framework for dividing safety and security
measure costs into reasonably
[[Page 51243]]
homogenous groupings that ``should capture all [safety and] security
costs,'' particularly with the addition of multiple examples of costs
for each category. To the extent that providers make measures available
that do not fit within the first six categories, the data collection
also includes a catch-all category for ``Other Safety and Security
Measures.''
22. The Martha Wright-Reed Act requires the Commission to consider
``costs associated with any safety and security measures necessary to
provide'' IPCS in setting IPCS rates. While the commenters present
sharply divergent views as to whether providers should be allowed to
recover the costs of various types of safety and security measures
through their rates, the purpose here is to ensure, to the extent
consistent with the providers' internal accounting and recordkeeping,
that the data collection generates, in a timely manner, sufficient
information for the Commission to implement ``whatever decision it
makes regarding the necessity of safety and security measures.'' This
necessarily requires tradeoffs between pinpointing the costs of each
safety and security measure providers offer and the providers' ability
to produce (and the Commission's ability to process) highly
disaggregated safety and security measure cost data within the 18 to 24
month statutory timeframe. WCB and OEA find the proposed reporting
structure and associated categories, modified as described below, to be
the most effective means of balancing these competing considerations.
23. One commenter claims that the proposed categories ``will not
provide a full or accurate picture of how safety and security costs are
associated with the service offering,'' while other commenters propose
that WCB and OEA should ``provid[e] examples and or definitions . . .
of certain security services and costs that would fall under the seven
categories,'' and that the required safety and security cost data
should, in general, be more granular. The proposed instructions already
include multiple examples of safety and security measures that fall
within each of the seven categories. WCB and OEA find that these lists,
as revised in response to the comments, are sufficiently comprehensive
to allow providers to sort their safety and security measures into the
categories WCB and OEA have established. However, because some
commenters may not have understood the examples WCB and OEA provided,
they have reorganized the relevant instructions to simplify them and
increase their clarity. Specifically, WCB and OEA modify both the
company-wide and the facility-by-facility instructions to first require
providers to assign each of their safety and security measures to one
of the seven listed categories and second to allocate their aggregate
costs of providing safety and security measures among these categories.
24. In addition, WCB and OEA give providers the option to
supplement what WCB and OEA require them to submit should they
determine that more specific categories are needed to reflect their
operations. Specifically, when allocating these costs, providers may
divide the seven listed categories into subcategories of their own
choosing, and thereby report costs in a more detailed manner. WCB and
OEA find that allowing for further subdivision will better enable
providers to submit a ``full [and] accurate picture'' of their costs in
a way that ``meaningfully distinguish[es] among these costs,'' while
also retaining the uniform reporting structure that is necessary for us
to effectively compare cost data among providers. WCB and OEA also
adopt a suggestion that they instruct providers to assign any safety
and security measure that does not precisely match any of WCB and OEA
provided examples to the category that provides the best fit, and to
allocate the costs of such measures accordingly. Directing providers to
categorize services in this manner will give them additional
flexibility in applying the categories to their own internal accounting
structures.
25. To further help providers allocate safety and security costs
among the established categories, WCB and OEA modify the instructions
to include additional and guidance. These changes address certain
commenters' concerns about their ability to allocate their security
costs among each category within the seven-category reporting framework
without further guidance. However, given providers' concerns with their
ability to implement the seven-category framework, WCB and OEA decline
to require that the expenses allocated to each of the seven categories
be further allocated among the various safety and security measures
within each category. Conversely, WCB and OEA also decline to adopt Pay
Tel's proposal that the collection be limited to ``data regarding
Safety and Security Measures associated with distinct and separate
`system[s], product[s], or service[s]' which are provided as ancillary
components to the IPCS offering.'' As an initial matter, those measures
are effectively encompassed within the categories. To the extent that
Pay Tel is proposing that WCB and OEA only collect such data, that
approach would require that WCB and OEA prejudge which safety and
security measures are ``necessary,'' which would be beyond the scope of
WCB and OEA's delegated authority.
26. WCB and OEA also decline to subdivide the safety and security
measures reporting category into different real-time and non-real-time
subcategories, as one commenter urges. WCB and OEA find that the
granularity already included in the safety and security reporting
requirements is sufficient to provide the Commission with the data it
will need to set just and reasonable rates caps for IPCS. The
additional burden more subdivision would impose on providers outweighs
any potential benefit of further disaggregation.
27. One commenter observes that ``there are no safety and security
costs associated with ancillary services of the type contemplated'' for
IPCS. WCB and OEA agree that this is likely the case for most
providers, but those providers can simply enter ``0'' in the
appropriate Excel template cells. Accordingly, WCB and OEA will include
the proposed inquiries asking providers to report any safety and
security costs they incur in connection with their ancillary services.
WCB and OEA find that this approach will accommodate potential
variation among providers' practices without burdening any provider.
28. Lastly, WCB and OEA supplement questions in the Word template
in order to obtain additional information on providers' safety and
security measures. Commenters discuss certain nuances that may apply to
the implementation of safety and security measures and consequent cost
allocation issues that are not fully addressed by the questions
proposed (e.g., differences based on infrastructure and devices used to
provide IPCS, and circumstances in which safety and security services
apply to both IPCS and nonregulated services). WCB and OEA agree with
these commenters on the need to seek additional information from
providers regarding their safety and security measures and attendant
practices. Commenters also dispute the extent to which ``providers'
accounting systems'' are--or are not--``designed to track `safety and
security' costs.'' Given this ambiguity as to providers' accounting
practices for safety and security measures, particularly in light of
providers' concerns about their ability to apply their accounting
systems to the categories WCB and OEA proposed, WCB and OEA find that
additional information concerning providers' accounting practices and
how they
[[Page 51244]]
allocate their internal data among the seven categories will assist the
Commission in accurately determining the costs of providers' safety and
security measures and distinguishing between ``essential and non-
essential costs.'' Accordingly, WCB and OEA modify the instructions and
Word template to obtain information on these subjects, in order to
provide the Commission with a more comprehensive and accurate
understanding of providers' implementation of, and accounting and
recordkeeping practices regarding, safety and security measures.
5. Video IPCS
29. WCB and OEA adopt the majority of their proposals related to
video IPCS, but make targeted changes to capture more complete
information. As the record now makes clear, the costs of providing
video IPCS likely vary depending on the specific infrastructure,
devices, methods, technologies, and features used to provide those
services. WCB and OEA find that this data collection should attempt to
capture those variations at a more granular level than WCB and OEA
proposed, to the extent possible without unduly burdening providers.
Informed by the record compiled in response to the Public Notice, WCB
and OEA agree that additional information concerning video IPCS would
assist the Commission in its ratemaking efforts and therefore add
general inquiries regarding the technical requirements of the
providers' video IPCS offerings, the infrastructure used to provide
those services, and the reasons for and costs of any data storage
associated with those services, among other matters.
30. Service Parameters. To help the Commission understand the
providers' video IPCS offerings, WCB and OEA require providers to
describe in detail each video service they provided during 2022.
Providers must also identify, among other matters, each transmission
technology used to provide each type of video service they provided to
incarcerated people, provide any information they have regarding
service parameters and performance indicators, and describe any steps
they take to monitor whether the service functions properly. WCB and
OEA also require providers to state whether they, as opposed to the
correctional facilities, provide any broadband connection needed for
the providers' IPCS offerings; the extent to which they use those
connections to provide audio as well as video IPCS; and the extent to
which facilities use those connections for their own communications.
31. Infrastructure. WCB and OEA require providers to describe the
infrastructure they used to provide video IPCS, including any
infrastructure that is located within correctional facilities. WCB and
OEA find that information on the type of infrastructure facilities
deployed and its technical capabilities, to the extent the providers
have that information, will help the Commission evaluate providers'
video IPCS offerings. Accordingly, WCB and OEA have added a question to
the Word template that directs providers to explain whether they, as
opposed to the facilities they serve, provide and maintain any
infrastructure that is located within facilities. WCB and OEA also
direct providers to submit any information they have on the nature and
capabilities (e.g., speed and latency) of the video IPCS infrastructure
located within the facilities they serve, including use and general
capability of Wi-Fi routers, if known.
32. Data Storage. WCB and OEA add additional inquiries to the Word
template designed to capture data on the storage costs associated with
video IPCS in comparison to audio IPCS, as well as other information
regarding data storage policies and practices. Based on information in
publicly available contracts, the Wright Petitioners suggest expanding
the data storage-related questions to request information on data
retention policies and the data processing and analysis costs
associated with video IPCS. WCB and OEA agree that additional questions
regarding the quantity of data stored and the storage period will help
the Commission understand the costs associated with video IPCS.
Likewise, if, as the Wright Petitioners suggest, data storage costs
vary depending on the storage method and underlying technology used,
information on those factors may also be useful to help the Commission
discharge its ratemaking responsibilities. WCB and OEA therefore
include an additional narrative request asking providers to explain
these matters. WCB and OEA find that allowing providers to submit a
narrative response to this request imposes less of a burden on
providers than would a more granular approach, such as requiring
providers to report this information on a facility-by-facility basis.
33. Other Video IPCS Information. WCB and OEA also add questions
about how providers market and sell video IPCS to consumers. These
questions include inquiries regarding whether video IPCS is offered as
a stand-alone service or is ``bundled'' with other services. WCB and
OEA also include questions asking whether video IPCS rates are based on
minutes of use, number of communications, or data usage, and whether
there are any limitations or conditions on how incarcerated people may
use video IPCS. WCB and OEA find that these questions provide the best
approach for ensuring that the data collection captures information on
providers' rate structures and practices affecting video IPCS.
34. WCB and OEA decline to adopt one commenter's proposal that WCB
and OEA require providers to ``track and report usage data for apps
that are not free to the end-user.'' Although such usage data might be
helpful in providing context for the provision of IPCS on tablets and
any associated costs, that is not the focus of this collection. Rather,
WCB and OEA directly address the fundamental elements of providing IPCS
on tablets by requiring providers to submit data on video sessions,
audio minutes, and inputs for providing audio and video IPCS (e.g.,
hardware, software, and network connectivity), as well as costs
exclusively attributable to IPCS versus other services. WCB and OEA
find that these questions are sufficient to address, and more directly
target, any issues that may be particular to the provision of IPCS on
tablets.
6. Site Commissions
35. As a general matter, WCB and OEA adopt the questions concerning
company-wide and facility-level site commissions proposed in the Public
Notice, which were largely based on the Third Mandatory Data
Collection, as well as the proposed updates to the related instructions
and templates. Those updates include additional questions seeking
information on interstate, intrastate, and international site
commissions, as well as information concerning site commissions for
both audio and video services. No commenter opposed the adoption of
this general framework. The Wright Petitioners additionally propose
that the instructions include a diagram or chart explaining the
structure of the site commission data requests. WCB and OEA agree that
visual aids may improve the accuracy and consistency of the data
reporting by helping providers better understand how to allocate their
data among the different categories of site commissions. Accordingly,
WCB and OEA have added diagrams to the instructions.
36. WCB and OEA decline, however, to adopt the related request that
they add instructions requiring providers to report specific details
regarding each type of site commission. The updated
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instructions and templates already require providers to submit this
level of detail at the facility-level. For instance, with regard to
what qualifies as a legally mandated site commission, the instructions
require that providers include a citation to the authority requiring
such payment in the attached Excel template. Moreover, for in-kind site
commissions, the Word template requires providers to describe ``each
payment, gift, exchange of services or goods, fee, technology
allowance, or product provided to the Facility that [the provider]
classif[ies] as an In-Kind Site Commission payment'' for both legally
mandated and contractually prescribed site commissions. Thus, the
instructions and templates are already designed to provide the level of
transparency sought.
C. Specific Instructions
1. Definitions
37. Commenters generally support or do not comment on the proposed
definitions. WCB and OEA therefore adopt the proposed definitions with
certain modifications, as explained below.
38. Audio IPCS and Video IPCS. The proposed instructions included a
definition of ``IPCS,'' but did not separately define ``Audio IPCS'' or
``Video IPCS.'' WCB and OEA adopt a request that they define each of
these terms because cost allocation is required ``between audio IPCS
and video IPCS,'' and defining the relevant terms will help avoid
potential confusion in making this allocation. WCB and OEA therefore
add the following definitions to the instructions:
Audio IPCS means, for the purpose of this data collection, all
services classified as inmate calling services within the meaning of
47 CFR 64.6000(j), including (a) Interconnected VoIP; (b) Non-
interconnected VoIP; (c) all Telecommunications Relay Services
(TRS), including the use of a device or transmission service to
access TRS; and (d) all point-to-point video services made available
to incarcerated people for communication in American Sign Language
(ASL) with other ASL users.
Video IPCS means any video communications service used by
incarcerated people for the purpose of communicating with
individuals outside the correctional institution where the people
are incarcerated, regardless of the technology used. It typically
includes an integrated audio component, and excludes all services
classified as Audio IPCS, as well as Other Products and Services,
such as one-way entertainment, educational, religious, vocational,
and instructional programming.
39. WCB and OEA decline to restrict the definitions of Audio IPCS
``to voice-only calling services using either circuit switched or VoIP
technology'' and Video IPCS ``to real-time remote or on-site video
visitation services,'' as one commenter suggests. The Martha Wright-
Reed Act unequivocally expands the definition of IPCS to include
advanced communications services. Advanced communications services
broadly include ``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.'' WCB and OEA therefore do not limit the definitions
of Audio IPCS or Video IPCS to specific types of technology used to
transmit the services.
40. Safety and Security Measures. WCB and OEA proposed a broad
definition of ``safety and security measures,'' in accordance with the
Martha Wright-Reed Act's directive 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. This
approach was designed to allow the Commission the broadest possible
view of the costs that providers and facilities incur. WCB and OEA
agree, however, with Pay Tel's observation that the proposed definition
is ``so broad as to encompass the entirety of IPCS.'' To eliminate this
issue, WCB and OEA revise the definition of ``safety and security
measures'' to read:
[A]ny safety or security surveillance system, product, or
service, including any such system, product, or service that: helps
the Facility ensure that Incarcerated People do not communicate with
persons they are not allowed to communicate with; helps monitor and
record on-going communications; or inspects and analyzes recorded
communications. Safety and Security Measures also include other
related systems, products, and services, such as a voice biometrics
system, a PIN system, or a system concerning the administration of
subpoenas concerning communications. The classification of a system,
product, or service as a Safety and Security Measure does not mean
that it is part of a Provider's IPCS-Related Operations.
41. Provider, Contractor, and Subcontractor. In the proposed
definitions, WCB and OEA sought to clarify the relationship between two
types of IPCS providers--contractors and subcontractors--to provide
notice of filing obligations to entities that may not have previously
been subject to the Commission's authority. WCB and OEA conclude,
however, that further revisions are necessary. Pay Tel suggests that
the Commission ``should take steps to ensure that it is apprised of
situations where multiple entities are involved in providing a covered
service to avoid instances of incomplete or duplicated data.'' While it
does not explain what the Commission should do in the event multiple
entities are involved in the provision of IPCS, WCB and OEA agree that
clarification of the definitions of ``Provider'' and ``Subcontractor''
will ensure WCB and OEA receive the data necessary to achieve ``insight
into overall service costs.'' WCB and OEA therefore amend the proposed
definitions of ``Provider'' and ``Subcontractor'' to make clear that
any contractor or subcontractor that is providing IPCS, regardless of
whether that entity has a contract directly with the facility or with
another provider, is considered to be a provider for the purposes of
the data collection.
42. Facility. In the proposed instructions, WCB and OEA proposed
including definitions for several synonyms for the term ``Facility,''
given the apparently interchangeable use of different terms in both the
Martha Wright-Reed Act and the Commission's rules. One provider
suggests eliminating the four separate terms used ``to reference a
prison or jail,'' and points out that ``the Instructions themselves
repeatedly use the term Facility.'' WCB and OEA agree that the
inclusion of these terms is redundant and could cause confusion. WCB
and OEA therefore delete the defined terms ``Correctional Facility,''
``Correctional Institution,'' and ``Detention Facility'' and edit the
definition of ``Facility'' to include these terms synonymously. WCB and
OEA likewise make conforming edits to refer only to ``Facility''
throughout the final instructions, templates, and certification form.
43. Miscellaneous Definitional Edits. WCB and OEA have also made
various administrative revisions to the definitions. These include
grammatical corrections, consistent use of terms, and other non-
substantive edits.
2. Facility-Specific Data
44. WCB and OEA adopt, in modified form, the suggestion that WCB
and OEA require providers to indicate via a checkbox ``whether
[facility-specific] data submitted is at the facility level or has been
allocated from a contract, in order to ensure that contract-level data
is correctly allocated to the facility level.'' WCB and OEA find that
obtaining this information may help eliminate confusion when attempting
to understand how providers arrived at the amounts reported in their
cost categories. However, WCB and OEA
[[Page 51246]]
determine that this area is too nuanced for a checkbox and therefore
revise the Word template to direct providers to identify whether the
facility-specific data they report were recorded at the company,
contract, or facility level. This requirement will clarify whether data
were recorded at the facility-level or whether they have been allocated
and must be justified. Because this step would be helpful and impose
only minimal burdens on reporting providers, WCB and OEA add this
question to the Word template.
3. Telecommunications Relay Services Costs
45. WCB and OEA amend the Word template to allow providers the
option of providing information regarding any cost increases resulting
from the TRS requirements adopted in the 2022 ICS Order. In that order,
the Commission adopted several requirements to improve access to
communications services for incarcerated people with communication
disabilities. IPCS providers must provide incarcerated people with
communications disabilities with 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 totals 50 or more persons. It also required that where
inmate calling service 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 clarified and expanded the scope of the
restrictions on inmate calling service providers assessing charges for
TRS calls, expanded the scope of the required Annual Reports to reflect
the above changes, and modified TRS user registration requirements to
facilitate the use of TRS by eligible incarcerated persons. Providers
have had to comply with certain of these requirements (i.e., the
limitations on charging) since they became effective earlier this year,
while compliance with other requirements is mandated beginning January
1, 2024, or, in some cases, pending approval by the Office of
Management and Budget pursuant to the Paperwork Reduction Act.
46. Because this data collection seeks data only for calendar year
2022, providers' submissions will not fully reflect any additional
costs they incur in complying with the new TRS requirements. In
recognition of this fact, Securus and Pay Tel urge that providers be
given the option of submitting data estimating the costs of
implementing the new requirements, even if those costs were not
incurred in calendar year 2022. WCB and OEA find this suggestion
reasonable and therefore modify the Word template to allow, but not
require, providers to report their estimates of their annual
incremental costs of complying with the TRS requirements adopted in the
2022 ICS Order, to the extent those costs are not reflected in their
data for 2022. Annual incremental costs of TRS compliance are those the
provider would not have incurred but for its compliance with these TRS
requirements. Shared and common costs will already be reflected in the
data providers will be reporting for 2022 and thus should be excluded
from the annual incremental costs of TRS compliance.
4. Facility Costs of Providing Safety and Security Measures
47. WCB and OEA adopt their proposal to require providers to report
any verifiable and reliable information in their possession about the
costs the facilities they serve incur to provide safety and security
measures in connection with the provision of IPCS, as well as any
verifiable and reliable information on other facility-incurred costs
that are not directly related to safety and security. Any such
information will provide the Commission with a more comprehensive
picture of the total costs of providing IPCS. Pay Tel has encouraged us
to include facilities' costs in any effort to calculate the costs of
IPCS. It argues that facilities incur recoverable costs ``in making
IPCS available'' and supports WCB and OEA's ``efforts to document and
acknowledge these costs.''
48. The record also suggests, however, that providers are ``highly
unlikely'' to have such information on facilities' costs. One commenter
proposes that the Commission develop a reporting template for use by
facilities and seek this information directly from facilities. Although
WCB and OEA acknowledge that facilities may be more likely to have
access to this information than providers, collecting data directly
from facilities would raise a number of difficulties. Any attempt to
seek data directly from facilities would arguably exceed the authority
delegated to WCB and OEA by the Commission regarding this data
collection. Attempting to expand the data collection to include
facilities would also pose significant practical challenges. Doing so
would greatly expand the group of entities subject to the data
collection and would multiply the burdens imposed by the collection.
Furthermore, developing a template, seeking comments, and collecting
responses from facilities would significantly delay the data collection
and could prevent the Commission from meeting the statutory timeframe
established by the Martha Wright-Reed Act. Accordingly, WCB and OEA
decline to adopt this proposal. WCB and OEA emphasize, however, that
the Commission has repeatedly encouraged correctional officials to
submit data on their IPCS-related costs, including any costs they incur
for safety and security measures.
49. Finally, WCB and OEA adopt their proposal to require providers
to be able to produce, on request, documentation sufficient to explain
and justify the accuracy and reliability of any data they report
regarding the costs incurred by facilities. This requirement will
enable the Commission to evaluate the reliability and accuracy of any
such data. It will minimize burdens by not requiring the submission of
such documentation with providers' responses but only requiring the
retention and subsequent production of the relevant documents upon
request--documents which providers would likely retain in the normal
course of business. No commenters challenged this aspect of the
proposal. WCB and OEA find that this requirement will help ensure that
the Commission will be able to evaluate the accuracy and reliability of
the data submitted while adding only a minimal additional burden on
providers.
5. Admissions, Releases, and Turnover Rates
50. WCB and OEA modify the Excel template to make the questions
regarding facility-specific total admissions, total releases, and
weekly turnover rates optional. In the Third Mandatory Data Collection
Order, Third Mandatory Data Collection for Calling Services for
Incarcerated People, Final Rule, 87 FR 16560, March 23, 2022, WCB and
OEA identified these metrics as important to helping the Commission
correct for the possibility that other population metrics, such as
average daily population, might not fully account for all the costs of
providing audio IPCS at smaller jails. WCB and OEA therefore required
the submission of facility-specific data on admissions, releases, and
weekly turnover rates as part of the Third Mandatory Data Collection
and, in the Public Notice, proposed to incorporate that requirement
into the 2023 Mandatory Data Collection. However, WCB and OEA's review
of providers' responses to the Third Mandatory Data Collection, as well
as comments on the proposed instructions, make clear that requiring
these data would impose a significant
[[Page 51247]]
burden on providers without producing meaningful results, due in large
part to difficulties providers encounter in obtaining accurate data
from correctional officials.
51. As one commenter explains, ``IPCS providers do not track or
have adequate information to respond to questions about `weekly
turnover,' `total admissions,' or `total releases' at each correctional
facility they serve.'' Another provider explains that it has ``no way
of gauging the accuracy of this data or whether the sample size was
useful.'' In attempting to balance competing considerations regarding
the potential importance of these data and the relative
inaccessibility, WCB and OEA make the reporting of this information
optional. This approach will reduce the burdens on providers, while
still allowing them to report this information where possible.
6. Bundling
52. WCB and OEA modify the Word template to obtain specific
information on the extent to which providers bundle IPCS with
nonregulated services and on the steps providers employ to ensure that
the costs of their nonregulated services are not allocated to IPCS or
associated ancillary services. Although WCB and OEA did not explicitly
include questions about bundling in their proposals, in the Public
Notice, WCB and OEA sought comment on whether there were ``additional
data'' that providers should be required to submit in response to the
Mandatory Data Collection. The Wright Petitioners explain that bundling
data are needed because providers offer different services that ``may
or may not be bundled together when reporting the data,'' potentially
inflating the costs reported for regulated services.
53. WCB and OEA agree that data on service bundles will assist the
Commission in understanding what services are provided and how they are
provided, and, most importantly, in establishing just and reasonable
IPCS rates. WCB and OEA therefore add questions to the Word template
that direct each provider to report, among other information, whether
it offers regulated and nonregulated services as a bundle and, if so,
to identify each of the components included in the bundle; to identify
which components are regulated or nonregulated and the standalone price
of each component; to state whether bundling affects the provider's
overall costs and, if so, how; and to indicate whether the provider's
bundling practices vary by facility or by contract.
7. Financial Reports
54. WCB and OEA adopt their proposal to require all providers to
submit audited financial statements or reports for 2022, or, in the
absence of an audited financial statement or report, similar financial
documentation for 2022, to the extent produced in the ordinary course
of business.
D. Timeframe for Provider Responses to the Data Collection
55. In the Public Notice, WCB and OEA sought comment on their
proposal to require providers to file their responses to the data
collection within 90 days of the release of this Order. The proposed
timeframe, which admittedly is somewhat shorter than the timeframe for
the previous mandatory data collection, reflects the time constraints
the Martha Wright-Reed Act imposes for ``promulgat[ing] any regulations
necessary to implement'' the Act.
56. Providers instead propose requiring responses to the data
collection 120 days following release of this Order. ViaPath asserts
that ``[p]roviders need a reasonable amount of time to complete the
report'' and Securus comments that ``90 days is an insufficient period
of time'' to respond to the data collection. ViaPath contends that ``a
slight extension of the MDC filing deadline is reasonable.'' WCB and
OEA agree with ViaPath and establish October 31, 2023 as the date on
which provider responses will be due, unless final PRA authority for
this collection is not granted prior to then. Given the date of release
of this Order, this represents an extension of an additional week from
the originally proposed 90-day deadline, which, while not as extensive
as sought, will nonetheless allow providers additional time to prepare
their submissions. WCB and OEA find that granting this extension will
still provide the Commission with sufficient time to promulgate
regulations to implement the Martha Wright-Reed Act consistent with the
Act's time constraints.
E. Digital Equity and Inclusion
57. As part of the Commission's continuing effort to advance
digital equity for all, including people of color, persons with
disabilities, persons who live in rural or Tribal areas, and others who
are or have been historically underserved, marginalized, or adversely
affected by persistent poverty or inequality, WCB and OEA invited
comment on any equity-related considerations and benefits (if any) that
may be associated with the proposals and issues associated with the
data collection. Specifically, WCB and OEA sought comment on how their
proposals for that collection may promote or inhibit advances in
diversity, equity, inclusion, and accessibility.
58. WCB and OEA conclude that the Mandatory Data Collection adopted
here will promote digital equity, particularly for incarcerated people
and their families. 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 inequitable financial burdens unreasonable
rates impose on incarcerated people and their loved ones, while
ensuring that providers are fairly compensated for their services. The
information IPCS providers submit in their data collection responses
will help the Commission advance these goals in accordance with the
Communications Act and the Martha Wright-Reed Act.
III. Procedural Matters
59. Regulatory Flexibility Act. The Regulatory Flexibility Act of
1980, as amended (RFA), requires that an agency prepare a regulatory
flexibility analysis for notice and comment rulemakings, unless the
agency certifies that ``the rule will not, if promulgated, have a
significant economic impact on a substantial number of small
entities.'' Accordingly, WCB and OEA have prepared a Supplemental Final
Regulatory Flexibility Analysis (FRFA) concerning the possible impact
of the rule changes contained in this Order on small entities. The
Supplemental FRFA supplements the Final Regulatory Flexibility Analyses
completed by the Commission in the Rates for Interstate Inmate Calling
Services proceeding and is set forth in Appendix B.
60. Final Paperwork Reduction Act Analysis. The Order contains 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 will be invited to comment
on the new or modified information collection requirements contained in
this proceeding. In addition, WCB and OEA note that pursuant to the
Small Business Paperwork Relief Act of 2002, Public Law 107-198; see 44
U.S.C. 3506(c)(4), WCB and OEA previously sought specific comment on
how the Commission might further reduce the information collection
burden for small business concerns with fewer than 25 employees. WCB
and OEA have
[[Page 51248]]
assessed the effects of the data collection on small business concerns,
including those having fewer than 25 employees, and find that to the
extent such entities are subject to the collection, any further
reduction in the burden of the collection would be inconsistent with
the objectives behind the collection.
61. Congressional Review Act. The Commission will not send a copy
of this Order to Congress and the Government Accountability Office
pursuant to the Congressional Review Act (CRA), see 5 U.S.C.
801(a)(1)(A), because it does not adopt any rule as defined in the CRA,
5 U.S.C. 804(3).
IV. Ordering Clauses
62. Accordingly, it is ordered that, pursuant to the authority
contained in sections 1, 2, 4(i)-(j), 155(c), 201(b), 218, 220, 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, 255, 276, 403,
and 617, and the authority delegated in sections 0.21, 0.91, 0.201(d),
0.271, and 0.291 of the Commission's rules, 47 CFR 0.21, 0.91,
0.201(d), 0.271, 0.291 and paragraphs 84 and 85 of the 2023 IPCS Order,
this Order is adopted.
63. It is further ordered that the Commission's Office of the
Secretary, Reference Information Center, shall send a copy of this
Order, including the Supplemental Final Regulatory Flexibility
Analysis, to the Chief Counsel for Advocacy of the Small Business
Administration.
Supplemental Final Regulatory Flexibility Analysis
64. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), a Supplemental Initial Regulatory Flexibility Analysis
(Supplemental IRFA) was incorporated in the 2023 Mandatory Data
Collection Public Notice, released in April 2023. The Wireline
Competition Bureau (WCB) and the Office of Economics and Analytics
(OEA) sought written public comment on proposals in the Public Notice,
including comment on the Supplemental IRFA. No comments were filed
addressing the Supplemental IRFA. The Public Notice sought comment on
proposals to implement the 2023 Mandatory Data Collection in the
Commission's Incarcerated People's Communications Services (IPCS)
proceeding and supplements the Final Regulatory Flexibility Analyses
completed by the Commission in the Rates for Interstate Inmate Calling
Services and other Commission orders pursuant to which this data
collection will be conducted. This present Supplemental FRFA conforms
to the RFA.
F. Need for, and Objectives of, the Order
1. In the Order, WCB and OEA adopt policies and specific
requirements to implement the forthcoming 2023 Mandatory Data
Collection for IPCS. In the 2023 IPCS Order, the Commission adopted a
new data collection requirement. 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 of 1934, as
amended (the Communications Act). Likewise, it directed WCB and OEA
``to update and restructure the most recent data collection as
appropriate to implement the Martha Wright-Reed Act.''
2. The Order determines the overall scope of the data collection
including: limiting the data collection reporting period to calendar
year 2022; defining cost reporting and cost allocation methodologies;
defining reporting categories; requiring providers to allocate safety
and security measures among seven categories; requiring that providers
submit additional information for video IPCS; and adding questions
concerning company-wide and facility-level site commissions. The Order
also clarifies specific instructions for data collection to provide
clarity for the providers completing the forms. Finally, the Order
establishes that providers must submit responses by October 31, 2023.
Pursuant to their delegated authority, WCB and OEA have prepared
instructions, reporting templates, and a certification form for the
2023 Mandatory Data Collection and are issuing this Order to adopt all
aspects of these documents.
G. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA
3. There were no comments filed that specifically addressed the
proposed rules and policies presented in the Supplemental IRFA.
H. Response to Comments by the Chief Counsel for Advocacy of the Small
Business Administration
4. Pursuant to the Small Business Jobs Act of 2010, which amended
the RFA, the Commission is required to respond to any comments filed by
the Chief Counsel for Advocacy of the Small Business Administration
(SBA), and to provide a detailed statement of any change made to the
proposed rules as a result of those comments. The Chief Counsel did not
file any comments in response to the rules and policies proposed in the
Supplemental IRFA.
I. Description and Estimate of the Number of Small Entities to Which
the 2023 Mandatory Data Collection Will Apply
5. 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 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.
6. 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 Order, for the
Supplemental FRFA, we incorporate by reference from these previous
Regulatory Flexibility Analyses the descriptions and estimates of the
number of small entities that may be impacted by the Order.
J. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities
7. The 2023 Mandatory Data Collection will impose new or modified
reporting, recordkeeping and other compliance obligations on small
entities. The Order requires IPCS providers to submit data and other
information on, among other matters, 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. WCB and OEA estimate that
approximately 30 IPCS providers will be subject to this one-time
reporting requirement. In the aggregate, WCB and OEA estimate that
responses will take approximately 7,950 hours and cost approximately
$493,224.
[[Page 51249]]
K. Steps Taken To Minimize the Significant Economic Impact on Small
Entities and Significant Alternatives Considered
8. The RFA requires an agency to provide, ``a description of the
steps the agency has taken to minimize the significant economic impact
on small entities . . . including a statement of the factual, policy,
and legal reasons for selecting the alternative adopted in the final
rule and why each one of the other significant alternatives to the rule
considered by the agency that affect the impact on small entities was
rejected.''
9. The 2023 Mandatory Data Collection is a one-time collection and
does not impose a recurring obligation on providers. Because the
Commission's 2023 IPCS Order requires all IPCS providers to comply with
the 2023 Mandatory Data Collection, the collection will affect smaller
as well as larger IPCS providers. WCB and OEA have taken steps to
ensure that the data collection template is competitively neutral and
not unduly burdensome for any set of providers and have considered the
economic impact on small entities in finalizing the instructions and
the template for the 2023 Mandatory Data Collection. For example, the
2023 Mandatory Data Collection requires the collection of data for a
single calendar year instead of three calendar years, as in previous
data collection. In response to the comments, WCB and OEA have refined
certain aspects of the data collection, including modifying the
treatment of audio IPCS and safety and security measures, clarifying
the reporting of costs related to site commissions, and revising
certain proposed definitions. WCB and OEA have also revised
instructions for cost reporting and cost allocation that will help the
Commission understand the nature of the reported costs, without
imposing significant additional burdens on providers. WCB and OEA
reorganized instructions for our proposed seven-category framework for
reporting safety and security measure costs to simply them and increase
clarity. Further, the instructions for the data collection include
relevant diagrams to facilitate providers' responses and improve the
accuracy and consistency of the data they report. The instructions
allow, but do not require, providers to subdivide their audio and video
IPCS costs into more discrete categories based on the type of audio or
video service being provided, as some parties suggest, to give
providers greater flexibility in reporting these costs.
10. WCB and OEA considered but rejected alternative proposals to
allow providers to use their own allocation methodologies because of
the undue burden it would have on the interested parties and the
Commission to analyze and correct inconsistent responses. The
modifications adopted in the Order avoid unduly burdening small and
other responding providers while ensuring that providers have
sufficiently detailed and specific instructions to respond to the data
collection. The data collection also makes certain questions optional
to reduce reporting burdens, including the questions regarding
correctional facility-specific total admissions, total releases, and
weekly turnover rates.
L. Report to Congress
11. The Commission will send a copy of the Order, including this
Supplemental FRFA, in a report to be sent to Congress pursuant to the
Congressional Review Act. In addition, the Commission will send a copy
of the Order, including this Supplemental FRFA, to the Chief Counsel
for Advocacy of the Small Business Administration. A copy of the Order,
and Supplemental FRFA (or summaries thereof) will also be published in
the Federal Register.
Federal Communications Commission.
Jodie May,
Chief, Competition Policy Division, Wireline Competition Bureau.
Note: The following appendix, 2023 Mandatory Data Collection
Instructions and Template, will not appear in the Code of Federal
Regulations.
[FR Doc. 2023-16305 Filed 8-1-23; 4:15 pm]
BILLING CODE 6712-01-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on August 3, 2023.
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