Battle Lines Drawn Over Potential FCC Expansion of Inmate Calling Rules

Communications Daily

January 21, 2016 Thursday

Possible further FCC regulation of inmate calling services drew conflicting responses, receiving support from advocates for inmates and their families, and opposition from most ICS providers and some allies. The inmate advocates generally urged the FCC to promote ICS competition, regulate video calling and international rates, and require more industry reporting and transparency. The providers objected to banning exclusive correctional facility contracts, and extending rate regulation and filing requirements.

Parties filed initial comments, most of which were posted Wednesday, in response to a Further NPRM in docket 12-375 that accompanied the recent order restricting domestic ICS rates and fees (see 1510220059). The commission invited comment "on rates for international calls, promoting competition in the ICS industry, the benefits of a recurring Mandatory Data Collection, as well as a requirement that ICS providers file their ICS contracts with the Commission, video visitation, and other newer technologies to increase ICS options." It also sought comment "on the operations and economic impacts of providing those services as experienced by end users, correctional facilities, and ICS providers."

The FCC should "take steps to introduce competition in the ICS marketplace and to address rates and ancillary fees for international ICS calls," said the Martha Wright Petitioners, a key group in prodding the commission action. "We also support the adoption of rules that require the submission of comprehensive cost and revenue information, along with the submission of ICS contracts. Finally, in light of the ongoing consolidation within the ICS marketplace, the Petitioners urge the FCC to adopt rates and ancillary fees for video visitation and related services, and close any loopholes that permit ICS providers to pass through excessive fees." The American Immigration Lawyers Association and LatinoJustice called international rates "egregiously high" and urged the FCC to cap international ICS and immigration detention center rates at 16 cents a minute. That was backed by the American Civil Liberties Union of New Jersey, New Jersey Advocates for Immigrant Detainees and New York University School of Law Immigrant Rights Clinic.

The Human Rights Defense Center said correctional authorities may discover they can dispense with the "company middlemen" whose "only purpose is to extract money from prisoners and their families." The group said video visitation should be free to inmates and their families, with correctional authorities paying for the services out of their budgets. It also urged capping international rates, restricting third-party financial fees, and mandatory recurring data collection and contract filing by providers.

Prison Policy Initiative said the FCC should extend its ICS phone rate caps and other regulations to video visitation, and bar companies from banning in-person visitation through contractual provisions with correctional authorities. PPI also urged the FCC to ensure electronic messaging helps keep inmate families connected "rather than [be] a technologically advanced avenue for price gouging." Numerous other groups also backed steps to regulate video calling and other advanced services to ensure they benefit inmates and their families. Verizon, which exited the ICS market, also said the FCC shouldn't allow high rates for video and other advanced services. The FCC should ban site commission payments to correctional authorities and allow modest administrative cost recovery as an offset, said Michael Hamden, a lawyer in Chapel Hill, North Carolina, who has advocated for inmate families, in a petition for reconsideration of the recent order.

Securus called potential rules "onerous, unnecessary, and in some instances outside the Commission's jurisdiction." It opposed mandatory intrafacility competition, regulation of video services in jails, mandatory recurring data collection and publication of ICS contracts, and regulation of revenue-sharing agreements with third-party financial vendors. "The Commission already has slashed ICS rates, targeted Ancillary Charges, and imposed unprecedented reporting requirements that will govern this industry on an ongoing basis. The additional measures now contemplated are simply excessive," Securus said.

Global Tel*Link said the FCC shouldn't regulate advanced ICS offerings, apply domestic rate caps to international calls, ban exclusive contracts, or impose recurring data collection duties on providers or require them to file contracts. GTL said the FCC should delay such new action "until the marketplace achieves some degree of regulatory stability," given "the shaky foundation" of commission regulatory policies, which ICS providers are challenging in court. Telmate said new regulation of video calling and other advanced services "risks injuring a nascent industry with the potential to revolutionize positive inmate interaction with the outside world." CenturyLink opposed new regulations and said correctional institutions had "uniformly spoken out against requiring multiple providers" in a facility.

Two California sheriff filings expressed resistance to new rules. The California State Sheriffs' Association opposed banning exclusive ICS contracts, and regulation of video calling and international calling. Los Angeles County Sheriff Jim McDonnell said he supports competition for ICS contracts but opposes requiring multiple providers at individual facilities, and voiced concerns about regulating video calling and other advanced services.

Pay Tel opposed some new regulations, but supported studying and then regulating video calling, video visitation and other advanced services as well as third-party financial transaction fees so that providers can't use them to get around recent rate and fee limits. It said the FCC should also ban provider site-commission payments but allow correctional facilities to recover a "limited per-minute admin-support cost recovery fee."

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