Csaap, Confronting Confinement, Appendices C-g
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APPENDIX C APPENDIX D AMERICAN BAR ASSOCIATION ADOPTED BY THE HOUSE OF DELEGATES August 8-9, 2005 RECOMMENDATION RESOLVED, That the American Bar Association encourages federal, state, territorial and local governments, consistent with sound correctional management, law enforcement and national security principles, to afford prison and jail inmates reasonable opportunity to maintain telephonic communication with the free community, and to offer telephone services in the correctional setting with an appropriate range of options at the lowest possible rates. 1 115B REPORT Telecommunications services are integral to human interaction in today’s society. Accessing these services is especially important to people who are incarcerated, separated from family, friends and legal counsel by the fact of incarceration. Telephone access is particularly important for the significant percentage of the incarcerated population with limited literacy skills.1 Leaders in the corrections profession have long recognized the importance of extending telephone privileges to people in their custody as a means of fostering and strengthening ties with their families and their communities.2 Telephone access can be a critical component of a prisoner’s successful transition to a productive, law-abiding life after leaving prison.3 It can also contribute to safer prisons by reducing the number of disciplinary incidents.4 At the same time, we recognize that the desire to provide robust communications services to prisoners remains in tension with legitimate penological constraints of the correctional setting.5 Although recognizing the importance of providing expansive telephone privileges, many correctional systems engage in practices that make it difficult, if not impossible, for incarcerated people to use the telephone. First, many correctional facilities only permit prisoners to make 1 Approximately 40% of the national prison population is functionally illiterate. The Center on Crime, Communities & Culture, Education as Crime Prevention: Providing Education to Prisoners, Research Brief: Occasional Paper Series 2 (Sept. 1997). 2 See, e.g., the October 1996 Resolution on Excessive Phone Tarriffs adopted by the American Correctional Association (ACA); ACA’s Public Correctional Policy on Inmate/Juvenile Offender Access to Telephone (adopted 24 January 2001); and ACA’s related standards (Standards for Adult Correctional Institutions (3rd ed.); Standards for Adult Local Detention Facilities (3rd ed.); Standards for Adult Community Residential Facilities (4th ed.); Standards for Adult Correctional Boot Camp Programs (1st ed.); Standards for Juvenile Community Residential Facilities (3rd ed.); Standards for Juvenile Detention Facilities (3rd ed.); Standards for Juvenile Correctional Boot Camp Programs (1st ed.); Standards for Juvenile Training Schools (3rd ed.); Standards for Small Juvenile Detention Facilities (1st ed.); and Small Jail Facilities (1st ed.)). See also, the National Sheriffs’ Association Resolution of 14 June 1995; and USDOJ-BOP, Program Statement 5264.06, Telephone Regulations for Inmates (Jan. 31, 2002). 3 See, e.g., U.S. Department of Justice, Office of the Inspector General, Criminal Calls: A Review of the Bureau of Prisons’ Management of Inmate Telephone Privileges, Ch. II, n.6 (Aug. 1999), available at http://www.usdoj.gov/oig/special/9908/callsp2.htm (last accessed 30 January 2005)(“telephone usage and other contacts with family contribute to inmate morale, better staff-inmate interactions, and more connection to the community, which in turn has made them less likely to return to prison….”) and State of Louisiana Department of Public Safety and Corrections, Time in Prison: The Adult Institutions, p. 5 (2004). 4 Bureau of Prisons Program Statement 5264.07, “Telephone Regulations for Inmates,” codified at 28 C.F.R § 540.100 (“Telephone privileges are a supplemental means of maintaining community and family ties that will contribute to an inmate’s personal development. . . . Contact with the public is a valuable tool in the overall correctional process.”); State of Louisiana Department of Public Safety and Corrections, Time in Prison: The Adult Institutions, p. 5 (2004), available at http://www.corrections.state.la.us/Whats%20NEw/PDFs/TimeInPrison.pdf. 5 The “correctional setting” refers to facilities where people are detained or incarcerated, irrespective of their actual status as pretrial, civilly committed, adjudicated, or sentenced. Thus, the Recommendation encompasses jails and other detention facilities, prisons, training schools, residential facilities, and correctional facilities of all types. 2 collect calls. Second, charges for prisoner-initiated telephone calls are high as compared to rates offered in the residential and business markets and, in some cases, excessive.6 In some jurisdictions, escalating prices appear to be driven by “commissions” paid by service providers to correctional facilities for exclusive contracts, which hover in the 30% to 40% range, and can be as high as 65%, of all revenue generated. Third, many correctional systems require telephone service providers to block calls from prisoners to certain prohibited phone numbers for reasons of public safety and crime prevention. Some institutions, however, impose call-blocking requirements for inappropriate reasons, including a local carrier’s failure to enter into a billing agreement with the provider, or because the number called is a cell phone or is a remote call forwarding number. In the case of calls placed to cell phones, many telephone service subscribers are opting for cellular service instead of the more conventional land-line connection. Remote call forwarding is a technology that has been employed by some telephone service providers to compete for business by re-directing calls to customers at costs lower than would otherwise apply. In an age of increasing mobility, it will often be possible to reconcile legitimate security concerns with new technologies. Fourth, many prison systems and jails place unreasonable limits on the number of calls a prisoner is allowed to make or receive, or the aggregate amount of time a prisoner can spend on the telephone during a prescribed period.7 Finally, correctional institutions monitor and record inmate telephone calls routinely, but policies that permit monitoring client-attorney communications in the correctional setting or that unreasonably limit the availability of permissible unmonitored calls threaten fundamental rights regarding the effective assistance of counsel and access to the courts.8 Such policies are presumptively unconstitutional.9 6 “[C]orrectional agencies should discourage profiteering on tarriffs placed on phone calls which are far in excess of the actual cost of the call, and which could discourage or hinder family or community contacts.” ACA’s October 1996 Resolution on Excessive Phone Tarriffs. 7 In Texas prisons, inmate access to telephones is quite limited. “Offenders who demonstrate good behavior can earn one 5-minute collect phone call every 90 days. . . .” Texas Department of Criminal Justice, Correctional Institutions Divisions, Frequently Asked Questions (http://www.tdcj.state.tx.us/faq/faq-cid.htm#telephone)(last accessed 16 January 2005). By comparison, the Federal Bureau of Prisons (BOP) policy is generous. BOP Program Statement 5264.07 entitled, “Telephone Regulations for Inmates,” which was codified at 28 C.F.R § 540.100 et seq., states that inmates are generally permitted privileges to contact up to a maximum of 30 individuals on an approved telephone list for up to 300 minutes per month. P.S. 5264.07, §§ 10.a. (30 numbers), and 10.d.(1)(300 minutes). Although advocating that then-unlimited telephone access be restricted, the Office of the Inspector General found the 300-minute limitation to be “arbitrary.” Criminal Calls, supra n. 3, Ch. VIII, § I. ¶ 1. (Aug. 1999), available at: http://www.usdoj.gov/oig/special/9908/callsp7.htm#Punishments (last accessed 30 January 2005). Indeed, for several consecutive years, the BOP has permitted inmates 400 minutes of telephone access during the months of November and December. 8 The U.S. Attorney General signed a directive on 31 October 2001 authorizing correctional officials to monitor inmate-client/attorney communications under certain circumstances. AG Order No. 2529-2001, 66 FR 55062. That directive was subsequently codified at 28 C.F.R. 501.3 (31 Oct. 2001). 9 See infra, n. 14. 3 As the billed parties for inmate collect calls, the family and friends of incarcerated people regularly shoulder the high cost of prison telephone services. A call recipient is often confronted with a choice of paying exorbitant rates for a collect call from a jail or prison, or refusing it. Many families cannot afford the inflated rates.10 One damaging result is that children are frequently unable to maintain contact with parents who are confined. Arbitrarily blocked calls only exacerbate the situation. Individually and collectively, the foregoing practices also make it more difficult for incarcerated people to communicate with their lawyers. Telephone calls are an efficient means for attorneys to communicate with incarcerated clients, particularly when literacy or Englishspeaking skills are a factor. It is regularly less burdensome for an attorney to speak with a client over the telephone than to travel to the facility and conduct a meeting or personal interview. The high cost of prisoner phone calls makes it difficult or impossible for many prisoners’ lawyers to accept their calls. The vast majority of incarcerated people are represented by public defenders or court-appointed attorneys who operate with extremely limited budgets.11 This has serious implications given the constitutional protections surrounding a prisoner’s ability to communicate with counsel.12 When attorneys are able to accept prisoner calls, the high cost of the calls cuts into the attorneys’ budgets, making it difficult for them to afford other items necessary to their clients’ defense. Correctional administrators struggle with the perennial problem of stretching limited financial resources to meet institutional needs. The lure of telecommunications contracts that promise a return of as much as 65% of all revenue can appear irresistible in the absence of alternative sources of revenue. But entering into such an arrangement creates an ethical quagmire of both real and perceived conflicts which compromise both the professional integrity of correctional officials and the public’s perception. Given the penological and societal benefits that occur when incarcerated people are able to maintain contact with the outside world, the monetary advantages are not worth the human costs. 13 10 See, e.g., In the Matter of: Implementation of Pay Telephone Reclassification and Compensation Provisions of the Telecommunications Act of 1996, Comments of the Ad Hoc Coalition for the Right to Communicate Regarding Petition for Rulemaking or, in the Alternative, Petition to Address Referral Issues in Pending Rulemaking, and accompanying declarations, FCC Docket No. 96-128 (filed 10 March 2004). 11 According to the U.S. Department of Justice, 82% of felony defendants in state cases in the 75 largest counties in the country in 1996, and 66% of felony defendants in federal cases in 1998 were represented by courtappointed attorneys. Department of Justice, Bureau of Justice Statistics, Defense Counsel in Criminal Cases, Nov. 2000. Both public defenders and other court-appointed counsel are paid by the same governments (state and federal) whose monies are used to fund the correctional systems from which inmate telephone calls originate. Given the current fiscal crisis in governments at all levels, exorbitant rates for inmate-generated telephone calls seem particularly pernicious. 12 Compare Alabama v. Shelton, 535 U.S. 654 (2002) and Gideon v. Wainwright, 372 U.S. 335 (1963) (indigent’s constitutional right to counsel in criminal cases) with Lewis v. Casey, 518 U.S. 343 (1996) and Bounds v. Smith, 430 U.S. 817 (1977)(prisoners’ right of access to the courts with regard to certain civil and post-conviction matters). 13 The Nebraska Department of Correctional Services does not accept commissions on inmate telephone charges. Instead, rates are set by the Nebraska Public Service Commission. Nebraska Department of Correctional Services, Frequently Asked Questions, available at: http://www.corrections.state.ne.us/frequent_questions/telephone-index.html (last accessed 30 January 2005). 4 Although some courts have recognized the constitutional problems inherent in correctional policies that make it impossible for prisoners to contact lawyers and others,14 neither the courts15 nor regulatory agencies16 have yet required correctional authorities to abandon solesource contracts and open the prison environment to competition that could result in a broader range of calling options at the lowest possible rates. The resolution encourages federal, state, territorial and local governments to ensure that incarcerated people are afforded a reasonable opportunity to maintain telephonic communication with family and friends in the free community, consistent with the imperatives of correctional management, law enforcement and national security. While the resolution does not go further to specify particular measures correctional authorities must take to ensure the “reasonable 14 Courts have long recognized that the ability to communicate privately with an attorney by telephone is essential to the exercise of the constitutional rights to counsel and to access to the courts. Murphy v. Waller, 51 F.3d 714, 718 & n.7 (7th Cir. 1995)(“Restrictions on a detainee’s telephone privileges that prevented him from contacting his attorney violate the Sixth Amendment right to counsel. . . . In certain limited circumstances, unreasonable restrictions on a detainee’s access to a telephone may also violate the Fourteenth Amendment.”); Tucker v. Randall, 948 F.2d 388, 390-91 (7th Cir. 1991)(denying a pre-trial detainee telephone access to his lawyer for four days would implicate the Sixth Amendment); Johnson-El v. Schoemehl, 878 F.2d 1043, 1051 (8th Cir.1989)(holding that inmates’ challenge to restrictions on the number and time of telephone calls stated a claim for violation of their rights to counsel); Miller v. Carlson, 401 F. Supp. 835 (M.D. Fla. 1975), aff’d & modified on other grounds, 563 F.2d 741 (5th Cir. 1977)(granting a permanent injunction precluding the monitoring and denial of inmates’ telephone calls to their attorneys). See also Dana Beyerle, Making Telephone Calls From Jail Can Be Costly, Times Montgomery Bureau (Sept. 22, 2002)(Etowah, Alabama county jail under court order to provide phones to people incarcerated in the jail based in part on complaints they could not talk to lawyers). They have accordingly held that, when prisons’ collect call-only policies interfere with the ability of incarcerated people to communicate with their lawyers, they may violate these rights. See, e.g., Lynch v. Leis, Docket No. C-1-00-274 (S.D. Ohio Feb. 19, 2002)(holding that where public defender’s office and many private attorneys refused most collect calls, a prison’s collect call-only policy was unconstitutional)(unpublished decision on file with the Brennan Center); In re Ron Grimes, 208 Cal. App. 3d 1175, 1178 (1989)(holding that switch by Humboldt County (California) Jail from coin operated to collect-only calls violated the constitutional rights of people incarcerated there because the public defender’s office, other county departments, and some private attorneys did not accept collect calls). 15 See, e.g., Arsberry v. Illinois, 244 F.3d 558 (7th Cir. 2000). Illinois granted one phone company the exclusive right to provide telephone services to inmates in return for 50 percent of the revenues generated. Prisoners and members of their families challenged the practice as a violation of their free speech rights, as a discriminatory denial of equal protection of the laws, and as a violation of federal anti-trust laws. In the Arsberry case, the United States Court of Appeals for the Seventh Circuit concluded that the practice did not violate the constitution or any federal law. See, also, Daleure v. Kentucky, 119 F. Supp. 2d 683 (W.D. Kentucky 2000)(The court found defendants’ actions did not violate the Constitution); Miranda v. Michigan, 141 F. Supp. 2d 747 (E.D. Mich. 2001)(Plaintiff’s Federal Telecommunications Act claims fell within the primary jurisdiction of the Federal Communications Commission and were dismissed). 16 See, e.g., In the Matter of Wright Petition for Rulemaking or, in the Alternative, Petition to Address Referral Issues in Pending Rulemaking, CC Docket 96-128 (Federal Communications Commission)(decision pending); In re: Petition of Outside Connection, Inc., DA 03-874 (Federal Communications Commission); Voluntary Remand of Inmate Telephone Services Issues. CC Docket No. 96-128 (Federal Communications Commission); and North Carolina Utilities Commission, Docket No. P-100, Sub 84; Docket No. P-55, Sub 1005; and Docket No. P-100, Sub 126, These cases were matters in which prisoner advocates filed briefs, appeared at oral argument, and engaged in discussions with commission personnel, all without success. 5 opportunity” that is urged, there are a number of basic steps that have been identified as deserving of serious consideration. First, correctional authorities should encourage service providers to offer a broad range of calling options, consistent with sound correctional practices. Toll-free calling, debit calling, and collect calling are options that offer different advantages at varying costs. To the extent that existing technology does not permit full access to toll-free numbers for security reasons, correctional authorities should work proactively with telephone service providers to develop and refine technology that extends security features to toll-free calls. Although correctional authorities must be mindful of security concerns when determining what calling options to offer, some telecommunications experts and numerous correctional systems have found that alternatives to collect call-only policies – such as the debit-calling option presently in place in a significant number of facilities – can satisfy legitimate security concerns.17 Second, telephone services in the correctional setting should be offered at the lowest possible rates. A wide range of calling options and fair competition in the marketplace will help control excessive costs. Non-exclusive contracts, contracts with multiple vendors, the provision of debit cards through multiple vendors, and unrestricted vendor access to correctional telephone networks are all measures that promote fair competition which will lead to reasonably priced telephone services for prisoners and their families. Greater oversight of the terms and conditions – particularly the site commissions – of service contracts will enable service providers to lower their cost of service and pass those savings on to consumers. Third, telephone service contracts should expressly forbid call-blocking for any reason other than legitimate law enforcement and national security concerns, requests initiated by the customer, or failure to pay legitimately invoiced charges. Finally, if correctional authorities conclude that limits must be placed on the number of calls a prisoner makes, or on the aggregate amount of telephone time allotted a prisoner in a given period, those limits should be as flexible and generous as possible in light of the many benefits of maintaining ties between incarcerated people, their families, and their communities. Respectfully submitted, Catherine Anderson Chair, Criminal Justice Section August 2005 17 See In the Matter of Wright Petition for Rulemaking or, in the Alternative, Petition to Address Referral Issues in Pending Rulemaking, FCC Docket 96-128, Affidavit of Douglas Dawson. The federal Bureau of Prisons permits prisoners to place calls using debit cards, demonstrating that collect call-only policies are not necessary to maintain prison security. See U.S. Department of Justice, Federal Bureau of Prisons, Memorandum For All Institution Controllers All Trust Fund Supervisors, from Michael A. Atwood, Chief, Trust Fund Branch, Trust Fund Message Number 18-02 (Feb. 8, 2002) at 2. 6 GENERAL INFORMATION FORM 1. Summary of Recommendation. encourages federal, state, territorial and local governments, consistent with the constraints of sound correctional management, law enforcement and national security principles, to afford prison and jail inmates every reasonable opportunity to maintain telephonic communication with the free community, and to offer telephone services in the correctional setting with an appropriate range of options at the lowest possible rates. The proposed resolution encourages federal, state, territorial and local governments to afford incarcerated people every reasonable opportunity to maintain telephonic communication with the free community consistent with the constraints of sound correctional management principles, and to offer the broadest possible range of telephone services in the correctional setting at the lowest possible rates. 2. Approved by Submitting Entity. This recommendation was approved by the Criminal Justice Section Council at its May 1415, 2005 meeting. 3. Similar Recommendations Submitted Previously. This recommendation has not previously been submitted to the House of Delegates or the Board of Governors. 4. 5. Relevant Existing ABA Policies and Affect on These Policies. None. Urgency Requiring Action at this Meeting. The proposed resolution has been the subject of deliberation and discussion among a broad range of people with diverse interests. Drafts of the proposed resolution have been widely circulated, and based upon comments received, the proposed resolution has been repeatedly revised and refined. As it is presently worded, the proposed resolution has been approved by the Corrections and Sentencing Committee of the Criminal Justice Section and is ready for consideration by the Board of Governors and the House of Delegates. 6. Status of Congressional Legislation (If applicable). None. 7. Cost to the Association. None. 8. Disclosure of Interest (If Applicable). No known conflict of interest exists. 7 9. Referrals. Concurrently with submission of this report to the ABA Policy Administration Office for calendaring on the August 2005 House of Delegates agenda, it is being circulated to the following: Sections, Divisions and Forums: All Sections and Divisions 10. Contact Person (Prior to 2005 Annual Meeting). Margaret Love, Esq. Law Office of Margaret Love 1100 Park Street, N.E. Washington, D.C. 20002 Phone : (202) 547-0453 E-Mail : firstname.lastname@example.org 11. Michael S. Hamden, Esq. NC Prisoner Legal Services Inc. 1110 Wake Forest Road Raleigh, NC 27604 Phone: (919)856-2200 E-Mail: email@example.com Contact Persons (Who will present the report to the House). Neal R. Sonnett Law Offices of Neal R. Sonnett One Biscayne Tower Two South Biscayne Blvd. Suite 2 Miami, Florida 33131 Phone: (305) 358-2000 FAX: (305) 358-1233 E-Mail: firstname.lastname@example.org Stephen Saltzburg George Washington University School of Law th 720 20 Street, NW - Room B-303F Washington, DC 20006 Phone: (202) 994-7089 FAX: (202) 994-7143 E-Mail: email@example.com 8 APPENDIX E I 110TH CONGRESS 1ST SESSION H. R. 555 To amend the Communications Act of 1934 to require the Federal Communications Commission to prescribe rules regulating inmate telephone service rates. IN THE HOUSE OF REPRESENTATIVES JANUARY 18, 2007 Mr. RUSH (for himself, Mr. BOUCHER, Mr. GUTIERREZ, Mr. WYNN, Mr. TOWNS, Mr. CLEAVER, and Mr. CUMMINGS) introduced the following bill; which was referred to the Committee on Energy and Commerce A BILL To amend the Communications Act of 1934 to require the Federal Communications Commission to prescribe rules regulating inmate telephone service rates. 1 Be it enacted by the Senate and House of Representa- 2 tives of the United States of America in Congress assembled, 3 SECTION 1. SHORT TITLE. 4 This Act may be cited as the ‘‘Family Telephone Con- 5 nection Protection Act of 2007’’. 6 SEC. 2. FINDINGS. rwilkins on PROD1PC63 with BILLS 7 VerDate Aug 31 2005 The Congress finds that: 8 (1) The telephone is the primary method by 9 which individuals correspond and maintain contact 17:50 Jan 20, 2007 Jkt 059196 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H555.IH H555 2 1 with family members who are incarcerated in correc- 2 tional institutions. 3 (2) Except for emergency purposes, family 4 members are not allowed to call people incarcerated 5 in correctional institutions; incarcerated persons are 6 typically allowed to call family members and other 7 pre-approved individuals only through payphones 8 physically located on the premises of correctional in- 9 stitutions. 10 rwilkins on PROD1PC63 with BILLS 11 (3) Inmate telephone service in correctional institutions often is limited to collect calling. 12 (4) Regardless of whether the prisoners’ calls 13 are placed collect or through a debit account, the 14 prisoners’ family members typically pay for the calls, 15 either through their telephone bills, in the case of 16 collect calls received from prisoners, or by making 17 deposits directly into prisoners’ debit accounts. 18 (5) Innocent citizens are paying excessive tele- 19 phone charges simply due to having a family mem- 20 ber or loved one who is incarcerated. 21 (6) The rates for calls from correctional institu- 22 tions are some of the highest rates in the United 23 States, with some per-minute charges reaching $1 24 and service or connection charges of $3.95 per call. •HR 555 IH VerDate Aug 31 2005 17:50 Jan 20, 2007 Jkt 059196 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H555.IH H555 rwilkins on PROD1PC63 with BILLS 3 1 (7) Information compiled by the Congress and 2 the Federal Communications Commission shows that 3 the high rates are due in part to the lack of competi- 4 tion between telephone companies that provide long 5 distance inmate telephone service to correctional in- 6 stitutions. 7 (8) There are no competitive forces providing 8 incentives for those carriers to lower prices or oper- 9 ate efficiently because, unlike the mass market, only 10 one carrier is typically permitted to provide long dis- 11 tance inmate telephone service within each correc- 12 tional institution. 13 (9) High calling rates also are due in part to 14 commissions that carriers pay to correctional institu- 15 tion administrators for the exclusive right to provide 16 long distance inmate telephone service in a correc- 17 tional facility. In some cases, such commissions ac- 18 count for 50 percent or more of the total charges. 19 (10) The collection of such commissions by cor- 20 rectional institution administrators and state depart- 21 ments of correction based upon interstate tele- 22 communications revenues is a burden on interstate 23 commerce. 24 (11) Due to the lack of competition for tele- 25 phone services within correctional institutions, fami- •HR 555 IH VerDate Aug 31 2005 17:50 Jan 20, 2007 Jkt 059196 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H555.IH H555 rwilkins on PROD1PC63 with BILLS 4 1 lies of people in prison, many of whom have low in- 2 comes, cannot choose the long distance carrier with 3 the lowest calling rates and must pay the excessive 4 rates charged by the carrier having the exclusive 5 right to provide long distance service to the correc- 6 tional institution from which the call originates. 7 (12) It is the policy of the United States to en- 8 sure that all Americans are afforded just and rea- 9 sonable communications services, including those 10 families that pay rates for inmate telephone service. 11 (13) It is clear from various studies that main- 12 taining frequent and meaningful communications be- 13 tween people who are incarcerated and family mem- 14 bers is key to the successful social reintegration of 15 formerly incarcerated individuals. Such contact re- 16 duces recidivism and facilitates rehabilitation, which 17 in turn reduces crime and the future costs of impris- 18 onment. 19 (14) Frequent communications between incar- 20 cerated persons and family members is burdened, 21 and in some cases, prevented, by excessive inmate 22 telephone service rates. Excessive inmate telephone 23 service rates thus weaken the family and community 24 ties that are necessary for successful reentry into so- 25 ciety by persons who were formerly incarcerated and •HR 555 IH VerDate Aug 31 2005 17:50 Jan 20, 2007 Jkt 059196 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H555.IH H555 5 1 the reduction in crime resulting from successful re- 2 entry. 3 (15) The Commission has the expertise and au- 4 thority to regulate inmate telephone service. Because 5 parties to Commission rulemaking proceedings have 6 raised issues regarding its authority to implement 7 meaningful relief for excessive inmate telephone 8 service rates, Congress finds it necessary and appro- 9 priate to reaffirm that the Commission has the au- 10 thority to implement the types of relief set forth in 11 this Act. 12 SEC. 3. RESTRICTIONS ON THE PROVISION OF INMATE 13 14 TELEPHONE SERVICE. (a) DEFINITIONS.—Section 226(a) of the Commu- 15 nications Act of 1934 (47 U.S.C. 226(a)) is amended add- rwilkins on PROD1PC63 with BILLS 16 ing at the end the following new paragraphs: 17 ‘‘(10) The term ‘collect’ or ‘collect call’ refers to 18 a telephone call from a person incarcerated in a cor- 19 rectional institution that is billed to the subscriber 20 receiving the call. 21 ‘‘(11) The term ‘commission’ refers to a fee or 22 other payment by a provider of inmate telephone 23 service to an administrator of a correctional institu- 24 tion, department of correction, or similar entity, •HR 555 IH VerDate Aug 31 2005 17:50 Jan 20, 2007 Jkt 059196 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H555.IH H555 6 1 based upon, or partly upon, inmate telephone service 2 revenue. 3 ‘‘(12) The term ‘debit account’ refers to the 4 payment of inmate telephone service through a pris- 5 oner’s prepaid card or other account, which can be 6 accessed only through an access code, personal iden- 7 tification number, or similar identifier. 8 ‘‘(13) The term ‘inmate telephone service’ in- 9 cludes the provision of telephone service enabling 10 persons incarcerated in correctional institutions to 11 originate interstate calls at payphones or other tele- 12 phones that are designated for prisoners’ personal 13 use, regardless of whether the calls are collect, paid 14 through a debit account, or paid through any other 15 means. 16 ‘‘(14) The term ‘provider of inmate telephone 17 service’ means any common carrier that provides in- 18 mate telephone service or any other person deter- 19 mined by the Commission to be providing inmate 20 telephone service.’’. 21 (b) REGULATIONS.—Section 226 is further amend- 22 ed— 23 rwilkins on PROD1PC63 with BILLS 24 (1) by redesignating subsection (i) as subsection (k); and •HR 555 IH VerDate Aug 31 2005 17:50 Jan 20, 2007 Jkt 059196 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H555.IH H555 7 1 (2) inserting after subsection (h) the following 2 new subsections: 3 ‘‘(i) REGULATION 4 INMATE TELEPHONE SERV- ICE.— 5 ‘‘(1) RATES.—In order to ensure that charges 6 for inmate telephone service are just, reasonable, 7 and nondiscriminatory, the Commission shall con- 8 sider, either in a rulemaking proceeding that is 9 pending as of the date of enactment of the Family 10 Telephone Connection Protection Act of 2007 or in 11 a new rulemaking proceeding, the following types of 12 regulation of inmate telephone service, all of which 13 are within the Commission’s jurisdiction and author- 14 ity: 15 ‘‘(A) prescribing a maximum uniform per- 16 rwilkins on PROD1PC63 with BILLS OF minute compensation rate; 17 ‘‘(B) prescribing a maximum uniform serv- 18 ice connection or other per-call compensation 19 rate; 20 ‘‘(C) prescribing variable maximum com- 21 pensation rates depending on such factors as 22 carrier costs, the size of the correctional facility 23 served, and other relevant factors identified by 24 the Commission; •HR 555 IH VerDate Aug 31 2005 17:50 Jan 20, 2007 Jkt 059196 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H555.IH H555 rwilkins on PROD1PC63 with BILLS 8 1 ‘‘(D) requiring providers of inmate tele- 2 phone service to offer both collect calling and 3 debit account services; 4 ‘‘(E) prohibiting the payment of commis- 5 sions by providers of inmate telephone service 6 to administrators of correctional institutions, 7 departments of correction, and similar entities; 8 and 9 ‘‘(F) requiring administrators of correc- 10 tional institutions, departments of correction, 11 and similar entities to allow more than one pro- 12 vider of inmate telephone service to provide 13 interstate inmate telephone service at a correc- 14 tional institution in order that prisoners have a 15 choice of such providers. 16 ‘‘(2) SCOPE.—The regulations adopted by the 17 Commission shall be technologically neutral and 18 shall not jeopardize legitimate security and penolog- 19 ical interests. To the extent the Commission regula- 20 tions reduce or eliminate the revenue derived by ad- 21 ministrators of correctional institutions, departments 22 of correction, and similar entities from the receipt of 23 commissions, such effects of Commission regulations 24 shall not be considered as jeopardizing or otherwise 25 affecting legitimate security or penological interests. •HR 555 IH VerDate Aug 31 2005 17:50 Jan 20, 2007 Jkt 059196 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H555.IH H555 9 1 ‘‘(3) DEADLINES 2 Commission shall prescribe regulations to implement 3 the provisions of this subsection within one year 4 after the date of enactment of the Family Telephone 5 Connection Protection Act of 2007. The Commission 6 shall review, on a triennial basis, the regulations 7 promulgated under this subsection, including wheth- 8 er any Commission-established compensation rates 9 should be modified. 10 ‘‘(4) STATE PREEMPTION.—To the extent that 11 any State requirements are inconsistent with the 12 Commission’s regulations affecting or pertaining to 13 interstate inmate telephone service, including restric- 14 tions on the payment of commissions based upon 15 interstate inmate telephone service revenues or earn- 16 ings, the Commission’s regulations on such matters 17 shall preempt such State requirements. 18 ‘‘(j) INMATE TELEPHONE SERVICE FULLY SUBJECT 19 rwilkins on PROD1PC63 with BILLS AND PERIODIC REVIEW.—The TO SECTIONS 251 AND 252.— 20 ‘‘(1) Inmate telephone service is fully subject to 21 the requirements of sections 251 and 252 of this 22 Act. 23 ‘‘(2) No provider of inmate telephone service 24 may block or otherwise refuse to carry a call placed 25 by an incarcerated person on the grounds that the •HR 555 IH VerDate Aug 31 2005 17:50 Jan 20, 2007 Jkt 059196 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H555.IH H555 10 1 provider has no contractual or other arrangement 2 with the local exchange carrier serving the intended 3 recipient of the call or other common carrier in- 4 volved in any portion of the transmission of the 5 call.’’. rwilkins on PROD1PC63 with BILLS Æ •HR 555 IH VerDate Aug 31 2005 17:50 Jan 20, 2007 Jkt 059196 PO 00000 Frm 00010 Fmt 6652 Sfmt 6301 E:\BILLS\H555.IH H555 APPENDIX F APPENDIX G