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Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Rules and Regulations
which they emphasized the urgency of the need for Commission action due to exorbitant inmate calling services rates. The Wright Petitioners proposed benchmark rates for interstate long distance inmate calling services calls and reiterated their request that providers offer debit calling as an alternative option to collect calling. The Commission sought and received comment on both petitions.
9. In 2012, the Commission commenced an inmate calling services rulemaking proceeding by releasing the 2012 ICS Notice seeking comment on, among other matters, the proposals in the Wright Petitioners petitions and whether to establish rate caps for interstate inmate calling services calls.
10. In the 2013 ICS Order, in light of record evidence that rates for calling services used by incarcerated people greatly exceeded the reasonable costs of providing those services, the Commission adopted interim interstate rate caps of $0.21 per minute for debit and prepaid calls and $0.25 per minute for collect calls. These interim interstate rate caps were first adopted in 2013, were readopted in 2015, and remain in effect as a result of the vacatur, by the D.C. Circuit, of the permanent rate caps adopted in the 2015 ICS Order. Under the Commissions rules, Debit Calling means a presubscription or comparable service which allows an Inmate, or someone acting on an Inmates behalf, to fund an account set up through a Provider that can be used to pay for Inmate Calling Services calls originated by the Inmate. Prepaid Calling means a presubscription or comparable service in which a Consumer, other than an Inmate, funds an account set up through a Provider of Inmate Calling Services. Funds from the account can then be used to pay for Inmate Calling Services, including calls that originate with an Inmate. Collect Calling means an arrangement whereby the called party takes affirmative action clearly indicating that it will pay the charges associated with a call originating from an Inmate Telephone.
In the First Mandatory Data Collection, the Commission required all inmate calling services providers to submit data on their underlying costs so that the agency could develop permanent rate caps. In the 2014 ICS Notice, the Commission sought comment on reforming charges for services ancillary to the provision of inmate calling services and on establishing rate caps for both interstate and intrastate calls.
Ancillary service charges are fees that providers assess on calling services used by incarcerated people that are not
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included in the per-minute rates assessed for individual calls.
11. The Commission adopted a comprehensive framework for interstate and intrastate inmate calling services in the 2015 ICS Order, including limits on ancillary service charges and permanent rate caps for interstate and intrastate inmate calling services calls in light of egregiously high rates for inmate calling services calls. Because of continued growth in the number and dollar amount of ancillary service charges that inflated the effective price paid for inmate calling services, the Commission limited permissible ancillary service charges to only five types and capped the charges for each:
1 Fees for Single-Call and Related Servicesbilling arrangements whereby an incarcerated persons collect calls are billed through a third party on a per-call basis, where the called party does not have an account with the inmate calling services provider or does not want to establish an account; 2 Automated Payment Feescredit card payment, debit card payment, and bill processing fees, including fees for payments made by interactive voice response, web, or kiosk; 3 Third-Party Financial Transaction Feesthe exact fees, with no markup, that providers of calling services used by incarcerated people are charged by third parties to transfer money or process financial transactions to facilitate a consumers ability to make account payments via a third party; 4
Live Agent Feesfees associated with the optional use of a live operator to complete inmate calling services transactions; and 5 Paper Bill/
Statement Feesfees associated with providing customers of inmate calling services an optional paper billing statement. The Commission relied on sections 201b and 276 of the Act to adopt rate caps for both interstate and intrastate inmate calling services. The Commission relied on sections 201b and 276 of the Act to adopt rate caps for both interstate and intrastate inmate calling services. The Commission set tiered rate caps of $0.11 per minute for prisons; $0.14 per minute for jails with average daily populations of 1,000 or more; $0.16 per minute for jails with average daily populations of 350 to 999;
and $0.22 per minute for jails having average daily populations of less than 350. The Commission calculated these rate caps using industry-wide average costs based on data from the First Mandatory Data Collection and stated that this approach would allow providers to recover average costs at each and every tier. The Commission did not include site commission
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payments in its permanent rate caps, finding these payments were not costs reasonably related to the provision of inmate calling services. The Commission also readopted the interim interstate rate caps it had adopted in 2013, and extended them to intrastate calls, pending the effectiveness of the new rate caps, and sought comment on whether and how to reform rates for international inmate calling services calls. At the same time, the Commission adopted a Second Mandatory Data Collection to identify trends in the market and form the basis for further reform as well as an annual filing obligation requiring providers to report information on their current operations, including their interstate, intrastate, and international rates as well as their ancillary service charges.
12. In the 2016 ICS Reconsideration Order, the Commission reconsidered its decision to entirely exclude site commission payments from its 2015
permanent rate caps. The Commission increased those permanent rate caps to account for claims that certain correctional facility costs reflected in site commission payments are directly and reasonably related to the provision of inmate calling services. The Commission set the revised rate caps at $0.13 per minute for prisons; $0.19 per minute for jails with average daily populations of 1,000 or more; $0.21 per minute for jails with average daily populations of 350 to 999; and $0.31 per minute for jails with average daily populations of less than 350.
C. Judicial Actions 13. In January 2014, in response to providers petitions for review of the 2013 ICS Order, the D.C. Circuit stayed the application of certain portions of the 2013 ICS Order but allowed the Commissions interim rate caps to remain in effect. Later that year, the court held the petitions for review in abeyance while the Commission proceeded to set permanent rates. In March 2016, in response to providers petitions for review of the 2015 ICS
Order, the D.C. Circuit stayed the application of the 2015 ICS Orders permanent rate caps and ancillary service charge caps for Single Call Services while the appeal was pending.
Single-Call Services mean billing arrangements whereby an Inmates collect calls are billed through a third party on a per-call basis, where the called party does not have an account with the Provider of Inmate Calling Services or does not want to establish an account. Later that month, the court stayed the application of the Commissions interim rate caps to
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