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Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Rules and Regulations
the Commission concluded that inmate calling services providers are generally prohibited from imposing any ancillary service charges other than those permitted by the Commissions rules, and providers are generally prohibited from imposing charges in excess of the Commissions applicable ancillary service fee caps.
21. Second, the Commission proposed rate reform of the inmate calling services within its jurisdiction. As a result of the D.C. Circuits decisions, the interim interstate rate caps of $0.21 per minute for debit and prepaid calls and $0.25 per minute for collect calls that the Commission adopted in 2013 remain in effect today. Commission staff performed extensive analyses of the data it collected in the Second Mandatory Data Collection as well as the data in the April 1, 2020, annual reports. In the 2015 ICS Order, the Commission directed that the Second Mandatory Data Collection be conducted two years from publication of Office of Management and Budget OMB
approval of the information collection.
The Commission received OMB
approval in January 2017, and Federal Register publication occurred on March 1, 2017. Accordingly, on March 1, 2019, inmate calling services providers submitted their responses to the Second Mandatory Data Collection. WCB and the Office of Economics and Analytics OEA undertook a comprehensive analysis of the Second Mandatory Data Collection responses, and conducted multiple follow-up discussions with providers to supplement and clarify their responses, in order to conduct the data analysis upon which the proposals in the August 2020 ICS Notice are based. Based on that analysis, the Commission proposed to lower the interstate rate caps to $0.14 per minute for debit, prepaid, and collect calls from prisons and $0.16 per minute for debit, prepaid, and collect calls from jails. In so doing, the Commission used a methodology that addresses the flaws underlying the Commissions 2015 and 2016 rate caps which used industrywide averages to set rate caps and that is consistent with the mandate in section 276 of the Act that inmate calling services providers be fairly compensated for each and every completed interstate call. The Commissions methodology included a proposed 10% reduction in GTLs costs to account, in part, for seemingly substantially overstated costs. The Commission also proposed to adopt a waiver process that would permit providers to seek waivers of the proposed rate caps on a facility-by-

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facility or contract basis if the rate caps would prevent a provider from recovering the costs of providing interstate inmate calling services at a facility or facilities covered by a contract. The 2020 ICS Notice also proposed to adopt a rate cap formula for international inmate calling services calls that permits a provider to charge a rate up to the sum of the inmate calling services providers per-minute interstate rate cap for that correctional facility plus the amount that the provider must pay its underlying international service provider for that call on a per-minute basis without a markup. The Commission explained that this cap would enable inmate calling services providers to account for widely varying costs, be consistent with the just and reasonable standard in section 201b of the Act, and comport with the fair compensation provision of section 276 of the Act.
22. In response to the 2020 ICS
Notice, the Commission received over 90 comments and reply comments and 9 economic studies. Filers included providers of calling services to incarcerated people, public interest groups and advocates for the incarcerated, telecommunications companies, organizations representing individuals who are deaf or hard of hearing, and providers of telecommunications relay service.
23. Intrastate Rate Reform Efforts. By April 1 of each year, inmate calling services providers file annual reports with the Commission that include rates, ancillary service charges, and site commissions. In an effort to compare interstate inmate calling services rate levels with intrastate rate levels, Commission staff analyzed the intrastate rate data submitted as part of the providers April 1, 2020, annual reports.
Commission staffs review revealed that intrastate rates for debit or prepaid calls exceed interstate rates in 45 states, with 33 states allowing rates that are at least double the Commissions interstate cap and 27 states allowing first-minute charges that can be more than 25 times that of the first minute of an interstate call. For example, one provider reported a first-minute intrastate rate of $5.34
and additional per-minute intrastate rates of $1.39 while reporting the perminute interstate rate of $0.21 for the same correctional facility. Similarly, another provider reported a first-minute intrastate rate of $6.50 and an additional per-minute intrastate rate of $1.25 while reporting the per-minute interstate rate of $0.25 for the same correctional facility. Further, Commission staff identified instances in which a 15minute intrastate debit or prepaid call
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costs as much as $24.80almost seven times more than the maximum $3.15
that an interstate call of the same duration would cost.
24. In light of these data, in September 2020, former Chairman Pai and Brandon Presley, then president of the National Association of Regulatory Utility Commissioners NARUC, jointly sent a letter to the co-chairs of the National Governors Association urging state governments to take action to reduce intrastate rates and related fees.
At least one state has enacted a law to reduce intrastate inmate calling services rates and fees, at least one state commenced a regulatory proceeding aimed at reducing intrastate inmate calling services rates and fees, and several states are considering legislation.
III. Order On Reconsideration 25. The Commission denies the GTL
Petition in full on the merits and, independently, dismisses that petition as procedurally defective, insofar as it relies on arguments the Commission already considered and rejected in the underlying order. The Commission considered and rejected GTLs arguments regarding so-called Commission precedent purporting to establish a general policy of reliance on NPANXX as a proxy for jurisdiction and whether the Commissions statement required prior notice and an opportunity to comment. GTL seeks reconsideration of a single sentence from the 2020 ICS Order on Remand, reiterating that the jurisdictional nature of a call depends on the physical location of the endpoints of the call and not on whether the area code or NXX
prefix of the telephone number . . .
associated with the account, are associated with a particular state. GTL
claims that this sentence 1 ignores telecommunications carriers historical reliance on NPANXX codes to classify calls as interstate or intrastate; 2
unfairly singles out providers of calling services for incarcerated people; 3
presents implementation issues; 4
potentially compromises state programs funded by assessments on intrastate revenues; and 5 promulgates a new rule without notice and an opportunity to comment. The Commission finds each of these claims to be without merit and affirm the Commissions continued use of the traditional end-to-end jurisdictional analysis relied upon in the 2020 ICS Order on Remand.
E. Background 26. Last year, the Commission responded to the D.C. Circuits directive that it consider whether ancillary
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