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Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Rules and Regulations service charges can be segregated into interstate and intrastate components to exclude the intrastate components from the reach of the Commissions rules.
The Bureau issued the Ancillary Services Refresh Public Notice, published at 85 FR 9444 Feb. 19, 2020, seeking to refresh the record in light of the D.C. Circuits remand. Based on the record developed in response to that public notice, the Commission found that ancillary service charges generally cannot be practically segregated between the interstate and intrastate jurisdiction except in the limited number of cases where, at the time a charge is imposed and the consumer accepts the charge, the call to which the service is ancillary is a clearly intrastate-only call. Thus, the Commission concluded that providers are generally prohibited from imposing ancillary service charges, other than those explicitly permitted by the Commissions rules, and are also generally prohibited from imposing ancillary service charges in excess of the permitted ancillary service fee caps in the Commissions rules.
27. In the 2020 ICS Order on Remand, the Commission addressed record debate about the jurisdictional classification methodology for certain inmate calling services calls and the ancillary services provided in connection with those calls by reminding providers that the jurisdictional nature of a call depends on the physical locations of the endpoints of the call, rather than on the area codes or NXX prefixes of the telephone numbers used to make and receive the call. GTL and Securus objected to this approach, asserting that relying on a calls endpoints was inconsistent with prior Commission decisions and with providers practice of using NPANXX codes as proxies for jurisdiction. GTL and Securus raised these objections in ex parte filings during the public circulation period of the 2020 ICS Order on Remand but before the Commission adopted that Order on August 6, 2020. GTL and Securus also claimed that the Commissions clarification regarding how carriers are to determine the jurisdictional nature of a call required prior notice and an opportunity to comment. In addition, NCIC questioned the FCCs determination that inmate calling services providers will be able to determine the location of the terminating point of an inmate calling services wireless calland thus determine whether the call is intrastate or interstate in nature.
28. In response to these objections, the Commission explained that although
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it has allowed the use of proxies to determine the jurisdictional nature of certain calls, it has done so only in specific contexts typically related to carrier-to-carrier matters or payment of fees owed and that it never adopted a general policy allowing the broad use of such proxies. The Commission distinguished the so-called precedent cited by GTL and Securus, explaining that none of those decisions established actual Commission policy or practice regarding the use of jurisdictional proxies and that the examples provided relate specifically to carrier-to-carrier arrangements involving intercarrier compensation or applicable federal fees due between carriers and the Commission, not to using a proxy for charging a customer a higher or different rate than it would otherwise be subject to based on whether the customers call is interstate or intrastate. The Commission, therefore, rejected GTLs and Securuss argument that application of the end-to-end analysis required prior notice and an opportunity to comment, explaining that it was merely clarifying the long-established standard that inmate calling services providers must apply in classifying calls for purposes of charging customers the appropriate rates and charges. The Commission further explained that the Bureaus public notice seeking to refresh the record on ancillary service charges in light of the D.C. Circuits remand provided notice of, and a full opportunity to comment on, the jurisdictional status of inmate calling services calls because the public notice sought comment on how to proceed if ancillary services were jurisdictionally mixed and defined jurisdictionally mixed services as those that are capable of communications both between intrastate end points and between interstate end points.
29. In November 2020, GTL filed a petition seeking reconsideration of the application of the end-to-end jurisdictional analysis in the 2020 ICS
Order on Remand. The Bureau released a Public Notice announcing the filing of GTLs Petition and establishing deadlines for oppositions and replies to the Petition. The Bureau received comments from Pay Tel and replies from NCIC and GTL.
F. Discussion 30. Standard of Review. Any interested party may file a petition for reconsideration of a final action in a rulemaking proceeding. Reconsideration may be appropriate when the petitioner demonstrates that the original order contains a material error or omission, or raises additional facts that were not known or did not exist until
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after the petitioners last opportunity to present such matters. Petitions for reconsideration that do not warrant consideration by the Commission include those that: fail to identify any material error, omission, or reason warranting reconsideration; rely on facts or arguments which have not been previously presented to the Commission . . . ; rely on arguments that have been fully considered and rejected by the Commission within the same proceeding; or relate to matters outside the scope of the order for which reconsideration is sought. The Commission may consider facts or arguments not previously presented if:
1 They relate to events which have occurred or circumstances which have changed since the last opportunity to present such matters to the Commission; 2 they were unknown to petitioner until after their last opportunity to present them to the Commission, and the petitioner could not through the exercise of ordinary diligence have learned of the facts or arguments in question prior to such opportunity; or 3 the Commission determines that consideration of the facts or arguments relied on is required in the public interest.
1. GTLs Substantive Arguments Against the End-to-End Analysis Do Not Warrant Reconsideration 31. GTLs Petition provides no new substantive facts or arguments that justify reconsideration of the Commissions application of the end-toend jurisdictional analysis to calling services for incarcerated people.
Although GTL cites various documents it claims establish a general Commission policy on the use of jurisdictional proxies for classifying interstate and intrastate calls, none of the cited documents establish such a policy, especially in the provision of inmate calling services. The Commission is also unpersuaded by GTLs arguments regarding the possible discriminatory treatment of providers of these calling services, its reliance on third parties to make jurisdictional determinations, or its unsubstantiated claims about the effects the Commissions jurisdictional analysis may have on state programs.
32. GTL first argues that the end-toend analysis ignores what it claims is the industry custom and practice of using NPANXX codes to determine whether a call is interstate or intrastate.
GTL asserts that the Commissions prior statements have recognized that using NPANXX is an appropriate industry standard for determining whether a call is interstate or intrastate. In this regard, GTL

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