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Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Rules and Regulations similar to mobile service, but distinct from fixed telephony service. Overthe-top VoIP providers are VoIP
providers that are not facilities-based.
The consumer of an over-the-top VoIP
service uses an independent data service over a broadband connection.
The Commissions December 2019 FCC
Form 477 data reflected 12.9 million over-the-top VoIP subscriptions in the United States at that time. Subscribers to these services can readily move to other rate centers throughout the country while retaining their telephone numbers. And nearly half of all assigned telephone numbers are associated with wireless phones, which is unsurprising given that the majority of households in the United States no longer subscribe to a landline service. The combination of the Commissions number portability orders and the significant technological changes to the communications marketplace means that NPANXX
codes reflected in telephone numbers are often subject to movement across state lines, on a permanent, nomadic, or mobile basis, making them unreliable as a geographic indicator of endpoints for a given call. As the foregoing analysis suggests, only where the calling party here, the incarcerated person and the called party each have wireline telephone numbers, can an inmate calling services provider reasonably and reliably determine the jurisdictional nature of a call between those parties based on the NPANXX codes of the originating and terminating telephone numbers. That is the case because the Commissions rules require the NPA
NXX of a wireline telephone subscriber to necessarily physically remain within the particular rate center from which each wireline telephone number originated. Unlike for wireless voice service and nomadic VoIP service, the Commissions number porting rules do not permit telephone numbers of wireline subscribers to port across rate center boundaries.
39. GTL next complains that the Commissions confirmation of the endto-end analysis inappropriately singles out inmate calling services providers, and that the Commission cannot target particular classes of telecommunications service providers in its rulemaking when the legal basis for it and the criticisms that undergird it are of universal applicability. This complaint is completely without merit.
The Commission has not singled out inmate calling services providers for disparate treatment. The end-to-end analysis is, and remains, the generally applicable, default standard for all telecommunications carriersnot just
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inmate calling services providersfor determining the jurisdictional classification of a telephone call. In addition, inmate calling services providers are unlike other telecommunications carriers. Calling service providers have a captive consumer base at each correctional facility they serve for which they rarely, if ever, offer all-distance calling plans with uniform rates and charges for intrastate and interstate calls as do most, if not all, other telecommunications services providers. Indeed, inmate calling services providers typically have a myriad of different rates and charges applicable to different jurisdictional call types i.e., intraLATA intrastate, interLATA intrastate, intraLATA
interstate, and interLATA interstate.
And while providers have not explained in detail what their resale arrangements with underlying telecommunications carriers entail, it is the Commissions understanding that providers typically pay a flat rate for all minutes of use except for international calling regardless of the jurisdictional nature of the call. Calling service providers continue to charge incarcerated people or their families different rates and charges purportedly based on differences in costs to serve these different call types, even though those rates are based on fictional determinations that have nothing to do with actual geographic endpoints, except in the case of wireline-towireline calls.
40. As explained above, the generally accepted method of determining the jurisdictional nature of any given call is by an end-to-end analysis. Thus, contrary to the providers claims, jurisdictional proxies are the exception, not the rule. It is only where the Commission has found it difficult to apply an end-to-end approach for jurisdictional purposes, that it has proposed or adopted proxy or allocation mechanisms to approximate the end-toend result. The Commission subsequently adopted permissible proxies for determining what portion of such jurisdictionally indeterminate VoIP services to attribute to the interstate jurisdiction for Universal Service Fund USF payment purposes, but such proxies did not pertain to classifying the underlying calls as either interstate or intrastate for purposes of billing consumers different rates for telephone calls. In the Vonage Order, for example, the Commission expressly declined to adopt the use of proxies for determining whether a call was jurisdictionally intrastate or interstate or to address the conflict between federal
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and state regulatory regimes. Indeed, GTL itself recognized the general applicability of the end-to-end analysis in its comments on the Ancillary Services Refresh Public Notice, explaining that the jurisdictional nature of calls themselves is easily classified as either interstate or intrastate based on the calls points of origination and termination. This accords with the Commissions traditional end-to-end analysis for determining jurisdictional boundaries beginning with the end point at the inception of a communication to the end point at its completion. GTL fails to explain how the application of the Commissions long-established approach for determining the appropriate jurisdiction of a call unfairly singles out providers of calling services for incarcerated people given that, by GTLs own admission, the Commission generally applies this traditional analysis to all telecommunications providers.
41. Because an NPANXX code frequently fails to provide any indication of the actual physical location of a called party unless it is known that the called party is a wireline telephone subscriber, it generally cannot be relied upon to determine the jurisdictional nature of a call. As the Commission stated in the 2020 ICS
Order on Remand, to do so would undercut interstate callers federal protection from unjust and unreasonable interstate charges and practices.
42. GTL also alleges, through reliance on decades-old discussions of rating based on NPANXX and industry guides, that there are technical barriers that prevent providers of calling services for incarcerated people from applying the traditional end-to-end analysis. These allegations arise from the fact that providers rely on third parties to classify the jurisdiction of calls. As GTL explains it, calls from correctional facilities, whether to wireline, wireless, or VoIP numbers, are handed off to unaffiliated thirdparty telecommunications service providers that route them across the public switched telephone network to their appropriate termination point, based on the called numbers entry in the Local Exchange Routing Guide.
The Local Exchange Routing Guide LERG is an industry guide generally used by carriers in their network planning and engineering and numbering administration. It contains information regarding all North American central offices and end offices. GTL adds that inmate calling services providers assess charges on
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