Rates for Interstate Inmate Calling Services, 79020-79027 [2015-31253]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 80, Number 243 (Friday, December 18, 2015)]
[Proposed Rules]
[Pages 79020-79027]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-31253]


=======================================================================
-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[WC Docket No. 12-375; FCC 15-136]


Rates for Interstate Inmate Calling Services

AGENCY: Federal Communications Commission.

ACTION: Proposed rules.

-----------------------------------------------------------------------

SUMMARY: In this document, the Commission seeks comment on ways to 
promote competition for Inmate Calling Services (ICS), video 
visitation, rates for international calls, and considers an array of 
solutions to further address areas of concern in the (ICS) industry.

DATES: Comments due January 19, 2016. Reply comments due February 1, 
2016.

ADDRESSES: You may submit comments, identified by docket number 12-375 
and/or rulemaking number 15-136, by any of the following methods:
    [ssquf] Federal Communications Commission's Web site: https://apps.fcc.gov/ecfs/. Follow the instructions for submitting comments.
    [ssquf] Mail: Federal Communications Commission, 445 12th Street 
SW., Washington, DC 20554.
    [ssquf] People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by email: FCC504@fcc.gov or phone: 202-418-
0530 or TTY: 202-418-0432.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Lynne Engledow, Wireline Competition 
Bureau, Pricing Policy Division, (202) 418-1540 or 
Lynne.Engledow@fcc.gov

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Third 
Further Notice of Proposed Rulemaking, WC Docket: 12-375, released 
November 5, 2015. The full text of this document may be downloaded at 
the following Internet Address: https://transition.fcc.gov/Daily_Releases/Daily_Business/2015/db1105/FCC-15-136A1.pdf.
    The complete text may be purchased from Best Copy and Printing, 
Inc., 445 12th Street SW., Room CY-B402, Washington, DC 20554. To 
request alternative formats for persons with disabilities (e.g. 
accessible format documents, sign language, interpreters, CARTS, etc.) 
send an email to fcc504@fcc.gov or call the Commission's Consumer and 
Governmental Affairs Bureau at (202) 418-0530 or (202) 418-0432 (TTY).
    Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 
CFR 1.415, 1.419, interested parties may file comments and reply 
comments on or before the dates indicated on the first page of this 
document. Comments may be filed using the Commission's Electronic 
Comment Filing System (ECFS). See Electronic Filing of Documents in 
Rulemaking Proceedings, 63 FR 24121 (May 1, 1998).
    [ssquf] Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: https://apps.fcc.gov/ecfs/.
    [ssquf] Paper Filers: Parties who choose to file by paper must file 
an original and one copy of each filing. If more than one docket or 
rulemaking number appears in the caption of this proceeding, filers 
must submit two additional copies for each additional docket or 
rulemaking number.
    Filings can be sent by hand or messenger delivery, by commercial 
overnight courier, or by first-class or overnight U.S. Postal Service 
mail. All filings must be addressed to the Commission's Secretary, 
Office of the Secretary, Federal Communications Commission.
    [ssquf] All hand-delivered or messenger-delivered paper filings for 
the Commission's Secretary must be delivered to FCC Headquarters at 445 
12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 
8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with 
rubber bands or fasteners. Any envelopes and boxes must be disposed of 
before entering the building.
    [ssquf] Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743.
    [ssquf] U.S. Postal Service first-class, Express, and Priority mail 
must be addressed to 445 12th Street SW., Washington DC 20554.
    People with Disabilities: To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an email to fcc504@fcc.gov or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).

I. Discussion

A. Promoting Competition

    1. While we adopted regulations in the November 5, 2015 Report and 
Order to correct failures in the ICS market, the Commission generally 
prefers to rely on competition over regulation. We seek additional 
comment on whether there are ways to promote competition within the ICS 
market to enable the Commission to sunset or eliminate our regulations 
adopted herein in the future. We also seek comment on the extent to 
which the reforms adopted today facilitate a properly functioning 
market.
    2. In the 2012 NPRM, (78 FR 4369) the Commission noted that the 
First Wright Petition asked the Commission to ``mandate the opening of 
the ICS market to competition.'' In the First Wright Petition, the 
Petitioners further requested that the Commission address high ICS 
rates by prohibiting exclusive ICS contracts and collect-call-only 
restrictions at privately administered prisons, and requiring such 
facilities to permit multiple long-distance carriers to interconnect 
with prison telephone systems. The Commission sought comment on these 
proposals but noted that ICS contracts ``are typically exclusive.'' In 
the 2013 Order (78 FR 68005), the Commission observed that while it had 
previously held that competition existed among ICS providers to provide 
service to correctional facilities, facilities opposed the allowance of 
multiple providers due to security concerns. The Commission sought 
comment on whether security issues were still a legitimate reason for 
limiting competition within correctional facilities, and whether any 
technological advances had changed the justification for such exclusive 
use. The Commission asked similar questions in the Second FNPRM, and 
requested comment regarding any costs that may be incurred by the 
introduction of multiple providers within a single facility, any 
additional barriers to competition within a facility, and how to allow

[[Page 79021]]

greater competition without banning exclusive ICS contracts.
    3. In response, commenters raised concern about requiring 
facilities to utilize multiple providers at the same location. Many 
commenters assert that security could be compromised if more than one 
ICS provider operated at a single facility. For instance, GTL notes 
that ``investigators would have to conduct duplicative search 
procedures'' which could compromise ``law enforcement's ability to 
monitor and track inmate calling for victim protection, investigative 
resources, and other public safety purposes.'' Securus warns that 
officers would need to be trained in every system and that having to 
check multiple systems could lead to a delay in officers' ability to 
react. Commenters also note potential increased administrative burdens 
and complexities for correctional facilities in order to install and 
maintain separate telephone systems. Securus asserts such complexities 
could include the need to create complex bids to allow for multiple 
providers, negotiate and oversee multiple contracts, review and process 
vendor payments and address vendor disputes. Commenters assert that 
these increased burdens to correctional facilities would likely lead to 
higher inmate ICS costs. Some commenters say that requiring multiple 
providers per facility could lead small facilities to eliminate ICS 
altogether. GTL states that, ``[i]f provision of ICS at facilities with 
multiple providers is not financially feasible for each provider, then 
facilities will not have multiple providers, regardless of what rules 
the Commission promulgates.'' Some commenters suggest that banning 
exclusive contracts would lead to lower capital investment resulting in 
lower and less predictable call quality. But HRDC suggests that 
``[o]nly when consumers are afforded the choice to select 
telecommunications providers that offer the best service at the lowest 
price will a competitive and free market prevail in the ICS industry.''
    4. We seek additional comment on this issue because the record also 
indicates there may be multiple providers in some facilities. How 
common is this practice? Does it indicate that not all facilities enter 
into exclusive ICS contracts? If the Commission finds it necessary to 
ban exclusive ICS contracts to encourage greater competition in 
providing ICS in correctional institutions, we seek comment on our 
legal authority to do so. Would such a ban serve the express purposes 
of section 276(b)(1), namely to promote competition and the widespread 
deployment of payphone services? How should existing, exclusive ICS 
contracts be treated if the Commission decided to ban exclusive 
contracts? Should they be abrogated, grandfathered, subject to a 
transition period or some other treatment? We seek information on the 
extent to which multiple providers currently serve different regions of 
the country. Specifically, are there even multiple ICS providers 
available to serve each correctional institution? Are there 
correctional facilities that can only be served by one ICS provider?
    5. Are there ways to mitigate concerns raised in the record that 
multiple providers could increase burdens and make it ``more difficult 
. . . to maintain security''? How could allowing competition inside 
correctional institutions decrease end-user rates? Would facilities, as 
suggested in the record, eliminate ICS if the Commission banned 
exclusive contracts? If so, would it be necessary for the Commission to 
take action to prevent this practice? We seek comment on our legal 
authority to do so. Is it feasible for multiple providers to serve the 
same facility without having to build out their own separate 
infrastructure, for example by offering some form of secure, dial-
around service? If so, could the Commission require ICS providers to 
offer such a service? Is it possible for multiple providers to co-exist 
at a single facility without compromising important security features 
and increasing infrastructure and personnel costs? Would technological 
advances address such concerns? Would requiring multiple providers in 
institutions, by prohibiting providers from bidding on exclusive 
contracts, lead to lower capital investment and ultimately affect call 
quality, as suggested by both GTL and Pay Tel? Finally, should the 
Commission, as suggested, first adopt rate and ancillary service charge 
reform and then determine if additional steps are necessary and perhaps 
revisit the idea of intra-facility competition then?

B. Video Calling and Other Advanced Inmate Communications Services

    6. Our core goals for inmates and their families, friends, clergy 
and lawyers remain the same regardless of the technologies used--
ensuring competition and continued widespread deployment of ICS and the 
societal benefits that they bring. Since the Commission adopted the 
2013 Order, we have seen an increase in the use of video calling, 
including video visitation. Given the lack of competitive pressures and 
the market failure the Commission has identified in the ICS market, we 
are concerned that rates for video calling and video visitation 
services that do not meet the definition of ICS could be used as a way 
to allow ICS providers to recover decreased rates as a result of the 
reforms adopted herein. We seek further comment on these newer 
technologies, to gain a better understanding of their use, the costs to 
providers and rates to consumers, and to identify any trend of moving 
away from more traditional ICS technologies. We seek comment on whether 
the incentives that allowed ICS rates to exceed just, reasonable, and 
fair levels might also occur for video calls and the action needed to 
address such issues.
    7. Background. In the Second FNPRM, the Commission sought comment 
on ``the impact of technological advancements on the ICS industry.'' 
The Commission also invited comment on its legal authority to regulate 
the rates for services provided over newer technologies. The Commission 
received insight from commenters, but additional information was 
necessary to gain a fuller understanding of video visitation and other 
advanced services. Accordingly, the Commission asked supplemental 
questions about these services in the Second FNPRM. For example, the 
Commission specifically sought ``a greater factual understanding of the 
availability of these and other services,'' among other issues. The 
record received in response to the Second FNPRM provided us with 
further detail about the issues surrounding these services, but we 
again seek additional information on some questions addressed in both 
the FNPRM and Second FNPRM, as well as other areas that we have 
determined warrant further consideration. We specifically seek comment 
on video calls, including, but not limited to, video visitation, as the 
record indicates that such technology is growing in use in correctional 
institutions. We also ask questions about other advanced services 
described in the record.
    8. Discussion. Video calling has become another way for inmates to 
make contact with the outside world in addition to in-person visits and 
ICS via telephones hanging on the wall. One commenter suggested that 
video visitation systems, ``which allow both video and non-video calls 
at unregulated rates, email, text messaging, face-to-face visits, mail 
and hearing-impaired systems,'' actually compete with ICS providers. We 
seek comment on how pervasive video visitation services are in prisons 
and jails. How many facilities allow such services? Is there a 
difference in availability between prisons and jails? How many 
providers offer these services? Are there

[[Page 79022]]

providers of video visitation that are not also providers of 
traditional ICS, or do the same companies offer both services? Do 
commenters believe certain forms of video visitation are in fact 
distinct from ICS? If so, what feature(s) make them distinct? For 
instance, might intra-institution video visitation facilities that 
require the friend or family member to come to the institution in order 
to have a video visit fall inherently outside the definition of ICS as 
compared to video visitation between the inmate in the institution and 
a friend or family member in a remote location? Do certain forms of 
video visitation use devices other than ``inmate telephones'' as the 
term is defined in our rules? We also ask commenters to provide data on 
the minutes of use for video calls and whether and how these minutes of 
use have grown over the last few years. How common are video visitation 
only companies, as compared to traditional ICS providers?
    9. We are particularly interested in the rates that providers of 
video calls charge for this service compared to traditional ICS. How 
are these rates established? For example, the Illinois Campaign states 
that one provider ``typically charges a dollar a minute for a video 
visit.'' PPI suggests that the rate may fluctuate between as low as 
$0.33 per minute for certain providers up to $1.50 per minute for 
others. We seek detailed information about the rates video visitation 
providers charge for these services. What is a typical rate charged for 
video visitation? Does the rate differ between prisons and jails? How 
much, if at all, do the rates for video visitation fluctuate based on 
the type or size of the facility? If there is a difference between 
charges for facility type or size, what are the reasons for the 
differences? Are the rates for these services different from the rates 
for traditional ICS? If so, what is the justification for the 
difference? To the extent that video visitation providers are charging 
rates that exceed our interim caps, have those providers been able to 
explain why their services are not a form of ICS that is not subject to 
those caps? If there are strictly video visitation providers who do not 
provide other forms of ICS, do their rates differ from those set by 
traditional ICS providers? Does the end-user rate fluctuate by call 
volume or technology used?
    10. What limits or protections would need to be implemented to 
provide relief from or prevent excessive rates for video visitation 
services, to the extent that they are not already being treated as 
forms of ICS? Are the ancillary service charges for video visitation 
comparable to those of traditional ICS? PPI explains that certain ICS 
providers that also provide video visitation charge different amounts 
for credit card transaction fees depending on the technology used by 
the inmate. Is this typical for ancillary fees and charges in general? 
Do video visitation providers bundle this service with traditional ICS 
or other services, and does that affect the rates users pay for video 
visitation? Do providers pay site commissions on video calls? If so, we 
ask commenters to file information on the magnitude of these payments.
    11. News articles and commenters indicate that some ICS providers, 
as a condition for offering video calling, have eliminated in-person 
visitation entirely. We seek comment on how common conditions, such as 
eliminating in-person visits, are to offering video visitation 
services. What cost savings do institutions experience, if any, by 
moving away from in-person visits? What effects do conditions such as 
the elimination of in-person visitation have on inmates and their 
decisions to use video visitation or traditional ICS? Are inmates and 
their families given a choice? Do they have input into the decision to 
eliminate in-person visits? Does the practice of eliminating or 
reducing in-person visitation differ between jails and prisons? The 
record indicates that some video visitation contracts may also include 
a quota system, mandating a minimum number of usages of the technology 
per month. What are the consequences if such quotas are not met? How 
frequently are such conditions included in video visitation contracts? 
Are there other requirements like this that video visitation providers 
include in their contracts? One commenter, for example, hypothesized 
that ``if commissions on phone services are restricted, providers could 
include with the phone services a video visitation system and, as an 
incentive to select them, offer to charge for on-site visits while 
offering a large commission on the consumer paid visitation services to 
compensate for commissions restricted on the inmate phone calling.'' Is 
this a practice that occurs, or is likely to occur in some facilities 
offering video visitation?
    12. We also seek comment on the benefits of video visitation as 
compared to traditional ICS. In facilities that offer both video 
visitation and traditional ICS, what percentage of inmates and their 
families utilize video visitation? For the inmates and families that do 
use video visitation, how frequent is their use? What is the 
comparative percentage between video visitation usage and traditional 
ICS usage? Are inmates and their families more apt to use video 
visitation in jails or prisons, or is there no notable difference based 
on the type or size of facility? We seek comment on the impact video 
calling has on inmate connectivity with friends and family. For 
example, is there evidence that video calling has reduced or increased 
the frequency of connectivity with friends and family because they may 
be charged by the minute, while friends and family do not have to pay 
for an in-person visit?
    13. We seek general comment on the costs to providers of video 
visitation. Are there additional costs to ICS providers in developing, 
provisioning, or offering video visitation services? Are there costs to 
the correctional facilities for provisioning video visitation services? 
Do ancillary service charges and site commissions affect video 
visitation rates? If so, how?
    14. We have made clear that our authority to regulate ICS is 
technology neutral. We also note that certain commenters have 
specifically agreed that we have authority to regulate video 
visitation. For example, PPI suggests that we should ``regulate the 
video visitation industry so that the industry does not shift voice 
calls to video visits.'' To the extent that video visitation is not 
already a form of ICS that is subject to our ICS rules, is this a 
suggestion we should pursue? Are there any barriers to the Commission 
specifically regulating video visitation service that do not constitute 
inmate telephone service under section 276?
    15. HRDC and PPI have suggested that the same perverse incentives 
that have harmed the traditional ICS market also harm the video 
visitation market. We seek additional comment on whether there is a 
similar market failure for video visitation and other advanced services 
as the market failure described above for traditional ICS. Keeping in 
mind the Commission's stated goals of increased communication at just, 
reasonable, and fair rates, what steps can be taken to prevent or 
alleviate problems in video visitation that have prompted our action 
with regard to traditional ICS? Would adopting rate caps be effective 
to ensure just, reasonable, and fair rates for video visitation that 
does not meet the definition of ICS? To the extent the record indicates 
that a similar failure is occurring in the market for video calling as 
we witnessed for traditional ICS, we seek comment on adopting rate caps 
and reforms to ancillary service charges to ensure that video calls and 
video visitation do not create loopholes that providers may exploit and 
undermine the reforms adopted herein.

[[Page 79023]]

    16. Some commenters are concerned that bundling regulated and 
unregulated products together harms the market for ICS. Would 
prohibiting IC providers' bundling of regulated and unregulated 
products together in contractual offerings alleviate some of the 
problems with current rates charged for advanced services? What other 
kinds of advanced services are available to inmates? Are they available 
commonly in most facilities, or only in certain ones? What is the 
demand for these services and what rates and fees are charged? What 
additional functionalities do they offer? Do they provide any greater 
benefits to inmates, their families, or others, than traditional 
services? What are ICS providers' rates for other services such as 
email, voicemail or text messaging? The record indicates that some ICS 
providers offer tablet computers and kiosks that allow inmates to 
access games, music, educational tools, law library tools and 
commissary ordering. What is the compensation mechanism for access to 
these offerings? What are ICS providers' rates for such services, 
including both service-specific rates and ``all-you-can-eat'' plans?
    17. We also seek comment on the implications of offering video 
calls, including video visitation, for inmates who are deaf or hard of 
hearing. Increased deployment of video call systems has the potential 
to provide inmates who are able to communicate using American Sign 
Language (ASL) with the ability to access and use VRS, as well as 
providing direct communications with other ASL users who have video 
communications access. We note, however, that VRS and videophone users 
require a smooth, uninterrupted transmission of signal to communicate 
effectively in ASL. What range of bandwidths and broadband speeds are 
currently provided or planned for video call systems? What bandwidth 
and broadband speed are the minimum necessary for effective video 
communications between ASL users? In addition, what types of video 
technology are currently used in video call systems? To what extent are 
video call systems interoperable with the video communications systems 
used by VRS providers? Should such interoperability be required? If 
video call systems are used to provide accessible video communications 
services to deaf inmates, what steps need to be taken to ensure that 
any charges for such service are fair, just, and reasonable, given that 
for deaf inmates, such services are functionally equivalent to voice 
communication? Finally, we seek comment on how prevalent VRS is in 
correctional institutions.

C. Recurring Data Collection

    18. As discussed above, we adopt a second, one-time Mandatory Data 
Collection to occur two years from the effective date of this Order. In 
this data collection, we will require all ICS providers to submit ICS 
cost, calling, company and contract information as well as facility, 
revenue, ancillary fee and advanced service information. We found the 
data received in response to the 2013 Mandatory Data Collection to be 
beneficial, and anticipate that the forthcoming additional data will 
also be helpful to ensure that ICS rates and practices remain just, 
reasonable, and fair, in keeping with our statutory mandate.
    19. Throughout this proceeding, several commenters suggest that the 
Commission impose additional periodic reviews to ``ensure that the 
reforms create and maintain the proper incentives to drive ICS rates to 
competitive levels.'' We have found in the Order that for the time 
being, only a one-time additional collection is warranted. We seek 
comment, however, on extending in the future the Mandatory Data 
Collection adopted in this Order into a recurring data submission. 
Should providers be required to file the cost data described above in 
the Mandatory Data Collection annually? Why or why not? Do commenters 
agree that an ongoing annual data collection would provide the 
Commission with more fulsome data with which to help ``drive end user 
rates to competitive levels?'' Since ICS contracts typically run at 
least three to five years, with one-year extension options, is there 
benefit in collecting more than several years' worth of cost data in 
order to obtain a more accurate picture about ICS costs? Some 
commenters have asserted that upfront investment costs in certain ICS 
facilities are very high. Would collecting ICS cost data over more than 
one or two years lead to a more accurate economic picture for such 
investments? Would an ongoing ICS cost data collection provide the 
Commission a clearer picture of the industry than a one-time data 
collection? Would the benefit of such data submissions to the 
Commission, and its continued monitoring and regulation of the ICS 
industry, outweigh any potential burden on ICS providers?

D. Contract Filing Requirement

    20. In the 2013 Order the Commission reminded providers of their 
obligations to comply with existing rules, including rules requiring 
that ICS providers that are non-dominant interexchange carriers make 
their current rates, terms, and conditions available to the public via 
their company Web sites. In 2014, the Commission sought comment on 
``how to ensure that rates and fees are more transparent to consumers'' 
and specifically on the requirement that ICS providers notify their 
customers regarding the ICS options available to them and the cost of 
those options.
    21. Several commenters have expressed concern over a lack of 
transparency regarding ICS rates and fees. HRDC asserts ``almost a 
total lack of transparency on the part of both ICS providers and the 
government agencies from which they secure their monopoly contracts.'' 
HRDC further contends that ``state agencies often create obstacles to 
inhibit the public records process that require [sic] consumers and 
other organizations to unnecessarily expend time and money to obtain 
records designated by law to be ``public'' records.'' HRDC suggests 
that the Commission require ``all ICS providers to post their contracts 
with detention facilities on their Web sites where they are publicly 
available.'' Mr. Baker, of the Alabama PSC, asserts that ``lack of 
transparency in the ICS industry is problematic'' and recommends 
several solutions, including requiring providers to submit to the 
Commission and to state commissions ``upon request or routinely if 
requested, a copy of the contract from each facility serviced as well 
as the provider's response to any facility invitation to bid or request 
for proposal.''
    22. Securus disagrees with these suggestions and asserts that what 
HRDC calls ``public documents often contain information that is 
protected from disclosure under the very statutes, like the Freedom of 
Information Act, 5 U.S.C. 552, that HRDC invokes'' as a reason for 
mandating their disclosure. Securus asserts that such protected 
information includes ``non-public financial data, proprietary 
information about patented and patentable technology, and the operation 
of crucial security features.'' Securus contends that requiring the 
production of ICS contracts ``could contravene federal and state 
disclosure statutes.'' Securus further asserts that, even if it were 
able to enact the ``appropriate, lawful redaction'' needed to protect 
sensitive and confidential data, the production of such contracts would 
be ``far too broad and too burdensome.'' Finally, Securus asserts that 
such contract production will be unnecessary if certain reform 
proposals are adopted, such the Joint Provider Proposal provision 
requiring all ICS providers to annually certify full

[[Page 79024]]

compliance with all federal and Commission rules and regulations.
    23. Section 211 of the Act grants the Commission authority to 
require common carriers to ``file with the Commission copies of 
contracts and agreements relating to communications traffic.'' Section 
43.51 of the Commission's rules specifies that any dominant 
communications common carrier ``must file with the Commission, within 
thirty (30) days of execution, a copy of each contract, agreement, 
concession, license, authorization, operating agreement or other 
arrangement to which it is a party and amendments thereto'' that relate 
to ``[t]he exchange of services'' and ``matters concerning rates.'' The 
Commission has also clarified that ``only non-dominant carriers treated 
with forbearance are not required to file contracts,'' whereas non-
dominant carriers who are not treated with forbearance are still 
subject to filing requirements because ``material filed by [non-
dominant] carriers subject to streamlined regulations may be useful in 
the performance of monitoring.''
    24. We share commenters' concern that ICS contracts are not 
sufficiently transparent. We also share the concern of commenters who 
assert that members of the public must ``unnecessarily expend time and 
money to obtain records'' of ICS contracts. We also recognize the 
evidence suggesting that the information regarding ICS contracts and 
rates that is publically available may not be as reliable as the actual 
contract.
    25. Should the Commission require ICS providers to file all 
contracts, including updates, under its section 211(b) authority? Does 
the annual reporting requirement meet this transparency objective? Are 
there any reasons such a requirement would not apply to all ICS 
providers or result in the filing of all ICS contracts? We seek comment 
on the costs and benefits related to contract filing. Would such a 
requirement be overly burdensome to ICS providers? Do the benefits 
outweigh the costs? Would such requirement conflict with any other 
state or federal laws or requirements, such as the Freedom of 
Information Act? How should the contracts be filed with the Commission? 
To allow greater public accessibility to ICS contracts, we seek comment 
on requiring ICS providers to file their contracts with the Commission, 
in a newly assigned docket, via the Commission's Electronic Comment 
Filing System (ECFS) within 30 days of entering into a new contract. 
What would trigger the need to file an updated contract and how quickly 
after execution should new or updated contracts be filed? In what 
format should contracts be filed? What are the best ways to handle 
issues related to confidentiality? Would the Protective Order in effect 
in this docket adequately cover any confidentiality issues that might 
arise surrounding contracts that might be filed with us? We seek 
comment on these and any other potential issues that may arise related 
to the potential filing of ICS contracts with the Commission. For 
example, should the Commission adopt additional tools to help it 
prevent contract-related gaming such as that described above? What do 
commenters suggest as additional means to combat such gaming?

E. International Calling Rates

    26. In the 2013 FNPRM, the Commission sought comment on the 
prevalence of international ICS calling and on the need to reform 
international ICS rates. The Commission also sought comment on its 
legal authority to regulate international ICS and on what rates should 
apply to international ICS, should the Commission assert jurisdiction. 
In the Second FNPRM, the Commission sought ``updated comment on 
international ICS and the need for Commission reform focused on such 
services.''
    27. In response, several commenters urge the Commission to regulate 
international ICS rates. The record demonstrates that many inmates 
either lack access to international ICS or that such services are only 
available at very high rates. Numerous international ICS calling rates 
far exceed the rates permitted for interstate ICS calls, with some 
international rates from county correctional institutions set as high 
as $17.85 to $45 for a 15-minute call. Friends and family members who 
live outside the United States and who wish to stay in contact with 
those who are incarcerated pay the price of such high rates. Commenters 
also suggest that immigrant detainees are particularly vulnerable to 
high phone rates, due to several factors, including their need to stay 
in touch with family abroad and the centrality of phone access to 
immigration proceedings. We seek comment on whether and how we should 
act to improve inmates' and detainees' access to ICS for international 
calls, as well as what rates should apply to such calls. We seek 
comment on applying the adopted rate caps to all international calls.
    28. Legal Authority to Reform International Rates. Longstanding 
precedent establishes the Commission's authority to ensure that 
payphone service providers--including providers of ICS--``are fairly 
compensated for international as well as interstate and intrastate 
calls.'' In addition, section 201 provides the Commission with the 
authority to ensure that carriers' rates and practices for interstate 
and ``foreign'' communications are just and reasonable, and grants the 
Commission authority to ``prescribe such rules and regulations as may 
be necessary in the public interest to carry out the provisions of this 
chapter.'' Based on these provisions, we tentatively conclude that the 
Commission has authority to reform international ICS rates as necessary 
to ensure that they are fair, just, and reasonable. We seek comment on 
this tentative conclusion.
    29. Rates for International Calling. Although several parties note 
that rates for international ICS calls are very high in some 
facilities, the record contains relatively little information about the 
specific costs, if any, ICS providers incur in providing international 
calling or what would constitute just, reasonable, and fair 
compensation for international ICS calls. The Mandatory Data Collection 
required providers to submit their costs related to the provision of 
ICS, including the provision of international calling. Responses to the 
Mandatory Data Collection, however, did not separate out costs for 
international calls from costs for the provision of interstate and 
intrastate calls. Thus, we lack information about the costs providers 
incur in providing international ICS.
    30. We seek comment on extending our rate caps for interstate and 
intrastate calls to international calls. Would establishing 
international rates at levels consistent with our rate caps ensure that 
ICS users do not pay rates that are unfair or that are unjustly or 
unreasonably excessive? Would capping rates for international calls at 
the same levels as we have established for interstate and intrastate 
calls allow providers to receive fair compensation? If not, why not? 
Would allowing a higher rate for international calls lead to over-
recovery by providers, as their costs for international calls are 
already factored into the rate caps we set to govern interstate and 
intrastate ICS rates? Would the benefit of breaking out international 
calls be sufficient to justify the added complexity of adding a 
separate regime for international calls in addition to the rate caps we 
adopt in the accompanying Order? What percentage of ICS providers' 
minutes of use do international calling minutes constitute? For 
example, would a relatively low volume of international calls weigh 
against establishing a separate rate

[[Page 79025]]

regime for such calls, particularly given that the costs of 
international calls are already included in the costs we used to set 
the rate caps for interstate and intrastate ICS?
    31. There is evidence that many of the approximately 400,000 
immigrants detained in this country each year are held in local jails 
and prisons that have contracted with Immigration Customs and 
Enforcement (ICE). ICS rates and policies were discussed at the 
Commission's 2014 ICS Workshop. The record indicates that ICE 
``detainees are charged . . . a uniform rate of 15 cents per minute for 
international calls to landlines and 35 cents per minute for 
international calls to mobile phones,'' with ``no additional connection 
fees or ancillary charges.'' We seek comment on these rates. Should the 
Commission establish separate rate caps for international calls that 
terminate to landline devices and for those that terminate to mobile 
devices? If so, what rates should apply to each type of call? How 
challenging would it be for ICS providers to bill different rates for 
different types of international calls? Is it administratively feasible 
for ICS providers to distinguish between calls to landline phones 
versus calls to mobile devices? Should rates vary depending on which 
foreign country the inmate is calling? Should there be a separate rate 
cap for international calls made by ICE detainees? Why or why not?
    32. The ICE ICS contract provides for free telephone calling 
services to select numbers through a ``centralized pro bono platform 
which can be accessed at any detention facility.'' According to the 
record, since this ICE contract was awarded, ``the number of calls per 
detainee and minutes per detainee has increased substantially.'' The 
record also indicates that detainees may make calls to 200 different 
countries for the same per-minute rates. We seek additional comment on 
the rates available under the ICE contract. Are these rates a 
reasonable approximation of what the Commission should adopt for 
international rate caps? Is ICE able to attain economies of scale that 
other facilities are not? Would it be more appropriate for the 
Commission to: (1) Adopt the ICE rates for all international calls, (2) 
subject international ICS calls to the same rate caps we adopt for 
interstate and intrastate calls, or (3) adopt a different rate regime 
that is not based on either the ICE rates or the existing rate caps? 
Are any of these options supported by cost data or other data in the 
record? If not, is such data available? If the Commission adopts rate 
caps that are higher than those currently offered by ICE facilities, 
should those facilities be allowed to raise their rates? We seek 
comment on ICE's decision to apply different rates for international 
landline ($0.15/minute) and international mobile ($0.35/minute) calls. 
Are these rates a reasonable approximation of providers' costs? Is this 
cost differential a similar one to that which other providers have 
experienced?
    33. We also seek further comment on other issues related to 
international calling from correctional facilities. The record 
indicates that although it is feasible for inmates to make 
international calls, international ICS calling is not always available. 
Commenters assert that the lack of availability of international 
calling is particularly burdensome to immigrant inmates and their 
families. We note that many immigration detainees are housed in county 
jails, rather than in ICE detention facilities. In addition, some 
inmates in jails and prisons have family and loved ones in countries 
outside the United States. Do most facilities allow international 
calling? If not, why not? Are any additional restrictions applied to 
such calls, such as time-of-day restrictions or prior-permission 
requirements? Should the Commission require the availability of 
international calls? If so, what legal authority would we rely on to 
adopt such a requirement? If we were to adopt such a requirement, what 
rates should apply to international calls and how should the Commission 
set such rates? Would subjecting international calls to the same rate 
caps that apply to interstate and intrastate ICS calls lead to 
providers or facilities discontinuing or restricting international ICS 
calls?

F. Third-Party Financial Transaction Fees

    34. In the Second FNPRM, the Commission sought comment on third-
party financial transactions, and asked how it should ensure that money 
transfer service fees paid by ICS consumers are just and reasonable and 
fair. In the ICS context, third-party financial transaction fees 
consist of two elements: A fee from a third party, such as Western 
Union or Money Gram to transfer funds from a consumer to an inmate's 
ICS account, and an additional charge by an ICS provider for processing 
the funds transferred via the third party for the purpose of paying for 
ICS calls. After carefully reviewing the record, we determine, in the 
Order above, that the first aspect of third-party financial 
transaction, e.g., the money transfer or credit card payment, does not 
constitute an ``ancillary service,'' within the meaning of section 276. 
However, we assert jurisdiction over any additional fee or markup that 
the ICS provider might impose on the end user, and require ICS 
providers to pass third-party transaction fees to end users with no 
additional markup.
    35. Several commenters express concern about an additional issue 
related to these transactions: Potential revenue-sharing arrangements 
between ICS providers and financial companies. ICSolutions, for 
example, states that, despite the Commission's cap on third-party 
financial transaction fees, providers and vendors have an incentive to 
enter into fee-sharing arrangements with financial services companies, 
``thereby complying with the pass-through cost component, but still 
unnecessarily increasing consumers' cost.'' ICSolutions urges the 
Commission to address this practice by imposing limits on the fees 
third-party financial companies can charge end users in an effort to 
prevent ``secondary fee-sharing arrangements'' between these companies 
and ICS providers that can ``unnecessarily increase the cost of 
financial transactions to consumers.'' Similarly, CenturyLink asserts 
that ICS providers can ``divert transactions to certain third party 
processors, claiming high fees charged by the third party.'' 
CenturyLink states that, by using a third-party payment processor, an 
ICS provider can inflate ancillary fees through a revenue-sharing 
agreement that adds a ``direct or indirect markup'' to ancillary 
services. CenturyLink argues that providers should be ``permitted to 
use such services but not permitted to enter into arrangements that add 
a direct markup or indirect markup though a revenue sharing 
arrangement.'' Securus, however, defends these calling arrangements as 
``innovative, valuable'' additions to ICS that benefit consumer by 
giving them more options.
    36. We seek additional comment on the revenue-sharing issues 
discussed above. First, we seek comment on issues related to our 
jurisdiction over these transactions. Does the Commission have 
jurisdiction over third-party financial processor vendors, or over 
contracts between ICS providers and third-party vendors? Does our 
authority over ICS providers allow us to regulate providers' ability to 
enter into revenue-sharing arrangements with third-party vendors? Could 
these service charges constitute unjust and unreasonable practices, in 
violation of section 201(b), or a practice that would lead to unfair 
rates in violation of section 276, because, for example, the manner in 
which such charges are imposed artificially inflates the amounts that 
consumers pay to

[[Page 79026]]

access ICS? How can we ensure that these revenue sharing arrangements 
are not used to circumvent our rules prohibiting markups on third-party 
fees? How common are the revenue-sharing arrangements described by 
CenturyLink and others? Do providers have any control over the fees 
established by third parties, such as Western Union or credit card 
companies, for payment processing functions? Are these revenue-sharing 
arrangements used to add direct or indirect markups to ancillary 
services? Should the Commission distinguish between revenue-sharing 
arrangements between providers and affiliated companies versus 
arrangements between providers and unaffiliated third parties? If so, 
what would be the legal basis for such a distinction? Does the 
Commission have greater authority over arrangements between ICS 
providers and their affiliates than it does over agreements between 
providers and unaffiliated entities? Assuming the Commission were to 
regulate arrangements between providers and affiliated companies that 
offer financial services, how would such regulations work? 
Specifically, how could the Commission prevent an affiliate from 
sharing revenues (or profits) with an ICS provider? Are there other 
factual or legal considerations the Commission should consider in 
determining whether and how to address arrangements between ICS 
providers and financial services companies?

G. Cost/Benefit Analysis of Proposals

    37. Acknowledging the potential difficulty of quantifying costs and 
benefits, we seek to determine whether each of the proposals above will 
provide public benefits that outweigh their costs. We also seek to 
maximize the net benefits to the public from any proposals we adopt. 
For example, commenters have argued that inmate recidivism decreases 
with regular family contact. This not only benefits the public broadly 
by reducing crimes, lessening the need for additional correctional 
facilities and cutting overall costs to society, but also likely has a 
positive effect on the welfare of inmates' children. We seek specific 
comment on the costs and benefits of the proposals above and any 
additional proposals received in response to this Third Further Notice. 
We also seek any information or analysis that would help us to quantify 
these costs or benefits. We request that interested parties discuss 
whether, how, and by how much they would be impacted in terms of costs 
and benefits of the proposals included herein. Additionally, we ask 
that parties consider whether the above proposals have multiplier 
effects beyond their immediate impact that could affect their interest 
or, more broadly, the public interest. Further, we seek comment on any 
considerations regarding the manner in which the proposals could be 
implemented that would increase the number of people who benefit from 
them, or otherwise increase their net public benefit. We recognize that 
the costs and benefits may vary based on such factors as the 
correctional facility served and ICS provider. We have received minimal 
cost benefit analysis in this proceeding. Therefore, we request again 
that parties file specific analyses and facts to support any claims of 
significant costs or benefits associated with the proposals herein.

II. Procedural Matters

A. Filing Instructions

    38. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 
47 CFR 1.415, 1.419, interested parties may file comments and reply 
comments on or before the dates indicated on the first page of this 
document. Comments may be filed using the Commission's Electronic 
Comment Filing System (ECFS). See Electronic Filing of Documents in 
Rulemaking Proceedings, 63 FR 24121 (1998). Comments and reply comments 
on this Third FNPRM must be filed in WC Docket No. 12-375.
     Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: https://fjallfoss.fcc.gov/ecfs2/.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing. If more than one docket 
or rulemaking number appears in the caption of this proceeding, filers 
must submit two additional copies for each additional docket or 
rulemaking number.
    Filings can be sent by hand or messenger delivery, by commercial 
overnight courier, or by first-class or overnight U.S. Postal Service 
mail. All filings must be addressed to the Commission's Secretary, 
Office of the Secretary, Federal Communications Commission.
    [ssquf] All hand-delivered or messenger-delivered paper filings for 
the Commission's Secretary must be delivered to FCC Headquarters at 445 
12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 
8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with 
rubber bands or fasteners. Any envelopes and boxes must be disposed of 
before entering the building.
    [ssquf] Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743.
    [ssquf] U.S. Postal Service first-class, Express, and Priority mail 
must be addressed to 445 12th Street SW., Washington, DC 20554.
    People with Disabilities: To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an email to fcc504@fcc.gov or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).

B. Ex Parte Requirements

    39. This proceeding shall be treated as a ``permit-but-disclose'' 
proceeding in accordance with the Commission's ex parte rules. Persons 
making ex parte presentations must file a copy of any written 
presentation or a memorandum summarizing any oral presentation within 
two business days after the presentation (unless a different deadline 
applicable to the Sunshine period applies). Persons making oral ex 
parte presentations are reminded that memoranda summarizing the 
presentation must (1) list all persons attending or otherwise 
participating in the meeting at which the ex parte presentation was 
made, and (2) summarize all data presented and arguments made during 
the presentation. Memoranda must contain a summary of the substance of 
the ex parte presentation ad not merely a list of the subjects 
discussed. More than a one or two sentence description of the views and 
arguments presented is generally required. If the oral presentation 
consisted in whole or in part of the presentation of data or arguments 
already reflected in the presenter's written comments, memoranda or 
other filings in the proceeding, the presenter may provide citations to 
such data or arguments in his or her prior comments, memoranda, or 
other filings (specifying the relevant page and/or paragraph numbers 
where such data or arguments can be found) in lieu of summarizing them 
in the memorandum. Documents shown or given to Commission staff during 
ex parte meetings are deemed to be written ex parte presentations and 
must be filed consistent with rule 1.1206(b). In proceedings governed 
by rule 1.49(f) or for which the Commission has made available a method 
of electronic filing, written ex parte presentations and memoranda 
summarizing oral ex parte presentations, and all attachments thereto, 
must be filed through the

[[Page 79027]]

electronic comment filing system available for that proceeding, and 
must be filed in their native format (e.g., .doc, .xml, .ppt, 
searchable .pdf). Participants in this proceeding should familiarize 
themselves with the Commission's ex parte rules.

C. Paperwork Reduction Act Analysis

    40. This Further Notice contains proposed information collection 
requirements. The Commission, as part of its continuing effort to 
reduce paperwork burdens, invites the general public and the Office of 
Management and Budget (OMB) to comment on the information collection 
requirements contained in this document, as required by the Paperwork 
Reduction Act of 1995, Public Law 104-13. Comments should address: (a) 
whether the proposed collection of information is necessary for the 
proper performance of the functions of the Commission, including 
whether the information shall have practical utility; (b) the accuracy 
of the Commission's burden estimates; (c) ways to enhance the quality, 
utility, and clarity of the information collected; (d) ways to minimize 
the burden of the collection of information on the respondents, 
including the use of automated collection techniques or other forms of 
information technology; and (e) way to further reduce the information 
collection burden on small business concerns with fewer than 25 
employees. In addition, pursuant to the Small Business Paperwork Relief 
Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek 
specific comment on how we might further reduce the information 
collection burden for small business concerns with fewer than 25 
employees.

D. Initial Regulatory Flexibility Analysis

    41. As required by the Regulatory Flexibility Act of 1980 (RFA), 
the Commission has prepared an Initial Regulatory Flexibility Analysis 
(IRFA) for this document, of the possible significant economic impact 
on small entities of the policies and rules addressed in this document. 
The IRFA is available in Appendix F of the full-text copy of the 
Commission's Second Report and Order and Third Further Notice of 
Proposed Rulemaking, released November 5, 2015. Written public comments 
are requested on this IRFA. Comments must be identified as responses to 
the IRFA and must be filed by the deadlines for comments on the Notice 
provided on or before the dates indicated on the first page of this 
document. The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, will send a copy of this Further Notice 
of Proposed Rulemaking, including the IRFA, to the Chief Counsel for 
Advocacy of the Small Business Administration (SBA).

III. Ordering Clauses

    42. Accordingly, it is ordered that, pursuant to sections 1, 2, 
4(i)-(j), 201(b), 215, 218, 220, 276, 303(r), and 403 of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i)-(j), 
201(b), 215, 218, 220, 276, 303(r), and 403 Third Further Notice of 
Proposed Rulemaking is adopted.
    43. It is further ordered, that pursuant to sections 1.4(b)(1) and 
1.103(a) of the Commission's rules, 47 CFR 1.4(b)(1) and 1.103(a), that 
this Third Further Notice of Proposed Rulemaking shall be effective 30 
days after publication of a summary thereof in the Federal Register 
except as noted otherwise above.

Federal Communications Commission.
Gloria J. Miles,
Federal Register Liaison Officer, Office of the Secretary.
[FR Doc. 2015-31253 Filed 12-17-15; 8:45 am]
BILLING CODE 6712-01-P