Incarcerated People's Communications Services; Implementation of the Martha Wright-Reed Act; Rates for Interstate Inmate Calling Services, 27850-27856 [2023-09502]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 88, Number 85 (Wednesday, May 3, 2023)]
[Proposed Rules]
[Pages 27850-27856]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09502]



[[Page 27850]]

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[WC Docket Nos. 12-375, 23-62; DA 23-355; FR ID [139745]]


Incarcerated People's Communications Services; Implementation of 
the Martha Wright-Reed Act; Rates for Interstate Inmate Calling 
Services

AGENCY: Federal Communications Commission.

ACTION: Proposed rule; solicitation of comments.

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SUMMARY: The Federal Communications Commission (Commission) seeks 
comment on the contours and specific requirements of the proposed 2023 
Mandatory Data Collection for incarcerated people's communications 
services. The Commission has drafted proposed instructions, templates, 
and a certification form for the proposed 2023 Mandatory Data 
Collection. The Commission seeks comment on all aspects of these 
documents.

DATES: Comments are due June 2, 2023. Reply comments are due June 20, 
2023.

ADDRESSES: You may submit comments, identified by WC Docket Nos. 12-375 
and 23-62, by either of the following methods:
     Electronic Filers: Comments may be filed electronically 
using the internet by accessing the Electronic Comment Filing System 
(ECFS): https://www.fcc.gov/ecfs/.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing. Filings can be sent by 
commercial overnight courier, or by first-class or overnight U.S. 
Postal Service mail. Currently, the Commission does not accept any hand 
or messenger delivered filings as a temporary measure taken to help 
protect the health and safety of individuals, and to mitigate the 
transmission of COVID-19. All filings must be addressed to the 
Commission's Secretary, Office of the Secretary, Federal Communications 
Commission.
    The Commission adopted a new Protective Order in this proceeding 
which incorporates all materials previously designated by the parties 
as confidential. Filings that contain confidential information should 
be appropriately redacted and filed pursuant to the procedure described 
in that Order.
    People with Disabilities: The Commission asks that requests for 
accommodations be made as soon as possible in order to allow the agency 
to satisfy such requests whenever possible. Send an email to 
[email protected] or call the Consumer and Governmental Affairs Bureau at 
(202) 418-0530.

FOR FURTHER INFORMATION CONTACT: Ahuva Battams, Pricing Policy Division 
of the Wireline Competition Bureau, at (202) 418-1565 or via email at 
[email protected]. Please copy [email protected] on 
any email correspondence.

SUPPLEMENTARY INFORMATION: This is a summary of a document that the 
Federal Communications Commission's Wireline Competition Bureau 
released on April 28, 2023. A full-text version of the document is 
available at the following internet address: https://www.fcc.gov/document/proposed-2023-ipcs-mandatory-data-collection-public-notice.

Synopsis

Introduction and Background

    1. By this document, the Wireline Competition Bureau (WCB) and 
Office of Economics and Analytics (OEA) (collectively, WCB/OEA) seek 
comment on the contours and specific requirements of the proposed 2023 
Mandatory Data Collection for incarcerated people's communications 
services (IPCS). In issuing this document, they act pursuant to the 
Federal Communications Commission's (Commission) directive so that it 
is able to implement the Martha Wright-Reed Just and Reasonable 
Communications Act of 2022 (Martha Wright-Reed Act or Act). 
Incarcerated People's Communications Services; Implementation of the 
Martha Wright-Reed Act; Rates for Interstate Inmate Calling Services, 
Order, 88 FR 19001, March 30, 2023 (2023 IPCS Order), and Notice of 
Proposed Rulemaking, 88 FR 20804, April 7, 2023 (2023 IPCS Notice); 
Martha Wright-Reed Act, Public Law 117-338, 136 Stat. 6156.
    2. The Martha Wright-Reed Act directs the Commission to 
``promulgate any regulations necessary to implement'' the Act, 
including its mandate that the Commission establish a ``compensation 
plan'' ensuring that all rates and charges for IPCS ``are just and 
reasonable,'' not earlier than 18 months and not later than 24 months 
after the Act's January 5, 2023 enactment. The Act requires the 
Commission to consider, as part of its implementation, the costs of 
``necessary'' safety and security measures, as well as ``differences in 
costs'' based on facility size, or ``other characteristics.'' It also 
allows the Commission to ``use industry-wide average costs of telephone 
service and advanced communications services and the average costs of 
service of a communications service provider'' in determining just and 
reasonable rates.
    3. In recent years, the Commission has collected data from 
providers of calling services for incarcerated people as part of its 
ongoing efforts to establish just and reasonable rates for those 
services that reduce the financial burdens imposed on incarcerated 
people and their loved ones, while ensuring that providers are fairly 
compensated for their services. In requiring or allowing the Commission 
to consider certain types of costs, the new Act contemplates that the 
Commission would undertake an additional data collection. To ensure 
that it has the data it needs to meet its substantive and procedural 
responsibilities under the Act, in the 2023 IPCS Order the Commission 
delegated authority to WCB/OEA to ``update and restructure'' the 
Commission's most recent data collection (the Third Mandatory Data 
Collection) ``as appropriate in light of the requirements of the new 
statute.'' This delegation requires that WCB/OEA collect ``data on all 
incarcerated people's communications services from all providers of 
those services now subject to'' the Commission's ratemaking authority, 
including, but not limited to, requesting ``more recent data for 
additional years not covered by the [Third Mandatory Data 
Collection].'' The Commission directed WCB/OEA to modify the template 
and instructions of the most recent data collection to the extent 
appropriate to timely collect such information to cover the additional 
services and providers now subject to the Commission's authority.
    4. In seeking comment on their proposals for the proposed 2023 
Mandatory Data Collection, WCB/OEA do not seek additional comment on 
the questions and other issues previously raised in other relevant 
Commission notices. Such comment is more appropriately submitted during 
the comment period specifically established for those notices. Thus, 
comments in response to this document need not include advocacy 
regarding issues raised in those notices, including how the Commission 
should interpret the language of the Martha Wright-Reed Act to ensure 
that it implements the statute in a manner that fulfills Congress's 
intent, the extent to which particular types of safety and security 
measures are necessary to provide IPCS, or the appropriate treatment of 
site commissions.

Overall Approach

    5. Pursuant to their delegated authority, WCB/OEA propose updated

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instructions, a template, and a certification form for the proposed 
2023 Mandatory Data Collection, as posted on the Commission's website. 
The template consists of a Word document (Word template) and Excel 
spreadsheets (Excel template). WCB/OEA seek comment on all aspects of 
these proposed documents. Do the proposed documents seek all the 
information the Commission will need to establish a compensation plan 
ensuring that IPCS rates and charges are just and reasonable and that 
IPCS providers are fairly compensated, consistent with the Martha 
Wright-Reed Act? If not, what steps should WCB/OEA take to improve the 
proposed documents? The Commission's prior data collections have 
demonstrated that detailed and specific instructions and templates are 
essential to ensure that providers use comparable procedures to 
determine and report their costs, revenues, demand units, and other 
data. WCB/OEA invite comment on whether the proposed instructions and 
template are sufficiently detailed to accomplish this objective. If 
not, what additional instructions, inquiries, or fields should be 
added? Conversely, are there any instructions, inquiries, or fields 
that could be removed because they are unnecessary?
    6. WCB/OEA propose to retain the overall structure of the Third 
Mandatory Data Collection, while revising and supplementing the 
definitions, instructions, and template to accommodate the Commission's 
expanded authority. To a large extent, the specific information they 
propose to collect, and the related instructions (including those 
relating to cost allocation), parallel the information collected by, 
and the instructions for, the Third Mandatory Data Collection. WCB/OEA 
invite comment on this approach. They ask that any commenter supporting 
an alternative approach, either with regard to the data collection as a 
whole or a particular aspect, explain in detail how that alternative 
approach would enable the Commission to discharge its responsibilities 
under the Martha Wright-Reed Act and the Communications Act of 1934, as 
amended (the Communications Act).
    7. Reporting Period. In the Third Mandatory Data Collection, WCB/
OEA required providers to submit data and other information for 
calendar years 2019, 2020, and 2021. WCB/OEA propose to generally limit 
the forthcoming data collection to calendar year 2022 data. They invite 
comment on this proposal. Does it properly balance the need for 
information, including cost data, on the video and intrastate services 
that were not previously subject to the Commission's ratemaking 
authority against the additional burdens providers would encounter in 
developing that information for years prior to 2022? Should WCB/OEA 
instead require providers to incorporate information on their video and 
intrastate IPCS operations into their data collection responses for 
2020 and 2021, and to report that information in addition to 
information for 2022?
    8. Cost Categories. The Martha Wright-Reed Act expands the 
Commission's authority under section 276(b)(1)(A) of the Communications 
Act to include ``advanced communications services,'' as defined in 
section 3(1)(A), (B), (D), and new (E) of the Communications Act. Those 
provisions of section 3(1), in turn, define ``advanced communications 
services'' as including (1) ``interconnected VoIP [Voice over internet 
Protocol] service,'' (2) ``non-interconnected VoIP service,'' (3) 
``interoperable video conferencing service,'' and (4) ``any audio or 
video communications service used by inmates for the purpose of 
communicating with individuals outside the correctional institution 
where the inmate is held, regardless of technology used.'' The Act also 
extends the Commission's ratemaking authority to intrastate as well as 
interstate and international IPCS.
    9. WCB/OEA propose to require providers to allocate their 
investments and expenses among audio IPCS, video IPCS, safety and 
security measures, various types of ancillary services, and other 
services and products, on both a company-wide and a facility-specific 
basis for 2022 (the types of ancillary services are automated payment 
services, live agent service, paper bill/statement service, single-call 
and related services, third-party financial transaction services, and 
other ancillary services). WCB/OEA invite comment on this proposal. 
Should any additional categories be specified for providers to use? 
Alternatively, would a more limited group of cost categories still 
allow the Commission to discharge its ratemaking responsibilities?
    10. Are separate cost data for audio IPCS and video IPCS services 
necessary, or sufficient, for the Commission to ensure just and 
reasonable rates for those services? If not, what alternative approach 
should be used? What are the challenges of allocating IPCS costs 
between audio and video services? Do IPCS providers maintain sufficient 
records to directly assign or directly attribute significant 
percentages of their costs to audio IPCS and video IPCS? If not, how 
should providers allocate their IPCS costs between these two categories 
of services?
    11. The proposed instructions and template would not require 
providers to subdivide their audio IPCS costs or their video IPCS costs 
into more discrete categories. WCB/OEA seek comment on this approach. 
What different types of audio and video services do IPCS providers 
offer to incarcerated people? Do the costs of providing audio IPCS vary 
depending on whether it is a traditional voice service, an 
interconnected VoIP service, a non-interconnected VoIP service, or 
another type of audio service used by incarcerated people to 
communicate with the non-incarcerated? For example, do providers pay 
intercarrier compensation charges for some types of IPCS but not for 
others? Do non-interconnected voice services have their own unique 
costs? Are the net cost differences among types of video IPCS 
sufficiently significant and measurable in a meaningful way to justify 
the additional burden of separate reporting? If separate reporting is 
justified, how should the proposed instructions and template be revised 
to capture those cost differences? Similarly, do the costs of providing 
video IPCS vary depending on the nature of the video service? To the 
extent there are such variations, how should WCB/OEA revise the 
instructions and templates to capture them?
    12. Intrastate and International IPCS. In the Third Mandatory Data 
Collection, WCB/OEA required providers to report the costs of providing 
inmate calling services on a total company basis, without separating 
them into interstate/international and intrastate components. Although 
companies had the option to allocate their total company costs between 
interstate/international and intrastate inmate calling services, no 
provider exercised this option. Accordingly, WCB/OEA propose to follow 
their previous approach and require companies to report costs for IPCS 
without separation between these jurisdictions and provide an option 
for separate reporting for companies that elect to do so. WCB/OEA seek 
comment on this proposal. Do the costs of either audio IPCS or video 
IPCS vary significantly depending on whether they are interstate, 
intrastate, or international? If so, how should WCB/OEA revise the 
proposed instructions and templates to capture those differences? In 
the Third Mandatory Data Collection, WCB/OEA required inmate calling 
services providers to report their payments to carriers for terminating 
international communications as an operating

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expense without jurisdictional separation on both a total-company and a 
facility-by-facility basis. The proposed instructions and Excel 
template would continue this approach.
    13. The proposed instructions also require providers to separately 
report expenses related to routing and completing communications to 
international destinations as operating expenses. Will the proposed 
instructions yield accurate and usable data sufficient for the 
Commission to evaluate these expenses? Why or why not? Are there 
changes WCB/OEA should consider to the proposed instructions in this 
regard? If so, what are they?
    14. Costs of Providers' Safety and Security Measures. The Martha 
Wright-Reed Act specifies that the Commission ``shall consider,'' as 
part of its ratemaking, ``costs associated with any safety and security 
measures necessary to provide'' telephone service and advanced 
communications services in correctional institutions. To facilitate the 
Commission's consideration of such costs, WCB/OEA propose to require 
providers to report the costs they incurred to provide safety and 
security measures during 2022, both in the aggregate and in specific 
categories. Determining those costs would involve several steps.
    15. First, the proposed instructions would require providers to 
allocate a portion of their total-company investments and expenses to a 
company-wide ``safety and security measures'' category and to exclude 
those investments and expenses from all other cost categories. This 
allocation would be done in accordance with the detailed cost 
allocation hierarchy set forth in the instructions. The ``safety and 
security measures'' category thus would encompass all safety and 
security services and products that the companies provide, regardless 
of whether they are provided in connection with audio, video, or 
nonregulated services, or in connection with traditional telephone or 
advanced communications services. Do commenters agree with this 
approach? Instead, should providers be required to report their costs 
of safety and security measures separately for different categories of 
services? Why or why not? If safety and security costs are not treated 
as a separate service or as multiple separate services, then how should 
the Commission organize the data collection to be able to consider the 
costs of necessary safety and security measures?
    16. Second, the proposed instructions would require each provider 
to allocate their annual total expenses incurred in providing safety 
and security measures among seven company-level categories using the 
provider's best estimate of the percentage of those expenses 
attributable to each category. As set out in the proposed instructions, 
annual total expenses are the sum of annual operating expenses and 
annual capital expenses. The seven company-level categories are: (1) 
expenses related to Communications Assistance for Law Enforcement Act, 
(2) law enforcement support services, (3) communication security 
services, (4) communication recording services, (5) communication 
monitoring services, (6) voice biometrics services, and (7) other 
safety and security measures. WCB/OEA seek comment on the benefits and 
burdens of this approach. They invite comment on the categories of 
safety and security measures in the proposed instructions. How, if at 
all, should these categories be changed? Are there other examples of 
specific safety and security measures that should be included in the 
illustrative lists included in each of the categories? If so, what are 
these measures and how should they be categorized? Are there other 
categories of safety and security measures that should be included? If 
so, which ones? Alternatively, are there categories that should be 
removed? If so, which ones should be removed and why? Do commenters 
agree with the proposed approach of requiring providers to allocate 
annual total expenses on an estimated percentage basis or should WCB/
OEA instead require providers to perform a detailed allocation of 
actual investments and expenses among the seven categories? To the 
extent commenters argue that a more detailed cost allocation would be 
more appropriate, commenters should explain and justify in detail the 
cost allocation method they propose and the benefits and burdens of 
their approach.
    17. Third, after reporting the best estimate of the percentage of 
the company's annual total expenses of providing safety and security 
measures for each category, the proposed instructions would direct 
providers to report for each of those same categories the company's 
best estimate of the percentage of safety and security expenses 
attributable to audio IPCS, video IPCS, ancillary services, and other 
services and products. Would this approach provide reasonably accurate 
data on the portions of each category of providers' safety and security 
costs that are attributable to audio IPCS, video IPCS, ancillary 
services, and other services and products? Why or why not? If not, is 
there another allocation method WCB/OEA should consider? If so, what do 
commenters propose and why would it be preferable to the allocation set 
forth in the proposed instructions?
    18. Providers would also report facility-level safety and security 
costs for each facility. The proposed instructions would require 
providers to first identify whether they provide safety and security 
measures at each facility they serve. Providers would do so by 
indicating ``Yes'' or ``No'' in the appropriate cell on the Excel 
template for each of the seven identified categories of safety and 
security measures at each facility. Wherever providers offer a given 
safety and security measure, the proposed instructions would then 
require the provider to allocate its company-wide safety and security 
annual total expenses for that category among the individual facilities 
at which that service is offered. Providers would then further allocate 
those amounts at each facility between audio IPCS, video IPCS, 
ancillary services, and other services and products. WCB/OEA seek 
comment on this approach. Would it accurately capture the costs of 
providing the seven identified categories of safety and security 
measures at each facility? Why or why not? If not, how could the 
facility-level reporting be changed to identify the safety and security 
measures providers offer at the facilities they serve and the cost of 
providing those measures? Will the subsequent allocation between audio 
IPCS, video IPCS, ancillary services, and other services and products 
be sufficiently accurate to capture the costs of providing those safety 
and security measures in connection with these other services? Why or 
why not? Are there other methods WCB/OEA should consider that would 
allow the Commission to evaluate the costs of safety and security 
measures offered in connection with audio IPCS, video IPCS, ancillary 
services and other services and products, to the extent cost 
differences exist? If so, what do commenters propose and why?
    19. Costs of Facilities' Safety and Security Measures. In the 2023 
IPCS Notice, the Commission sought comment on how it could determine 
the costs associated with necessary safety and security measures ``to 
the extent resources of the facilities are used to provide these 
measures.'' Consistent with that request, WCB/OEA propose to require 
providers to report any verifiable, reliable, and accurate information 
in their possession about the costs the facilities they serve incur

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to provide safety and security measures in connection with the 
provision of IPCS. To the extent providers have such information for 
any specific facility, the instructions would direct providers to 
report the annual total expenses facilities incur using the same seven 
categories proposed in connection with reporting provider-incurred 
safety and security costs. WCB/OEA seek comment on the benefits and 
burdens of this approach. Is there a better approach the Commission 
could use to obtain the costs facilities incur in providing safety and 
security measures? The proposed instructions require providers to be 
able to reproduce, on request, documentation sufficient to explain and 
justify the accuracy and reliability of any data they report regarding 
the expenses incurred by facilities for safety and security measures. 
Do commenters agree with this approach? Will it enable the Commission 
to evaluate the reliability and accuracy of any data receives? If not, 
how should providers be required to demonstrate the accuracy and 
reliability of the data they provide regarding the costs facilities 
incur to provide safety and security measures? To the extent providers 
are not able to establish the accuracy and reliability of the data they 
rely on, how should the Commission accurately account for these 
expenses?
    20. To assist the Commission in obtaining the broadest possible 
view of the costs that facilities incur, the proposed instructions also 
ask providers to indicate whether they have any verifiable, reliable, 
and accurate information on other facility-incurred costs that are not 
safety and security costs. To the extent providers have such 
information, the proposed instructions require that providers be able 
to reproduce, on request, documentation sufficient to fully explain and 
justify the accuracy and reliability of any data they report regarding 
the expenses incurred by facilities that are not safety and security 
costs.

Specific Instructions

    21. WCB/OEA seek comment on the proposed instructions and whether 
they provide sufficient guidance to ensure that providers use uniform 
methodologies and report the required information in a consistent 
manner. Are there any changes that would clarify the proposed 
instructions or increase uniformity across providers' responses, 
particularly regarding how to report and allocate their costs? If so, 
what specific changes should be made? Is there alternative or 
additional language that would minimize ambiguity in any instruction? 
Commenters should explain the potential benefits and burdens of 
alternative or additional language they propose.
    22. The proposed instructions also address many data requests that 
are not specifically described below. WCB/OEA seek comment on all 
aspects of the proposed instructions, including on requests that they 
do not specifically seek comment on in this document.
    23. Definitions. The proposed instructions contain new and revised 
definitions reflecting the Commission's expanded authority over IPCS. 
WCB/OEA seek comment on these definitions. Are they sufficiently clear? 
If not, how should they be modified? Are there any undefined terms that 
should be defined? Are there any terms that should be added to the 
proposed instructions that would assist filers in furnishing the 
Commission with the relevant data? If so, what are they and how should 
they be defined? Should any proposed definitions be removed?
    24. Required Information. The proposed instructions would provide 
guidance for the collection of a variety of data on audio IPCS, video 
IPCS, safety and security measures, various types of ancillary 
services, and other services and products. WCB/OEA seek detailed 
comment on whether additional data should be collected or, conversely, 
whether the data providers are required to submit be reduced. 
Commenters urging that WCB/OEA should request different data should 
explain how their proposals would affect the Commission's ability to 
meet its responsibilities under the Martha Wright-Reed Act and the 
Communications Act. Would the benefits of requesting different data 
justify the costs? Why or why not?
    25. Response Granularity. WCB/OEA propose that all providers submit 
data both at the company-wide level and for each correctional facility 
in which the provider offered IPCS during 2022. They seek comment on 
this approach. WCB/OEA propose this method to fully account in a 
coherent way for the shared costs providers incur as some of the assets 
or labor they use to provide IPCS are also used to provide other 
services, and are used to provide IPCS to multiple facilities. If 
parties believe that a different level of granularity is appropriate, 
please explain. Assuming WCB/OEA should require providers to report 
data on a facility-level basis, how should providers that do not track 
costs on a facility level be required to respond? Are the cost 
allocation procedures set forth in the proposed instructions sufficient 
to enable these providers to allocate costs down to the facility and, 
if not, what additional procedures should be required? Are there any 
additional data WCB/OEA should seek that would help ensure that 
providers allocate costs to facilities in a manner that more accurately 
reflects how such costs are incurred?
    26. Cost Allocation. WCB/OEA propose several steps for providers to 
follow in allocating their costs among various services, as set forth 
in the proposed instructions. What refinements, if any, should be made 
to the proposed cost allocation methodology? Is there an alternative 
methodology that would better ensure that providers allocate their 
costs in a manner consistent with how they are incurred? If so, what is 
that methodology and why would it produce more accurate results than 
the proposed method? Would the benefits of an alternative methodology 
justify the costs?
    27. Financial Information. The proposed instructions retain the 
requirements that providers report financial data in accordance with 
generally accepted accounting principles (GAAP) and asset values that 
reflect the results of recent impairment testing. Under GAAP, an asset 
or asset group is impaired when its carrying amount, that is, the value 
reflected on the balance sheet, net of depreciation or amortization, 
exceeds its fair market value. In that case, the value of the impaired 
asset or asset group is written down and the reduced value is reflected 
on the balance sheet and a loss is recorded on the income statement. Is 
this the correct approach? If not, why not? Are other or additional 
instructions needed to ensure that the carrying value of any provider's 
assets is not misstated? If so, what other instructions should be 
adopted?
    28. Site Commissions. The proposed instructions retain in large 
part the questions concerning company-wide and facility-level site 
commission data from the Third Mandatory Data Collection. Are there 
specific changes WCB/OEA should consider, either to the overall 
structure or level of disaggregation for site commission data? If so, 
what changes do commenters suggest and why? As explained in the 
proposed instructions, WCB/OEA propose new narrative questions in a 
separate Word template designed to obtain information about interstate, 
intrastate, and international site commissions, including whether and 
how the formulas providers use to calculate monetary site commissions 
differ among interstate, intrastate, and international communications. 
WCB/OEA also propose a new Word template question seeking information 
about

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whether providers pay site commissions separately on audio and video 
services and how those site commissions are calculated. WCB/OEA invite 
comment on these proposed questions and ask commenters to suggest 
alternative questions that would help the Commission obtain reliable 
and accurate data and information on site commission payments for 
interstate, intrastate, and international, as well as for audio and 
video, communications.
    29. Ancillary Services. While the proposed instructions retain 
essentially the same company-wide and facility-level questions about 
ancillary services that were asked as part of the Third Mandatory Data 
Collection, WCB/OEA invite comment on potential changes that they 
should consider. Do commenters suggest that WCB/OEA add or remove 
questions in these sections? If so, what should be added or removed? Is 
there a better structure or approach that would yield more accurate, 
reliable, or useful data? If so, what do commenters propose? Given the 
Commission's expanded authority under the Martha Wright-Reed Act, WCB/
OEA propose new Word template questions that would seek information on 
how providers assess ancillary service charges on interstate, 
intrastate, and international communications, in light of the 
Commission's previous conclusion that ``ancillary service charges 
generally cannot be practically segregated between the interstate and 
intrastate jurisdiction.'' WCB/OEA also propose to add Word template 
questions regarding the ancillary service charges or other charges 
assessed in connection with video services and whether there are any 
differences between the types of ancillary service charges assessed in 
connection with video and audio IPCS. WCB/OEA invite comment on these 
questions. Are there other questions they should ask that would assist 
the Commission in evaluating any differences based on either the 
jurisdiction of the communications service or whether the charges are 
being assessed in connection with an audio or video service? Are 
providers currently assessing any other charges in connection with 
video communications that fall outside of the five ancillary service 
charges permitted under the Commission's rules? If so, what are they 
and how should they be addressed in the data collection? Are there 
particular questions WCB/OEA should ask to help the Commission 
understand how providers assess ancillary service charges in 
circumstances where service offerings might be mixed between audio and 
video services?

Reporting Template

    30. WCB/OEA propose to require providers to submit the requisite 
data using a reporting template, to be filed through the Commission's 
Electronic Comment Filing System (ECFS). The proposed template consists 
of a Word document (Appendix A to the instructions) for responses 
requiring narrative information and Excel spreadsheets (Appendix B to 
the instructions) for responses that require numeric or other 
information. WCB/OEA seek comment on proposed modifications in the 
template seeking data relevant to the Commission's expanded 
jurisdiction, including modifications to collect data on video IPCS and 
safety and security measures. WCB/OEA also seek suggestions for 
improvements they can make to the template. Is there an alternative 
organization that would reduce any perceived burdens, without 
compromising the reliability and accuracy of the data WCB/OEA are able 
to collect? Are there other organizational or substantive improvements 
they can make to the reporting template? Do any questions require 
clarification?

Timeframe for Provider Responses to the Data Collection

    31. WCB/OEA invite comment on the timeframe for provider responses 
to the data collection. In the 2023 IPCS Order, the Commission 
explained that ``[a]ny new or modified requirements that require 
approval from the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act shall be effective on the date specified in a 
notice published in the Federal Register announcing OMB's approval.'' 
Importantly, the Martha Wright-Reed Act imposes a statutory requirement 
that the Commission ``promulgate any regulations necessary to 
implement'' the Act, not earlier than 18 months and not later than 24 
months after the Act's January 5, 2023 enactment. As the Commission 
explained in the 2023 IPCS Order, ``[a]ny unnecessary delay in our 
efforts to collect appropriate information would be inconsistent with, 
and undermine the Commission's ability to meet the deadlines contained 
in, the Act.'' Given these constraints, WCB/OEA propose to require 
providers to file their responses to the data collection within 90 days 
of the release of the order approving the data collection. Do 
commenters agree with this timeframe? Would it afford providers 
sufficient time to prepare and submit their responses while also 
allowing the Commission to act expeditiously to implement the Martha 
Wright-Reed Act within the statutory timeframe? Why or why not? Should 
WCB/OEA instead consider a shorter, or longer, timeframe for providers 
to respond to the data collection? If so, what timeframe do commenters 
propose and why?

Digital Equity and Inclusion

    32. As part of the Commission's continuing effort to advance 
communications equity for all, including people of color and others who 
have been historically underserved, marginalized, and adversely 
affected by persistent poverty and inequality, WCB/OEA invite comment 
on any equity-related considerations and benefits that may be 
associated with the upcoming data collection. Specifically, WCB/OEA 
seek comment on how their proposals for that collection may promote or 
inhibit advances in diversity, equity, inclusion, and accessibility. 
WCB/OEA define the term ``equity'' consistent with Executive Order 
13985 as the consistent and systematic fair, just, and impartial 
treatment of all individuals, including individuals who belong to 
underserved communities that have been denied such treatment, such as 
Black, Latino, and Indigenous and Native American persons, Asian 
Americans and Pacific Islanders and other persons of color; members of 
religious minorities; lesbian, gay, bisexual, transgender, and queer 
(LGBTQ+) persons; persons with disabilities; persons who live in rural 
areas; and persons otherwise adversely affected by persistent poverty 
or inequality. Exec. Order No. 13985, 86 FR 7009, Executive Order on 
Advancing Racial Equity and Support for Underserved Communities Through 
the Federal Government (Jan. 20, 2021).

Procedural Matters

    33. Ex Parte Presentations. 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. If the presentation

[[Page 27855]]

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 the 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 Sec.  1.1206(b) of the Commission's rules. 
Participants in this proceeding should familiarize themselves with the 
Commission's ex parte rules.
    34. Supplemental Initial Regulatory Flexibility Act Analysis. As 
required by the Regulatory Flexibility Act, the Commission has prepared 
a Supplemental Initial Regulatory Flexibility Analysis (Supplemental 
IRFA) of the possible significant economic impact on small entities by 
the policies and rules proposed in this document. The Commission 
requests written public comments on the Supplemental IRFA. Comments 
must be identified as responses to the Supplemental IRFA and must be 
filed by the deadlines for comments provided in this document. The 
Commission will send a copy of this document, including this 
Supplemental IRFA, to the Chief Counsel for Advocacy of the Small 
Business Administration (SBA). In addition, summaries of this document 
and the Supplemental IRFA will be published in the Federal Register.
    35. Initial Paperwork Reduction Act Analysis. This document, and 
the instructions and templates, contain new or modified information 
collection requirements subject to the Paperwork Reduction Act of 1995 
(PRA), Public Law 104-13. It will be submitted to OMB for review under 
section 3507(d) of the PRA. OMB, the general public, and other Federal 
agencies are invited to comment on the new or modified information 
collection requirements contained in this proceeding. Contemporaneously 
with the publication of this Notice in the Federal Register, WCB/OEA 
will publish a notice in the Federal Register seeking comment pursuant 
to the PRA on the information collection requirements for the proposed 
2023 Mandatory Data Collection in the 2023 IPCS Notice and this 
document. WCB/OEA will consider comments submitted in response to both 
Federal Register notices in finalizing this information collection for 
submission to OMB. In addition, WCB/OGC note that pursuant to the Small 
Business Paperwork Relief Act of 2002, Public Law 107-198; see 44 
U.S.C. 3506(4), they seek comment on how the Commission may further 
reduce the information collection burden for small business concerns 
with fewer than 25 employees.

Supplemental Initial Regulatory Flexibility Analysis

    36. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), WCB/OEA have prepared this Supplemental IRFA of the 
possible significant economic impact on small entities by the policies 
and rules proposed in this document to supplement the Commission's 
Regulatory Flexibility Analyses completed in the 2023 IPCS Notice and 
2023 IPCS Order. WCB/OEA request written public comment on this 
Supplemental IRFA. Comments must be identified as responses to the 
Supplemental IRFA and must be filed by the deadlines for comments 
provided in this document. The Commission will send a copy of this 
document, including this Supplemental IRFA, to the Chief Counsel for 
Advocacy of the SBA. This present Supplemental IRFA conforms to the 
RFA.

Need for, and Objectives of, the Proposed Rules

    37. In this document, WCB/OEA seek comment on the contours and 
specific requirements of the proposed 2023 Mandatory Data Collection 
for IPCS. In issuing this document, WCB/OEA act pursuant to the 
Commission's directive so that it will be able to implement the Martha 
Wright-Reed Act. The Commission determined that this data collection 
would enable it to ``meet both [its] procedural obligations (to 
consider certain types of data) and [its] substantive responsibilities 
(to set just and reasonable rates and charges)'' under the Martha 
Wright-Reed Act and the Communications Act. Likewise, it directed WCB/
OEA ``to update and restructure the most recent data collection as 
appropriate to implement the Martha Wright-Reed Act.''
    38. Pursuant to their delegated authority, WCB/OEA have drafted 
instructions, a template, and a certification form for the proposed 
2023 Mandatory Data Collection and are issuing this document to seek 
comment on all aspects of these proposed documents.

Legal Basis

    39. The proposed action is pursuant sections 1, 2, 4(i)-(j), 5(c), 
201(b), 218, 220, 225, 255, 276, 403 and 716 of the Communications Act 
of 1934, as amended, 47 U.S.C. 151, 152, 154(i)-(j), 155(c), 201(b), 
218, 220, 225, 255, 276, 403, and 617, and the Martha Wright-Reed Act, 
Public Law 117-338, 136 Stat. 6156 (2022).

Description and Estimate of the Number of Small Entities to Which the 
Proposed 2023 Rules Would Apply

    40. The RFA directs agencies to provide a description of, and where 
feasible, an estimate of the number of small entities that may be 
affected by the proposed 2023 Mandatory Data Collection. The RFA 
generally defines the term ``small entity'' as having the same meaning 
as the terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' In addition, the term ``small business'' 
has the same meaning as the term ``small-business concern'' under the 
Small Business Act. A ``small-business concern'' is one which: (1) is 
independently owned and operated; (2) is not dominant in its field of 
operation; and (3) satisfies any additional criteria established by the 
SBA.
    41. As noted above, an IRFA was incorporated in the 2023 IPCS 
Notice. In that analysis, the Commission described in detail the small 
entities that might be affected. Accordingly, in this document, for the 
Supplemental IRFA, WCB/OEA hereby incorporate by reference the 
descriptions and estimates of the number of small entities from the 
2023 IPCS Notice's IRFA.

Description of Project Reporting, Recordkeeping, and Other Compliance 
Requirements for Small Entities

    42. This document seeks comment on the specifics of the proposed 
2023 Mandatory Data Collection to ensure that the Commission receives 
the data it needs to meet its substantive and procedural 
responsibilities under the Act. The proposed 2023 Mandatory Data 
Collection would require IPCS providers to submit, among other things, 
data and other information on calls, demand, operations, company and 
contract information, information about facilities served, revenues, 
site commission payments, the costs of safety and security measures, 
video IPCS, and ancillary fees. The proposed 2023 Mandatory Data 
Collection may require entities, including small entities and IPCS 
providers of all sizes, currently subject to the Commission's inmate 
calling services rules to be subject to modified or new reporting or 
other compliance obligations. This may also be the case for providers 
newly subject to the Commission's expanded regulatory authority, such 
as providers

[[Page 27856]]

offering only intrastate or certain advanced communications. In 
addition, WCB/OEA recognize that their actions in this proceeding may 
affect the reporting, recordkeeping, and other compliance requirements 
for several groups of small entities. In assessing the cost of 
compliance for small entities and for providers of incarcerated 
people's communications services of all sizes, at this time WCB/OEA are 
not in a position to determine whether the proposed 2023 Mandatory Data 
Collection will impose any significant costs for compliance in general. 
WCB/OEA anticipate the information they receive in comments, including 
any cost and benefit analyses, will help the Commission identify and 
evaluate relevant compliance matters for small entities, including 
compliance costs and other burdens that may result from the proposals 
and inquiries they make in this document.

Steps Taken To Minimize the Significant Economic Impact on Small 
Entities and Significant Alternatives Considered

    43. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include the following four alternatives (among others): ``(1) 
the establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance and reporting requirements under the rules for such small 
entities; (3) the use of performance rather than design standards; and 
(4) an exemption from coverage of the rule, or any part thereof, for 
such small entities.'' WCB/OEA will consider all of these factors when 
they receive substantive comment from the public and potentially 
affected entities.
    44. The proposed 2023 Mandatory Data Collection is a one-time 
request and does not impose a recurring obligation on providers. 
Because the Commission's 2023 IPCS Order requires all IPCS providers to 
comply with the proposed 2023 Mandatory Data Collection, the collection 
will affect smaller as well as larger IPCS providers. WCB/OEA have 
taken steps to ensure that the data collection template is 
competitively neutral and not unduly burdensome for any set of 
providers. For example, this document proposes to collect data for a 
single calendar year instead of three calendar years, as in the 
previous data collection. Additionally, this document asks whether 
there are ways of minimizing the burden of the data collection on 
providers while still ensuring that the Commission collects all the 
data needed to meet its goals.
    45. WCB/OEA will consider the economic impact on small entities, as 
identified in comments filed in response to this document and this 
Supplemental IRFA, in reaching their final conclusions and finalizing 
the instructions, the template, and certification form for the proposed 
2023 Mandatory Data Collection.

Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules

    46. None.

(Authority: 47 U.S.C. 151-63)

Federal Communications Commission.
Lynne Engledow,
Deputy Chief, Pricing Policy Division, Wireline Competition Bureau.
[FR Doc. 2023-09502 Filed 5-2-23; 8:45 am]
BILLING CODE 6712-01-P