IPCS Providers and Public Interest Groups Disagree on Prison Calling Reconsideration
Incarcerated people’s calling service providers and law enforcement groups want the FCC to reconsider provisions of its implementation of the Martha Wright-Reed Act, but a coalition of public groups said the industry arguments are incorrect and procedurally wrong, comments filed in docket 23-62 posted Tuesday show. Most of the filings focused on October petitions for reconsideration of the FCC’s order from NCIC Communications and HomeWAV, and aimed at the agency’s categorization of costs and fees, handling of provider expenses, and timing of the order’s changes to prison calling rules.
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The Wireline Bureau’s implementation of the order “is out of touch with the real world in which providers operate and seems designed to ‘punish’ the industry rather than to regulate it,” said Pay Tel Communications. The NCIC and HomeWAV petitions “simply rehash arguments that the Commission has already fully considered and rejected, advance false assertions of error, and rely on arguments that could have been raised during the rulemaking process," said a joint filing from the public interest groups, which include Public Knowledge, the Benton Institute for Broadband & Society, and the United Church of Christ Media Justice Ministry.
Pay Tel, Securus and Viapath said the order’s prohibition on ancillary fees should take effect on the same schedule as the order’s rate caps and prohibition on site commissions. In an Oct. 2 Wireline Bureau order, the agency said the phased-in timing for the rate cap changes doesn’t apply to the ancillary fee prohibition, so it would take effect sooner. That “is inconsistent with the compensation scheme established in the Order” and “leaves insufficient time to renegotiate existing contracts,” putting providers “in an untenable situation,” said Pay Tel. “Requiring a different implementation process for ancillary service charges ignores the Commission’s clear understanding that additional time is needed to amend contracts and state laws to reflect the Commission’s reforms,” said Viapath. The public interest groups disagreed, arguing that the FCC has clearly said it doesn’t view the fee prohibition as similar in scope to the rate caps and site commission revisions. “There is no basis for delaying implementation of the prohibition on separate ancillary service charges,” the joint filing said.
The order’s inclusion of automated payment fees and third-party transaction fees in the prohibition “will encourage user behavior that increases those costs,” said Pay Tel. “For example, end users will make decisions that marginally increase their convenience but drastically increase costs for providers -- such as high volumes of small deposits and multiple refund requests for the same account.” Securus said the FCC could address that by allowing providers to establish a minimum deposit requirement.
Securus and the National Sheriff’s Association criticized the order’s categorization of provider costs in creating rate caps. The FCC’s “used and useful” standard for what costs are recoverable is “fundamentally flawed” because the agency’s data collection on costs wasn’t comprehensive enough, NSA said. “If incarcerated people did not use IPCS to commit further crimes, harass and threaten witnesses, and indicate intentions of harm to self or others, call monitoring and call recording (categories 4 and 5) would not be used and useful. But, they do.” Failing to allow cost recovery for safety and security measures is likely to result in states reducing or eliminating access to IPCS, NSA predicted. Recording, monitoring and voice biometrics “serve to detect violations of Communication Security Service features, such as whether a call is being made to an unauthorized number or whether someone is using a stolen PIN,” said Securus. “It's as if the government allowed recovery of costs to post speed limits but precluded costs designed to catch speeders.”
IPCS providers “could have provided more granular safety and security cost data if they wanted such data to be considered in the Commission’s ratemaking,” said the public interest groups. “To the extent that the resulting rate caps would cause certain providers to not fully recover their costs, the Commission has provided a waiver process.”
The IPCS entities also said the FCC shouldn’t have included unbilled minutes in its calculations of rate caps. Said Pay Tel, “It is both contrary to long-standing Commission treatment of unbilled minutes and improperly serves to ensure that IPCS providers cannot recover their costs through billed minutes.” Said Securus, the FCC “has failed to adequately explain its departure from [the] precedent of using only revenue-generating minutes when deriving rate caps.” The FCC’s “decision to include unbilled minutes has led to rates that are more reasonable and potentially easier to administer,” said the public interest groups.