[Federal Register Volume 88, Number 148 (Thursday, August 3, 2023)]
[Rules and Regulations]
[Pages 51240-51249]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16305]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[WC Docket Nos. 12-375, 23-62; DA 23-638; FR ID [159602]]


2023 Mandatory Data Collection for Incarcerated People's 
Communications Services

AGENCY: Federal Communications Commission.

ACTION:  Final order.

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SUMMARY: In this document, the Wireline Competition Bureau and the 
Office of Economics and Analytics (WCB and OEA) adopt an Order defining 
the contours and specific requirements of the forthcoming 2023 
Mandatory Data Collection for incarcerated people's communications 
services.

DATES: The Order was adopted and released on July 26, 2023. The 
effective date of the Order is delayed indefinitely. The Federal 
Communications Commission will publish a document in the Federal 
Register announcing the effective date.

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: To request materials in accessible 
formats for people with disabilities (Braille, large print, electronic 
files, audio format), send an email to [email protected], or call the 
Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice) or 
(202) 418-0432 (TTY).

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 the FCC's Order, DA 23-
638, released on July 26, 2023. A full-text version of this Order is 
available at the following internet address: https://www.fcc.gov/document/2023-ipcs-mandatory-data-collection-order.
    The effective date of the Order is delayed indefinitely. The 
Commission will publish a document in the Federal Register announcing 
the effective date once the Office of Management and Budget (OMB) has 
completed any review required by the Paperwork Reduction Act (PRA).

Synopsis

I. Introduction and Background

    1. By this Order, the Wireline Competition Bureau (WCB) and the 
Office of Economics and Analytics (OEA) adopt instructions, a reporting 
template, and a certification form to implement the 2023 Mandatory Data 
Collection related to incarcerated people's communications services 
(IPCS). WCB and OEA's actions today are taken pursuant to the authority 
delegated to WCB and OEA by the Commission and largely implement the 
proposals set forth in the 2023 IPCS Mandatory Data Collection Public 
Notice, with refinements and reevaluations responsive to record 
comments. Rates for Interstate Inmate Calling Services, Notice of 
Proposed Rulemaking, 88 FR 27850, May 3, 2023 (2023 IPCS Mandatory Data 
Collection Public Notice or Public Notice); Incarcerated People's 
Communications Services; Implementation of the Martha Wright-Reed Act; 
Rates for Interstate Inmate Calling Services, Delegations of Authority; 
Reaffirmation and Modification, 88 FR 19001, March 30, 2023 (2023 IPCS 
Order); Incarcerated People's Communications Services; Implementation 
of the Martha Wright-Reed Act; Rates for Interstate Inmate Calling 
Services, Notice of Proposed Rulemaking, 88 FR 20804, April 7, 2023 
(2023 IPCS Notice); Incarcerated People's Communications Services; 
Implementation of the Martha Wright-Reed Act; Martha Wright-Reed Act, 
Public Law number 117-338, 136 Stat. 6156 (Martha Wright-Reed Act or 
Act).
    2. On January 5, 2023, the President signed into law the Martha 
Wright-Reed Just and Reasonable Communications Act, which expanded the 
Commission's statutory authority over communications between 
incarcerated people and the non-incarcerated, including ``any audio or 
video communications service used by inmates . . . regardless of 
technology used.'' The new Act also amends section 2(b) of the 
Communications Act of 1934, as amended (Communications Act), to make 
clear that the Commission's authority extends to intrastate as well as 
interstate and international communications services used by 
incarcerated people.
    3. 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.
    4. The Martha Wright-Reed Act contemplates an additional data 
collection by requiring or allowing the Commission to consider certain 
types of other costs necessary to its implementation. Prior to the 
enactment

[[Page 51241]]

of the Martha Wright-Reed Act, the Commission had sought provider data 
related to audio communications services provided to incarcerated 
persons on three occasions, as part of its ongoing efforts to establish 
just and reasonable rates for those services, while ensuring that 
providers are fairly compensated for such services. To ensure that it 
will have the data it needs to meet its substantive and procedural 
responsibilities under the Act, the Commission delegated authority to 
WCB and OEA to ``update and restructure'' its 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 and OEA collect ``data on all incarcerated people's 
communications services from all providers of those services now 
subject to'' the Commission's authority, including, but not limited to, 
requesting ``more recent data for additional years not covered by the 
[Third Mandatory Data Collection].''
    5. In accordance with this delegation, WCB and OEA developed 
proposals for the 2023 Mandatory Data Collection that updated and 
expanded the instructions and reporting templates from the Third 
Mandatory Data Collection, and issued a Public Notice seeking comments 
on all aspects of the proposed revisions to the collection. 
Concurrently, in accordance with the Paperwork Reduction Act of 1995 
(PRA), WCB and OEA published a notice in the Federal Register seeking 
comment on potential burdens of the proposed reporting requirements. 
Information Collection Being Reviewed by the Federal Communications 
Commission, Notice and Request for Comments, 88 FR 27885, May 3, 2023.
    6. WCB and OEA received comments from several IPCS providers, 
public interest advocates, and other interested parties in response to 
the Public Notice, and one comment in response to the PRA notice. WCB 
and OEA have thoroughly considered all of these filings in adopting the 
requirements for the final 2023 Mandatory Data Collection.

II. Discussion

A. Implementing the 2023 Mandatory Data Collection

    7. Pursuant to their delegated authority, WCB and OEA adopt the 
2023 Mandatory Data Collection Instructions, Word and Excel templates, 
and certification form as proposed in the Public Notice, with some 
exceptions discussed below. Commenters generally support the broad 
contours and specific requirements of the data collection as proposed 
and do not challenge the proposal to retain the overall reporting 
structure and organization of the Third Mandatory Data Collection as 
the basis for this collection.
    8. Commenters offer various suggestions that, in their view, would 
improve the proposed data collection. In light of these comments, WCB 
and OEA reevaluate some of their proposals and refine certain aspects 
of the instructions and templates, as set forth in greater detail 
below, while retaining the overall structure of the data collection as 
proposed. These refinements include modifying the treatment of video 
IPCS and safety and security measures, clarifying the reporting of 
costs related to site commissions, and revising certain proposed 
definitions. WCB and OEA conclude that the modifications 
``appropriately balance the need for `detailed and specific 
instructions and templates' and the desire to avoid unduly burdening 
providers.''
    9. In finalizing the requirements for the data collection, WCB and 
OEA do not resolve issues pending in the 2023 IPCS Notice as some 
commenters propose. Doing so would exceed the authority the Commission 
delegated to WCB and OEA. The Public Notice expressly foreclosed 
``seek[ing] additional comment on the questions and other issues 
previously raised in the 2023 IPCS Notice or in relevant prior 
Commission or Bureau notices,'' and WCB and OEA do not address 
commenters' proposals to the contrary in this Order. Instead, the 
purpose of the data collection is to provide the Commission with an 
objective foundation for addressing the issues it must resolve to 
implement the Martha Wright-Reed Act.
    10. In the sections that follow, WCB and OEA first address the 
overall scope of the data collection and then turn to proposals to 
revise specific instructions.

B. Overall Scope of the Data Collection

1. Reporting Period
    11. WCB and OEA limit the data collection to calendar year 2022, 
consistent with their proposal in the Public Notice. WCB and OEA find 
that the data from 2022 will provide the most pertinent and the best 
indicator of relevant costs. Some commenters propose that WCB and OEA 
expand the data collection reporting period beyond just 2022. Others 
argue that the burden of requiring additional years of data would 
``outweigh[] any material benefit.'' WCB and OEA decline to expand the 
reporting period. Data from 2022 represent the most recent data 
available, and are therefore likely to be more representative of future 
operations by IPCS providers than data from prior years. To the extent 
that data from prior years would be useful in determining just and 
reasonable rates, WCB and OEA already have data regarding audio IPCS, 
including investments, expenses, revenues, demand, site commission 
payments, and ancillary services charges and practices, from the Third 
Mandatory Data Collection. WCB and OEA recognize that those data are 
limited to audio IPCS, but find that the burdens associated with 
collecting video data for prior years would outweigh any potential 
benefit. In particular, the pandemic had a substantial impact on 
providers' operations and likely accelerated the implementation of (and 
therefore increased the costs and revenues associated with) video IPCS 
as a substitute for in-person visitation, such that data from those 
prior years may not be representative of providers' future operations. 
As a result, WCB and OEA find that collecting data solely for 2022 will 
best equip us to set rate caps that reflect providers' operations going 
forward and avoid the burdens associated with collecting additional 
data that may not be representative or are already available for prior 
periods.
    12. While WCB and OEA recognize the incremental benefits of having 
more comprehensive cost data, most of the categories of data that WCB 
and OEA seek in this data collection were addressed in the previous 
data collection, such that collecting these data from years prior to 
2022 would be largely redundant. To the extent WCB and OEA seek new 
categories of data, the burden on providers to produce those data would 
be significant. Given the burdens already imposed by this revised data 
collection which are necessary to implement the new statute, as well as 
the comparatively shorter timeframe for submitting responses, WCB and 
OEA decline to impose an additional burden by expanding the reporting 
period as some commenters propose.
2. Cost Reporting and Cost Allocation
    13. In the Public Notice, WCB and OEA proposed to adapt the cost 
reporting and cost allocation methodologies specified for the Third 
Mandatory Data Collection for use in the 2023 Mandatory Data 
Collection. No commenter challenges this overall approach or suggests 
fundamental changes to the proposals for applying those methodologies 
to video IPCS. Instead, commenters suggest relatively discrete 
modifications to the proposed instructions for reporting company-wide

[[Page 51242]]

cost data and for allocating reported costs among cost categories. 
After considering these comments, WCB and OEA adopt the cost allocation 
methodology essentially as proposed, with modifications to the 
instructions designed to help providers understand the cost allocation 
methodology and to obtain further information on how providers 
implement it. WCB and OEA also modify the instructions to establish, at 
the facility-specific level, the same reporting structure for capital 
assets and expenses that is in place at the company-wide level.
    14. As a general matter, the changes to the cost reporting and cost 
allocation instructions reflect an understanding, from WCB and OEA's 
review of the Third Mandatory Data Collection submissions, that certain 
providers' internal accounting and recordkeeping systems limit those 
providers' ability to provide highly disaggregated cost data and to 
finely tune their cost allocation procedures. Given these limitations, 
the revised instructions generally require providers to describe in 
greater detail their implementation of the cost reporting and cost 
allocation instructions, rather than prescribe additional cost 
reporting and cost allocation requirements for which certain providers 
may not have the internal accounting systems needed to comply with such 
requests.
    15. For example, WCB and OEA require providers to describe the 
types of costs they include in various capital and operating expense 
categories, rather than list the types of costs that are to be included 
in each category, as one commenter suggests. WCB and OEA also require 
providers to describe in greater detail the factors they use to 
allocate certain types of shared and common costs among audio IPCS, 
video IPCS, and nonregulated services, rather than specifying factors 
for providers to use in performing those allocations. WCB and OEA find 
that these revisions will help the Commission understand the nature of 
the reported costs, without imposing significant additional burdens on 
providers that would be unlikely to result in more useful information.
    16. WCB and OEA reject, however, ViaPath's proposal that WCB and 
OEA permit providers to ``use the allocation methodologies that best 
reflect [their] business and the way in which [they] keep[] [their] 
books and records as long as the provider[s] document[] and explain[] 
[such] methodologies in [their] MDC response[s].'' The detailed cost 
allocation hierarchy set forth in the proposed instructions was carried 
forward from the instructions for the Third Mandatory Data Collection 
and, as such, reflects the Commission's directive that the Third 
Mandatory Data Collection collect, ``to the extent possible, uniform 
cost . . . data from each provider. In directing that WCB and OEA 
``update and restructure'' that prior data collection, the Commission 
did not propose or suggest that WCB and OEA should undertake wholesale 
revisions to the core methodologies of the Third Mandatory Data 
Collection by allowing each provider to devise its own allocation 
methodology. As the Wright Petitioners point out, allowing providers to 
devise their own cost allocation methodologies in the previous data 
collection led to ``large discrepancies between costs allocated towards 
capital expenses and operating expenses,'' with providers assigning 
costs inconsistently among the categories provided and reporting 
nonregulated service costs as inmate calling services costs. Allowing 
providers to use their own allocation methodologies also would 
substantially increase the back-end burden on all parties that want to 
process and analyze the reported data, because of the extent and 
complexity of the adjustments that would be necessary to correct for 
inconsistencies among providers' responses. The cost allocation 
hierarchy set forth in the instructions provides a necessary and 
workable framework within which to standardize and compare the data 
submitted, while, as WCB and OEA recognize above, affording providers 
flexibility to implement the cost allocation instructions in a manner 
that reflects their accounting and recordkeeping systems.
3. Overall Reporting Categories
    17. WCB and OEA adopt their proposal 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. WCB and OEA find, subject to certain 
refinements related to safety and security measures, that these 
categories are well-suited to provide the Commission with the 
information it needs to comply with its ratemaking responsibilities 
under the Communications Act and the Martha Wright-Reed Act without 
unduly burdening providers.
    18. WCB and OEA decline to require providers to subdivide their 
audio and video IPCS costs into more discrete categories based on the 
type of audio or video service being provided, as some parties suggest. 
While WCB and OEA recognize that video IPCS costs may vary based on the 
equipment used to provide the service, WCB and OEA find that the best 
way to address this possibility is to ask providers to report the per-
unit costs of the devices used for video IPCS. This information, 
combined with the requirement that providers report their video IPCS 
costs on a facility-by-facility basis while describing the video 
services provided at each facility, should provide sufficient 
information to measure any cost differentials among different video 
services without imposing on providers the burden of subdividing video 
IPCS costs into more discrete categories.
    19. WCB and OEA adopt their proposal to allow, but not require, 
providers to subdivide their investments and expenses for audio IPCS, 
video IPCS, safety and security measures, and ancillary services 
between interstate/international and intrastate services. While WCB and 
OEA recognize that providers likely experience ``no meaningful 
difference[s]'' between the costs of providing interstate/international 
and intrastate IPCS (other than the costs of terminating audio 
communications in foreign destinations), WCB and OEA find this option 
properly allows providers the flexibility to inform the Commission if 
they do incur different costs based on the jurisdictional nature of the 
services they provide.
4. Safety and Security Measures
    20. WCB and OEA adopt their proposal to require providers to 
allocate the annual total expenses they incurred in providing safety 
and security measures among seven categories using the provider's best 
estimate of the percentage of those expenses attributable to each 
category. After considering the comments regarding this proposed 
allocation process, WCB and OEA modify the instructions for this 
allocation to make them clearer and more comprehensive.
    21. Some providers take issue with WCB and OEA's proposed seven-
category framework for reporting safety and security measure costs, 
claiming that their internal accounting systems do not align with these 
categories and that providers will have difficulty allocating their 
costs in the manner proposed. WCB and OEA do not find these arguments 
persuasive. As Securus concedes, the cost categories WCB and OEA 
proposed are similar to categories employed in the Third Mandatory Data 
Collection. Accordingly, WCB and OEA find, as they did with the Third 
Mandatory Data Collection, that the proposed categories provide a 
comprehensive and workable framework for dividing safety and security 
measure costs into reasonably

[[Page 51243]]

homogenous groupings that ``should capture all [safety and] security 
costs,'' particularly with the addition of multiple examples of costs 
for each category. To the extent that providers make measures available 
that do not fit within the first six categories, the data collection 
also includes a catch-all category for ``Other Safety and Security 
Measures.''
    22. The Martha Wright-Reed Act requires the Commission to consider 
``costs associated with any safety and security measures necessary to 
provide'' IPCS in setting IPCS rates. While the commenters present 
sharply divergent views as to whether providers should be allowed to 
recover the costs of various types of safety and security measures 
through their rates, the purpose here is to ensure, to the extent 
consistent with the providers' internal accounting and recordkeeping, 
that the data collection generates, in a timely manner, sufficient 
information for the Commission to implement ``whatever decision it 
makes regarding the necessity of safety and security measures.'' This 
necessarily requires tradeoffs between pinpointing the costs of each 
safety and security measure providers offer and the providers' ability 
to produce (and the Commission's ability to process) highly 
disaggregated safety and security measure cost data within the 18 to 24 
month statutory timeframe. WCB and OEA find the proposed reporting 
structure and associated categories, modified as described below, to be 
the most effective means of balancing these competing considerations.
    23. One commenter claims that the proposed categories ``will not 
provide a full or accurate picture of how safety and security costs are 
associated with the service offering,'' while other commenters propose 
that WCB and OEA should ``provid[e] examples and or definitions . . . 
of certain security services and costs that would fall under the seven 
categories,'' and that the required safety and security cost data 
should, in general, be more granular. The proposed instructions already 
include multiple examples of safety and security measures that fall 
within each of the seven categories. WCB and OEA find that these lists, 
as revised in response to the comments, are sufficiently comprehensive 
to allow providers to sort their safety and security measures into the 
categories WCB and OEA have established. However, because some 
commenters may not have understood the examples WCB and OEA provided, 
they have reorganized the relevant instructions to simplify them and 
increase their clarity. Specifically, WCB and OEA modify both the 
company-wide and the facility-by-facility instructions to first require 
providers to assign each of their safety and security measures to one 
of the seven listed categories and second to allocate their aggregate 
costs of providing safety and security measures among these categories.
    24. In addition, WCB and OEA give providers the option to 
supplement what WCB and OEA require them to submit should they 
determine that more specific categories are needed to reflect their 
operations. Specifically, when allocating these costs, providers may 
divide the seven listed categories into subcategories of their own 
choosing, and thereby report costs in a more detailed manner. WCB and 
OEA find that allowing for further subdivision will better enable 
providers to submit a ``full [and] accurate picture'' of their costs in 
a way that ``meaningfully distinguish[es] among these costs,'' while 
also retaining the uniform reporting structure that is necessary for us 
to effectively compare cost data among providers. WCB and OEA also 
adopt a suggestion that they instruct providers to assign any safety 
and security measure that does not precisely match any of WCB and OEA 
provided examples to the category that provides the best fit, and to 
allocate the costs of such measures accordingly. Directing providers to 
categorize services in this manner will give them additional 
flexibility in applying the categories to their own internal accounting 
structures.
    25. To further help providers allocate safety and security costs 
among the established categories, WCB and OEA modify the instructions 
to include additional and guidance. These changes address certain 
commenters' concerns about their ability to allocate their security 
costs among each category within the seven-category reporting framework 
without further guidance. However, given providers' concerns with their 
ability to implement the seven-category framework, WCB and OEA decline 
to require that the expenses allocated to each of the seven categories 
be further allocated among the various safety and security measures 
within each category. Conversely, WCB and OEA also decline to adopt Pay 
Tel's proposal that the collection be limited to ``data regarding 
Safety and Security Measures associated with distinct and separate 
`system[s], product[s], or service[s]' which are provided as ancillary 
components to the IPCS offering.'' As an initial matter, those measures 
are effectively encompassed within the categories. To the extent that 
Pay Tel is proposing that WCB and OEA only collect such data, that 
approach would require that WCB and OEA prejudge which safety and 
security measures are ``necessary,'' which would be beyond the scope of 
WCB and OEA's delegated authority.
    26. WCB and OEA also decline to subdivide the safety and security 
measures reporting category into different real-time and non-real-time 
subcategories, as one commenter urges. WCB and OEA find that the 
granularity already included in the safety and security reporting 
requirements is sufficient to provide the Commission with the data it 
will need to set just and reasonable rates caps for IPCS. The 
additional burden more subdivision would impose on providers outweighs 
any potential benefit of further disaggregation.
    27. One commenter observes that ``there are no safety and security 
costs associated with ancillary services of the type contemplated'' for 
IPCS. WCB and OEA agree that this is likely the case for most 
providers, but those providers can simply enter ``0'' in the 
appropriate Excel template cells. Accordingly, WCB and OEA will include 
the proposed inquiries asking providers to report any safety and 
security costs they incur in connection with their ancillary services. 
WCB and OEA find that this approach will accommodate potential 
variation among providers' practices without burdening any provider.
    28. Lastly, WCB and OEA supplement questions in the Word template 
in order to obtain additional information on providers' safety and 
security measures. Commenters discuss certain nuances that may apply to 
the implementation of safety and security measures and consequent cost 
allocation issues that are not fully addressed by the questions 
proposed (e.g., differences based on infrastructure and devices used to 
provide IPCS, and circumstances in which safety and security services 
apply to both IPCS and nonregulated services). WCB and OEA agree with 
these commenters on the need to seek additional information from 
providers regarding their safety and security measures and attendant 
practices. Commenters also dispute the extent to which ``providers' 
accounting systems'' are--or are not--``designed to track `safety and 
security' costs.'' Given this ambiguity as to providers' accounting 
practices for safety and security measures, particularly in light of 
providers' concerns about their ability to apply their accounting 
systems to the categories WCB and OEA proposed, WCB and OEA find that 
additional information concerning providers' accounting practices and 
how they

[[Page 51244]]

allocate their internal data among the seven categories will assist the 
Commission in accurately determining the costs of providers' safety and 
security measures and distinguishing between ``essential and non-
essential costs.'' Accordingly, WCB and OEA modify the instructions and 
Word template to obtain information on these subjects, in order to 
provide the Commission with a more comprehensive and accurate 
understanding of providers' implementation of, and accounting and 
recordkeeping practices regarding, safety and security measures.
5. Video IPCS
    29. WCB and OEA adopt the majority of their proposals related to 
video IPCS, but make targeted changes to capture more complete 
information. As the record now makes clear, the costs of providing 
video IPCS likely vary depending on the specific infrastructure, 
devices, methods, technologies, and features used to provide those 
services. WCB and OEA find that this data collection should attempt to 
capture those variations at a more granular level than WCB and OEA 
proposed, to the extent possible without unduly burdening providers. 
Informed by the record compiled in response to the Public Notice, WCB 
and OEA agree that additional information concerning video IPCS would 
assist the Commission in its ratemaking efforts and therefore add 
general inquiries regarding the technical requirements of the 
providers' video IPCS offerings, the infrastructure used to provide 
those services, and the reasons for and costs of any data storage 
associated with those services, among other matters.
    30. Service Parameters. To help the Commission understand the 
providers' video IPCS offerings, WCB and OEA require providers to 
describe in detail each video service they provided during 2022. 
Providers must also identify, among other matters, each transmission 
technology used to provide each type of video service they provided to 
incarcerated people, provide any information they have regarding 
service parameters and performance indicators, and describe any steps 
they take to monitor whether the service functions properly. WCB and 
OEA also require providers to state whether they, as opposed to the 
correctional facilities, provide any broadband connection needed for 
the providers' IPCS offerings; the extent to which they use those 
connections to provide audio as well as video IPCS; and the extent to 
which facilities use those connections for their own communications.
    31. Infrastructure. WCB and OEA require providers to describe the 
infrastructure they used to provide video IPCS, including any 
infrastructure that is located within correctional facilities. WCB and 
OEA find that information on the type of infrastructure facilities 
deployed and its technical capabilities, to the extent the providers 
have that information, will help the Commission evaluate providers' 
video IPCS offerings. Accordingly, WCB and OEA have added a question to 
the Word template that directs providers to explain whether they, as 
opposed to the facilities they serve, provide and maintain any 
infrastructure that is located within facilities. WCB and OEA also 
direct providers to submit any information they have on the nature and 
capabilities (e.g., speed and latency) of the video IPCS infrastructure 
located within the facilities they serve, including use and general 
capability of Wi-Fi routers, if known.
    32. Data Storage. WCB and OEA add additional inquiries to the Word 
template designed to capture data on the storage costs associated with 
video IPCS in comparison to audio IPCS, as well as other information 
regarding data storage policies and practices. Based on information in 
publicly available contracts, the Wright Petitioners suggest expanding 
the data storage-related questions to request information on data 
retention policies and the data processing and analysis costs 
associated with video IPCS. WCB and OEA agree that additional questions 
regarding the quantity of data stored and the storage period will help 
the Commission understand the costs associated with video IPCS. 
Likewise, if, as the Wright Petitioners suggest, data storage costs 
vary depending on the storage method and underlying technology used, 
information on those factors may also be useful to help the Commission 
discharge its ratemaking responsibilities. WCB and OEA therefore 
include an additional narrative request asking providers to explain 
these matters. WCB and OEA find that allowing providers to submit a 
narrative response to this request imposes less of a burden on 
providers than would a more granular approach, such as requiring 
providers to report this information on a facility-by-facility basis.
    33. Other Video IPCS Information. WCB and OEA also add questions 
about how providers market and sell video IPCS to consumers. These 
questions include inquiries regarding whether video IPCS is offered as 
a stand-alone service or is ``bundled'' with other services. WCB and 
OEA also include questions asking whether video IPCS rates are based on 
minutes of use, number of communications, or data usage, and whether 
there are any limitations or conditions on how incarcerated people may 
use video IPCS. WCB and OEA find that these questions provide the best 
approach for ensuring that the data collection captures information on 
providers' rate structures and practices affecting video IPCS.
    34. WCB and OEA decline to adopt one commenter's proposal that WCB 
and OEA require providers to ``track and report usage data for apps 
that are not free to the end-user.'' Although such usage data might be 
helpful in providing context for the provision of IPCS on tablets and 
any associated costs, that is not the focus of this collection. Rather, 
WCB and OEA directly address the fundamental elements of providing IPCS 
on tablets by requiring providers to submit data on video sessions, 
audio minutes, and inputs for providing audio and video IPCS (e.g., 
hardware, software, and network connectivity), as well as costs 
exclusively attributable to IPCS versus other services. WCB and OEA 
find that these questions are sufficient to address, and more directly 
target, any issues that may be particular to the provision of IPCS on 
tablets.
6. Site Commissions
    35. As a general matter, WCB and OEA adopt the questions concerning 
company-wide and facility-level site commissions proposed in the Public 
Notice, which were largely based on the Third Mandatory Data 
Collection, as well as the proposed updates to the related instructions 
and templates. Those updates include additional questions seeking 
information on interstate, intrastate, and international site 
commissions, as well as information concerning site commissions for 
both audio and video services. No commenter opposed the adoption of 
this general framework. The Wright Petitioners additionally propose 
that the instructions include a diagram or chart explaining the 
structure of the site commission data requests. WCB and OEA agree that 
visual aids may improve the accuracy and consistency of the data 
reporting by helping providers better understand how to allocate their 
data among the different categories of site commissions. Accordingly, 
WCB and OEA have added diagrams to the instructions.
    36. WCB and OEA decline, however, to adopt the related request that 
they add instructions requiring providers to report specific details 
regarding each type of site commission. The updated

[[Page 51245]]

instructions and templates already require providers to submit this 
level of detail at the facility-level. For instance, with regard to 
what qualifies as a legally mandated site commission, the instructions 
require that providers include a citation to the authority requiring 
such payment in the attached Excel template. Moreover, for in-kind site 
commissions, the Word template requires providers to describe ``each 
payment, gift, exchange of services or goods, fee, technology 
allowance, or product provided to the Facility that [the provider] 
classif[ies] as an In-Kind Site Commission payment'' for both legally 
mandated and contractually prescribed site commissions. Thus, the 
instructions and templates are already designed to provide the level of 
transparency sought.

C. Specific Instructions

1. Definitions
    37. Commenters generally support or do not comment on the proposed 
definitions. WCB and OEA therefore adopt the proposed definitions with 
certain modifications, as explained below.
    38. Audio IPCS and Video IPCS. The proposed instructions included a 
definition of ``IPCS,'' but did not separately define ``Audio IPCS'' or 
``Video IPCS.'' WCB and OEA adopt a request that they define each of 
these terms because cost allocation is required ``between audio IPCS 
and video IPCS,'' and defining the relevant terms will help avoid 
potential confusion in making this allocation. WCB and OEA therefore 
add the following definitions to the instructions:

    Audio IPCS means, for the purpose of this data collection, all 
services classified as inmate calling services within the meaning of 
47 CFR 64.6000(j), including (a) Interconnected VoIP; (b) Non-
interconnected VoIP; (c) all Telecommunications Relay Services 
(TRS), including the use of a device or transmission service to 
access TRS; and (d) all point-to-point video services made available 
to incarcerated people for communication in American Sign Language 
(ASL) with other ASL users.
    Video IPCS means any video communications service used by 
incarcerated people for the purpose of communicating with 
individuals outside the correctional institution where the people 
are incarcerated, regardless of the technology used. It typically 
includes an integrated audio component, and excludes all services 
classified as Audio IPCS, as well as Other Products and Services, 
such as one-way entertainment, educational, religious, vocational, 
and instructional programming.

    39. WCB and OEA decline to restrict the definitions of Audio IPCS 
``to voice-only calling services using either circuit switched or VoIP 
technology'' and Video IPCS ``to real-time remote or on-site video 
visitation services,'' as one commenter suggests. The Martha Wright-
Reed Act unequivocally expands the definition of IPCS to include 
advanced communications services. Advanced communications services 
broadly include ``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.'' WCB and OEA therefore do not limit the definitions 
of Audio IPCS or Video IPCS to specific types of technology used to 
transmit the services.
    40. Safety and Security Measures. WCB and OEA proposed a broad 
definition of ``safety and security measures,'' in accordance with the 
Martha Wright-Reed Act's directive 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. This 
approach was designed to allow the Commission the broadest possible 
view of the costs that providers and facilities incur. WCB and OEA 
agree, however, with Pay Tel's observation that the proposed definition 
is ``so broad as to encompass the entirety of IPCS.'' To eliminate this 
issue, WCB and OEA revise the definition of ``safety and security 
measures'' to read:

    [A]ny safety or security surveillance system, product, or 
service, including any such system, product, or service that: helps 
the Facility ensure that Incarcerated People do not communicate with 
persons they are not allowed to communicate with; helps monitor and 
record on-going communications; or inspects and analyzes recorded 
communications. Safety and Security Measures also include other 
related systems, products, and services, such as a voice biometrics 
system, a PIN system, or a system concerning the administration of 
subpoenas concerning communications. The classification of a system, 
product, or service as a Safety and Security Measure does not mean 
that it is part of a Provider's IPCS-Related Operations.

    41. Provider, Contractor, and Subcontractor. In the proposed 
definitions, WCB and OEA sought to clarify the relationship between two 
types of IPCS providers--contractors and subcontractors--to provide 
notice of filing obligations to entities that may not have previously 
been subject to the Commission's authority. WCB and OEA conclude, 
however, that further revisions are necessary. Pay Tel suggests that 
the Commission ``should take steps to ensure that it is apprised of 
situations where multiple entities are involved in providing a covered 
service to avoid instances of incomplete or duplicated data.'' While it 
does not explain what the Commission should do in the event multiple 
entities are involved in the provision of IPCS, WCB and OEA agree that 
clarification of the definitions of ``Provider'' and ``Subcontractor'' 
will ensure WCB and OEA receive the data necessary to achieve ``insight 
into overall service costs.'' WCB and OEA therefore amend the proposed 
definitions of ``Provider'' and ``Subcontractor'' to make clear that 
any contractor or subcontractor that is providing IPCS, regardless of 
whether that entity has a contract directly with the facility or with 
another provider, is considered to be a provider for the purposes of 
the data collection.
    42. Facility. In the proposed instructions, WCB and OEA proposed 
including definitions for several synonyms for the term ``Facility,'' 
given the apparently interchangeable use of different terms in both the 
Martha Wright-Reed Act and the Commission's rules. One provider 
suggests eliminating the four separate terms used ``to reference a 
prison or jail,'' and points out that ``the Instructions themselves 
repeatedly use the term Facility.'' WCB and OEA agree that the 
inclusion of these terms is redundant and could cause confusion. WCB 
and OEA therefore delete the defined terms ``Correctional Facility,'' 
``Correctional Institution,'' and ``Detention Facility'' and edit the 
definition of ``Facility'' to include these terms synonymously. WCB and 
OEA likewise make conforming edits to refer only to ``Facility'' 
throughout the final instructions, templates, and certification form.
    43. Miscellaneous Definitional Edits. WCB and OEA have also made 
various administrative revisions to the definitions. These include 
grammatical corrections, consistent use of terms, and other non-
substantive edits.
2. Facility-Specific Data
    44. WCB and OEA adopt, in modified form, the suggestion that WCB 
and OEA require providers to indicate via a checkbox ``whether 
[facility-specific] data submitted is at the facility level or has been 
allocated from a contract, in order to ensure that contract-level data 
is correctly allocated to the facility level.'' WCB and OEA find that 
obtaining this information may help eliminate confusion when attempting 
to understand how providers arrived at the amounts reported in their 
cost categories. However, WCB and OEA

[[Page 51246]]

determine that this area is too nuanced for a checkbox and therefore 
revise the Word template to direct providers to identify whether the 
facility-specific data they report were recorded at the company, 
contract, or facility level. This requirement will clarify whether data 
were recorded at the facility-level or whether they have been allocated 
and must be justified. Because this step would be helpful and impose 
only minimal burdens on reporting providers, WCB and OEA add this 
question to the Word template.
3. Telecommunications Relay Services Costs
    45. WCB and OEA amend the Word template to allow providers the 
option of providing information regarding any cost increases resulting 
from the TRS requirements adopted in the 2022 ICS Order. In that order, 
the Commission adopted several requirements to improve access to 
communications services for incarcerated people with communication 
disabilities. IPCS providers must provide incarcerated people with 
communications disabilities with access to all relay services eligible 
for TRS Fund support in any correctional facility where broadband is 
available and where the average daily population incarcerated in that 
jurisdiction totals 50 or more persons. It also required that where 
inmate calling service providers are required to provide access to all 
forms of TRS, they also must allow ASL direct, or point-to-point, video 
communication. The Commission clarified and expanded the scope of the 
restrictions on inmate calling service providers assessing charges for 
TRS calls, expanded the scope of the required Annual Reports to reflect 
the above changes, and modified TRS user registration requirements to 
facilitate the use of TRS by eligible incarcerated persons. Providers 
have had to comply with certain of these requirements (i.e., the 
limitations on charging) since they became effective earlier this year, 
while compliance with other requirements is mandated beginning January 
1, 2024, or, in some cases, pending approval by the Office of 
Management and Budget pursuant to the Paperwork Reduction Act.
    46. Because this data collection seeks data only for calendar year 
2022, providers' submissions will not fully reflect any additional 
costs they incur in complying with the new TRS requirements. In 
recognition of this fact, Securus and Pay Tel urge that providers be 
given the option of submitting data estimating the costs of 
implementing the new requirements, even if those costs were not 
incurred in calendar year 2022. WCB and OEA find this suggestion 
reasonable and therefore modify the Word template to allow, but not 
require, providers to report their estimates of their annual 
incremental costs of complying with the TRS requirements adopted in the 
2022 ICS Order, to the extent those costs are not reflected in their 
data for 2022. Annual incremental costs of TRS compliance are those the 
provider would not have incurred but for its compliance with these TRS 
requirements. Shared and common costs will already be reflected in the 
data providers will be reporting for 2022 and thus should be excluded 
from the annual incremental costs of TRS compliance.
4. Facility Costs of Providing Safety and Security Measures
    47. WCB and OEA adopt their proposal to require providers to report 
any verifiable and reliable information in their possession about the 
costs the facilities they serve incur to provide safety and security 
measures in connection with the provision of IPCS, as well as any 
verifiable and reliable information on other facility-incurred costs 
that are not directly related to safety and security. Any such 
information will provide the Commission with a more comprehensive 
picture of the total costs of providing IPCS. Pay Tel has encouraged us 
to include facilities' costs in any effort to calculate the costs of 
IPCS. It argues that facilities incur recoverable costs ``in making 
IPCS available'' and supports WCB and OEA's ``efforts to document and 
acknowledge these costs.''
    48. The record also suggests, however, that providers are ``highly 
unlikely'' to have such information on facilities' costs. One commenter 
proposes that the Commission develop a reporting template for use by 
facilities and seek this information directly from facilities. Although 
WCB and OEA acknowledge that facilities may be more likely to have 
access to this information than providers, collecting data directly 
from facilities would raise a number of difficulties. Any attempt to 
seek data directly from facilities would arguably exceed the authority 
delegated to WCB and OEA by the Commission regarding this data 
collection. Attempting to expand the data collection to include 
facilities would also pose significant practical challenges. Doing so 
would greatly expand the group of entities subject to the data 
collection and would multiply the burdens imposed by the collection. 
Furthermore, developing a template, seeking comments, and collecting 
responses from facilities would significantly delay the data collection 
and could prevent the Commission from meeting the statutory timeframe 
established by the Martha Wright-Reed Act. Accordingly, WCB and OEA 
decline to adopt this proposal. WCB and OEA emphasize, however, that 
the Commission has repeatedly encouraged correctional officials to 
submit data on their IPCS-related costs, including any costs they incur 
for safety and security measures.
    49. Finally, WCB and OEA adopt their proposal to require providers 
to be able to produce, on request, documentation sufficient to explain 
and justify the accuracy and reliability of any data they report 
regarding the costs incurred by facilities. This requirement will 
enable the Commission to evaluate the reliability and accuracy of any 
such data. It will minimize burdens by not requiring the submission of 
such documentation with providers' responses but only requiring the 
retention and subsequent production of the relevant documents upon 
request--documents which providers would likely retain in the normal 
course of business. No commenters challenged this aspect of the 
proposal. WCB and OEA find that this requirement will help ensure that 
the Commission will be able to evaluate the accuracy and reliability of 
the data submitted while adding only a minimal additional burden on 
providers.
5. Admissions, Releases, and Turnover Rates
    50. WCB and OEA modify the Excel template to make the questions 
regarding facility-specific total admissions, total releases, and 
weekly turnover rates optional. In the Third Mandatory Data Collection 
Order, Third Mandatory Data Collection for Calling Services for 
Incarcerated People, Final Rule, 87 FR 16560, March 23, 2022, WCB and 
OEA identified these metrics as important to helping the Commission 
correct for the possibility that other population metrics, such as 
average daily population, might not fully account for all the costs of 
providing audio IPCS at smaller jails. WCB and OEA therefore required 
the submission of facility-specific data on admissions, releases, and 
weekly turnover rates as part of the Third Mandatory Data Collection 
and, in the Public Notice, proposed to incorporate that requirement 
into the 2023 Mandatory Data Collection. However, WCB and OEA's review 
of providers' responses to the Third Mandatory Data Collection, as well 
as comments on the proposed instructions, make clear that requiring 
these data would impose a significant

[[Page 51247]]

burden on providers without producing meaningful results, due in large 
part to difficulties providers encounter in obtaining accurate data 
from correctional officials.
    51. As one commenter explains, ``IPCS providers do not track or 
have adequate information to respond to questions about `weekly 
turnover,' `total admissions,' or `total releases' at each correctional 
facility they serve.'' Another provider explains that it has ``no way 
of gauging the accuracy of this data or whether the sample size was 
useful.'' In attempting to balance competing considerations regarding 
the potential importance of these data and the relative 
inaccessibility, WCB and OEA make the reporting of this information 
optional. This approach will reduce the burdens on providers, while 
still allowing them to report this information where possible.
6. Bundling
    52. WCB and OEA modify the Word template to obtain specific 
information on the extent to which providers bundle IPCS with 
nonregulated services and on the steps providers employ to ensure that 
the costs of their nonregulated services are not allocated to IPCS or 
associated ancillary services. Although WCB and OEA did not explicitly 
include questions about bundling in their proposals, in the Public 
Notice, WCB and OEA sought comment on whether there were ``additional 
data'' that providers should be required to submit in response to the 
Mandatory Data Collection. The Wright Petitioners explain that bundling 
data are needed because providers offer different services that ``may 
or may not be bundled together when reporting the data,'' potentially 
inflating the costs reported for regulated services.
    53. WCB and OEA agree that data on service bundles will assist the 
Commission in understanding what services are provided and how they are 
provided, and, most importantly, in establishing just and reasonable 
IPCS rates. WCB and OEA therefore add questions to the Word template 
that direct each provider to report, among other information, whether 
it offers regulated and nonregulated services as a bundle and, if so, 
to identify each of the components included in the bundle; to identify 
which components are regulated or nonregulated and the standalone price 
of each component; to state whether bundling affects the provider's 
overall costs and, if so, how; and to indicate whether the provider's 
bundling practices vary by facility or by contract.
7. Financial Reports
    54. WCB and OEA adopt their proposal to require all providers to 
submit audited financial statements or reports for 2022, or, in the 
absence of an audited financial statement or report, similar financial 
documentation for 2022, to the extent produced in the ordinary course 
of business.

D. Timeframe for Provider Responses to the Data Collection

    55. In the Public Notice, WCB and OEA sought comment on their 
proposal to require providers to file their responses to the data 
collection within 90 days of the release of this Order. The proposed 
timeframe, which admittedly is somewhat shorter than the timeframe for 
the previous mandatory data collection, reflects the time constraints 
the Martha Wright-Reed Act imposes for ``promulgat[ing] any regulations 
necessary to implement'' the Act.
    56. Providers instead propose requiring responses to the data 
collection 120 days following release of this Order. ViaPath asserts 
that ``[p]roviders need a reasonable amount of time to complete the 
report'' and Securus comments that ``90 days is an insufficient period 
of time'' to respond to the data collection. ViaPath contends that ``a 
slight extension of the MDC filing deadline is reasonable.'' WCB and 
OEA agree with ViaPath and establish October 31, 2023 as the date on 
which provider responses will be due, unless final PRA authority for 
this collection is not granted prior to then. Given the date of release 
of this Order, this represents an extension of an additional week from 
the originally proposed 90-day deadline, which, while not as extensive 
as sought, will nonetheless allow providers additional time to prepare 
their submissions. WCB and OEA find that granting this extension will 
still provide the Commission with sufficient time to promulgate 
regulations to implement the Martha Wright-Reed Act consistent with the 
Act's time constraints.

E. Digital Equity and Inclusion

    57. As part of the Commission's continuing effort to advance 
digital equity for all, including people of color, persons with 
disabilities, persons who live in rural or Tribal areas, and others who 
are or have been historically underserved, marginalized, or adversely 
affected by persistent poverty or inequality, WCB and OEA invited 
comment on any equity-related considerations and benefits (if any) that 
may be associated with the proposals and issues associated with the 
data collection. Specifically, WCB and OEA sought comment on how their 
proposals for that collection may promote or inhibit advances in 
diversity, equity, inclusion, and accessibility.
    58. WCB and OEA conclude that the Mandatory Data Collection adopted 
here will promote digital equity, particularly for incarcerated people 
and their families. 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 inequitable financial burdens unreasonable 
rates impose on incarcerated people and their loved ones, while 
ensuring that providers are fairly compensated for their services. The 
information IPCS providers submit in their data collection responses 
will help the Commission advance these goals in accordance with the 
Communications Act and the Martha Wright-Reed Act.

III. Procedural Matters

    59. Regulatory Flexibility Act. The Regulatory Flexibility Act of 
1980, as amended (RFA), requires that an agency prepare a regulatory 
flexibility analysis for notice and comment rulemakings, unless the 
agency certifies that ``the rule will not, if promulgated, have a 
significant economic impact on a substantial number of small 
entities.'' Accordingly, WCB and OEA have prepared a Supplemental Final 
Regulatory Flexibility Analysis (FRFA) concerning the possible impact 
of the rule changes contained in this Order on small entities. The 
Supplemental FRFA supplements the Final Regulatory Flexibility Analyses 
completed by the Commission in the Rates for Interstate Inmate Calling 
Services proceeding and is set forth in Appendix B.
    60. Final Paperwork Reduction Act Analysis. The Order contains 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 will be invited to comment 
on the new or modified information collection requirements contained in 
this proceeding. In addition, WCB and OEA note that pursuant to the 
Small Business Paperwork Relief Act of 2002, Public Law 107-198; see 44 
U.S.C. 3506(c)(4), WCB and OEA previously sought specific comment on 
how the Commission might further reduce the information collection 
burden for small business concerns with fewer than 25 employees. WCB 
and OEA have

[[Page 51248]]

assessed the effects of the data collection on small business concerns, 
including those having fewer than 25 employees, and find that to the 
extent such entities are subject to the collection, any further 
reduction in the burden of the collection would be inconsistent with 
the objectives behind the collection.
    61. Congressional Review Act. The Commission will not send a copy 
of this Order to Congress and the Government Accountability Office 
pursuant to the Congressional Review Act (CRA), see 5 U.S.C. 
801(a)(1)(A), because it does not adopt any rule as defined in the CRA, 
5 U.S.C. 804(3).

IV. Ordering Clauses

    62. Accordingly, it is ordered that, pursuant to the authority 
contained in sections 1, 2, 4(i)-(j), 155(c), 201(b), 218, 220, 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, 255, 276, 403, 
and 617, and the authority delegated in sections 0.21, 0.91, 0.201(d), 
0.271, and 0.291 of the Commission's rules, 47 CFR 0.21, 0.91, 
0.201(d), 0.271, 0.291 and paragraphs 84 and 85 of the 2023 IPCS Order, 
this Order is adopted.
    63. It is further ordered that the Commission's Office of the 
Secretary, Reference Information Center, shall send a copy of this 
Order, including the Supplemental Final Regulatory Flexibility 
Analysis, to the Chief Counsel for Advocacy of the Small Business 
Administration.
Supplemental Final Regulatory Flexibility Analysis
    64. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), a Supplemental Initial Regulatory Flexibility Analysis 
(Supplemental IRFA) was incorporated in the 2023 Mandatory Data 
Collection Public Notice, released in April 2023. The Wireline 
Competition Bureau (WCB) and the Office of Economics and Analytics 
(OEA) sought written public comment on proposals in the Public Notice, 
including comment on the Supplemental IRFA. No comments were filed 
addressing the Supplemental IRFA. The Public Notice sought comment on 
proposals to implement the 2023 Mandatory Data Collection in the 
Commission's Incarcerated People's Communications Services (IPCS) 
proceeding and supplements the Final Regulatory Flexibility Analyses 
completed by the Commission in the Rates for Interstate Inmate Calling 
Services and other Commission orders pursuant to which this data 
collection will be conducted. This present Supplemental FRFA conforms 
to the RFA.

F. Need for, and Objectives of, the Order

    1. In the Order, WCB and OEA adopt policies and specific 
requirements to implement the forthcoming 2023 Mandatory Data 
Collection for IPCS. In the 2023 IPCS Order, the Commission adopted a 
new data collection requirement. 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 of 1934, as 
amended (the Communications Act). Likewise, it directed WCB and OEA 
``to update and restructure the most recent data collection as 
appropriate to implement the Martha Wright-Reed Act.''
    2. The Order determines the overall scope of the data collection 
including: limiting the data collection reporting period to calendar 
year 2022; defining cost reporting and cost allocation methodologies; 
defining reporting categories; requiring providers to allocate safety 
and security measures among seven categories; requiring that providers 
submit additional information for video IPCS; and adding questions 
concerning company-wide and facility-level site commissions. The Order 
also clarifies specific instructions for data collection to provide 
clarity for the providers completing the forms. Finally, the Order 
establishes that providers must submit responses by October 31, 2023. 
Pursuant to their delegated authority, WCB and OEA have prepared 
instructions, reporting templates, and a certification form for the 
2023 Mandatory Data Collection and are issuing this Order to adopt all 
aspects of these documents.

G. Summary of Significant Issues Raised by Public Comments in Response 
to the IRFA

    3. There were no comments filed that specifically addressed the 
proposed rules and policies presented in the Supplemental IRFA.

H. Response to Comments by the Chief Counsel for Advocacy of the Small 
Business Administration

    4. Pursuant to the Small Business Jobs Act of 2010, which amended 
the RFA, the Commission is required to respond to any comments filed by 
the Chief Counsel for Advocacy of the Small Business Administration 
(SBA), and to provide a detailed statement of any change made to the 
proposed rules as a result of those comments. The Chief Counsel did not 
file any comments in response to the rules and policies proposed in the 
Supplemental IRFA.

I. Description and Estimate of the Number of Small Entities to Which 
the 2023 Mandatory Data Collection Will Apply

    5. 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 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.
    6. 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 Order, for the 
Supplemental FRFA, we incorporate by reference from these previous 
Regulatory Flexibility Analyses the descriptions and estimates of the 
number of small entities that may be impacted by the Order.

J. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities

    7. The 2023 Mandatory Data Collection will impose new or modified 
reporting, recordkeeping and other compliance obligations on small 
entities. The Order requires IPCS providers to submit data and other 
information on, among other matters, 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. WCB and OEA estimate that 
approximately 30 IPCS providers will be subject to this one-time 
reporting requirement. In the aggregate, WCB and OEA estimate that 
responses will take approximately 7,950 hours and cost approximately 
$493,224.

[[Page 51249]]

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

    8. The RFA requires an agency to provide, ``a description of the 
steps the agency has taken to minimize the significant economic impact 
on small entities . . . including a statement of the factual, policy, 
and legal reasons for selecting the alternative adopted in the final 
rule and why each one of the other significant alternatives to the rule 
considered by the agency that affect the impact on small entities was 
rejected.''
    9. The 2023 Mandatory Data Collection is a one-time collection and 
does not impose a recurring obligation on providers. Because the 
Commission's 2023 IPCS Order requires all IPCS providers to comply with 
the 2023 Mandatory Data Collection, the collection will affect smaller 
as well as larger IPCS providers. WCB and OEA have taken steps to 
ensure that the data collection template is competitively neutral and 
not unduly burdensome for any set of providers and have considered the 
economic impact on small entities in finalizing the instructions and 
the template for the 2023 Mandatory Data Collection. For example, the 
2023 Mandatory Data Collection requires the collection of data for a 
single calendar year instead of three calendar years, as in previous 
data collection. In response to the comments, WCB and OEA have refined 
certain aspects of the data collection, including modifying the 
treatment of audio IPCS and safety and security measures, clarifying 
the reporting of costs related to site commissions, and revising 
certain proposed definitions. WCB and OEA have also revised 
instructions for cost reporting and cost allocation that will help the 
Commission understand the nature of the reported costs, without 
imposing significant additional burdens on providers. WCB and OEA 
reorganized instructions for our proposed seven-category framework for 
reporting safety and security measure costs to simply them and increase 
clarity. Further, the instructions for the data collection include 
relevant diagrams to facilitate providers' responses and improve the 
accuracy and consistency of the data they report. The instructions 
allow, but do not require, providers to subdivide their audio and video 
IPCS costs into more discrete categories based on the type of audio or 
video service being provided, as some parties suggest, to give 
providers greater flexibility in reporting these costs.
    10. WCB and OEA considered but rejected alternative proposals to 
allow providers to use their own allocation methodologies because of 
the undue burden it would have on the interested parties and the 
Commission to analyze and correct inconsistent responses. The 
modifications adopted in the Order avoid unduly burdening small and 
other responding providers while ensuring that providers have 
sufficiently detailed and specific instructions to respond to the data 
collection. The data collection also makes certain questions optional 
to reduce reporting burdens, including the questions regarding 
correctional facility-specific total admissions, total releases, and 
weekly turnover rates.

L. Report to Congress

    11. The Commission will send a copy of the Order, including this 
Supplemental FRFA, in a report to be sent to Congress pursuant to the 
Congressional Review Act. In addition, the Commission will send a copy 
of the Order, including this Supplemental FRFA, to the Chief Counsel 
for Advocacy of the Small Business Administration. A copy of the Order, 
and Supplemental FRFA (or summaries thereof) will also be published in 
the Federal Register.

Federal Communications Commission.
Jodie May,
Chief, Competition Policy Division, Wireline Competition Bureau.

    Note:  The following appendix, 2023 Mandatory Data Collection 
Instructions and Template, will not appear in the Code of Federal 
Regulations.

[FR Doc. 2023-16305 Filed 8-1-23; 4:15 pm]
BILLING CODE 6712-01-P