[Federal Register Volume 89, Number 165 (Monday, August 26, 2024)]
[Rules and Regulations]
[Pages 68369-68375]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18605]
[[Page 68369]]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 64
[WC Docket Nos. 12-375, 23-62; FCC 24-75; FR ID 237667]
Incarcerated People's Communications Services; Implementation of
the Martha Wright-Reed Act; Rates for Interstate Inmate Calling
Services
AGENCY: Federal Communications Commission.
ACTION: Final rule; dismissal, partial grant and partial denial of
petitions for reconsideration, clarification and waiver.
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SUMMARY: In this document, the Federal Communications Commission
(Commission) addresses and resolves multiple pending petitions in the
incarcerated people's communications services (IPCS) proceeding. The
Commission grants the Hamilton Relay, Inc. petition for reconsideration
of certain aspects of the 2022 ICS Order released on September 30,
2022. The Commission dismisses the United Church of Christ and Public
Knowledge petition for reconsideration of the 2021 ICS Order released
on May 24, 2021. The Commission dismisses the portion of the NCIC
Inmate Communications petition for reconsideration of the 2021 ICS
Order that it had not previously addressed. The Commission dismisses a
petition filed by Securus Technologies, LLC seeking clarification of
one aspect of the 2021 ICS Order and dismiss in part and otherwise
denies the Securus petition for waiver of certain Commission rules.
DATES: August 26, 2024.
ADDRESSES: Federal Communications Commission, 45 L Street NE,
Washington, DC 20554.
People with Disabilities: To request materials in accessible
formats for people with disabilities (Braille, large print, electronic
files, audio format), send an email to [email protected], or call the
Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice) or
(202) 418-0432 (TTY).
FOR FURTHER INFORMATION CONTACT: Stephen Meil, Pricing Policy Division
of the Wireline Competition Bureau, at (202) 418-7233 or via email at
[email protected], regarding the portions of this document relating
to matters other than communications services for incarcerated people
with disabilities, and Michael Scott, Disability Rights Office of the
Consumer and Governmental Affairs Bureau, at (202) 418-1264 or via
email at [email protected], regarding the portions of this document
relating to communications services for incarcerated people with
disabilities.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order
on Reconsideration, Clarification and Waiver, document FCC 24-75,
adopted on July 18, 2024 and released on July 22, 2024, in WC Docket
Nos. 12-375 and 23-62. This summary is based on the public redacted
version of the document. The full text of the document FCC 24-75 can be
accessed electronically via the FCC's Electronic Document Management
System (EDOCS) website at www.fcc.gov/edocs or via the FCC's Electronic
Comment Filing System (ECFS) website at www.fcc.gov/ecfs, or is
available at the following internet address: https://www.fcc.gov/document/fcc-caps-exorbitant-phone-video-call-rates-incarcerated-persons-their-families.
Synopsis
I. Order on Reconsideration, Clarification and Waiver
1. We address and resolve multiple pending petitions in this
proceeding. We grant the Hamilton Relay, Inc. petition for
reconsideration of certain aspects of the 2022 ICS Order, published at
87 FR 75496 (Dec. 9, 2022). We dismiss the United Church of Christ and
Public Knowledge petition for reconsideration of the 2021 ICS Order,
published at 86 FR 40682 (July 28, 2021). We also dismiss the remainder
of the NCIC petition for reconsideration not previously addressed. The
NCIC petition seeks reconsideration of various aspects of the
Commission's treatment of site commissions in the 2021 ICS Order,
published at 86 FR 40682. The Commission previously addressed the
portions of the petition relating to its interim caps for certain
ancillary service charges in the 2022 ICS Order. Given the actions we
take addressing site commissions in this Order, we now dismiss as moot
the remainder of the petition. We also dismiss a petition filed by
Securus seeking clarification of one aspect of the 2021 ICS Order and
dismiss in part and otherwise deny the Securus petition for waiver of
certain Commission rules.
A. Hamilton Petition for Reconsideration
2. Hamilton Relay, Inc., seeks partial reconsideration of the
requirement that Video Relay Service (VRS) and internet Protocol
Captioned Telephone Service (IP CTS) providers update an incarcerated
person's registration information within 30 days of the user being
released from incarceration or transferred to a different correctional
authority. Hamilton asserts that TRS providers will learn that an
incarcerated person has been released or transferred only when notified
by the correctional authority or the incarcerated person. Hamilton
therefore asks us to modify Sec. 64.611(k)(1)(iii) of our rules to
require that VRS and IP CTS providers update an incarcerated person's
registration information within 30 days ``of receiving written
notification from such person or the correctional authority of'' an
incarcerated person's release or transfer, rather than within 30 days
``after'' such release or transfer.'' No party opposes this change.
3. As some commenters anticipate, this concern may be less pressing
as a result of our determination above to allow enterprise registration
for IP CTS in carceral settings. Nevertheless, to the extent that
individual registration continues to be used, we agree that TRS
providers are not expected to independently track the location status
of incarcerated users who have individually registered for IP CTS or
VRS. The allowed thirty-day period for updating registration
information should begin upon the provider's receipt of written
notification of the incarcerated person's release or transfer.
Accordingly, we amend Sec. 64.611(k)(1)(iii) to clarify the rule. We
modify Hamilton's proposed language to reflect that written
notification may be received from the incarcerated person, the
correctional authority, or the IPCS provider.
4. We also modify this provision to clarify the updated information
that TRS providers must transmit to the TRS User Registration Database
when an individual who registers for VRS or IP CTS while incarcerated
is released. In addition to the individual's residential address and
Registered Location (if required), the update shall include any other
required registration information not previously provided.
5. We therefore grant Hamilton's Petition for Reconsideration with
the modifications described herein.
B. Securus Petition for Clarification
6. We dismiss as moot Securus's Petition for Clarification, which
``addresses only contractually prescribed site commission payments.''
With respect to such payments, Securus seeks clarification as to
whether providers may use ``revenues from ICS rates to pay site
commission costs above the $0.02 rate cap,'' provided that the total
charged to consumers does not exceed the applicable rate cap.
[[Page 68370]]
Securus's concern stems from the Commission's statement in the 2021 ICS
Order in which it confirmed that the $0.02 per minute allowance for
contractually prescribed site commissions ``does not prevent or
prohibit the payment of additional site commission amounts to
correctional facilities should the calling services providers and the
facility enter into a contract resulting in the provider making per-
minute payments to the facility higher than $0.02.'' Securus contends
that the Commission's language ``creates ambiguity over whether
providers may pay additional site commissions from end user revenues
collected under the provider-related rate component.'' In Securus's
view, ``[f]ailure to clarify the limits of site commission cost
recovery from ICS rates . . . could result in some providers being
competitively disadvantaged in the bidding process by which ICS service
providers are selected to serve carceral facilities.''
7. Our actions in the 2024 IPCS Report and Order, which end the
practice of paying site commissions, effectively moot Securus's request
for clarification. Because the rules we adopt in connection with site
commissions apply prospectively, there are no retroactive implications
from these actions that we need to consider. Our reforms eliminate site
commission payments associated with IPCS. Because IPCS providers will
no longer be able to pay site commissions associated with their IPCS
offerings, we need not clarify whether providers may use IPCS revenues
to pay such site commissions.
C. Securus Waiver Petition
8. We dismiss in part and otherwise deny the Securus Waiver
Petition. In its Waiver Petition, Securus seeks a waiver of Sec. Sec.
64.6030, 64.6080, and 64.6090 of the Commission's rules so that
``Securus and other providers'' can offer ``alternative rate options
that promote increased calling while reducing costs.'' Because we adopt
rules, in the 2024 IPCS Report and Order, specifically allowing
alternate pricing plans, including flat-rate pricing, Securus's
requests for a waiver of Sec. 64.6030, which specifies the use of
mandatory rate caps on a per-minute basis, and Sec. 64.6090, which
prohibits flat-rate calling, are moot and are therefore dismissed.
9. We deny Securus's request for a waiver of Sec. 64.6080, which
prohibits per-call and per-connection charges, to the extent that
request would permit a provider to impose such one-time charges in
addition to any base rates for alternate pricing plans. We retain today
a key consumer protection rule at Sec. 64.6080, and Securus does not
explain why a waiver of this section of the rules is necessary in light
of the alternate pricing plan rules we adopt in the Order.
II. Procedural Matters
10. Final Regulatory Flexibility Analysis. As required by the
Regulatory Flexibility Act of 1980, as amended (RFA), the Commission
has prepared a Final Regulatory Flexibility Analysis (FRFA) relating to
this Report and Order and this Order on Reconsideration, Clarification,
and Waiver. The FRFA is set forth in below.
11. Congressional Review Act. The Commission will not send a copy
of this Order on Reconsideration, Clarification, and Waiver 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).
12. Paperwork Reduction Act Analysis. The Order on Reconsideration,
Clarification, and Waiver does not contain new or modified information
collection requirements subject to the Paperwork Reduction Act of 1995,
Public Law 104-13. Therefore, it does not contain any new or modified
information collection burdens for small business concerns with fewer
than 25 employees, pursuant to the Small Business Paperwork Relief Act
of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).
13. 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.
III. Final Regulatory Flexibility Act Analysis
14. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), Initial Regulatory Flexibility Analyses (IRFAs) were
incorporated in the Incarcerated People's Communications Services;
Implementation of the Martha Wright-Reed Act; Rates for Interstate
Inmate Calling Services, Notice of Proposed Rulemaking (NPRM) in WC
Docket Nos. 23-62 and 12-375 (released in March 2023), in the Sixth
Further Notice of Proposed Rulemaking in WC Docket No. 12-375 (released
in September 2022), and in the Fifth Further Notice of Proposed
Rulemaking in WC Docket No. 12-375 (released in May 2021). The Federal
Communications Commission (Commission) sought written public comment on
the proposals in those documents, including comment on the IRFAs. No
comments were filed addressing the IRFA. This present Final Regulatory
Flexibility Analysis (FRFA), relating to the Report and Order and the
Order on Reconsideration, Clarification and Waiver (collectively,
Report and Order), conforms to the RFA.
A. Need for, and Objectives of, the Report and Order
15. The Report and Order implements the expanded authority granted
to the Commission by the Martha Wright-Reed Act to establish a
compensation plan that ensures both just and reasonable rates and
charges for incarcerated people's audio and video communications
services and fair compensation for incarcerated people's communication
services (IPCS) providers. The Report and Order fundamentally reforms
the regulation of IPCS in all correctional facilities, regardless of
the technology used to deliver these services, and significantly lowers
the IPCS rates that incarcerated people and their loved ones will pay.
16. The reforms adopted by the Report and Order: (1) utilize the
expanded authority granted the Commission, in conjunction with the
Commission's preexisting statutory authority, to adopt just and
reasonable IPCS rates and charges for all intrastate, interstate, and
international audio and video IPCS, including video visitation
services, that ensure fair compensation for providers; (2) lower
existing per-minute rate caps for audio IPCS, based on industry-wide
cost data submitted by IPCS providers, while permitting states to
maintain IPCS rates lower than the Commission's rate caps; (3) lower
the overall prices consumers pay for IPCS and simplify the pricing
structure by incorporating the costs of ancillary services in the rate
caps and prohibiting providers from imposing any separate ancillary
service charges on IPCS consumers; (4) prohibit IPCS providers from
making site commission payments for IPCS and preempt state and local
laws and regulations requiring such commissions; (5) limit the costs
associated with safety and security measures that can be recovered in
the per-minute rates to only those costs that the Commission finds used
and useful in the provision of IPCS; (6) allow, subject to conditions,
IPCS providers to offer alternate pricing plans for IPCS that comply
with the rate caps we establish; (7) revise and strengthen
accessibility requirements for IPCS for incarcerated people with
disabilities; (8) revise and strengthen existing consumer disclosure
and inactive account requirements; and (9)
[[Page 68371]]
revise the existing annual reporting and certification requirements.
The Report and Order also addresses petitions for reconsideration,
clarification and waiver pending in this proceeding.
B. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA
17. There were no comments filed that specifically addressed the
proposed rules and policies presented in the IRFA.
C. Response to Comments by the Chief Counsel for Advocacy of the Small
Business Administration
18. 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 proposed rules in this proceeding.
D. Description and Estimate of the Number of Small Entities to Which
Rules Will Apply
19. 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 rules they adopt. 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 Small Business
Administration (SBA).
20. Small Businesses, Small Organizations, Small Governmental
Jurisdictions. Our actions, over time, may affect small entities that
are not easily categorized at present. We therefore describe, at the
outset, three broad groups of small entities that could be directly
affected herein. First, while there are industry specific size
standards for small businesses that are used in the regulatory
flexibility analysis, according to data from the Small Business
Administration's (SBA) Office of Advocacy, in general a small business
is an independent business having fewer than 500 employees. These types
of small businesses represent 99.9% of all businesses in the United
States, which translates to 33.2 million businesses.
21. Next, the type of small entity described as a ``small
organization'' is generally ``any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.''
The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000
or less to delineate its annual electronic filing requirements for
small exempt organizations. Nationwide, for tax year 2022, there were
approximately 530,109 small exempt organizations in the U.S. reporting
revenues of $50,000 or less according to the registration and tax data
for exempt organizations available from the IRS.
22. Finally, the small entity described as a ``small governmental
jurisdiction'' is defined generally as ``governments of cities,
counties, towns, townships, villages, school districts, or special
districts, with a population of less than fifty thousand.'' U.S. Census
Bureau data from the 2022 Census of Governments indicate there were
90,837 local governmental jurisdictions consisting of general purpose
governments and special purpose governments in the United States. Of
this number, there were 36,845 general purpose governments (county,
municipal, and town or township) with populations of less than 50,000
and 11,879 special purpose governments (independent school districts)
with enrollment populations of less than 50,000. Accordingly, based on
the 2022 U.S. Census of Governments data, we estimate that at least
48,724 entities fall into the category of ``small governmental
jurisdictions.''
23. Wired Telecommunications Carriers. The U.S. Census Bureau
defines this industry as establishments primarily engaged in operating
and/or providing access to transmission facilities and infrastructure
that they own and/or lease for the transmission of voice, data, text,
sound, and video using wired communications networks. Transmission
facilities may be based on a single technology or a combination of
technologies. Establishments in this industry use the wired
telecommunications network facilities that they operate to provide a
variety of services, such as wired telephony services, including VoIP
services, wired (cable) audio and video programming distribution, and
wired broadband internet services. By exception, establishments
providing satellite television distribution services using facilities
and infrastructure that they operate are included in this industry.
Wired Telecommunications Carriers are also referred to as wireline
carriers or fixed local service providers.
24. The SBA small business size standard for Wired
Telecommunications Carriers classifies firms having 1,500 or fewer
employees as small. U.S. Census Bureau data for 2017 show that there
were 3,054 firms that operated in this industry for the entire year. Of
this number, 2,964 firms operated with fewer than 250 employees.
Additionally, based on Commission data in the 2022 Universal Service
Monitoring Report, as of December 31, 2021, there were 4,590 providers
that reported they were engaged in the provision of fixed local
services. Of these providers, the Commission estimates that 4,146
providers have 1,500 or fewer employees. Consequently, using the SBA's
small business size standard, most of these providers can be considered
small entities.
25. Local Exchange Carriers (LECs). Neither the Commission nor the
SBA has developed a size standard for small businesses specifically
applicable to local exchange services. Providers of these services
include both incumbent and competitive local exchange service
providers. Wired Telecommunications Carriers is the closest industry
with an SBA small business size standard. Wired Telecommunications
Carriers are also referred to as wireline carriers or fixed local
service providers. The SBA small business size standard for Wired
Telecommunications Carriers classifies firms having 1,500 or fewer
employees as small. U.S. Census Bureau data for 2017 show that there
were 3,054 firms that operated in this industry for the entire year. Of
this number, 2,964 firms operated with fewer than 250 employees.
Additionally, based on Commission data in the 2022 Universal Service
Monitoring Report, as of December 31, 2021, there were 4,590 providers
that reported they were fixed local exchange service providers. Of
these providers, the Commission estimates that 4,146 providers have
1,500 or fewer employees. Consequently, using the SBA's small business
size standard, most of these providers can be considered small
entities.
26. Incumbent Local Exchange Carriers (Incumbent LECs). Neither the
Commission nor the SBA have developed a small business size standard
specifically for incumbent local exchange carriers. Wired
Telecommunications Carriers is the closest industry with an SBA small
business size standard. The SBA small business size standard for Wired
Telecommunications Carriers classifies
[[Page 68372]]
firms having 1,500 or fewer employees as small. U.S. Census Bureau data
for 2017 show that there were 3,054 firms in this industry that
operated for the entire year. Of this number, 2,964 firms operated with
fewer than 250 employees. Additionally, based on Commission data in the
2022 Universal Service Monitoring Report, as of December 31, 2021,
there were 1,212 providers that reported they were incumbent local
exchange service providers. Of these providers, the Commission
estimates that 916 providers have 1,500 or fewer employees.
Consequently, using the SBA's small business size standard, the
Commission estimates that the majority of incumbent local exchange
carriers can be considered small entities.
27. Competitive Local Exchange Carriers (CLECs). Neither the
Commission nor the SBA has developed a size standard for small
businesses specifically applicable to local exchange services.
Providers of these services include several types of competitive local
exchange service providers. Wired Telecommunications Carriers is the
closest industry with a SBA small business size standard. The SBA small
business size standard for Wired Telecommunications Carriers classifies
firms having 1,500 or fewer employees as small. U.S. Census Bureau data
for 2017 show that there were 3,054 firms that operated in this
industry for the entire year. Of this number, 2,964 firms operated with
fewer than 250 employees. Additionally, based on Commission data in the
2022 Universal Service Monitoring Report, as of December 31, 2021,
there were 3,378 providers that reported they were competitive local
service providers. Of these providers, the Commission estimates that
3,230 providers have 1,500 or fewer employees. Consequently, using the
SBA's small business size standard, most of these providers can be
considered small entities.
28. Interexchange Carriers (IXCs). Neither the Commission nor the
SBA have developed a small business size standard specifically for
Interexchange Carriers. Wired Telecommunications Carriers is the
closest industry with a SBA small business size standard. The SBA small
business size standard for Wired Telecommunications Carriers classifies
firms having 1,500 or fewer employees as small. U.S. Census Bureau data
for 2017 show that there were 3,054 firms that operated in this
industry for the entire year. Of this number, 2,964 firms operated with
fewer than 250 employees. Additionally, based on Commission data in the
2022 Universal Service Monitoring Report, as of December 31, 2021,
there were 127 providers that reported they were engaged in the
provision of interexchange services. Of these providers, the Commission
estimates that 109 providers have 1,500 or fewer employees.
Consequently, using the SBA's small business size standard, the
Commission estimates that the majority of providers in this industry
can be considered small entities.
29. Local Resellers. Neither the Commission nor the SBA have
developed a small business size standard specifically for Local
Resellers. Telecommunications Resellers is the closest industry with a
SBA small business size standard. The Telecommunications Resellers
industry comprises establishments engaged in purchasing access and
network capacity from owners and operators of telecommunications
networks and reselling wired and wireless telecommunications services
(except satellite) to businesses and households. Establishments in this
industry resell telecommunications; they do not operate transmission
facilities and infrastructure. Mobile virtual network operators (MVNOs)
are included in this industry. The SBA small business size standard for
Telecommunications Resellers classifies a business as small if it has
1,500 or fewer employees. U.S. Census Bureau data for 2017 show that
1,386 firms in this industry provided resale services for the entire
year. Of that number, 1,375 firms operated with fewer than 250
employees. Additionally, based on Commission data in the 2022 Universal
Service Monitoring Report, as of December 31, 2021, there were 207
providers that reported they were engaged in the provision of local
resale services. Of these providers, the Commission estimates that 202
providers have 1,500 or fewer employees. Consequently, using the SBA's
small business size standard, most of these providers can be considered
small entities.
30. Toll Resellers. Neither the Commission nor the SBA have
developed a small business size standard specifically for Toll
Resellers. Telecommunications Resellers is the closest industry with a
SBA small business size standard. The Telecommunications Resellers
industry comprises establishments engaged in purchasing access and
network capacity from owners and operators of telecommunications
networks and reselling wired and wireless telecommunications services
(except satellite) to businesses and households. Establishments in this
industry resell telecommunications; they do not operate transmission
facilities and infrastructure. Mobile virtual network operators (MVNOs)
are included in this industry. The SBA small business size standard for
Telecommunications Resellers classifies a business as small if it has
1,500 or fewer employees. U.S. Census Bureau data for 2017 show that
1,386 firms in this industry provided resale services for the entire
year. Of that number, 1,375 firms operated with fewer than 250
employees. Additionally, based on Commission data in the 2022 Universal
Service Monitoring Report, as of December 31, 2021, there were 457
providers that reported they were engaged in the provision of toll
services. Of these providers, the Commission estimates that 438
providers have 1,500 or fewer employees. Consequently, using the SBA's
small business size standard, most of these providers can be considered
small entities.
31. Other Toll Carriers. Neither the Commission nor the SBA has
developed a definition for small businesses specifically applicable to
Other Toll Carriers. This category includes toll carriers that do not
fall within the categories of interexchange carriers, operator service
providers, prepaid calling card providers, satellite service carriers,
or toll resellers. Wired Telecommunications Carriers is the closest
industry with a SBA small business size standard. The SBA small
business size standard for Wired Telecommunications Carriers classifies
firms having 1,500 or fewer employees as small. U.S. Census Bureau data
for 2017 show that there were 3,054 firms in this industry that
operated for the entire year. Of this number, 2,964 firms operated with
fewer than 250 employees. Additionally, based on Commission data in the
2022 Universal Service Monitoring Report, as of December 31, 2021,
there were 90 providers that reported they were engaged in the
provision of other toll services. Of these providers, the Commission
estimates that 87 providers have 1,500 or fewer employees.
Consequently, using the SBA's small business size standard, most of
these providers can be considered small entities.
32. Payphone Service Providers (PSPs). Neither the Commission nor
the SBA have developed a small business size standard specifically for
payphone service providers, a group that includes incarcerated people's
services providers. Telecommunications Resellers is the closest
industry with a SBA small business size standard. The
Telecommunications Resellers industry
[[Page 68373]]
comprises establishments engaged in purchasing access and network
capacity from owners and operators of telecommunications networks and
reselling wired and wireless telecommunications services (except
satellite) to businesses and households. Establishments in this
industry resell telecommunications; they do not operate transmission
facilities and infrastructure. Mobile virtual network operators (MVNOs)
are included in this industry. The SBA small business size standard for
Telecommunications Resellers classifies a business as small if it has
1,500 or fewer employees. U.S. Census Bureau data for 2017 show that
1,386 firms in this industry provided resale services for the entire
year. Of that number, 1,375 firms operated with fewer than 250
employees. Additionally, based on Commission data in the 2022 Universal
Service Monitoring Report, as of December 31, 2021, there were 36
providers that reported they were engaged in the provision of payphone
services. Of these providers, the Commission estimates that 32
providers have 1,500 or fewer employees. Consequently, using the SBA's
small business size standard, most of these providers can be considered
small entities.
33. Telecommunications Relay Service (TRS) Providers.
Telecommunications relay services enable individuals who are deaf, hard
of hearing, deafblind, or who have a speech disability to communicate
by telephone in a manner that is functionally equivalent to using voice
communication services. Internet-based TRS connects an individual with
a hearing or a speech disability to a TRS communications assistant
using an internet Protocol-enabled device via the internet, rather than
the public switched telephone network. Video Relay Service (VRS) one
form of internet-based TRS, enables people with hearing or speech
disabilities who use sign language to communicate with voice telephone
users over a broadband connection using a video communication device.
Internet Protocol Captioned Telephone Service (IP CTS) another form of
internet-based TRS, permits a person with hearing loss to have a
telephone conversation while reading captions of what the other party
is saying on an internet-connected device. A third form of internet-
based TRS, internet Protocol Relay Service (IP Relay), permits an
individual with a hearing or a speech disability to communicate in text
using an internet Protocol-enabled device via the internet, rather than
using a text telephone (TTY) and the public switched telephone network.
Providers must be certified by the Commission to provide VRS and IP CTS
and to receive compensation from the TRS Fund for TRS provided in
accordance with applicable rules. Analog forms of TRS, text telephone
(TTY), Speech-to-Speech Relay Service, and Captioned Telephone Service,
are provided through state TRS programs, which also must be certified
by the Commission.
34. Neither the Commission nor the SBA have developed a small
business size standard specifically for TRS Providers. All Other
Telecommunications is the closest industry with a SBA small business
size standard. Internet Service Providers (ISPs) and Voice over
internet Protocol (VoIP) services, via client-supplied
telecommunications connections are included in this industry. The SBA
small business size standard for this industry classifies firms with
annual receipts of $35 million or less as small. U.S. Census Bureau
data for 2017 show that there were 1,079 firms in this industry that
operated for the entire year. Of those firms, 1,039 had revenue of less
than $25 million. Based on Commission data there are 14 certified
internet-based TRS providers and two analog forms of TRS providers. The
Commission however does not compile financial information for these
providers. Nevertheless, based on available information, the Commission
estimates that most providers in this industry are small entities.
35. All Other Telecommunications. This industry is comprised of
establishments primarily engaged in providing specialized
telecommunications services, such as satellite tracking, communications
telemetry, and radar station operation. This industry also includes
establishments primarily engaged in providing satellite terminal
stations and associated facilities connected with one or more
terrestrial systems and capable of transmitting telecommunications to,
and receiving telecommunications from, satellite systems. Providers of
internet services (e.g., dial-up ISPs) or Voice over Internet Protocol
(VoIP) services, via client-supplied telecommunications connections are
also included in this industry. The SBA small business size standard
for this industry classifies firms with annual receipts of $40 million
or less as small. U.S. Census Bureau data for 2017 show that there were
1,079 firms in this industry that operated for the entire year. Of
those firms, 1,039 had revenue of less than $25 million. Based on this
data, the Commission estimates that the majority of ``All Other
Telecommunications'' firms can be considered small.
E. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities
36. IPCS providers, including any that may be small entities, will
need to change their operations, recordkeeping, and reporting to comply
with the requirements of the Report and Order. These requirements
include compliance with the rate caps the Report and Order establishes
for IPCS. While the new rate cap structure is lower than the
preexisting per-minute rate caps, given that the rate caps are based on
cost data provided by IPCS providers, including smaller providers,
small entities are likely to be able to recover their costs in the same
manner as larger providers. Additionally, because the rate caps apply
to both interstate and intrastate IPCS, the new rate cap structure
reduces the recordkeeping and reporting burdens of complying with the
Commission's rules with regards to audio IPCS because providers will no
longer need to determine the jurisdictional nature of each call. The
Report and Order's requirements also include a prohibition on the
assessment of ancillary service charges associated with IPCS, which
will greatly reduce the recordkeeping burdens on providers and simplify
their billing operations.
37. The Report and Order prohibits IPCS providers from paying site
commissions of any kind associated with IPCS and eliminates the
requirement under the Commission's rules for providers to label, and
disclose the source of, those payments on consumers' bills. The Report
and Order requires that, where facilities claim to incur costs related
to IPCS, providers are to determine whether those costs are in fact
used and useful in the provision of IPCS and are, therefore,
reimbursable under the Commission's rules. These changes will reduce
the burdens of the Commission's billing rules, while requiring that
IPCS providers make determinations regarding whether cost claims
submitted to them by facilities are consistent with Commission
requirements.
38. The Report and Order allows providers the option to offer
alternate pricing plans in addition to providing IPCS at per-minute
rates. IPCS providers may elect whether to offer such plans, and should
they elect to do so, they may determine the format of such plans,
provided that these plans comply with the Commission's generally
applicable IPCS rules, certain specified limitations, and other
safeguards adopted in the Report and Order. The Report and Order
[[Page 68374]]
establishes additional requirements for alternative pricing plans
regarding dropped communications, automatic renewals, and consumer
cancellation.
39. The Report and Order adopts consumer disclosure requirements
applicable to all IPCS, including requirements that providers disclose
their IPCS rates, charges, and associated practices on their publicly
available websites in a manner that is easily accessible and available
to all members of the public. Providers must also make these
disclosures available via their online and mobile applications, if
consumers use such applications to enroll, and on paper, upon a
consumer's request. The Report and Order further requires providers to
make available billing statements and statements of account to account
holders on a monthly basis, and details regarding the timing, manner,
and content requirements for these and other disclosure documents for
alternate pricing plans. The Report and Order also ensures that the
consumer disclosure rules, as amended, apply to all IPCS providers
subject to the Commission's expanded jurisdiction under the Martha
Wright-Reed Act.
40. The Report and Order extends the Commission's rules regarding
inactive accounts to apply to all accounts that can be used to pay an
IPCS-related rate or charge, to the extent they are controlled by IPCS
providers or their affiliates. The Report and Order reaffirms that
providers are barred from improperly disposing of unused funds in
inactive accounts (which includes disposing of such funds before 180
calendar days of continuous account inactivity has passed), and are
required to undertake reasonable efforts to refund unused funds. The
Report and Order expands upon these rules, including by requiring
providers to (1) contact the relevant account holder if and when they
become aware that an incarcerated person has been released or
transferred or upon the expiration of the 180-day inactivity period,
(2) issue refunds within 30 calendar days of a request from an account
holder, or of an account being deemed inactive (even in the absence of
such a request), and (3) notify account holders of the status of IPCS
accounts prior to their being deemed inactive. However, the Report and
Order limits the requirement for automatic refunds (i.e., in the
absence of a consumer's specific request) to account balances of
greater than $1.50. The Report and Order also clarifies what
``reasonable efforts'' entail, the procedures to follow if ``reasonable
efforts'' to refund inactive accounts fail, and which refund mechanisms
providers may use. Additionally, the Report and Order reaffirms and
clarifies the exception to these rules that allows a provider to
dispose of funds in inactive accounts in compliance with a controlling
judicial or administrative mandate.
41. The Report and Order modifies the scope and content of the
annual reporting requirements, to reflect the Commission's expanded
jurisdiction under the Martha Wright-Reed Act, to include the full
scope of IPCS and all providers of IPCS, and to reflect the changes to
the Commission's rules adopted in the Report and Order. The Report and
Order also amends the Commission's part 14 rules as appropriate to
reflect the Martha Wright-Reed Act's expansion of the Communications
Act's definition of ``advanced communication service.'' It also
modifies the Commission's rules to allow a form of enterprise
registration for the use of Internet Protocol Captioned Telephone
Service (IP CTS) in carceral facilities and clarifies that internet-
based IPCS providers may provide access to traditional (TTY-based) TRS
via real-time text. The Report and Order on Reconsideration also amends
the Commission's rules to require that VRS and IP CTS providers update
an incarcerated person's registration information within 30 days of
receiving written notification from such person, the correctional
authority, or IPCS provider of an incarcerated person's release or
transfer.
F. Steps Taken To Minimize the Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
42. 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 which affect the impact on small entities was
rejected.''
43. In the Report and Order, the Commission adopts a new, more
comprehensive set of rate caps that differentiate between prisons and
jails, and between four different sizes of jails--large, medium, small
and very small--based on average daily population (ADP). The use of
four different size tiers is supported in the record and accounts for
differences in costs incurred by providers serving these different
facility sizes. The Commission conducts a cost analysis specific to
each size tier using data submitted by IPCS providers and adopts new
rate caps for each of these facility size and type categories for both
audio and video IPCS. The Commission believes that these actions
properly recognize that some jails may be more costly for providers to
serve than prisons, and similarly that jails with smaller ADPs may be
more costly for providers to serve than those with larger ADPs.
44. Compliance with the Commission's new audio and video rate caps
and its rules eliminating site commission payments will be required by
January 1, 2025 for prisons and for jails with ADPs of 1,000 or above
incarcerated persons where no site commissions mandated by law are
currently paid; by April 1, 2025 for jails with ADPs less than 1,000
where no site commissions mandated by law are currently paid; and by
July 1, 2025 for all size facilities where site commissions mandated by
law are currently paid. The Commission extended the compliance deadline
for providers serving smaller jails to account for the additional time
that these facilities, and the providers that serve them, may need to
adapt to the changes adopted in the Report and Order.
45. The Commission recognizes that it cannot foreclose the
possibility that in certain limited instances, certain providers,
possibly smaller providers with less ability to spread their costs over
a larger number of facilities or minutes of use, may not be able to
recover their costs of providing IPCS under the rate caps adopted in
the Report and Order. To minimize the burden on such providers, the
Commission retains, with modifications, its waiver process, which
allows providers to seek relief from its rules at the facility or
contract level if they can demonstrate that they are unable to recover
their used and useful IPCS-related costs at that facility or for that
contract. The Commission modifies this process to reflect the
provisions of the Martha Wright-Reed Act, including its new authority
thereunder. The waiver process will allow the Commission to review
individual providers' data and potentially allow these providers to
charge rates that enable them to recover their costs of providing IPCS
at that facility or under that contract. This waiver process should
benefit any IPCS providers that may be small businesses unable to
recover their costs under the new rate caps.
46. In the Report and Order, the Commission prohibits providers
from assessing ancillary service charges in
[[Page 68375]]
addition to per-minute rates for IPCS. The Commission incorporates the
costs of providing ancillary services in its rate caps to allow
providers the opportunity to recover their average costs of providing
these ancillary services, while eliminating the burden of administering
independent billing processes for each of these services. At the same
time, eliminating all separately assessed ancillary service charges
prevents providers from engaging in rent-seeking activity in their
application of these charges, helping to ensure that IPCS rates and
charges are just and reasonable.
47. The Commission revises its rules to make clear that IPCS
providers may meet the requirement to provide access to traditional TRS
via real-time text, as an alternative to TTY transmissions, if real-
time text transmission is supported by the available devices and
reliable service can be provided by this method. Permitting this
alternative affords providers further flexibility in conducting their
operations, and accommodates the needs of smaller providers that may
have insufficient resources to expand or otherwise adjust their service
format and infrastructure to enable TTY transmission.
48. The Commission revises its rules to permit providers to
implement alternate pricing plans, other than per-minute pricing,
subject to rules and conditions to protect IPCS consumers. Any provider
that adopts these plans must offer them as a voluntary alternative to
per-minute pricing. Providers are not required to offer such plans, but
should they elect to do so, they will have the flexibility to determine
the format of the plans they offer. Permitting this additional means of
providing IPCS affords providers, including smaller providers, further
flexibility in conducting their operations.
49. The Commission's rate caps incorporate the costs of only a
subset of the safety and security measures reported by providers. The
rate caps incorporate the costs of the two categories that the
Commission finds to be both used and useful in the provision of IPCS:
Communications Assistance for Law Enforcement Act (CALEA) compliance
measures and communications security services. Because cost recovery
through the rate caps is only accommodated for a more limited set of
such measures, providers, particularly smaller providers, may not need
to be capable of offering more sophisticated safety and security
services in order to successfully compete for IPCS contracts.
G. Report to Congress
50. The Commission will send a copy of the Report and Order,
including this 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 Report and Order, including this FRFA, to the Chief Counsel for
Advocacy of the SBA. A copy of the Report and Order and FRFA (or
summaries thereof) will also be published in the Federal Register.
IV. Ordering Clauses
51. Accordingly, it is ordered that, pursuant to the authority
contained in Sec. Sec. 1, 2, 4(i)-(j), 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), 201(b), 218, 220, 225, 255, 276, 403, and
617, and the Martha Wright-Reed Just and Reasonable Communications Act
of 2022, Public Law 117-338, 136 Stat 6156 (2022), this Order on
Reconsideration, Clarification and Waiver is adopted.
52. It is further ordered that, pursuant to the authority contained
in Sec. Sec. 1, 2, 4(i)-(j), 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), 201(b), 218, 220, 225, 255, 276, 403, and 617, and the
Martha Wright-Reed Just and Reasonable Communications Act of 2022,
Public Law 117-338, 136 Stat 6156 (2022), the Petition for
Reconsideration, filed August 27, 2021 and amended December 14, 2022,
by the United Church of Christ, OC Inc. and Public Knowledge is
dismissed as described herein.
53. It is further ordered that, pursuant to the authority contained
in Sec. Sec. 1, 2, 4(i)-(j), 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), 201(b), 218, 220, 225, 255, 276, 403, and 617, and the
Martha Wright-Reed Just and Reasonable Communications Act of 2022,
Public Law 117-338, 136 Stat 6156 (2022), the Petition for
Reconsideration, filed August 21, 2021, by NCIC Inmate Communications
is dismissed as described herein.
54. It is further ordered that, pursuant to the authority contained
in Sec. Sec. 1, 2, 4(i)-(j), 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), 201(b), 218, 220, 225, 255, 276, 403, and 617, and the
Martha Wright-Reed Just and Reasonable Communications Act of 2022,
Public Law 117-338, 136 Stat 6156 (2022), the Petition for Partial
Reconsideration, filed January 9, 2023, by Hamilton Relay, Inc. is
granted as described herein.
55. It is further ordered that, pursuant to the authority contained
in Sec. Sec. 1, 2, 4(i)-(j), 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), 201(b), 218, 220, 225, 255, 276, 403, and 617, and the
Martha Wright-Reed Just and Reasonable Communications Act of 2022,
Public Law 117-338, 136 Stat 6156 (2022), the Petition for
Clarification, filed September 17, 2021, by Securus Technologies, LLC
is dismissed as described herein.
56. It is further ordered that, pursuant to the authority contained
in Sec. Sec. 1, 2, 4(i)-(j), 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), 201(b), 218, 220, 225, 255, 276, 403, and 617, and the
Martha Wright-Reed Just and Reasonable Communications Act of 2022,
Public Law 117-338, 136 Stat 6156 (2022), the Petition for Waiver,
filed August 30, 2021, by Securus Technologies, LLC is dismissed in
part and otherwise denied as described herein.
57. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Order on Reconsideration, Clarification, and Waiver,
including the Final Regulatory Flexibility Analyses, to the Chief
Counsel for Advocacy of the Small Business Administration.
58. It is further ordered that the Office of the Managing Director,
Performance Evaluation and Records Management, shall send a copy of
this Order on Reconsideration, Clarification, and Waiver in a report to
be sent to Congress and the Government Accountability Officer pursuant
to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).
Federal Communications Commission.
Marlene Dortch,
Secretary.
[FR Doc. 2024-18605 Filed 8-23-24; 8:45 am]
BILLING CODE 6712-01-P