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dispatchable location is conveyed to a List of Subjects calling services. For the limited Public Safety Answering Point (PSAP) circumstances in which the components 47 CFR Part 9 with a 911 call, regardless of the may be distinguished, inmate service technological platform used. Based on Communications; Communications providers are subject to the the directive in section 506 of RAY common carriers, Communications Commission’s ancillary service charge BAUM’S Act, the Commission adopted equipment, Reporting and rules, which constrain providers to only dispatchable location requirements that recordkeeping requirements, Satellites, five specific types of ancillary service in effect modified the existing Security measures, charges and related fee caps. The Telecommunications, Telephone. information collection requirements Commission also reinstated its rule prohibiting providers from marking up applicable to VRS, IP Relay, and 47 CFR Part 64 mandatory taxes or fees and adopted covered IP CTS by improving the Individuals with disabilities, rule changes in response to the D.C. options for providing accurate location Telecommunications, Circuit that clarify that the information to PSAPs as part of 911 Telecommunications relay services. Commission’s inmate calling service calls. Federal Communications Commission. rate and fee cap rules apply only to Fixed internet-based TRS devices Marlene Dortch, interstate and international inmate must provide automated dispatchable calling services. Secretary, Office of the Secretary. location. For non-fixed devices, when DATES: The rules adopted in this dispatchable location is not technically For the reasons discussed in the document take effect on November 23, feasible, internet-based TRS providers preamble, the Federal Communications 2020. may fall back to Registered Location or Commission amends 47 CFR part 9 as ADDRESSES: Federal Communications provide alternative location follows: Commission, 445 12th Street SW, information. As a last resort, internet- PART 9—911 REQUIREMENTS Washington, DC 20554. based providers may route calls to FOR FURTHER INFORMATION CONTACT: Emergency Relay Calling Centers after ■ 1. The authority citation for part 9 Amy Goodman, Pricing Policy Division making a good faith effort to obtain continues to read as follows: of the Wireline Competition Bureau, at location data from all available Authority: 47 U.S.C. 151–154, 152(a), (202) 418–1549 or via email at alternative location sources. 155(c), 157, 160, 201, 202, 208, 210, 214, 218, [email protected]. Dispatchable location means a location 219, 222, 225, 251(e), 255, 301, 302, 303, 307, SUPPLEMENTARY INFORMATION: This is a delivered to the PSAP with a 911 call 308, 309, 310, 316, 319, 332, 403, 405, 605, final rule summary of the Commission’s that consists of the validated street 610, 615, 615 note, 615a, 615b, 615c, 615a– Report and Order, released August X, 1, 616, 620, 621, 623, 623 note, 721, and 2020. A full-text version of this address of the calling party, plus 1471, unless otherwise noted. additional information such as suite, document can be obtained from the apartment or similar information § 9.14 [Amended] following internet address: https:// docs.fcc.gov/public/attachments/FCC- necessary to adequately identify the ■ 2. Amend § 9.14 by removing 20-111A1.pdf. location of the calling party. Automated paragraph (f). dispatchable location means automatic [FR Doc. 2020–21316 Filed 10–22–20; 8:45 am] Synopsis generation of dispatchable location. BILLING CODE 6712–01–P I. Introduction Alternative location information is 1. The Communications Act divides location information (which may be jurisdiction for regulating coordinate-based) sufficient to identify FEDERAL COMMUNICATIONS communications services, including the caller’s civic address and COMMISSION inmate calling services, between the approximate in-building location, 47 CFR Part 64 Commission and the states. Specifically, including floor level, in large buildings. the Act empowers the Commission to On January 31, 2020, the Commission [WC Docket No. 12–375, FCC 20–111; FRS regulate interstate communications released Structure and Practices of the 17047] services and preserves for the states Video Relay Service Program; jurisdiction over intrastate Rates for Interstate Inmate Calling communications services. Because the Telecommunications Relay Services and Services Speech-to-Speech Services for Commission has not always respected Individuals with Hearing and Speech AGENCY: Federal Communications this division, the U.S. Court of Appeals Disabilities, FCC 20–7, published at 85 Commission. for the District of Columbia Circuit has FR 27309, May 8, 2020 (VRS At-Home ACTION: Final rule. twice remanded the agency’s efforts to Call Handling Order). The Commission address rates and charges for inmate SUMMARY: In this document, the amended its rules to convert the VRS at- calling services. Commission continues to 2. Today, the Commission responds to home call handling pilot program into a comprehensively reform inmate calling the court’s remands and takes action to permanent one, thereby allowing CAs to services rates and charges to ensure just comprehensively reform inmate calling work from home. To ensure user privacy and reasonable rates for interstate and services rates and charges. First, the and call confidentiality and to help international inmate calling services. In Commission addresses the D.C. Circuit’s prevent waste, fraud, and abuse, the response to a directive from the United directive that it consider whether modified information collections States Court of Appeals for the District ancillary service charges—separate fees include requirements for VRS providers of Columbia Circuit, the Commission that are not included in the per-minute to apply for certification to allow their determined that, except in limited rates assessed for individual inmate communications assistants to handle circumstances, it is impractical to calling services calls—can be segregated calls while working at home; monitoring separate out the intrastate and intrastate into interstate and intrastate and oversight requirements; and components of ancillary service charges components for the purpose of reporting requirements. imposed in connection with inmate excluding the intrastate components

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from the reach of its rules. The Act. This regulatory authority includes Commission attempted to adopt a Commission finds that ancillary service ensuring that ‘‘[a]ll charges, practices, comprehensive framework for interstate charges generally cannot be practically classifications, and regulations for and and intrastate inmate calling services. segregated between the interstate and in connection with’’ interstate or More specifically, the Commission intrastate jurisdictions except in the international communications services adopted limits on ancillary service limited number of cases where, at the are ‘‘just and reasonable’’ in accordance charges; set rate caps for interstate and time a charge is imposed and the with section 201(b) of the Act. Section intrastate inmate calling services calls; consumer accepts the charge, the call to 201(b) also provides that ‘‘[t]he extended the interim interstate rate caps which the service is ancillary is a Commission may prescribe such rules it adopted in 2013 to intrastate calls clearly intrastate-only call. As a result, and regulations as may be necessary in pending the effectiveness of the new inmate calling services providers are the public interest to carry out’’ these rate caps; and sought comment on generally prohibited from imposing any provisions. whether and how to reform rates for ancillary service charges other than 6. Section 2(b) of the Act preserves for international inmate calling services those permitted by the Commission’s the states jurisdiction over ‘‘charges, calls. The Commission also addressed rules and providers are generally classifications, practices, services, inmate calling services providers’ ability prohibited from imposing charges in facilities, or regulations for or in to recover mandatory applicable pass- excess of the Commission’s applicable connection with intrastate through taxes and regulatory fees. ancillary service fee caps. communication service.’’ The Additionally, the Commission adopted a 3. The Commission believes that its Commission is thus ‘‘ ‘generally Second Mandatory Data Collection to actions today will ensure that rates and forbidden from entering the field of enable it to identify trends in the market charges for interstate and international intrastate communication service, and adopt further reform, and it inmate calling services are just and which remains the province of the required inmate calling services reasonable as required by section 201(b) states.’ ’’ Stated differently, section 2(b) providers to annually report information of the Act and thereby enable ‘‘erects a presumption against the on their operations, including their incarcerated individuals and their loved Commission’s assertion of regulatory current interstate, intrastate, and ones to maintain critical connections. At authority over intrastate international rates and their current the same time, given that the vast communications.’’ ancillary service charge amounts. In the majority of calls made by incarcerated 7. Although the Telecommunications 2016 ICS Reconsideration Order, the individuals are intrastate calls, the Act of 1996 ‘‘chang[ed] the FCC’s Commission increased its rate caps to Commission urges its state partners to authority with respect to some intrastate account for certain correctional facility take action to address the egregiously activities,’’ ‘‘the strictures of [section costs related to the provision of inmate high intrastate inmate calling services 2(b)] remain in force.’’ That is, ‘‘[i]nosfar calling services. rates across the country. as Congress has remained silent ..., [section 2(b)] continues to function.’’ 9. The Commission’s attempts to II. Background Thus, while section 276 of the Act reform inmate calling services rates and 4. Access to affordable specifically directs the Commission to charges have a long history in the courts communications services is critical for ensure that payphone service providers, and have not always been well received. all Americans, including incarcerated including inmate calling services In January 2014, in response to inmate members of our society. Studies have providers, ‘‘are fairly compensated for calling services providers’ petitions for long shown that incarcerated each and every completed intrastate and review of the 2013 ICS Order, the D.C. individuals who have regular contact interstate call using their payphone,’’ Circuit stayed the application of certain with family members are more likely to that provision does not authorize the portions of that Order but allowed the succeed after release and have lower Commission to regulate intrastate rates. Commission’s interim rate caps to recidivism rates. Unlike virtually every Nor does section 276 give the remain in effect. Later that year, the other American, however, incarcerated Commission the authority to determine court held the petitions for review in people and the individuals they call ‘‘just and reasonable’’ rates. abeyance while the Commission have no choice in their telephone 8. Prior Commission Actions. The proceeded to set permanent rates. In service provider. Instead, their only Commission has taken repeated action March 2016, in response to inmate option is typically an inmate calling to address inmate calling services rates calling services providers’ petitions for services provider chosen by the and charges. In the 2012 ICS Notice, the review of the 2015 ICS Order, the D.C. correctional facility that, once chosen, Commission sought comment on Circuit stayed the application of that operates as a monopolist. Absent whether to establish rate caps for Order’s rate caps and ancillary service effective regulation, rates for inmate interstate inmate calling services calls. charge cap for single-call services while calling services calls can be unjustly In the 2013 ICS Order, the Commission the appeal was pending. Later that and unreasonably high and thereby established interim interstate rate caps month, the court stayed the application impede the ability of incarcerated for debit and prepaid calls as well as of the Commission’s interim rate caps to individuals and their loved ones to collect calls and required all inmate intrastate inmate calling services. In maintain vital connections. calling services providers to submit data November 2016, the court stayed the 5. Statutory Background. The (hereinafter, the First Mandatory Data 2016 ICS Reconsideration Order Communications Act of 1934, as Collection) on their underlying costs so pending the outcome of the challenge to amended (the Act) establishes a system that the agency could develop a the 2015 ICS Order. In 2017, in GTL v. of regulatory authority that divides permanent rate structure. In the 2014 FCC, the D.C. Circuit vacated the rate power over interstate, intrastate, and ICS Notice, the Commission sought caps in the 2015 ICS Order, finding that international communications services comment on reforming charges for the Commission lacked the statutory between the Commission and the states. services ancillary to the provision of authority to regulate intrastate rates and More specifically, section 2(a) of the Act inmate calling services and on that the methodology used to set the empowers the Commission to regulate establishing rate caps for both interstate caps was arbitrary and capricious. The ‘‘interstate and foreign communication and intrastate inmate calling services court remanded for further proceedings by wire or radio’’ as provided by the calls. In the 2015 ICS Order, the with respect to certain rate cap issues;

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remanded the ancillary service charge intrastate. In particular, the Commission 15. Rate Caps. In the 2013 ICS Order, caps in that Order; and vacated one of held that ‘‘section 276 of the Act in light of record evidence that rates for the annual reporting requirements in authorizes the Commission to regulate inmate calling services calls greatly that Order. charges for intrastate ancillary services.’’ exceeded the reasonable costs of 10. Because this procedural history is On review, the D.C. Circuit held that providing service, the Commission somewhat complicated, the Commission ‘‘the Order’s imposition of ancillary fee adopted interim interstate rate caps of provides background on the relevant caps in connection with interstate calls $0.21 per minute for debit and prepaid issues in turn below. is justified’’ given the Commission’s calls and $0.25 per minute for collect 11. Ancillary Service Charges. ‘‘plenary authority to regulate interstate calls. In the 2015 ICS Order, in light of Ancillary service charges are fees that rates under § 201(b), including ‘‘egregiously high’’ rates for intrastate inmate calling services providers assess ‘practices . . . for and in connection inmate calling services calls, the on inmate calling service consumers with’ interstate calls.’’ The court held, Commission relied on section 276 and that are not included in the per-minute however, that just as the Commission section 201(b) of the Act to adopt rate rates assessed for individual calls. In the lacks authority to regulate intrastate caps for both intrastate and interstate 2015 ICS Order, in light of the rates pursuant to section 276, the inmate calling services calls. The continued growth in the number and Commission likewise ‘‘had no authority Commission set tiered rate caps of $0.11 dollar amount of ancillary service to impose ancillary fee caps with per minute for prisons; $0.14 per minute charges, and the fact that such charges respect to intrastate calls.’’ Because the for jails with average daily populations inflate the effective price that court could not ‘‘discern from the record of 1,000 or more; $0.16 per minute for consumers pay for inmate calling whether ancillary fees can be segregated jails with average daily populations of services, the Commission adopted between interstate and intrastate calls,’’ 350 to 999; and $0.22 per minute for reforms to limit such charges. The it remanded the issue ‘‘to allow the jails having average daily populations of Commission established five types of Commission to determine whether it less than 350. The Commission permissible ancillary service charges, can segregate [the ancillary fee] caps on calculated these rate caps using which are defined as follows: (1) Fees interstate calls (which are permissible) industry-wide average costs and stated for Single-Call and Related Services— and the [ancillary fee] caps on intrastate that this approach would allow billing arrangements whereby an calls (which are impermissible).’’ providers to ‘‘recover average costs at incarcerated person’s collect calls are 13. Mandatory Pass-Through Taxes each and every tier.’’ Additionally, the billed through a third party on a per-call and Fees. In the 2015 ICS Order, the Commission held that site basis, where the called party does not Commission found record evidence that commissions—payments made by have an account with the inmate calling inmate calling services providers were inmate calling services providers to services provider or does not want to charging end users fees under the guise correctional facilities or state authorities establish an account; (2) Automated of taxes. The Commission therefore held that are often required to win the Payment Fees—credit card payment, that such providers ‘‘are permitted to contract for provision of service to a debit card payment, and bill processing recover mandatory-applicable pass- given facility—were not costs fees, including fees for payments made through taxes and regulatory fees, but reasonably related to the provision of by interactive voice response, web, or without any additional mark-up or inmate calling services. The kiosk; (3) Third-Party Financial fees.’’ To implement this determination, Commission therefore excluded site Transaction Fees—the exact fees, with the Commission added rules governing commission payments from the cost no markup, that inmate calling services an ‘‘Authorized Fee’’ and a ‘‘Mandatory data used to set the rate caps. providers are charged by third parties to Tax or Mandatory Fee.’’ The rule 16. On reconsideration in 2016, the transfer money or process financial regarding authorized fees included Commission increased the rate caps for transactions to facilitate a consumer’s language precluding markups in the both interstate and intrastate inmate ability to make account payments via a absence of specific governmental calling services to expressly account for third party; (4) Live Agent Fees—fees authorization. The rule regarding correctional facility costs that are associated with the optional use of a mandatory taxes or fees, however, directly and reasonably related to the live operator to complete inmate calling contained no parallel language. To provision of inmate calling services. The services transactions; and (5) Paper Bill/ correct this oversight, the Commission Commission set the revised rate caps at Statement Fees—fees associated with amended the rule in the 2016 ICS $0.13 per minute for prisons; $0.19 per providing customers of inmate calling Reconsideration Order to specify: ‘‘A minute for jails with average daily services an optional paper billing Mandatory Tax or Fee that is passed populations of 1,000 or more; $0.21 per statement. The Commission then through to a Consumer may not include minute for jails with average daily capped the amount of each of these a markup, unless the markup is populations of 350 to 999; and $0.31 per charges and prohibited inmate calling specifically authorized by a federal, minute for jails with average daily services providers from assessing any state, or local statute, rule, or populations of less than 350. other ancillary service charges. The D.C. regulation.’’ 17. On review, the D.C. Circuit in GTL Circuit stayed the rule setting the 14. On review, the D.C. Circuit v. FCC vacated the rate caps adopted in ancillary service charge cap for single- vacated the 2016 ICS Reconsideration the 2015 ICS Order. First, the court held call services on March 7, 2016, before Order ‘‘insofar as it purport[ed] to set that the Commission lacked the the rest of the ancillary service charge rate caps on inmate calling service’’ and statutory authority to cap intrastate caps were to go into effect. Therefore, remanded ‘‘the remaining provisions’’ of inmate calling services rates. The court the ancillary service charge cap for that Order to the Commission ‘‘for explained that the Commission’s single-call services never became further consideration . . . in light of the authority over intrastate calls is, except effective. disposition of this case and other related as otherwise provided by Congress, 12. In the 2015 ICS Order, the cases.’’ As a result, the Commission’s limited by section 2(b) of the Act and Commission applied these caps to all rule governing Mandatory Taxes or nothing in section 276 of the Act services ancillary to inmate calling Mandatory Fees was vacated to the overcomes this limitation. In particular, services, regardless of whether the extent that it ‘‘purport[ed] to set rate section 276 ‘‘merely directs the underlying service was interstate or caps.’’ Commission to ‘ensure that all [inmate

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calling services] providers are fairly case and other related cases.’’ As a eliminated questions regarding video compensated’ for their inter- and result of the D.C. Circuit’s decisions in visitation from the annual reporting intrastate calls,’’ and it ‘‘is not a ‘general GTL and Securus, the interim rate caps form. grant of jurisdiction’ over intrastate that the Commission adopted in 2013 24. Second, the Bureau made ratemaking.’’ ($0.21 per minute for debit/prepaid calls additional revisions to the annual 18. Second, the D.C. Circuit held that and $0.25 per minute for collect calls) reporting form and instructions based the ‘‘Commission’s categorial exclusion are in effect for interstate inmate calling on its experience in analyzing past of site commissions from the calculus services calls. annual reports and based on formal and used to set [inmate calling services] rate 21. More Recent Developments. In the informal input from inmate calling caps defie[d] reasoned decisionmaking 2015 ICS Order, the Commission services providers, thereby making the because site commissions obviously are directed that the Second Mandatory annual reports easier to understand and costs of doing business incurred by Data Collection be conducted two years analyze. Bureau and OEA staff used the [inmate calling services] providers.’’ from publication of Office of April 2020 annual report responses to The court directed the Commission to Management and Budget (OMB) supplement their understanding of the ‘‘assess on remand which portions of approval of the information collection. Second Mandatory Data Collection site commissions might be directly The Commission received such responses. related to inmate calling services and approval in January 2017 and 25. Commission staff also analyzed therefore legitimate, and which are not.’’ publication occurred on March 1, 2017. the intrastate rate data submitted as part The court did not reach inmate calling Accordingly, on March 1, 2019, inmate of inmate calling services providers’ services providers’ remaining arguments calling services providers submitted most recent annual reports. Staff’s ‘‘that the exclusion of site commissions their responses to the Second analysis reveals that the vast majority of denies [them] fair compensation under Mandatory Data Collection. The inmate calls—roughly 80%—are [section] 276 and violates the Takings Commission’s Wireline Competition reported to be intrastate and that inmate Clause of the Constitution because it Bureau (Bureau) and Office of calling services providers are charging forces providers to provide services Economics and Analytics (OEA) egregiously high intrastate rates across below cost,’’ and it stated that the undertook a comprehensive analysis of the country. Intrastate rates for debit or Commission should address these issues the Second Mandatory Data Collection prepaid calls substantially exceed on remand once it revisits the exclusion responses and conducted multiple interstate rates in 45 states, with 33 of site commissions. follow-up discussions with inmate states allowing rates that are at least 19. Third, the D.C. Circuit held that calling services providers to supplement double the Commission’s cap and 27 the Commission’s use of industry-wide and clarify their responses. states allowing excessive ‘‘first-minute’’ averages in setting rate caps was 22. In February 2020, the Bureau charges up to 26 times that of the first arbitrary and capricious because it issued a public notice seeking to refresh minute of an interstate call. Indeed, lacked justification in the record and the record on ancillary service charges while interstate rates for the first minute was not supported by reasoned in light of the D.C. Circuit’s remand in and all subsequent minutes may not decisionmaking. More specifically, the GTL v. FCC. The Bureau sought exceed $0.25, inmate calling services court found the Commission’s use of a comment on, among other issues, (1) providers’ first-minute charges for weighted average per-minute cost to be whether each permitted inmate calling intrastate calls may range from $1.65 to ‘‘patently unreasonable’’ given that such services ancillary service charge may be $6.50. For example, one provider an approach made calls with above- segregated between interstate and reported the first-minute intrastate rate average costs unprofitable and thus did intrastate calls and, if so, how; (2) how of $5.341 and the additional per-minute ‘‘not fulfill the mandate of [section] 276 the Commission should proceed in the intrastate rate of $1.391 in Arkansas that ‘each and every’ ’’ call be fairly event any permitted ancillary service is while reporting the per-minute compensated. Additionally, the court ‘‘jurisdictionally mixed’’ and cannot be interstate rate of $0.21 for the same found that the 2015 ICS Order segregated between interstate and correctional facility. Similarly, another ‘‘advances an efficiency argument—that intrastate calls; and (3) any steps the provider reported the first-minute the larger providers can become Commission should take to ensure that intrastate rate of $6.50 and the profitable under the rate caps if they providers of interstate inmate calling additional per-minute intrastate rate of operate more efficiently—based on data services do not circumvent or frustrate $1.25 in Michigan while reporting the from the two smallest firms,’’ which the Commission’s ancillary service per-minute interstate rate of $0.25 for ‘‘represent less than one percent of the charge rules. the same correctional facility. Further, industry,’’ and that the Order did not 23. In April 2020, inmate calling Commission staff identified instances in account for conflicting record data. The services providers submitted data which a 15-minute intrastate debit or court therefore vacated this portion of pursuant to the Commission’s annual prepaid call costs as much as $24.80— the 2015 ICS Order and remanded to the reporting requirements and they did so almost seven times more than the Commission for further proceedings. using a revised annual reporting form maximum $3.15 that an interstate call of 20. Also in 2017, in Securus v. FCC, and accompanying instructions. First, the same duration would cost. the D.C. Circuit ordered the 2016 ICS the Bureau made minor revisions to the Reconsideration Order ‘‘summarily form and instructions in light of the D.C. III. Report and Order on Remand vacated insofar as it purports to set rate Circuit’s vacatur of the Commission’s 26. In this Report and Order on caps on inmate calling service’’ because annual reporting requirement for video Remand (Remand Order), the the revised rate caps in that Order were visitation services offered by inmate Commission responds to the D.C. ‘‘premised on the same legal framework calling services providers. The GTL Circuit’s directive in GTL v. FCC that and mathematical methodology’’ court held that the video visitation the Commission determine whether rejected by the court in GTL v. FCC. The services reporting requirement adopted ancillary service charges can be court remanded ‘‘the remaining in the 2015 ICS Order was ‘‘too segregated between interstate and provisions’’ of that Order to the attenuated to the Commission’s intrastate inmate telephone service Commission ‘‘for further consideration statutory authority to justify this calls. The Commission also amends its . . . in light of the disposition of this requirement.’’ Accordingly, the Bureau rule regarding mandatory pass-through

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taxes and fees in light of the court’s objective; and (3) state regulation would appellate court precedent on vacatur and remand in Securus v. FCC. ‘negate[ ] the exercise by the FCC of its jurisdictionally mixed services and the Additionally, the Commission revises own lawful authority’ because specific language of the D.C. Circuit in certain of its other inmate calling regulation of the interstate aspects of the GTL v. FCC (which remanded the issue services rules to comport with the D.C. matter cannot be ‘unbundled’ from of ‘‘whether ancillary fees can be Circuit’s decisions in those cases. regulation of the intrastate aspects.’’ segregated between interstate and When all three criteria are met, the intrastate calls’’ to the Commission ‘‘for A. Ancillary Service Charges Commission may regulate the further consideration’’), the Commission 27. The Commission finds that jurisdictionally mixed service falling finds that the D.C. Circuit did not ancillary service charges generally within the ‘‘impossibility exception’’ as instruct the Commission on how it cannot be practically segregated jurisdictionally interstate. should proceed if it were impossible or between the interstate and intrastate 30. Stated differently, where the impracticable to segregate some jurisdiction except in the limited Commission has jurisdiction under ancillary fees but instead left that number of cases where, at the time a section 201(b) of the Act to regulate question open for the Commission to charge is imposed and the consumer rates, charges, and practices of interstate resolve in the first instance. accepts the charge, the call to which the communications services, the service is ancillary is a clearly impossibility exception extends that 2. Applying the Commission’s Authority intrastate-only call. The record strongly authority to the intrastate portion of to Particular Ancillary Services supports this determination. As such, jurisdictionally mixed services ‘‘where 32. Single-Call Service (and Related providers are generally prohibited from it is impossible or impractical to Service) Fees. Where no prepaid or imposing any ancillary service charges separate the service’s intrastate from debit inmate calling services account in connection with inmate calling interstate components’’ and state has been established, an incarcerated services other than those specified in regulation of the intrastate component individual can make individual collect the Commission’s rules and providers would interfere with valid federal rules calls to family members or others. Third are generally prohibited from imposing applicable to the interstate component. parties assess fees on a per-call basis to charges in excess of the Commission’s As the Vonage Order made clear, ‘‘we bill the called family member or other applicable ancillary service fee caps. need not demonstrate absolute future party for such calls. In 2015, the Commission adopted rules that would 1. The Extent of the Commission’s impossibility to justify federal preclude inmate calling services Authority preemption here. The Commission need only show that interstate and intrastate providers from charging more than the 28. In creating a dual federal-state aspects of a regulated service or facility exact fee the third-party charges for regulatory regime to govern interstate are inseverable as a practical matter in these transactions, with no markup. and intrastate communications services light of prevailing technological and 33. Because single-call service is in sections 1 and 2(b) of the Act, economic conditions.’’ associated with a specific call, the Congress ‘‘attempt[ed] to divide the 31. The Bureau’s public notice Commission finds that the ancillary world of telephone regulation neatly seeking to refresh the record sought service can be jurisdictionally into two separate components.’’ comment on how the Commission determined based on the classification— However, ‘‘since most aspects of the should proceed in the event a permitted interstate or intrastate—of the communications field have overlapping ancillary service is ‘‘jurisdictionally underlying call. Single-call service (and interstate and intrastate components, mixed’’ and cannot be segregated related service) associated with an these two sections do not create a between interstate and intrastate calls. interstate call is subject to the simple division.’’ Decades of precedent No commenter disputed the Commission’s ancillary service charge reconciling these statutory provisions Commission’s authority to regulate rules. Single-call service (and related recognizes that the Commission may jurisdictionally mixed ancillary services service) associated with an intrastate regulate services having both interstate charges that cannot be segregated. call is beyond the reach of the and intrastate components, referred to Where a consumer of inmate calling Commission’s regulations. In the 2015 as ‘‘jurisdictionally mixed’’ services, services would incur an ancillary ICS Order, the Commission held that where it is impossible or impracticable service charge in connection with ‘‘for single call and related services, we to separate out their interstate and inmate telephone service and the charge permit ICS providers to charge the intrastate components. is not clearly and entirely applicable to amount of the third-party financial 29. Courts have recognized that as ‘‘a intrastate calling, the Commission transaction (with no markup) added to basic underpinning of our federal applies the impossibility exception a per-minute rate no higher than the system . . . state regulation will be criteria to determine whether that applicable rate cap.’’ However, the D.C. displaced to the extent that it stands as ancillary service charge should be Circuit stayed section 64.6020(b)(2) an obstacle to the accomplishment and subject to its authority and rules. The before that rule took effect. The D.C. execution of the full purposes and Commission rejects one federal District Circuit in GTL remanded the objectives of Congress.’’ Thus, although Court’s suggestion that GTL v. FCC held ‘‘imposition of ancillary fee caps’’ in the the Commission is ‘‘generally forbidden that the Commission may not cap 2015 ICS Order without specifically from entering the field of intrastate ancillary fees ‘‘except to the extent those addressing the effect of that remand on communication service,’’ courts have for interstate calls ‘can be segregated’ the single-call service rule or dissolving interpreted the Act and the Supremacy from intrastate calls.’’ As Pay Tel points the court’s earlier stay of that rule. The Clause of the U.S. Constitution to allow out, the District Court did ‘‘not engage ‘‘no-mark-up’’ portion of the single-call federal regulation of the intrastate in the relevant preemption analysis— service rule never became effective. portion of jurisdictionally mixed indeed not once [did] the decision even Because the D.C. Circuit remanded services in spite of section 2(b) where: mention the term ‘mixed jurisdiction.’ ’’ section 64.6020(b)(2) without vacating, ‘‘(1) the matter to be regulated has both And no party argues that Mojica v. finding fault, or otherwise addressing interstate and intrastate aspects; (2) FCC Securus provides the appropriate the no-markup clause, the Commission preemption [regulation] is necessary to reading of GTL v. FCC. Given the long reinstates section 64.6020(b)(2) today for protect a valid federal regulatory history of Supreme Court and federal the same reasons it adopted this

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prohibition in 2015. Nothing in the numbers (even if that telephone number 39. As with automated payments, record of this proceeding since that time must go through a screening process because third-party financial suggests the Commission should refrain before it is authorized) may be transactions typically fund accounts from doing so, and hence it has good inherently jurisdictionally mixed. before calls are placed or associated fees cause to reinstate section 64.6020(b)(2) Because automated payments typically are incurred, it is generally impossible without further notice and comment. are made to fund accounts before calls to know whether the fees will be 34. Automated Payment Fees. are completed or fees are incurred, the applied to interstate calls, intrastate Automated payments fund prepaid or record suggests that it may be calls, or a mix of the two. Therefore, debit accounts that can be used to pay impractical, if not impossible, to third-party financial transactions are for inmate calling services. Inmate connect these payments to any specific generally jurisdictionally mixed and calling services consumers typically subsequent calls made. When subject to the Commission’s ancillary make these payments to fund their automated payments cannot be service charge rules in the same way as accounts to pay for future calls to family segregated by jurisdiction, they are automated payments. The Commission or other loved ones and any associated subject to the Commission’s ancillary declines in this Order to consider ancillary services charge fees. These service charge rules. NCIC’s suggestion that it further cap payments occur through multiple 36. The Commission recognizes, third-party processing fees. Setting aside methods or types of transactions however, that automated payments are whether the Commission would have including ‘‘credit card payment, debit sometimes made to pay inmate calling the authority to prohibit an inmate card payment, and bill processing fees, service bills after calls have already calling services provider from passing including fees for payments by been made. In that circumstance, an along the costs itself incurs for interactive voice response[ ], web, or inmate calling services provider could conducting a service on a consumer’s kiosk.’’ They are also made to pay potentially confirm that not one call behalf, NCIC’s suggestion is beyond the inmate calling service bills for calls that with an outstanding balance was made scope of the remand in this proceeding. have already been made. The that crossed state lines and thus that the 40. To the extent Securus suggests Commission limits these fees to a service charge would be ancillary only that third-party financial transactions maximum of ‘‘$3.00 per use,’’ based on to intrastate inmate calling services. ‘‘raise no jurisdictional dispute,’’ the its prior finding that a $3.00 cap would Because the Commission must respect Commission agrees so long as such a ‘‘more than ensure[ ] that ICS providers the boundary on its jurisdiction drawn transaction is tied to a particular [could] recoup the costs of offering these by Congress, it cannot impose its jurisdictionally identifiable call— services.’’ automated payment fee cap in such which, as with automated payments, the 35. Because a prepaid or debit circumstances. Commission would expect would only account can generally be used to make occur if the fee is imposed after calls 37. The Commission rejects Securus’ both interstate and intrastate calls, have been made. And such an inquiry claim that ‘‘since the jurisdiction of any automated payment fees are generally would only matter where the inmate jurisdictionally mixed and subject to the given payment transaction depends on calling services provider can confirm Commission’s ancillary service charge the specific circumstances surrounding that no call with an outstanding balance rules. For example, accounts that allow the transaction, Securus does not was interstate or international— the dialing of any mobile telephone believe that the Commission can reach otherwise, the only way to protect the number (such as one assigned by a any conclusion regarding the interstate caller from unjust and mobile wireless provider or a nomadic application of these [Automated unreasonable fees is to apply the interconnected voice over internet Payment Fee] caps as a generic matter.’’ Commission’s ancillary service charge Protocol (VoIP) provider) are inherently It is precisely because providers rules to the entire third-party financial jurisdictionally mixed because the generally impose (and consumers are transaction. called party need not be located in the charged) these fees before it is possible 41. Live Agent Fees. Consumers may same state as the incarcerated to determine whether such payments optionally use live operators to individual at the time of a call. This is are ancillary to interstate or intrastate complete a range of inmate calling true even if the called party’s residence, calls that precedent dictates that the services-related tasks, including setting as commenters point out, is in the same Commission find these automated up an account, adding money to an state as the correctional facility. And it payments to be jurisdictionally mixed— account, or assisting with making a call. is true even if the area code and NXX and thus application of the In practice, multiple transactions can prefix of the called party’s telephone Commission’s rule to all such be, and often are, made via a single live number are associated with the state of transactions is necessary to protect operator interaction, which the the correctional facility. Similarly, if the interstate callers. Commission caps at $5.95 per account only allows a certain number of 38. Third-Party Financial Transaction interaction, regardless of the number of non-mobile numbers to be called, such Fees. Consumers often make use of third tasks the live operator completes in a an account is jurisdictionally mixed if parties, such as Western Union or single session. any one of those numbers is assigned to MoneyGram, to transfer money or 42. As with automated payments and a fixed location in a different state. The process financial transactions that third-party financial transactions, Commission uses a fixed landline enable these consumers to make because live agents are often used to set telephone number in its example here payments to inmate calling services up accounts or add money to accounts but recognizes that fixed wireless accounts. These third parties charge fees before any call is made, live agent technology may also have the same to inmate calling services providers, services are generally jurisdictionally ‘‘fixed’’ location characteristics as fixed which the providers then pass on to mixed and subject to the Commission’s wireline service and thus the same consumers. The Commission’s ancillary ancillary service charge rules. In jurisdictional analysis would apply. services charges rules limit the amount contrast, to the extent a live agent is Indeed, accounts where an incarcerated of third-party fees that an inmate calling used to place a particular call, then that individual may make a call to any services provider can pass on to service can be jurisdictionally telephone number or add a telephone consumers to the exact third-party fees, determined by the classification of the number to the list of authorized with no markup. call, just as single-call services are. And

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to the extent a live agent is used after charges imposed for and in connection through their intrastate ancillary service calls have been made to, for example, with interstate inmate calling services. charges. pay a bill, then the Commission’s To the extent those charges relate to 48. To ensure that providers do not ancillary service charge rules apply accounts or transactions having negate the effectiveness of the unless every call with an outstanding interstate as well as intrastate Commission’s caps on interstate balance can be determined to be components, the federal requirements ancillary service charges in this manner, intrastate. Similarly, to the extent a live will operate as ceilings limiting the Commission determines that if a agent session is used to complete potential state action. To the extent a provider takes new steps to segregate multiple tasks, the Commission finds state allows or requires an inmate interstate and intrastate activity (for that service is jurisdictionally mixed calling services provider to impose fees example, by providing separate paper (and thus subject to its ancillary service for ancillary services other than those bills for interstate and intrastate inmate charge rules) unless the inmate calling permitted by the Commission’s rules, or calling services, and assessing separate services provider can demonstrate that to charge fees higher than the caps ancillary service charges for those bills), the Commission will presumptively each action taken by the live agent was imposed by the Commission’s rules, that consider such actions as unjust and ancillary only to an intrastate telephone state law or requirement is preempted unreasonable practices that are service. except where such ancillary services are 43. The Commission rejects Securus’ prohibited under federal law. The claim that because Live Agent fees are provided only in connection with Commission directs the Wireline based on multiple different types of intrastate inmate calling services. In Competition Bureau and the transactions, it cannot reach a contrast, to the extent a state allows or Enforcement Bureau to take appropriate conclusion as to whether or not the requires an inmate calling services action should they become aware of Commission’s ancillary service charge provider to impose fees lower than such actions. Any inmate calling rule applies. Again, the Commission can those contained in the Commission’s services provider that takes such actions reach a conclusion here precisely rules, that state law or requirement is should be prepared to demonstrate to because it has found that live agent not preempted by the Commission’s the Commission that its affected services can, and do, involve both action here. interstate ancillary service charges are interstate and intrastate tasks within a 47. Attempts to Exploit the Dual just and reasonable, including that the single transaction session. As a result, Regulatory Environment and Evade the affected charges do not recover failing to treat live agent services as Commission’s Rules. The Commission jurisdictionally common costs that are generally jurisdictionally mixed would shares the concern of commenters that already, or should properly be, conflict with the federal law requiring inmate calling services providers may recovered through the provider’s these fees to be just and reasonable for undermine or negate its caps on corresponding intrastate ancillary all interstate callers. ancillary service charges for interstate service charges. 44. Paper Bill Fees. Inmate calling inmate calling services (and, in turn, its 49. Relatedly, the Commission services consumers have the option to interstate rate caps) by departing from cautions providers that they are obtain paper bills or statements their current business practices and prohibited, either directly or indirectly, reflecting all charges that occurred taking new steps to segregate interstate from imposing ancillary service charges during a billing cycle, including those and intrastate activity. For example, falling outside the five categories of related to calls and ancillary service commenters point out that providers charges permissible under its rules, and that they are prohibited from collecting, charges. The Commission has capped may newly decide to create separate directly or indirectly, amounts that fees for paper bills at $2.00 per paper bills for intrastate and interstate exceed the ancillary service fee caps set statement. services in order to evade the 45. Because the creation of a paper forth in its rules. The Commission Commission’s cap on paper bill fees. bill occurs only after calls have been further cautions that it intends to The Commission recognizes, in view of made, it may be possible to exercise the full breadth of the agency’s jurisdictionally segregate this service. the D.C. Circuit’s decision in GTL, that jurisdiction to curb attempts to evade its Generally, the Commission would the Commission lacks authority to limit rate cap and ancillary service charge expect such bills to be jurisdictionally the fees providers assess for purely rules through arrangements with third mixed as incarcerated people may make intrastate activity. But it is within the parties. For example, one commenter calls to those both in and outside of the Commission’s authority to ensure that has suggested that other providers may state of the correctional facility—and fees for interstate activity are just and have entered into arrangements with a thus subject to its ancillary service reasonable. And because providers have third party in connection with single- charge rules. However, if an inmate not historically distinguished between call service transactions whereby calling services provider can confirm interstate and intrastate ancillary service excessive one-time transaction fees that no call on the bill is interstate or charges, the Commission anticipates associated with these calls are imposed, international, then the paper bill service that the costs associated with providing passed on without markup to the would only be ancillary to intrastate jurisdictionally separate ancillary consumer of the inmate calling service, calls and beyond the reach of the services, should providers seek to do so and then the revenue obtained from the Commission’s rules. in the future, would often or always be consumer is shared by the service ‘‘common’’ to both the interstate and provider and the third party. Evidence 3. Related Issues intrastate service. It would frustrate the of arrangements such as this that appear 46. Effect on State Regulation. As in Commission’s efforts to ensure that to result in the service provider prior cases, the Commission exercises charges for interstate ancillary services indirectly marking up the third-party its authority under the Supremacy are just and reasonable if providers transaction fee in circumvention of the Clause to preempt state regulation of could recover, through their interstate Commission’s rules is subject to jurisdictionally mixed services to the ancillary service charges, costs that immediate referral to the Enforcement extent that such regulation conflicts should be allocated to a parallel Bureau for investigation. with federal law. The Commission’s intrastate ancillary service, or that 50. Similarly, inmate calling services rules apply to all ancillary service providers have already recovered providers are required to certify

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annually that the information in their mobile wireless and VoIP services, it contexts, typically related to carrier-to- Annual Reports, including the would be unreasonable for an inmate carrier matters or payment of fees owed, information on their ancillary services calling services provider to rely on a it has never adopted a general policy fees, is ‘‘true and accurate’’ and that telephone number alone to determine allowing the broad use of such proxies they are in compliance with the the location of a particular called party. outside of specific facts and Commission’s inmate calling services Today, a phone number provides little circumstances which are not applicable rules. The Commission will not hesitate indication of the physical location of a here. Indeed, the Commission has never to take action to ensure full compliance called party or a calling party. applied proxies to telecommunications with its ancillary services fee caps and Telephone numbers have been readily resellers generally, or inmate calling other inmate calling services rules. To ported between wireline providers, and services providers specifically, with that end, the Commission directs the between wireline and wireless service respect to assessing different interstate Enforcement Bureau to issue an providers, since at least 2003. And VoIP and intrastate rates and charges on their Enforcement Advisory, within 60 days providers have been porting numbers customers for those customers’ of the effective date of this Order, since at least 2008. Thus, a telephone interstate and intrastate telephone calls. reminding inmate calling services number only identifies the state and rate Indeed, the examples that GTL and providers of their obligations under the center where the number was originally Securus provide relate specifically to Commission’s rules, their duty of assigned, and not where it is currently carrier-to-carrier arrangements involving candor in connection with their assigned. Moreover, because a wireless intercarrier compensation or applicable interactions with the Commission, and telephone user may make or receive a federal fees due between carriers and the potential penalties for call anywhere there is wireless the Commission, not to using a proxy noncompliance. reception, their phone number readily for charging a customer a higher or 51. Classifying Calls by Jurisdiction. may not indicate their location. And the different rate than it would otherwise be There is significant debate within the chance of a phone number being one subject to based on whether the record on whether it is possible for that is used by a mobile phone is high: customer’s call is interstate or intrastate. inmate calling services providers to The telephone numbers used by mobile 54. The Commission is also classify the jurisdiction of certain calls phones make up about half of all unpersuaded by the ‘‘precedent’’ cited and thus the jurisdiction of the services assigned telephone numbers. Second, by GTL and Securus. Much of what ancillary to such calls. On the one hand, the Commission disagrees with Pay those parties cite is drawn from Notices GTL argues that the ‘‘jurisdictional Tel’s argument that the location of a of Proposed Rulemaking. Even insofar nature of calls themselves is easily wireless caller is unknowable. As as those Notices include observations classified as either interstate or Securus points out, ‘‘wireless carriers about historical industry practice as intrastate based on the call’s points of can determine the locations of their context for those requests for comment, origin and termination,’’ and Securus customers at the time of each call, so it the Notices do not establish actual asserts that an inmate calling services is possible to establish the jurisdiction Commission policy. Nor is the provider knows the jurisdiction of a call of each individual call.’’ Third, the Commission persuaded by their citation because it is ‘‘from a known originating Commission recognizes that just of a 2002 Bureau-level Order resolving telephone number to a single, known because some provider can establish the an interconnection arbitration. That terminating number.’’ On the other location of a caller (and thus the Bureau decision involved baseball-style arbitration, and an arbitrator concluded hand, Pay Tel argues that the jurisdiction of a call) does not mean that Commission should generally treat that those parties could use NPA–NXX every inmate calling services provider inmate calling services as codes for purposes of determining can or does do so. As such the jurisdictionally mixed across the board whether calls were local or toll. That Commission agrees with Pay Tel that, to because providers cannot practically conclusion was a function of the limits the extent an inmate calling services and reliably determine the location of of the carriers’ respective proposals provider cannot definitively establish each called party. there—nothing in that case made the the jurisdiction of a call, it may and 52. This confusion calls for some use of NPA–NXX codes applicable to should treat the call as jurisdictionally clarification. First, the Commission the entire industry. Moreover, this 18 mixed and thus subject to the reminds providers that the jurisdictional year-old decision did not involve nature of a call depends on the physical Commission’s ancillary service charge carriers terminating calls to VoIP and location of the endpoints of the call and rules. Such treatment is necessary to mobile wireless telephone numbers, not on whether the area code or NXX carry out the requirement of the which is the Commission’s concern prefix of the telephone number, or the Communications Act that all interstate here. The industry is very different billing address of the credit card charges and practices be just and today than it was in 2002 and the rules associated with the account, are reasonable. Or to put it another way, applicable to numbering resources have associated with a particular state. In any other treatment of jurisdictionally changed substantially, calling into other words, certain providers are indeterminate calls would strip question whether that arbitrator would incorrect to argue that comparing the interstate callers of the protections have reached the same conclusion today incarcerated person’s local access and guaranteed by federal law. with respect to reliance on NPA–NXX transport area and phone number with 53. GTL and Securus take issue with codes. In still other cases, GTL cites the account holder’s will let an inmate the Commission’s jurisdictional state commission decisions or an calling services provider identify approach, arguing that it is inconsistent industry white paper, which likewise do whether a call or account is interstate or with Commission and provider not demonstrate Commission policy. intrastate. Although that may be true for practices for determining the Thus, these filings by GTL and Securus legacy wireline networks, more modern jurisdictional nature of calls. These do not demonstrate any actual networks such as wireless networks and providers misread Commission Commission policy for the industry interconnected VoIP networks allow the precedent, however. While the from which the Commission would be portability of such numbers across state Commission has allowed carriers to use departing here. lines. And given the prevalence of such proxies for determining the 55. Independently, the Commission networks and the increasing reliance on jurisdictional nature of calls in specific Notices and Bureau Order cited by GTL

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and Securus involve materially different defeating, since consumers could Commission therefore disagrees with policy contexts. In particular, they purchase wireless phones from a GTL and Securus that its approach is a generally involve scenarios where the different state (with a number from that departure from established precedent Commission is seeking to ensure a state) and then place calls from within and imposes a ‘‘burden’’ on them. reasonable aggregate outcome across a the same state as the inmate in order to 57. For the same reasons, the mass of transactions. This is the case gain the protections of the interstate Commission also disagrees with GTL under the telecommunications relay inmate calling services rules. Such and Securus that requiring inmate service (TRS) program, where a single activities would impose their own costs calling services providers to classify entity—the Commission—is providing and could lead to disparate application incarcerated people’s calls as interstate all of the compensation that providers of the protections of the interstate or intrastate based on their end points receive from the interstate TRS Fund. inmate calling services rules based on constitutes a change in Commission To the extent that interstate vs. the relative sophistication of the policy requiring prior notice and an intrastate distinctions arise in that particular consumers receiving calls opportunity to comment. On the context, the Commission must ensure a from inmates. The Commission finds all contrary, the Commission’s approach reasonable approach across the these concerns persuasive both in simply clarifies the long-established aggregation of TRS calls handled by connection with its inmate calling standard that inmate calling services each provider rather than necessarily services rate caps and in connection providers must apply in classifying calls requiring jurisdictional accuracy on a with its regulation of fees for ancillary for purposes of charging customers the call-by-call basis. This also is the case services. Those consumers would lose appropriate rates and charges. And, in any event, the Bureau’s public notice with intercarrier compensation, for the protection of the Commission’s rate seeking to refresh the record on example, where carriers exchange large caps for particular calls that are, in fact, ancillary service charges in light of GTL volumes of calls and the jurisdictional interstate calls because per-call v. FCC sought comment ‘‘on how the status of any individual call is less regulation turned on proxies developed Commission should proceed in the important for intercarrier compensation in the context of aggregations of calls event any permitted ancillary service is purposes than ensuring that, in the with no guarantee—or necessarily even ‘jurisdictionally mixed’ and cannot be aggregate, the payments carriers likelihood—of seeing offsetting benefits segregated between interstate and exchange reflect a reasonable in the case of other inmate calling services calls they make or receive. intrastate call’’ and defined accounting of the relative portion of that jurisdictionally mixed services as mass of calls that are interstate vs. Likewise, when it comes to fees for jurisdictionally mixed ancillary ‘‘[s]ervices that are capable of intrastate. Furthermore, under the communications both between intrastate framework of sections 251 and 252 of services, the Commission merely seeks to vindicate its statutory interests end points and between interstate end the Act, Commission rules merely points.’’ Since the permitted ancillary establish a default, with individual whenever interstate inmate calling services are implicated. Indeed, in the services include single-call services (i.e., carriers free to negotiate alternative services related to a specific call), GTL approaches. In that context, Congress Vonage Order cited by GTL, the Commission responded to the difficulty and Securus received notice of, and a thus anticipated that regulators full opportunity to comment on, the generally would defer to industry- in directly determining the jurisdiction of calls by broadly preempting the jurisdictional status of inmate calling derived outcomes where they emerged. services calls. state’s attempted regulation of the The situation here is quite different, 58. Ancillary Service Charges Rule service at issue. Thus, although the however. Currently, charges for inmate Revisions. The Commission revises its calling services calls are imposed on a Commission leaves providers free to ancillary services charge rules call-by-call basis. As a result, to ensure follow state law where the associated consistent with its findings herein. the rate caps serve their purpose of effects can be limited to intrastate These amendments reflect the D.C. ensuring just and reasonable rates for inmate calling services, the record here Circuit’s holding that the Commission interstate services, those protections does not persuade it to neglect its lacks authority over intrastate inmate must apply on a call-by-call basis. Even interest when there is an effect on calling services as well as the assuming arguendo that proxies could interstate services even if it falls below Commission’s actions exercising its be identified that would yield an some (undefined) threshold. authority to ensure just and reasonable approximately accurate differentiation 56. Additionally, the end-to-end rates under section 201(b) for ancillary between interstate and intrastate traffic analysis that the Commission relies services charges for and in connection when viewed across the entire upon in this Order is the analysis that with jurisdictionally mixed inmate aggregation of a providers’ calls, that the Commission ‘‘has traditionally used calling services for which it is would be cold comfort to the end-user to the determine whether a call is impossible or impracticable to segregate consumers. Nor, in any case, does the within its interstate jurisdiction.’’ The the interstate and intrastate record reveal proxies that would be Commission has not extended to inmate components. reasonable even if it made sense to focus calling services any of the jurisdictional 59. The Commission also changes on aggregate outcomes. For example, the proxies it has adopted for specific and section 64.6020(a)’s cross-reference to record does not reveal why proxies or limited purposes in other contexts, nor section 64.6000 to more precisely cross- the like that industry might have used has it ever had any reason to suspect reference section 64.6000(a). The in the context of traditional telephone that inmate calling services providers Commission finds good cause to correct calls would make sense in the inmate were not appropriately complying with the cross-reference without notice and calling services context given potential this most basic regulatory obligation of comment because this change is non- differences in the types of calls that are telecommunications services providers substantive. It is well established that placed, potential differences in with respect to their customers— the Commission need not seek comment frequency and duration of calls, or other determining the proper jurisdiction of a on amendments to its rules designed ‘‘to possible considerations. At the same call when charging its customers the ensure consistency in terminology and time, relying on proxies such as correct and lawful rates for those calls cross references across various rules or telephone numbers could be self- using the end-to-end analysis. The to correct inadvertent failures to make

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conforming changes when prior rule caps. Second, the GTL court vacated the Administrator of the Office of amendments occurred.’’ In the absence reporting requirement the Commission Information and Regulatory Affairs, of any indication of changed had adopted for video visitation Office of Management Budget concurs, circumstances regarding the markup of services. The Commission thus that this rule is non-major under the Mandatory Taxes or Mandatory Fees, eliminates section 64.6060(a)(4), which Congressional Review Act, 5 U.S.C. the Commission finds it unnecessary to contained that rule. Third, the GTL 804(2). The Commission will send a seek additional comment on these court found that the Commission lacks copy of this Report and Order on matters. ratemaking authority over intrastate Remand to Congress and the inmate calling services rates. The Government Accountability Office B. Mandatory Pass-Through Taxes and Commission thus revises sections pursuant to 5 U.S.C. 801(a)(1)(A). Fees 64.6000(b), 64.6000(n), 64.6030, 67. Supplemental Final Regulatory 60. As a result of the D.C. Circuit’s 64.6050, 64.6070, 64.6080, 64.6090, and Flexibility Act Analysis. As required by decision in Securus, the rule 64.6100 to reflect that these rules only the Regulatory Flexibility Act of 1980 amendments in the 2016 ICS apply to interstate and international (RFA), as amended, the Commission has Reconsideration Order to include inmate calling services. Fourth, the prepared a Supplemental Final language precluding markups of a Commission revises section 64.6000(t) Regulatory Flexibility Analysis (FRFA) ‘‘Mandatory Tax or Mandatory Fee’’ in of its rules to change the reference to relating to this Report and Order on the absence of specific governmental ‘‘ICS’’ therein to ‘‘Inmate Calling Remand. The FRFA is set forth below. authorization were vacated to the extent Services.’’ 68. Paperwork Reduction Act. This they capped rates. The Commission 63. The Commission finds good cause Report and Order on Remand does not therefore amends its rules to reinstate to implement these revisions without contain new or modified information the language added in the 2016 ICS notice and comment. The collection requirements subject to the Reconsideration Order in response to Administrative Procedure Act states that Paperwork Reduction Act of 1995 the court’s vacatur and remand. The notice and comment procedures do not (PRA). In addition, therefore, it does not Commission also adds language apply ‘‘when the agency for good cause contain any new or modified clarifying that this rule applies only in finds (and incorporates the finding and information collection burden for small connection with interstate and a brief statement of the reasons therefor business concerns with fewer than 25 international inmate calls. This in the rules issued) that notice and employees, pursuant to the Small amendment will ensure that end users public procedure thereon are Business Paperwork Relief Act of 2002 will pay for ‘‘the cost of the service they impracticable, unnecessary, or contrary (SBPRA). have chosen and any applicable taxes or to the public interest.’’ With the V. Supplemental Final Regulatory fees, and nothing more’’ for inmate exception of its change to section Flexibility Analysis calling services subject to the 64.6000(t), the Commission’s revisions Commission’s jurisdiction, thereby are non-discretionary changes to the 69. As required by the Regulatory helping ensure that the charges imposed Commission’s rules necessary to Flexibility Act of 1980, as amended in connection with those services are effectuate the D.C. Circuit’s decisions in (RFA), an Initial Regulatory Flexibility just and reasonable. GTL and Securus. Seeking notice and Analysis (IRFA) was incorporated in the 61. The amendment is consistent with comment before implementing the D.C. 2014 ICS Notice. The Commission the Commission’s prior intent regarding Circuit’s non-discretionary mandate sought written public comment on the mandatory taxes or fees and the record would serve no purpose because proposals in that Notice, including previously developed in this commenters could not say anything comment on the IRFA. The Commission proceeding. The Commission bases its during a notice and comment period did not receive comments directed reinstatement on the same record, and that would change the D.C. Circuit’s toward the IRFA. Thereafter, the finds no basis to depart from its prior decision and the Commission does not Commission issued a Final Regulatory determination that adopting this rule have discretion to depart from the Flexibility Analysis (FRFA) conforming best comports with its application of court’s mandate. to the RFA. This Supplemental FRFA section 201(b). Further, this amendment 64. The Commission also finds good supplements that FRFA to reflect the harmonizes the rules regarding a cause to revise section 64.6000(t) actions taken in the Report and Order ‘‘Mandatory Tax or Mandatory Fee’’ and without notice and comment because on Remand (Remand Order) and an ‘‘Authorized Fee’’ to prohibit this change is non-substantive. The conforms to the RFA. markups on either category of charges, Commission need not seek comment on A. Need for, and Objectives of, the thereby eliminating at least some amendments to its rules designed ‘‘to Order on Remand potential confusion from the disparate ensure consistency in terminology and definitions regarding whether inmate cross references across various rules or 70. The Remand Order adopts rules calling services providers may mark up to correct inadvertent failures to make segregating ancillary service charges such charges. conforming changes when prior rule provided in connection with inmate amendments occurred. calling services into interstate and C. Revisions to Certain Inmate Calling intrastate components in response to a Services Rules IV. Procedural Matters remand from the United States Court of 62. Finally, the Commission revises 65. People with Disabilities. To Appeals for the District of Columbia certain of its rules governing inmate request materials in accessible formats Circuit (D.C. Circuit). It also amends the calling services to comport with the D.C. for people with disabilities (braille, Commission’s rule regarding mandatory Circuit’s decisions in GTL and Securus. large print, electronic files, audio pass-through taxes and fees in light of First, the court vacated the rate caps that format), send an email to [email protected] a second remand from the D.C. Circuit. the Commission adopted in the 2015 or call the Consumer & Governmental Finally, it revises certain of the ICS Order and the 2016 ICS Affairs Bureau at 202–418–0530 (voice), Commission’s other inmate calling Reconsideration Order, and the 202–418–0432 (TTY). services rules to comport with the D.C. Commission thus eliminates section 66. Congressional Review Act. The Circuit’s decisions in those cases, and 64.6010, which contained those rate Commission has determined, and the reinstates the Commission’s rule

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providing an ancillary service charge reported that they were incumbent local competitive local exchange services or cap for single-call services. exchange service providers. Of these competitive access provider services. Of 1,307 carriers, an estimated 1,006 have these 1,442 carriers, an estimated 1,256 B. Summary of Significant Issues Raised 1,500 or fewer employees and 301 have have 1,500 or fewer employees and 186 by Public Comments in Response to the more than 1,500 employees. have more than 1,500 employees. In IRFA Consequently, the Commission addition, 17 carriers have reported that 71. The Commission did not receive estimates that most providers of local they are Shared-Tenant Service comments specifically addressing the exchange service are small entities that Providers, and all 17 are estimated to rules and policies proposed in the IRFA. may be affected by the Commission’s have 1,500 or fewer employees. In C. Response to Comments by the Chief action. addition, 72 carriers have reported that 77. Incumbent Local Exchange Counsel for Advocacy of the Small they are Other Local Service Providers. Carriers (incumbent LECs). Neither the Business Administration Of the 72, 70 have 1,500 or fewer Commission nor the SBA has developed employees and two have more than 72. The Chief Counsel did not file any a size standard for small businesses 1,500 employees. Consequently, the comments in response to the proposed specifically applicable to incumbent Commission estimates that most rules in this proceeding. local exchange services. The closest providers of competitive local exchange D. Description and Estimate of the applicable size standard under SBA service, competitive access providers, Number of Small Entities to Which rules is for Wired Telecommunications Shared-Tenant Service Providers, and Rules Will Apply Carriers. Under that size standard, such Other Local Service Providers are small a business is small if it has 1,500 or entities that may be affected by the 73. The RFA directs agencies to fewer employees. According to Commission’s action. provide a description of, and, where Commission data, 1,307 carriers 80. Interexchange Carriers (IXCs). feasible, an estimate of, the number of reported that they were incumbent local Neither the Commission nor the SBA small entities that may be affected by exchange service providers. Of these has developed a size standard for small the rules adopted herein. The RFA 1,307 carriers, an estimated 1,006 have businesses specifically applicable to generally defines the term ‘‘small 1,500 or fewer employees and 301 have interexchange services. The closest entity’’ as having the same meaning as more than 1,500 employees. applicable size standard under SBA the terms ‘‘small business,’’ ‘‘small Consequently, the Commission rules is for Wired Telecommunications organization,’’ and ‘‘small governmental estimates that most providers of Carriers. Under that size standard, such jurisdiction.’’ In addition, the term incumbent local exchange service are a business is small if it has 1,500 or ‘‘small business’’ has the same meaning small businesses that may be affected by fewer employees. According to as the term ‘‘small business concern’’ the Commission’s action. Commission data, 359 companies under the Small Business Act. A ‘‘small 78. The Commission has included reported that their primary business concern’’ is one which: (1) Is small incumbent LECs in this present telecommunications service activity was independently owned and operated; (2) RFA analysis. As noted above, a ‘‘small the provision of interexchange services. is not dominant in its field of operation; business’’ under the RFA is one that, Of these 359 companies, an estimated and (3) satisfies any additional criteria inter alia, meets the pertinent small 317 have 1,500 or fewer employees and established by the Small Business business size standard (e.g., a telephone 42 have more than 1,500 employees. Administration (SBA). communications business having 1,500 Consequently, the Commission 74. Small Businesses. Nationwide, or fewer employees), and ‘‘is not estimates that the majority of there are a total of approximately 27.9 dominant in its field of operation.’’ The interexchange service providers are million small businesses, according to SBA’s Office of Advocacy contends that, small entities that may be affected by the SBA. for RFA purposes, small incumbent the Commission’s action. 75. Wired Telecommunications LECs are not dominant in their field of 81. Local Resellers. The SBA has Carriers. The SBA has developed a operation because any such dominance developed a small business size small business size standard for Wired is not ‘‘national’’ in scope. The standard for the category of Telecommunications Carriers, which Commission has therefore included Telecommunications Resellers. Under consists of all such companies having small incumbent LECs in this RFA that size standard, such a business is 1,500 or fewer employees. According to analysis, although it emphasizes that small if it has 1,500 or fewer employees. Census Bureau data for 2007, there were this RFA action has no effect on According to Commission data, 213 3,188 firms in this category, total, that Commission analyses and carriers have reported that they are operated for the entire year. Of this determinations in other, non-RFA engaged in the provision of local resale total, 3,144 firms had employment of contexts. services. Of these, an estimated 211 999 or fewer employees, and 44 firms 79. Competitive Local Exchange have 1,500 or fewer employees and two had employment of 1,000 employees or Carriers (competitive LECs), have more than 1,500 employees. more. Thus, under this size standard, Competitive Access Providers (CAPs), Consequently, the Commission the majority of firms can be considered Shared-Tenant Service Providers, and estimates that the majority of local small. Other Local Service Providers. Neither resellers are small entities that may be 76. Local Exchange Carriers (LECs). the Commission nor the SBA has affected by the Commission’s action. Neither the Commission nor the SBA developed a small business size 82. Toll Resellers. The SBA has has developed a size standard for small standard specifically for these service developed a small business size businesses specifically applicable to providers. The appropriate size standard standard for the category of local exchange services. The closest under SBA rules is for the category Telecommunications Resellers. Under applicable size standard under SBA Wired Telecommunications Carriers. that size standard, such a business is rules is for Wired Telecommunications Under that size standard, such a small if it has 1,500 or fewer employees. Carriers. Under that size standard, such business is small if it has 1,500 or fewer According to Commission data, 881 a business is small if it has 1,500 or employees. According to Commission carriers have reported that they are fewer employees. According to data, 1,442 carriers reported that they engaged in the provision of toll resale Commission data, 1,307 carriers were engaged in the provision of either services. Of these, an estimated 857

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have 1,500 or fewer employees and 24 Commission. The Remand Order also are adopted, effective 30 days after have more than 1,500 employees. requires inmate calling services publication of a summary in the Federal Consequently, the Commission providers to not mark up mandatory Register. estimates that the majority of toll taxes or fees passed on to consumers of 91. It is further ordered that the resellers are small entities that may be interstate or international inmate calling Commission’s Consumer and affected by the Commission’s action. services, and places an ancillary service Governmental Affairs Bureau, Reference 83. Other Toll Carriers. Neither the charge cap on single-call services. Information Center, shall send a copy of Commission nor the SBA has developed this Report and Order on Remand, F. Steps Taken To Minimize the a size standard for small businesses including the Supplemental Final Significant Economic Impact on Small specifically applicable to Other Toll Regulatory Flexibility Analysis, to the Entities, and Significant Alternatives Carriers. This category includes toll Congress and the Government Considered carriers that do not fall within the Accountability Office pursuant to the categories of interexchange carriers, 86. The RFA requires an agency to Congressional Review Act, see 5 U.S.C. operator service providers, prepaid describe any significant, specifically 801(a)(1)(A). calling card providers, satellite service small business, alternatives that it has 92. It is further ordered that the carriers, or toll resellers. The closest considered in reaching its proposed Commission’s Consumer and applicable size standard under SBA approach, which may include the Governmental Affairs Bureau, Reference rules is for Wired Telecommunications following four alternatives (among Information Center, shall send a copy of Carriers. Under that size standard, such others): ‘‘(1) the establishment of this Report and Order on Remand, a business is small if it has 1,500 or differing compliance or reporting including the Supplemental Final fewer employees. According to requirements or timetables that take into Regulatory Flexibility Analysis, to the Commission data, 284 companies account the resources available to small Chief Counsel for Advocacy of the Small reported that their primary entities; (2) the clarification, Business Administration. telecommunications service activity was consolidation, or simplification of the provision of other toll carriage. Of compliance and reporting requirements List of Subjects in 47 CFR Part 64 these, an estimated 279 have 1,500 or under the rules for such small entities; Communications common carriers, fewer employees and five have more (3) the use of performance rather than Individuals with disabilities, Prisons, than 1,500 employees. Consequently, design standards; and (4) an exemption Reporting and recordkeeping the Commission estimates that most from coverage of the rule, or any part requirements, Telecommunications, Other Toll Carriers are small entities thereof, for such small entities.’’ Telephone, Waivers. that may be affected by the 87. The FRFA that the Commission Federal Communications Commission. Commission’s action. previously issued in connection with Marlene Dortch, 84. Payphone Service Providers the 2015 ICS Order addressed in full the Secretary. (PSPs). Neither the Commission nor the steps taken to minimize the economic SBA has developed a small business impact or small entities and the Final Rules size standard specifically for payphone significant alternatives considered. For the reasons set forth in the services providers, a group that includes G. Report to Congress preamble, the Federal Communications inmate calling services providers. The Commission amends part 64, of title 47 appropriate size standard under SBA 88. The Commission will send a copy of the Code of Federal Regulations as rules is for the category Wired of the Remand Order, including this follows: Telecommunications Carriers. Under Supplemental FRFA, in a report to be that size standard, such a business is sent to Congress pursuant to the Small PART 64—MISCELLANEOUS RULES small if it has 1,500 or fewer employees. Business Regulatory Enforcement RELATING TO COMMON CARRIERS According to Commission data, 535 Fairness Act of 1996. In addition, the carriers have reported that they are Commission will send a copy of the ■ 1. The authority citation for part 64 is engaged in the provision of payphone Remand Order, including this revised to read as follows: services. Of these, an estimated 531 Supplemental FRFA, to the Chief Authority: 47 U.S.C. 151, 152, 154, 201, have 1,500 or fewer employees and four Counsel for Advocacy of the Small 202, 217, 218, 220, 222, 225, 226, 227, 227b, have more than 1,500 employees. Business Administration. A copy of the 228, 251(a), 251(e), 254(k), 262, 276, Consequently, the Commission Remand Order and Supplemental FRFA 403(b)(2)(B), (c), 616, 620, 1401–1473, unless estimates that the majority of payphone (or summaries thereof) will also be otherwise noted; Pub. L. 115–141, Div. P, sec. service providers are small entities that published in the Federal Register. 503, 132 Stat. 348, 1091. may be affected by the Commission’s ■ 2. Amend § 64.6000 by revising VI. Ordering Clauses action. paragraphs (a), (b), (n), and (t) and by 89. Accordingly, it is ordered that, adding paragraph (u) to read as follows: E. Description of Projected Reporting, pursuant to the authority contained in Recordkeeping, and Other Compliance sections 1, 2, 4(i)–(j), 201(b), 218, 220, § 64.6000 Definitions. Requirements for Small Entities 276, and 403 of the Communications * * * * * 85. Recordkeeping, Reporting, and Act of 1934, as amended, 47 U.S.C. 151, (a) Ancillary Service Charge means Certification. The Order on Remand 152, 154(i)–(j), 201(b), 218, 220, 276, any charge Consumers may be assessed requires inmate calling services and 403, this Report and Order on for, or in connection with, the interstate providers to properly identify whether Remand is adopted. or international use of Inmate Calling ancillary services associated with 90. It is further ordered, pursuant to Services that are not included in the inmate calling services are interstate, the authority contained in sections 1, 2, per-minute charges assessed for such intrastate, or jurisdictionally mixed. To 4(i)–(j), 201(b), 218, 220, 276, and 403 individual calls. Ancillary Service the extent those ancillary services are of the Communications Act of 1934, as Charges that may be assessed are limited interstate or jurisdictionally mixed, the amended, 47 U.S.C. 151, 152, 154(i)–(j), only to those listed in paragraphs (a)(1) provider must comply with fee caps or 201(b), 218, 220, 276, and 403, that the through (5) of this section. All other limits previously adopted by the amendments to the Commission’s rules Ancillary Service Charges are

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prohibited. For purposes of this § 64.6020 Ancillary Service Charge. § 64.6100 Minimum and maximum Prepaid definition, ‘‘interstate’’ includes any (a) No Provider of interstate or Calling account balances. Jurisdictionally Mixed Charge, as international Inmate Calling Services (a) No Provider shall institute a defined in paragraph (u) of this section. shall charge an Ancillary Service Charge minimum balance requirement for a * * * * * other than those permitted charges Consumer to use Debit or Prepaid listed in § 64.6000(a). Calling for interstate or international (b) Authorized Fee means a * * * * * calls. government authorized, but (b) No Provider shall prohibit a discretionary, fee which a Provider must ■ 5. Section 64.6030 is revised to read as follows: consumer from depositing at least $50 remit to a federal, state, or local per transaction to fund a Debit or government, and which a Provider is § 64.6030 Inmate Calling Services interim Prepaid Calling account that can be permitted, but not required, to pass rate cap. used for interstate or international calls. through to Consumers for or in No provider shall charge a rate for connection with interstate or [FR Doc. 2020–19951 Filed 10–22–20; 8:45 am] interstate Collect Calling in excess of BILLING CODE 6712–01–P international Inmate Calling Service. An $0.25 per minute, or a rate for interstate Authorized Fee may not include a Debit Calling, Prepaid Calling, or markup, unless the markup is Prepaid Collect Calling in excess of DEPARTMENT OF VETERANS specifically authorized by a federal, $0.21 per minute. These interim rate AFFAIRS state, or local statute, rule, or regulation. caps shall remain in effect until * * * * * permanent rate caps are adopted and 48 CFR Parts 841 and 842 take effect. (n) Mandatory Tax or Mandatory Fee RIN 2900–AQ38 means a fee that a Provider is required ■ 6. Section 64.6050 is revised to read as follows: to collect directly from consumers, and VA Acquisition Regulation: Acquisition remit to federal, state, or local § 64.6050 Billing-related call blocking. of Utility Services, and Contract governments. A Mandatory Tax or Fee No Provider shall prohibit or prevent Administration and Audit Services; that is passed through to a consumer for, completion of an interstate or Correction or in connection with, interstate or international Collect Calling call or AGENCY: Department of Veterans Affairs. international Inmate Calling Services decline to establish or otherwise may not include a markup, unless the degrade interstate or international ACTION: Final rule; correction. markup is specifically authorized by a Collect Calling solely for the reason that SUMMARY: On September 24, 2020, the federal, state, or local statute, rule, or it lacks a billing relationship with the regulation; Department of Veterans Affairs (VA) called party’s communications service published a rule updating its VA * * * * * provider, unless the Provider offers Acquisition Regulation (VAAR) in (t) Site Commission means any form Debit Calling, Prepaid Calling, or phased increments. The changes seek to of monetary payment, in-kind payment, Prepaid Collect Calling for interstate streamline and align the VAAR with the gift, exchange of services or goods, fee, and international calls. FAR and remove outdated and technology allowance, or product that a § 64.6060 [Amended] duplicative requirements and reduce Provider of Inmate Calling Services or burden on contractors. An error ■ affiliate of a Provider of Inmate Calling 7. In § 64.6060, remove and reserve occurred in three amendatory Services may pay, give, donate, or paragraph (a)(4). instructions. This document corrects otherwise provide to an entity that ■ 8. Section 64.6070 is revised to read those errors. as follows: operates a correctional institution, an DATES: This correction is effective entity with which the Provider of § 64.6070 Taxes and fees. October 26, 2020. Inmate Calling Services enters into an FOR FURTHER INFORMATION CONTACT: Mr. agreement to provide Inmate Calling No Provider shall charge any taxes or Rafael N. Taylor, Senior Procurement Services, a governmental agency that fees to users of Inmate Calling Services Analyst, Procurement Policy and oversees a correctional facility, the city, for, or in connection with, interstate or Warrant Management Services, 003A2A, county, or state where a facility is international calls, other than those 425 I Street NW, Washington, DC 20001, located, or an agent of any such facility. permitted under § 64.6020, and those defined as Mandatory Taxes, Mandatory (202) 382–2787. (This is not a toll-free (u) Jurisdictionally Mixed Charge Fees, or Authorized Fees. number.) means any charge Consumers may be ■ 9. Section 64.6080 is revised to read SUPPLEMENTARY INFORMATION: On assessed for use of Inmate Calling as follows: September 24, 2020, VA published a Services that are not included in the rule in the Federal Register (85 FR per-minute charges assessed for § 64.6080 Per-Call or Per-Connection Charges. 60073) which contained errors in the individual calls and that are assessed description of the contents of subparts No Provider shall impose a Per-Call or for, or in connection with, uses of 841.2, 841.5, and 842.2. Inmate Calling Service to make such Per-Connection Charge on a Consumer calls that have interstate or international for any interstate or international calls. Corrections components and intrastate components ■ 10. Section 64.6090 is revised to read In FR Rule Doc. No. 2020–18172, that are unable to be segregated at the as follows: appearing on page 60077 in the Federal time the charge is incurred. § 64.6090 Flat-Rate Calling. Register of September 24, 2020, make the following corrections: § 64.6010 [Removed and Reserved] No Provider shall offer Flat-Rate Calling for interstate or international ■ Subpart 841.2 [Corrected] 3. Remove and reserve § 64.6010. Inmate Calling Services. ■ 4. Section 64.6020(a) is revised to read ■ 11. Section 64.6100 is revised to read ■ 1. On page 60077, in the first column, as follows: as follows: in subpart 841.2, correct instruction

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