Advocates, Industry at Odds on Incarcerated Communications Services

Incarcerated people's communications service providers and advocates disagree on how the FCC should implement the Martha Wright-Reed Just and Reasonable Communications Act. Commissioners adopted the item in March, seeking comment on permanent rates for IPCS services and how to address accessibility concerns for incarcerated individuals with disabilities (see 2303160009). Comments were posted Tuesday in docket 23-62.

Several advocacy organizations urged the FCC to exclude safety and security costs from permanent rates. Costs for security services "are often a cover for unnecessary inmate surveillance," said the Electronic Privacy Information Center. The group said "unnecessary surveillance practices are not properly considered services to incarcerated persons or their contacts."

The law "does not require the commission to include the cost of any, even necessary, safety or security measures within rates, just to consider them," said Worth Rises. Surveillance measures "are not necessary for the provision of IPCS and are harmful to IPCS consumers," the group said, adding such measures are "elective features sought after by corrections administrators, law enforcement, and prosecutors with no basis." The Wright Petitioners, Benton Institute for Broadband & Society, Prison Policy Initiative and Public Knowledge agreed, saying in joint comments: The FCC is "plainly not obligated to pass them through in the rate caps ultimately adopted." The groups also asked the FCC to preempt state and local governments from assessing site commissions.

The FCC "must ensure that costs incurred to make IPCS available, including safety and security costs, are recoverable," said the National Sheriffs Association. The group raised concerns about using a "used and useful" framework for costs and expenses allowed in IPCS rates, saying the commission can't require individual facilities to "establish the extent to which their costs are used and useful" because it lacks jurisdiction over facilities. ViaPath agreed, adding the FCC should let IPCS providers implement alternative pricing plans in addition to per-minute rate caps. Industrywide rate caps are the "fairest and most efficient way" to regulate IPCS, said NCIC Communications, saying separate caps for audio and video services are "necessary" because of the resources required to provide them.

The FCC should "work with stakeholders to phase out site commissions in an orderly transition process that preserves the ability to offer beneficial programs for the incarcerated," said Securus. The IPCS provider disagreed about the need for safety and security costs in IPCS rates, saying such measures are "necessary to provide a regulated communications service." Securus also backed preempting states from "imposing different rate caps or charges than those adopted by the commission." Preemption of state and local authority is "inherent in regulating rates" because "state and local entities run carceral facilities," said United Church of Christ Media Justice Ministry and Public Knowledge in joint comments, adding the FCC should "explicitly preempt any and all site commissions inconsistent with its decisions on permissible rates."

Pay Tel backed preempting "inconsistent" state requirements, noting the Martha Wright-Reed Act "grants the commission plenary authority over intrastate and interstate rates." It's "not sufficient for the commission to only preempt state rate caps that are in excess of the FCC’s prescribed rate caps," Pay Tel said.

Don't preempt states from adopting lower rates than the FCC rate caps, said the California Public Utilities Commission. State and local governments "are in a better position to assess what a reasonable rate would be for the provision of services in their geographic locations," the PUC said. The FCC should also "ensure that site commissions and bundling of services are not utilized by IPCS providers to circumvent the rates adopted in this proceeding by similarly placing caps on these provisions," it said. The New York Public Service Commission asked the FCC to adopt a rule preventing rates from "instantly increasing" if a provider currently has lower rates than the new rate caps. The commission should also "adopt a rule that allows for gradual increases of rates," the PSC said.

The FCC "must contend with the decades of damage caused by the deprivation of access to telecommunication for disabled incarcerated people," said Helping Educate to Advance the Rights of the Deaf (HEARD). Implement enterprise registration for communications services for incarcerated individuals with hearing disabilities, said ClearCaptions. The IP captioned telephone service provider said it would ensure individuals don't need to wait while their registration is pending to receive services. A coalition of disability advocates, which included HEARD, Telecom for the Deaf and Hard of Hearing, Inc., Communication Service for the Deaf, Hearing Loss Association of America, National Association of the Deaf, and Gallaudet University's Rehabilitation Engineering Research Center on Technology for the Deaf and Hard of Hearing asked the FCC to clarify that IP CTS and point-to-point video calls for incarcerated individuals aren't subject to reimbursement.