Inmate Calling FNPRM Expected to Be Approved, Leaves Details Unsettled

Conversations with the two other commissioners' offices, though, were ongoing as of our deadline Thursday, and one commission source said it was unclear if any changes would be made to the FNPRM’s initial draft before the morning meeting. The other two commissioners would not comment Thursday.

One question up in the air Thursday, the source said, was whether the item would propose banning commissions that inmate calling service providers pay to correctional facilities, or if it only would seek comments on the idea of a ban. The initial draft had “tentatively” concluded the payments should be banned, under the theory that eliminating them as a consideration would mean ICS providers would be selected based on service and price, not the size of the commission payments (see 1410140131).

What to do about the payments, which critics say drive up the cost of phone calls, has drawn much of the attention in the debate. Jails and prisons say the commissions help pay for education and other inmate services. Global*Tel Link, Securus and Telmate backed banning the commissions, in a joint proposal last month, but said some mechanism should be created to reimburse the facilities for the cost of providing phone services. The Human Rights Defense Center also advocates eliminating the commissions. But a ban was strongly opposed by the Alabama Public Service Commission, which challenged the agency's legal authority to bar the payments, and called it “an unjustified and unnecessary federal intrusion into the funding for state prisons and local jails" [see 1410020057].

The FNPRM leaves many of the details, including where to set proposed rate caps, to be decided, and filling in those details will be the center of the upcoming debate, said ICS provider attorneys and inmate advocates. The FNPRM's initial draft proposed making permanent the interim interstate rate caps the commission created in 2013 and would set new intrastate caps, but did not say what those caps should be. That’s still the case, the commission source said Thursday, with the FNPRM seeking comment on alternatives. The intrastate cap may ultimately not be set at the same level as the interim cap, the source emphasized. The item also would propose capping or eliminating a number of ancillary charges, like transaction fees, but is silent on the amount, the source said.

In anticipation of the FNPRM’s approval, sides have begun laying out their positions in filings, reflecting “wide differences” over specifics like where to set rate caps, said Arent Fox’s Stephanie Joyce, who represents Securus Technologies. “I think the issues [in the coming debate] will be what we’ve seen in the filings the last ten days,” Joyce said.

Many of those comments have focused on a proposal by Global*Tel Link, Securus and Telmate to set a single rate cap for both interstate and intrastate calls, regardless of whether they are at state prisons or local jails. Pay-Tel, which serves only jails, countered with a higher cap for jails and a much lower one for the prisons it does not serve. Both sides accused the other of trying to increase its share of the post-reform market (see 1410100086). HRDC Associate Director Alex Friedmann said the inmate advocacy groups plan to file comments after the issuance of the FNPRM, but advocated a cap of 5-to-10-cents-a-minute, less than half of the 20- to 24-cents-a-minute proposed by Securus and the two other providers. NARUC, which has not filed comments in anticipation of the FNPRM, has told us the FCC does not have the authority to set intrastate rates or pre-empt rates set by PUCs, a position the FCC has said it disagrees with.

In return for no longer having to pay commissions to jails and prisons, Securus, Global*Tel Link and Telmate proposed eliminating 19 ancillary fees but said they would keep charging several other fees. The Alabama PSC, CenturyLink and Pay-Tel have called for eliminating more fees and capping others at lower rates.