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Round-Up for the Week of March 27-31, 2023

The ability to communicate through affordable audio and video communications is essential to allowing incarcerated people to stay connected to their families and loved ones, clergy, counsel, and other critical support systems. Studies consistently show that incarcerated people who have regular contact with family members are more likely to succeed after release and have lower recidivism rates.

On January 5, 2023, President Joseph Biden signed into law the Martha Wright-Reed Just and Reasonable Communications Act of 2022 (Martha Wright-Reed Act) to ensure just and reasonable charges for telephone and advanced communications services in correctional and detention facilities. The law is the product of efforts by multiple individuals and committed stakeholders over a number of years to comprehensively address the persistent problem of unreasonably high rates and charges incarcerated people and their families pay for communications services.

On March 16, the Federal Communications Commission launched a proceeding to implement the new law and ensure just and reasonable charges for telephone and advanced communications services in correctional and detention facilities. Below we look at the issues the FCC is exploring and seeking public input on.

I. Background

The Martha Wright-Reed Act removes limitations that have prevented the FCC from setting comprehensive and effective just and reasonable rates for incarcerated people’s communications services. The law explicitly gives the FCC jurisdiction over intrastate as well as interstate and international communications services used by incarcerated people. The new law also enables the FCC to require that rates for incarcerated people’s communications services be just and reasonable, no matter what “calling device” they use. The legislation expands the definition of payphone service in correctional institutions to encompass all advanced communications services (other than electronic messaging), including any audio or video communications service used by inmates, again regardless of technology used. Advanced communications services, in these matters, include:

• Interconnected voice over Internet protocol service (VoIP), such as home phone service provided by an Internet service provider
• Non-interconnected VoIP service, such as using a computer to engage in voice communication over the Internet
• Interoperable video conferencing services

II. FCC Proceeding

In its new proceeding, the FCC is asking for public comment on how to interpret the new law and how best to implement it. 

1. Authority

The FCC believes the Martha Wright-Reed Act gives broad powers over how much incarcerated people have to pay to communicate with people outside of correctional facilities and asks for reaction and input on its interpretation. The FCC interprets the Martha Wright-Reed Act as:

• Providing the FCC with the authority it needs to ensure that the charges associated with communications services for incarcerated people are just and reasonable and do not create an unnecessary deterrent to their ability to stay connected with the world outside their correctional facilities. 
• Enhancing and supplementing its existing jurisdiction over communications services for incarcerated people.
• Granting broad, wide-ranging, broadly construed authority over the rates and charges for any inmate audio or video communications service.
• Empowering the FCC to prohibit unreasonably high rates and charges for, and in connection with, all audio or video communications services, including intrastate services.

2. Creating a Compensation Plan

In previous efforts to address phone rates at correctional facilities, the FCC focused on requiring that service providers be “fairly compensated” for “each and every” completed call. The Martha Wright-Reed Act eliminated the “each and every” call language and requires the FCC to establish a compensation plan to ensure that all rates and charges for incarcerated people’s communications services are "just and reasonable." The FCC seeks comment on whether the new law changes the central focus from ensuring that payphone service providers are “fairly compensated” for voice calls with little, if any, considerations of fairness to the consumer, to a more balanced approach emphasizing consumers’ (particularly incarcerated people’s) and providers’ right to just and reasonable rates and charges for each audio and video communications service.

The FCC interprets the elimination of the “per call” and “each and every call” language as a signal of Congress’s intent to restrict the application of the “fairly compensated”
requirement with respect to communications services for incarcerated people by no longer requiring the FCC to ensure that its compensation plan allows for “fair” compensation for “each and every” completed call. The FCC believes it is no longer required to ensure that providers are “fairly compensated” for every call
they carry or facilitate.

The FCC also asks about what constitutes “rates and charges.” The FCC proposes to interpret “rates” to refer to the amounts paid by consumers of incarcerated people’s communications services for calls or other audio or video communications. And the FCC proposes to interpret “charges” to refer to all other amounts assessed on consumers of incarcerated people’s communications services in connection with those services. (Think ancillary service charges, authorized fees, mandatory taxes and fees, and any other charges a provider may seek to impose on consumers.) 

3. Services Covered

Before the Martha Wright-Reed Act, the FCC's authority was limited to “payphone service,” meaning "the provision of public or semi-public pay telephones, the provision of inmate telephone service in correctional institutions, and any ancillary services." But the new law expands the authority to "advanced communications services" which includes voice over internet (VoIP) service, video conferencing service, and “any audio or video communications service used by inmates for the purpose of communicating with individuals outside the correctional institution where the inmate is held, regardless of technology used.” The FCC seeks comment on how broad this authority is. 

4. Location Location Location

When speaking of "any audio or video communications service," the Martha Wright-Reed Act includes the following "used by inmates for the purpose of communicating with individuals outside the correctional institution where the inmate is held." The FCC asks how limiting that phrase might be.

Some institutions restrict or prohibit in-person visits in favor of video visitation and a visitor may lack sufficient broadband service or equipment to enable video visitation from their home or elsewhere. The FCC asks questions regarding this, including:

• If a calling service is typically used for communicating with family, friends, or loved ones, is that person’s physical location at the time of the call determinative, so that, for example, FCC authority over an incarcerated person’s calls to family members’ cell phones might cease when the family members enter the incarcerated person’s correctional institution as opposed to when they are at their homes?
• Does “outside the correctional institution where the inmate is held” refer to any physical location not subject to involuntary confinement restrictions? 
• Could physical locations “outside” the correctional institution include any location not used for confinement purposes, including rooms designated for communicating with, or visitation by, persons not subject to confinement, including family, friends, and members of the general public not subject to confinement?
• Similarly, could “individuals outside the correctional institution” refer to people who are neither confined in nor employed by the institution, even if they are temporarily located on the premises of the institution for purposes of communicating with incarcerated individuals through some form of audio or video communications service?

5. Rate Regulation

The FCC's prior efforts to ensure just and reasonable rates for inmate calling services focused on capping, on an industry-wide basis, the rates and ancillary services charges providers could assess for, or in connection with, voice calls, based on providers’ costs. The FCC seeks comment on whether it should continue this approach or set separate caps on rates and charges for different types of providers or, alternatively, for each individual provider.

The FCC proposes to treat costs for interstate voice services and intrastate voice services as having identical per-unit costs—and the Commission seeks input on this approach. The FCC also asks about video services: should the Commission assume that the average costs for intrastate video communications services are identical to the
average costs for interstate video communications? For audio and video communications services, the FCC invites comment on the types of pricing plans it should allow.

The Martha Wright-Reed Act allows the FCC to use industry-wide average costs of telephone service and advanced communications services in determining just and reasonable rates. The FCC seeks public comment on the best approach to using industry-wide average costs to determine just and reasonable rates for both traditional telephone service and advanced communications services provided to incarcerated people.

The Martha Wright-Reed Act directs the FCC to consider costs associated with any safety and security measures necessary to provide telephone service and advanced communications services to incarcerated people. The FCC seeks input on how to implement this directive.

6. Size Matters

The Martha Wright-Reed Act directs the FCC to consider differences in average costs of communications services by small, medium, or large facilities. The FCC seeks input on how to interpret and implement this direction. For example, the law uses different terms to refer to incarceration facilities, apparently interchangeably, including “correctional institutions,” “correctional facilities,” “detention facilities,” and “facilities.” The FCC proposes to interpret all these terms to mean places where people are involuntarily confined. The FCC especially seeks input on the meaning of “detention facility” which is defined neither in the law or existing FCC rules. Similarly, FCC rules define "correctional facility" and "correctional institution" as a jail or a prison (and then further define "jail" as a temporary or short-term holding facility and "prison" as a facility for holding people sentenced to incarceration for a year or more. The FCC seeks input on its proposal to continue to use these definitions. 

In determining whether a facility is small, medium, or large, the FCC proposes to continue using average daily population as the primary metric. The FCC also asks what other characteristics it should consider in setting rates, including correctional institution type (whether it is a prison, jail, or other kind of institution), geographic location (whether it is in an urban, as opposed to a rural, area), and the technology used (whether it is wireline as opposed to wireless, internet protocol-based as opposed to circuit-switched, or is connected to the public switched telephone network (PSTN) as opposed to transmitted only via the internet).

7. Accessibility 

The FCC also seeks comment on the extent to which the Martha Wright-Reed Act expands its ability to ensure that any audio and video communications services used by incarcerated people are accessible to and usable by people with disabilities. The law may mean that some services are newly subject to accessibility requirements. The FCC proposes to amend its rules to incorporate the Martha Wright-Reed Act and it seeks comment on this proposal. 

8. Digital Equity and Inclusion

As has now become common practice in FCC proceedings, the Commission seeks comment here on how its proposals may promote or inhibit advances in diversity, equity, inclusion, and accessibility. 

III. Conclusion

Nearly twenty years have passed since Martha Wright-Reed and her fellow petitioners first sought FCC relief from the exorbitant telephone rates they had to pay to talk to their incarcerated family members. More than a decade has passed since the FCC began to respond to those petitioners’ requests. 

As my colleague Andrew Jay Schwartzman points out, the new statute contains an unusual timing provision, which says the FCC must adopt its rules no earlier than 18, but no later than 24, months after enactment. This ensures that the new rules will be adopted before the start of a new administration in January 2025. However, unless the rules are adopted at or near the start of the six-month implementation window, depending on the results of the 2024 elections, there is a risk that they could be invalidated under the Congressional Review Act. It is encouraging, then, that the FCC launched this proceeding quickly in order to allow ample time for interested parties to participate in crafting the new rules and allowing for the new rules will be put in place at the earliest permissible date.

[This article serves mainly as a quick, broad summary of the issues raised in the FCC's Notice of Proposed Rulemaking (NPRM). Parties interested in providing input should see the NPRM (docket 23-62) for additional questions and details.]

Quick Bits

• FCC dodges disaster as court approves handling of broadband subsidies (Politico)
• Lawmakers introduce the Reforming Broadband Connectivity Act (Congress)
• Treasury Department Announces New York’s Capital Projects Fund Award (US Treasury)
• April 2023 Open Meeting Agenda (FCC)
• The Internet Archive has lost its first fight to scan and lend e-books like a library (The Verge)

Weekend Reads (resist tl;dr)

• Proposed Supplementary Broadband Guidance (US Treasury)
• With billions of dollars on the line, East Texans say a crucial state map incorrectly shows they already have broadband (Texas Tribune)
• ChatGPT is about to revolutionize the economy. We need to decide what that looks like. (MIT Technology Review)
• Executive Order on Prohibition on Use by the US Government of Commercial Spyware that Poses Risks to National Security  (White House)
• U.S. and China wage war beneath the waves – over internet cables (Reuters)

ICYMI from Benton

• New York is Working to ConnectALL
• FCC Plans Additional ACP Awareness Grants

Upcoming Events

Apr 6—What Are the Consequences of Backdoors for Online Privacy? (Center for Data Innovation)

Apr 11—National Spectrum Strategy Listening Session (NTIA)

Apr 19—2023 BEAD Success Summit (Telecommunications Industry Association)

Apr 19—Colorado Broadband Summit (Colorado Broadband Office)

Apr 20—Open Federal Communications Commission Meeting

The Benton Institute for Broadband & Society is a non-profit organization dedicated to ensuring that all people in the U.S. have access to competitive, High-Performance Broadband regardless of where they live or who they are. We believe communication policy - rooted in the values of access, equity, and diversity - has the power to deliver new opportunities and strengthen communities.

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Benton Institute
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