Prison Phone Justice

2550 M Street, NW

PATTON BOGGSllP

Washington, DC 20037-1350
202-457-6000

lacsim ile 202-457-6315
www.pattonboggs.com

Paul C. Besozzi
202-457-5292

October 18, 2013

pbesozzi@pattonboggs.com

BY FEDERAL EXPRESS
Catrice C. Williams, Secretary
Department of Telecommunications and Cable
1000 Washington Street, Suite 820
Boston, MA 02118-6500

Re:

Petition Of Recipients Of Collect Calls From Prisoners at Correctional
Institutions In Massachusetts Seeking Relief from the Unjust And
Unreasonable Cost of such Calls ("Petition") - Docket No. 11-16

Dear Secretary Williams :
In accordance with 220 CMR Section 1.02:(5), enclosed for filing in the
referenced Docket are an original and three (3) copies of Securus Technologies,
Inc.'s Motion To Hold Proceeding In Abeyance.
Copies of the foregoing document are simultaneously being served on all
parties listed on the official Service List issued by the Department.
An extra copy of each filing is enclosed to be stamped "received" or "filed"
and returned in the enclosed envelope.
Please direct any questions concerning this filing to the undersigned at 2025292 or pbes zi@pattonboggs.com .
.._/

ounsel for Securus Technologies, Inc.

4818-6088-9105

Ab u Dh ab i

I

Anchor~ge

I

Da ll a s

I

De nv er

I

Do ha

I

N ew J ers ey

I

Nr.w Yo r k

I

Ri ya d h

I

Was hin g t on DC

THE COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF TELECOMMUNICATIONS
AND CABLE

Petition Of Recipients Of Collect Calls
From Prisoners at Correctional Institutions
In Massachusetts Seeking Relief from the Unjust
And Unreasonable Cost of such Calls

)
)
)

DTC Docket No. 11-16

)

)
)

~~~~~~~~~~~~~~~~~~~~~).

MOTION TO HOLD PROCEEDING IN ABEYANCE
In accordance with 220 CMR 1.02:(5), Securus Technologies, Inc. ("Securus" or
"Company"),

acting

through

undersigned

counsel,

hereby

moves

the

Department

of

Telecommunications and Cable ("DTC" or "Department") to immediately hold in abeyance the
investigation initiated by the Hearing Officer Interlocutory Ruling, dated September 23, 2013, in this
docket ("Ruling") pending the resolution of the Federal Communications Commission's ("FCC" or
"Commission") ongoing rulemaking In the Matter

of Rates for

Interstate Inmate Calling Services. 1 The

Department should stay all further actions in this Docket No. 11-16, including actions relating to the
appeal of the Ruling filed by the Petitioners on October 16, 2013. 2
The FCC is considering identical issues regarding intrastate inmate calling services ("ICS")
that the Ruling noted for investigation and on which the Petitioners, and their expert, have urged the
FCC to act. These include the per-minute charge issue which the Ruling declined to investigate, but
is the subject of the PLS Appeal.
the Matter rif R.atesfor Interstate Inmate Calling Services, Report and Order and Further Notice rif Proposed RJt!emaking, FCC 13113, WC Docket No. 12-375 (released September 23, 2013) ("ICS Order"). The Further Notice of Proposed Rulemaking
component is hereinafter referred to as the FNPRt\1.
1In

D. T. C. 11-16, Petition ef Recipients of Collect Calls from Prisoners at Correctional Institutions in Massachusetts Seeking Relieffron1 the
Ut!)ust and Unreasonable Cost ef such Calls, Petitioners' Appeal (filed Oct.16, 2013) (" PLS Appeal"). This would include the
requirement that responses to the Appeal be filed by October 28, 2013.
2

4827-8623-4390.

Securus respectfully submits that there is ample Department precedent, some of which was
cited in the Ruling itself, for granting this Motion. 3 The Department should not be required to
expend resources addressing the same issues being considered by the FCC, creating the prospect
that the Department would have to "redo" whatever decision the Department might render.
In further support of its Motion, Securus sets forth the following grounds:

1. The Ruling
The Ruling initiated an investigation that would examine following issues:
a.

Maintaining the per-call surcharge and/ or adjusting the maximum rate permitted per
call. 4

b. Service and other fees imposed by ICS providers. 5
c.

Quality of service issues. 6

d. Certain billing practices. 7

2. The FCC's ICS Order
On September 26, 2013 - three days after the Ruling - the FCC released its ICS Order,
broadly addressing the rates and practices for interstate ICS, while opening the FNPRM to examine
"reforming intrastate ICS rates and practices. 8
The FCC established a detailed regime for regulating rates for interstate ICS, including
addressing per-call and per-minute charges, ancillary non-call-related charges/fees and site
3

See Ruling, at pp. 12-13.

4

Ruling, at p. 26. The Ruling bases its decision on allegedly conflicting cost changes, including with respect to those
costs uniquely associated with ICS. See id., at p. 25.

5

Ruling, at pp. 27-28.

6

Ruling, at p. 30.

7

Ruling, at p. 31.

8

ICS Order, if128. As noted by Global Tel* Link in a similar motion filed in this proceeding on October 17, 2013, the
FCC's ICS Order resulted from a lengthy record developed over a decade involving comments on rates, cost and
revenue data, commission payments and rate cap proposals, and included filings by representatives of inmate families
and interested groups and by the PLS's expert, Mr. Dawson. Motion To Hold Proceeding In Abeyance, Global Tel*Link
Corporation, D.T.C. 11-16, October 17, 2013, at p. 2.

2
4827-8623-4390.

commissions. The Order imposed per-minute rate caps and, within those caps, established "safe
harbor" levels which are presumptively compliant with the cost-based rate requirements that the
FCC approved. Those requirements also were applied to ancillary charges/fees. The FCC examined
and analyzed

res costs and directed the filing of additional cost data.

Petitioners were active participants before the FCC, asking the FCC in its rulemaking to
address some of the very same issues being considered by the Department herein. 9 For example,
they urged the FCC to eliminate per-call surcharges. 10 They raised service quality issues. 11
The FNPRM undertakes to reform both local rates and intrastate long distance rates for ICS.
Specifically, the FCC asserts that it believes that "intrastate reform is necessary and that the
Commission has the authority to reform intrastate ICS rates." 12 Further, the Commission claims that
"section 276 [of the Communications Act of 1934, as amended, (47 U.S.C. § 276)] affords the
Commission broad discretion to regulate intrastate ICS rates and practices ... and to preempt
inconsistent state requirements." 13 Therefore, the FCC seeks comment on "reforming intrastate rates
and practices."14
The FCC relies on this statutory authority and judicial precedent to conclude that it can
regulate intrastate "end-user rates." 15 It also tentatively precludes recovery of "site commissions"
through intrastate rates and seeks comment on that conclusion. 16 The Commission seeks comment
on "per-call charges" and whether there are "any costs that are uniquely incurred" that could not be
9

See, e.g., Comments of Prisoner's Legal Services of Massachusetts, filed March 25 2013, Docket No. WC 12-375,
including the Amended Affidavit of Douglas A Dawson, the same such Amended Affidavit filed in this proceeding
("PLS FCC Comments").
10

PLS FCC Comments, at pp.14-15.

res Order, if85, n. 320, if158, n. 500.
12 res Order, if129.
13 res Order, if135.
14 res Order, if129.
15 res Order, if137.
16 res Order, if133.
11

3
4827-8623-4390.

recovered through a per-minute charge alone. 17 It raises the prospect of minimum quality of service
standards for

res

serviccs. 18 It seeks to ensure that "ancillary charges" are just and reasonable.

19

Finally, it seeks comment on per-minute rate structure ($0.07 per minute) which would be distance
insensitive and apply to both interstate and intrastate calling. 20

3. The PLS Appeal
The PLS Appeal only further highlights the overlap between the FCC proceeding and what
the Petitioners urge the Department to add to the investigation. The Petitioners make constant
reference to the ICS Order, include it as an Exhibit with their Appeal, attach materials and
information submitted by their expert Mr. Dawson with the FCC in an effort to have the
Department follow the FCC's path with respect to per-minute rates and "unique costs", including
the FCC's consideration of a distance and jurisdictionally insensitive per- minute rate of $0.07. 21

4. The Department Precedent Supports Grant Of The Motion Under The
Circumstances.
The Ruling itself recognizes that Department proceedings should be "stayed pending the
outcome of FCC proceedings" in certain cases, particularly where failure to do so would "run the
risk of adopting" rules that "subsequently may be deemed inconsistent with the FCC's rules" and
"require the Department to conduct a second proceeding."22 As the Department observed, "such

res Order, iJiJ161-162.
ls res Order, iJ178.
19 res Order, iJ168.
20 res Order, iJ155.
11

21

PLS Appeal, at pp. 2, 3, 6-8.

at p. 13, citing D.T.E. 01-20, Investigation ly the Dept of Telecomms. & Energy on its own Motion into the Appropriate
Prt?7ng, based upon Total Element Long-Run Incremental Costs, for Unbundled Network Elements & Combinations of Unbundled
Network Elements, & the Appropriate Avoided Cost Discount for Verizon New England, Inc. d/ b/ a Verizon Mass. &sale Servs. in the
Commw. ofMass., Interlocutory Order on PartB Motions (Apr. 4, 2001), at p. 20 ("01-20 Interlocutory Order"))
22Ruling,

4
4827-8623-4390.

administrative inefficiency would not benefit the Department, the parties or the public interest." 23
The goal of completing a proceeding does not trnmp such "administrative efficiency or the need to
adapt schedules" under such circumstances. 24 Petitioners have ample opportunity to raise the issues,
and have raised them, in the FCC proceeding. They can reasonably be expected to continue to do
the same in response to the FNPRM. Under the circumstances granting this Motion is wholly
appropriate.

WHEREFORE, for all of the foregoing reasons, Securus respectfully moves that the
Department hold this proceeding in abeyance, including the requirement to respond to the PLS
Appeal, pending the resolution of the FCC's ongoing rulemaking in Docket No. WC-12-375. If the
Department denies this Motion in whole or in part, Securus would request that interested Parties be
given ten (10) days after such denial to respond to the PLS Appeal.
Respectfully submitted

1C. Besozzi
Patton Boggs LLP
2550 M Street NW
Washington DC 20037
202-457-5292

Dated: October 18, 2013

23

1-20 Interlocutory Order, at p.20.

01-20 Interlocutory Order, at p.20; see also D.T.C. 11 -4, Pet.of Safan· Commuciations, Inc. for Designation as an Eligible
Teleco111mu11icatio11s Carrier on a Wireless Basis, Order on Dismissal without Prejudice (March 1, 2013), at pp. 2-3
(Department suspended procedural schedule in Department proceeding in December 2011 pending the issuance of FCC
Order to reform the Lifeline and Linkup programs "in the interest of regulatory efficiency."); Ruling, at p. 12.

24

5
4827-8623-4390.

CERTIFICATE OF SERVICE

I, Paul C. Besozzi, hereby certify that on this 18th day of October, 2013, the foregoing "Motion
To Hold Proceeding In Abeyance" on the parties listed on the Service List below issued by the
Department by the method listed under each such party:
Kalun Lee
Hearing Officer
Department of Telecommunications and Cable
1000 Washington Street, 8th Floor, Suite 820
Boston MA 02118-6500
kalun.lec@state.ma.us
Electronic Mail

Betsy Whittey
Hearing Officer
Department of Telecommunications and Cable
1000 Washington Street, 8th Floor, Suite 820
Boston MA 02118-6500
bctsy.whittey@statc.ma.us
Electronic Mail

Paul Abbott
General Counsel
Department of Telecommunications and Cable
1000 Washington Street, 8th Floor, Suite 820
Boston MA 02118-6500
paul.abbott@state.ma.us
Electronic Mail

Karlen Reed
Director, Competition Division
Department of Telecommunications and Cable
1000 Washington Street, 8th Floor, Suite 820
Boston MA 02118-6500
karlen.reed@state.ma. us
Electronic Mail

Ben Dobbs
Deputy Director ,Competition Division
Department of Telecommunications and Cable
1000 Washington Street, 8th Floor, Suite 820
Boston MA 02118-6500
benedict.dobbs@state.ma.us
Electronic Mail

Joseph Tieman
Competition Division
Department of Telecommunications and Cable
1000 Washington Street, 8th Floor, Suite 820
Boston MA 02118-6500
j oseph.tiernan@state.ma. us
Electronic Mail

James Pingeon, Esq.
Bonita Tenneriello, Esq.
Elizabeth Matos, Esq.
Alphonse Kamanzi
Prisoners' Legal Services, Inc.
10 Winthrop Square, 3rd Floor
Boston, MA 02110
jpingeon@plsma.org
btenneriello@plsma.org
lmatos@plsma.org
akamanzi@plsma.org
Electronic Mail

Patricia Garin, Esq.
Stem, Shapiro, Weisberg & Garin
90 Canal St., 5th Floor
Boston, MA 02114
pgarin@sswg.com
Electronic Mail

4827-8623-4390.

Ken Dawson
VP Contracts & Regulatory
Inmate Calling Solutions, LLC d/b/a
ICSolutions
2200 Danbury St.
San Antonio, TX 78217
kdawson@icsolutions.com
Electronic Mail
Cherie Kiser
Angela F. Collins
Cahill Gordon & Reindel LLP
1990 K Street NW
Suite 950
Washington DC 20006
ckiser@cgrdc.com
acollins@cgrdc.com
Electronic Mail

' Curtis Hopfinger
Director, Regulatory and Government Affairs
Securus Technologies, Inc.
14651 Dallas Parkway, Ste. 600
Dallas, TX 75254
chopfinger@csecurstech.net
Electronic Mail
Catrice C. Williams
Secretary
Department of Telecommunications and Cable
1000 Washington Street, 8th Floor, Suite 820
Boston MA 02118-6500
catricc. williams @state.ma.us
dtc.efiling@statc.ma.us
Federal Express and Electronic Mail

Paul C. Besozzi

4827-8623-4390.