Prison Phone Justice

Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of

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Rates for Interstate Inmate Calling Services
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__________________________________________ )

WC Docket No. 12-375

GLOBAL TEL*LINK CORPORATION PETITION FOR WAIVER
OF DEADLINE TO IMPLEMENT RULES 64.6080 AND 64.6090 FOR JAILS
Pursuant to 47 C.F.R. § 1.3, Global Tel*Link Corporation (“GTL”),1 by its undersigned
counsel, respectfully submits this Petition seeking a temporary waiver of the June 20, 2016
deadline by which inmate calling service (“ICS”) providers must comply with Rules 64.6080 and
64.6090 for jails.

Specifically, GTL requests a temporary waiver for ninety (90) days to

implement the requirements of Rules 64.6080 and 64.6090 for jails. In support of this Petition,
GTL states:
1.

In the Second ICS Order,2 the Federal Communications Commission

(“Commission”) disallowed the use of per-call and per-connection charges. Specifically, new
Rule 64.6080 states: “No Provider shall impose a Per-Call or Per-Connection Charge on a
Consumer.”3 A “Per-Call or Per-Connection Charge” is defined as “a one-time fee charged to a
Consumer at call initiation.”4

1

This filing is made by GTL on behalf of itself and its wholly owned subsidiaries that also provide inmate
calling services: DSI-ITI, LLC, Public Communications Services, Inc., and Value-Added Communications, Inc.
2

Rates for Interstate Inmate Calling Services, 30 FCC Rcd 12763 (2015) (“Second ICS Order”).

3

Second ICS Order at p.162 (setting forth new rule 47 C.F.R. § 64.6080).

4

Second ICS Order at p.159 (setting forth revised rule 47 C.F.R. § 64.6000(o)); see also Second ICS Order
¶¶ 98, 101.

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2.

In addition, the Commission prohibited the use of flat-rate calling, which the

Commission characterized as a “per-call charge[]” based on a set amount of calling time.5
Specifically, new Rule 64.6090 states: “No Provider shall offer Flat-Rate Calling for Inmate
Calling Services.”6 “Flat-Rate Calling” is defined as “a calling plan under which a Provider
charges a single fee for an Inmate Calling Services call, regardless of the duration of the call.”7
3.

Rules 64.6080 and 64.6090 took effect for prisons on March 17, 2016, and will

take effect for jails on June 20, 2016.8 GTL requests a temporary waiver of the effective date to
implement these new rules for jails.
4.

The Commission has authority to waive its rules for “good cause shown.”9 A

waiver is appropriate when special circumstances warrant a deviation from the general rule and
such deviation will serve the public interest.10 Further, the Commission may waive a rule where
particular facts make strict compliance inconsistent with the public interest, such as
considerations of hardship, equity, or more effective implementation of overall policy can be
achieved on an individual basis.11

The Commission routinely has granted waivers when

providers “have presented reasonable, specific schedules” for implementing required changes12

5

Second ICS Order ¶ 102.

6

Second ICS Order at p.162 (setting forth new rule 47 C.F.R. § 64.6090).

7

Second ICS Order at p.159 (setting forth revised rule 47 C.F.R. § 64.6000(h)).

8

80 Fed. Reg. 79136 (Dec. 18, 2015).

9

47 C.F.R. § 1.3.

10

WAIT Radio v. FCC, 418 F.2d 1153 (D.C. Cir. 1969).

11

Northeast Cellular Telephone Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990) (citing WAIT Radio v.
FCC, 418 F.2d 1153, 1157 (D.C. Cir. 1969)).
12

See, e.g., Revision of the Commission’s Rules to Ensure Compatibility with Enhanced 911 Emergency
Calling Systems, 20 FCC Rcd 7709 (2005).

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and when the “waiver request is appropriately narrow in scope”13 such as the request here.
Special circumstances support grant of this limited waiver request.14
5.

GTL requests this temporary waiver for two reasons.

First, GTL will not

complete contract negotiations and, in some cases, renegotiations with its correctional facility
customers falling within the “jail” category by the June 20, 2016 deadline.15 GTL serves
approximately 700 jails across the United States.16 A significant number of GTL’s contracts
include per-call, per connection or some type of flat-rate calling charge that could be interpreted
to fall within the Commission’s prohibition.17 This is true notwithstanding the Commission’s
statement that per-call charges are “less prevalent than they once were” and that many factors
indicate “a trend away from the inclusion of such fees.”18
6.

GTL has been actively negotiating with its jail correctional facility customers

over the past months to revise its existing contracts consistent with the requirements of the
Second ICS Order.19 However, the initial stay issued by the United States Court of Appeals for

13

See, e.g., Misuse of Internet Protocol (IP) Captioned Telephone Service, 28 FCC Rcd 6454 (2013).

14
See, e.g., Expansion of the Online Public File Obligations to Cable and Satellite TV Operators and
Broadcast and Satellite Radio Licensees, 29 FCC Rcd 15943, ¶ 48 (2014) (proposing to allow certain cable
operators additional time to begin posting their political files online); Telephone Number Portability, 19 FCC Rcd
875, ¶ 8 (2004) (finding special circumstances exist because of “technology and operational limitations” requiring
the acquisition of hardware and software, network upgrades, and reliability and accuracy testing to meet
Commission number portability requirements); Rules and Policies Regarding Calling Number Identification
Service, 11 FCC Rcd 11437, ¶ 7 (1996) (recognizing “that unique technical problems constitute a special
circumstance”).
15

Declaration of Brian D. Oliver in Support of Global Tel*Link Corporation Petition for Waiver, ¶ 4
(attached hereto) (hereinafter “Oliver Declaration”).

16

Oliver Declaration ¶ 2; see also Second ICS Order at p.159 (setting forth revised rule 47 C.F.R. §
64.6000(m) defining “jails”).
17

Oliver Declaration ¶ 2.

18

Second ICS Order ¶ 101.

19

Oliver Declaration ¶ 3.

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the District of Columbia Circuit (“D.C. Circuit”),20 the Commission’s subsequent statements on
how the rate caps should be applied,21 and the D.C. Circuit’s second stay decision22 created much
confusion as to the rules of the road, which drive these negotiations. Although the D.C. Circuit’s
decisions did not address Rules 64.6080 and 64.6090, the applicable rate regime for interstate
and intrastate ICS was not settled from a legal perspective until the issuance of the D.C. Circuit’s
March 23 stay order. Even after the court’s decisions and the Commission’s March 29, 2016
Public Notice clarifying how its rules were affected by the stay orders,23 correctional facilities
continued to express confusion regarding the applicable rate regime for interstate and intrastate
ICS calls, which created obstacles and delays in the renegotiation of correctional facility
contracts.24
7.

The Commission specifically determined that “a six-month transition period” was

“needed to transition all of the country’s jails to the new rate regime” and “to give providers and
jails enough time to negotiate (or renegotiate) contracts to the extent necessary to comply with
all of the rules” adopted in the Second ICS Order.25 The confusion and regulatory uncertainty
created by the D.C. Circuit’s stay decisions have deprived GTL of the full time period
determined to be necessary under the Second ICS Order for negotiations (or renegotiations) with

20

No. 15-1461, Global Tel*Link Corporation v. FCC, Order (D.C. Cir. Mar. 7, 2016) (and consolidated

cases).
21

Wireline Competition Bureau Addresses Applicable Rates for Inmate Calling Services and Effective Dates
for Provisions of the Inmate Calling Services Second Report and Order, 31 FCC Rcd 2026 (2016).
22

No. 15-1461, Global Tel*Link Corporation v. FCC, Order (D.C. Cir. Mar. 23, 2016) (and consolidated

cases).
23

Wireline Competition Bureau Updates Applicable Rates for Inmate Calling Services, 31 FCC Rcd 2247

(2016).
24

Oliver Declaration ¶ 3.

25

Second ICS Order ¶ 256.

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its jail correctional facility customers. The change in circumstances arising from the D.C.
Circuit stay orders support the grant of GTL’s request.26
8.

Many negotiations that were near completion before the D.C. Circuit stay orders

were issued are being re-visited, and in some cases re-started, to reflect the continuation of
existing intrastate ICS rates and the interim interstate rate caps, as well as the new ICS rules that
were not stayed. GTL’s internal personnel and outside consultants have been working tirelessly
to renegotiate the jail contracts at issue, but GTL cannot eliminate every instance of per-call
surcharges or flat-rate pricing by June 20, 2016 given the sheer number of contracts to be
renegotiated.27
9.

The requested relief is reasonable because GTL has lost a substantial portion of

the Commission-prescribed six-month negotiation period due to the changes arising from the
D.C. Circuit stay orders.

The second stay order was issued March 23, 2016, leaving

approximately 90 days for GTL to complete negotiations (or renegotiations) with its jail
customers. Ninety days is “not enough time to allow providers to renegotiate all of [the jail]
contracts and for those contracts to be approved by the relevant authorities.”28 The Commission
specifically rejected calls for a transition period shorter than six months, agreeing with
commenters that “the sheer number of contracts to be renegotiated would require additional time

26

See, e.g., Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, 29 FCC
Rcd 12865, ¶ 130 (2014) (recognizing that “flexibility is important when compelling cases arise” and allowing for a
temporary extension “due to changed circumstances or information that emerged” afterward); Letter to Mr. Ron
Wong, 26 FCC Rcd 14286 (2011) (granting extension request “[i]n light of changed circumstances”); Maritel, Inc.
Request to Extend Construction Deadline for Certain VHF Public Coast Station Geographic Area Licenses, 22 FCC
Rcd 14074, ¶ 9 (2007) (acknowledging that “changed circumstances” beyond the licensee’s control justify grant of a
waiver request); Communications Assistance for Law Enforcement Act, 16 FCC Rcd 17397 (2001) (granting
extension of compliance deadline in response to claims that extension was warranted because of uncertainty created
by court decisions); Kingdon R. Hughes, 9 FCC Rcd 3395 (1994) (noting that an extension of construction deadlines
had been granted “due to the uncertainty created by the U.S. Court of Appeals action”).
27

Oliver Declaration ¶ 4.

28

Second ICS Order ¶ 256 (citing to NSA comments).

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to complete.”29 Grant of the temporary waiver requested herein will allow GTL to receive the
benefit of the full six-month period the Commission determined was necessary “to transition all
of the country’s jails to the new rate regime.”30
10.

Second, the temporary waiver also will allow GTL to seek relief at the state level

with respect to intrastate ICS rate cap regimes that will result in confiscatory rates once the percall surcharge or flat-rate calling component is removed from the intrastate rate structure. Some
states have adopted intrastate ICS rate cap regimes that are based on flat-rate charges, utilize a
mix of per-call surcharges and per-minute rates, or tied to tariffed rates of other carriers that use
a mix of surcharges and per-minute rates.31 In some instances, the remaining per-minute rate
caps do not provide fair compensation to ICS providers once per-call or per-connection charges
and flat-rate calling are removed from the rate structure.
11.

For example, the Massachusetts Department of Telecommunications and Cable

(“DTC”) established a comprehensive intrastate ICS rate cap regime that includes a $0.10 per
minute of use charge and a $3.00 per-call surcharge.32 The Massachusetts DTC’s per-call
surcharge was adopted because ICS providers have “legitimate additional costs” due to “the
29

Second ICS Order ¶ 256 (citing to NSA comments).

30

Second ICS Order ¶ 256.

31
See, e.g., Case No. 1072, Implementing the Fair Phone Charges for Prisoners Act, Order (D.C.P.S.C. May
18, 2009); Docket No. 18870-U, Institutional Telecommunication Services, Commission Order (Ga. P.S.C. Nov. 18,
2004); Docket No. N2015.8.61, Setting Maximum Allowable Rates for Intrastate Operator Service Providers,
Notice of Commission Act (Mont. P.S.C. Sept. 22, 2015); New Jersey Administrative Code § 14:10-6; New Mexico
Administrative Code § 17.11.28.17; North Carolina Utilities Commission Rule R13-9; Ohio Administrative Code §
4901:1-6-22; Docket No. 04-00166, Inmate Payphone Usage, Order Setting Interim Rate for Inmate Payphone
Usage (Tenn. Reg. Auth. Nov. 8, 2005); Texas Administrative Code Substantive Rules Applicable to
Telecommunications Service Providers Rule 26.346.
32

D.P.U./D.T.E. 97-88/97-18 (Phase II), Investigation by the Department of Telecommunications and Energy
on Its Own Motion regarding (1) Implementation of Section 276 of the Telecommunications Act of 1996 relative to
Public Interest Payphones, (2) Entry and Exit Barriers for the Payphone Marketplace, (3) New England Telephone
and Telegraph Company d/b/a NYNEX’s Public Access Smart-Pay Line Service, and (4) the Rate Policy for
Operator Services Providers, Order on Payphone Barriers to Entry and Exit, and OSP Rate Cap, at 9-10 (Mass.
D.T.C. April 17, 1998) (“DTC 1998 Rate Cap Order”); see also Industry Notice, Collect Inmate Calls - Rate Cap
(Mass. D.T.C. Sept. 3, 2004).

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unique characteristics of inmate calling services.”33

The DTC determined these unique

characteristics of inmate calling services produce per call costs that are higher than costs for
traditional operator services.34 In light of these “additional costs,” the Massachusetts DTC ruled
it was necessary to modify the rate cap mechanism for inmate calling services to provide for rate
recovery of the legitimate additional costs incurred in providing inmate calling services35 and
adopted a maximum surcharge of $3.00 per call in addition to the per-minute usage rates.36
12.

In the Second ICS Order, the Commission acknowledged its “statutory obligation

to ensure that payphone service providers, including ICS providers, are ‘fairly compensated,’”
and that a state may adopt “intrastate requirements that result in providers being unable to
receive fair compensation.”37

The Commission indicated ICS providers could “either seek

appropriate relief in that state or from the Commission,” but “strongly encourage[d] providers to
seek relief from the relevant state entity before approaching the Commission.”38 To that end,
GTL has requested interim relief from the Massachusetts DTC to restructure the combined per
call, per minute rate elements that make-up the Massachusetts DTC ICS rate cap regulatory
regime, into a single per minute-of-use rate cap consistent with the Second ICS Order.39

33

DTC 1998 Rate Cap Order at 9. The DTC determined that inmate service providers’ “additional costs”
include “(1) costs associated with call processing systems, automated operators, call recording and monitoring
equipment, and fraud control programs that are required to ensure security and to deter abuses; (2) higher levels of
uncollectibles; and (3) higher personnel costs.” See id. at 9-10.

34

Id.

35

Id.

36

Id. at 10. The Massachusetts DTC recently reiterated its justification for the per call surcharge explaining
that the per-minute usage rates were intended only to reflect “traditional cost recovery, not the unique additional
costs associated with ICS.” D.T.C. 11-16, Petition of Recipients of Collect Calls from Prisoners at Correctional
Institutions in Massachusetts Seeking Relief from the Unjust and Unreasonable Cost of such Calls, Hearing Officer
Interlocutory Ruling, at 19 (Mass. D.T.C. Sept. 23, 2013).
37

Second ICS Order ¶ 211.

38

Second ICS Order ¶ 211.

39

Oliver Declaration ¶ 5.

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13.

Grant of this waiver request will provide the necessary time for Massachusetts

(and possibly other states that may require administrative proceedings or filings) to address the
effect of the Second ICS Order on the existing intrastate ICS rate cap regime.

The

Commission’s Second ICS Order effective dates did not contemplate these judicial changes or
the state administrative procedural requirements that would be necessary to address
implementation issues. States must now be given the opportunity to restructure their intrastate
ICS rate regimes in light of the Commission’s new rules applicable to intrastate ICS.
14.

Accordingly, there are many instances in which existing intrastate ICS rates must

be revised or restructured to comply with the Commission’s prohibitions on per-call, perconnection, and flat-rate calling charges. The combination of marketplace confusion brought
about by the D.C. Circuit stay orders, the subsequent Commission statements,40 and the required
state administrative processes necessary to implement changes to intrastate ICS regimes, require
GTL to seek this temporary waiver.
15.

Grant of GTL’s waiver request will not harm the public interest because, in most

instances, permitting existing applicable per-call charges or flat-rate pricing to continue for this
short period of time will result in consumers paying less than the Commission’s interim rate caps
of $0.21/$0.25 and/or paying less than or no more than the currently effective intrastate rates.
16.

For example, in Spartanburg County, South Carolina, a local call is $1.20,

including all taxes and fees.41 By contrast, a 15-minute call under the Commission’s interim rate
caps would be $3.75 (collect) and $3.15 (prepaid).

40

See, e.g., Wireline Competition Bureau Addresses Applicable Rates for Inmate Calling Services and
Effective Dates for Provisions of the Inmate Calling Services Second Report and Order, 31 FCC Rcd 2026 (2016).

41

http://www.spartanburgsheriff.org/inmate-contact-telephone-services.php (last visited June 1, 2016).

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17.

In Alleghany County, Pennsylvania, using a combination of per-call surcharges

and per-minute usage, a 15-minute local call during the day is $3.05 (collect or prepaid collect)
or $2.40 (debit or inmate prepaid), and the collect/prepaid collect call rate falls to $2.42 during
the evening/night.42

These rates are significantly lower than a 15-minute call under the

Commission’s interim rate caps.
CONCLUSION
Accordingly and for the foregoing reasons, GTL respectfully requests that the
Commission grant this Petition and provide GTL with a temporary waiver for ninety (90) days to
comply with the requirements of Rules 64.6080 and 64.6090 for jails.
Respectfully submitted,
GLOBAL TEL*LINK CORPORATION

/s/ Cherie R. Kiser
David Silverman
Executive Vice President and
Chief Legal Officer
GLOBAL TEL*LINK CORPORATION
12021 Sunset Hills Road, Suite 100
Reston, VA 20190
(703) 955-3886
dsilverman@gtl.net

Chérie R. Kiser
Angela F. Collins
CAHILL GORDON & REINDEL LLP
1990 K Street, NW, Suite 950
Washington, DC 20006
(202) 862-8900
ckiser@cahill.com
acollins@cahill.com

Dated: June 1, 2016

Its Attorneys

42

http://www.alleghenycounty.us/jail/inmate-phone-system.aspx (last visited June 1, 2016).

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