Prison Phone Justice

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Federal Register/Vol. 81, No. 177 /Tuesday, September 13, 2016/Rules aod Regulations

comment is received, HHS will publish
a timely withdrawal of the rule in the
Federal Register.
FOR FURTHER INFORMATION CONTACT:

Questions or comments regarding the
Smallpox Vaccine Injury Compensation
Program should be ilirected to Narayao
Nair, M.D., Acting Director, Division of
Injury Compensation Programs,
Healthcare Systems Bureau, HRSA,
5600 Fishers Laoe, Room OBN146B,
Rockville, MD 20857, by phone at (301)
443-5287, or by email at
nnair@hrsa.gov.

In
response to Executive Order 13563, Sec.
6[a), which urges agencies to "repeal"
existing regulations that are
"outmoded" from the Code of Federal
Regulations [CFR), HHS is removing 42
CFR part 102. Notice aod comment are
not required for this rule, because it
affects agency organization, procedure,
or practice under 5 U.S.C. 553[b)(A).
Furthermore, HHS believes that there is
good cause hereby to bypass notice aod
comment and proceed to a direct final
rule, pursuaot to 5 U.S.C. 553 [b)[B).
The action is non-controversial, as it
merely removes a provision from the
CFR that is obsolete. This rule poses no
new substantive requirements on the
public. Accordingly, HHS believes this
direct final rule will not elicit any
significant adverse comments, but if
such comments are received IlliS will
publish a timely notice of withdrawal in
the Federal Register.
SUPPLEMENTARY INFORMATION:

I. Background
The Smallpox Emergency Personnel
Protection Act of 2003 [SEPPA), (42
U.S.C. 239 et seq.) enacted on April 30,
2003, authorized the Secretary of the
Department of Health aod Human
Services [the Secretary), through the
establishment of the Smallpox Vaccine
Injury Compensation Program [SVICP),
to provide benefits and/or compensation
to certain persons who sustained
covered injuries as a direct result of the
administration of covered smallpox
countermeasures (including the
smallpox vaccine) or as a result of
vaccinia contracted through accidental
vaccinia contact. The SVICP's
implementing regulation was codified at
42 CFR part 102.
The SVICP provided compensation
for llill'eimbursed medical expenses
and/or lost employment income to
eligible individuals for covered injuries
sustained as a direct result of the
smallpox vaccine or accidental vaccinia
inoculation, aod/or death benefits to
certain survivors of these individuals.
The Secretary did not extend SEPPA's
Declaration Regarding Administration of

Smallpox Countermeasures, which
expired on January 23, 2008. Vaccine
recipients and accidental vaccinia
contacts had 1 and 2 years, respectively,
to file a request for program benefits.
The SVICP ended on January 23, 2010.
Alternatively, based on a credible risk
that the threat of exposure to variola
virus, the causative agent of smallpox,
constitutes a public health emergency,
the Secretary issued a Declaration (73
FR 61869-61871) covering smallpox
countermeasures under the Public
Readiness and Emergency Preparedness
Act of 2005 [PREP Act), with ao
effective date of January 24, 2008. The
PREP Act authorizes the establishment
and administration of the
Countermeasures Injury Compensation
Program, whose implementing
regulation, at 42 CFR part 110, is based
on the SVICP's regulation and provides
similar benefits. On December 9, 2015,
the PREP Act Declaration was amended
and republished [BO FR 76546-76553),
extending the effective time period to
December 31, 2022, and deleting
obsolete language referring to SEPPA.
Executive Order 12866
This action does not meet the criteria
for a significant regulatory action as set
out under Executive Order 12866, and
review by the Office of Maoagement aod
Budget has accordingly not been
required.
Regulatory Flexibility Act
This action will not have a significant
economic impact on a substantial
number of small entities. Therefore, the
regulatory flexibility analysis provided
for under the Regulatory Flexibility Act

is not required.
Paperwork Reduction Act
This action does not affect any
information collections.
List of Subjects in 42 CFR Part 102
Biologics, hnmunization, Public
health, Smallpox.
PART 102--{REMOVED]

• For reasons set out in the preamble,
and under the authority at 5 U.S.C. 301,
HHS amends 42 CFR chapter I by
removing part 102.
Dated: August 26, 2016.
Jam.es Macrae,
Acting Administrator, Health Resources and
Services Administration.
Approved: September 7, 2016.
Sylvia M. Burwell,
Secretary, Department of Health and Human
Services.
[FR Doc. 2016-21888 Filed 9-12-16; 8:45 am]
BILLING CODE 4166-15-P

FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 64
[WCB: WC Docket No.12-375; FCC 16102]

Rates for Interstate Inmate Calllng

Services
Federal Communications
Commission.
ACTION: Final rule.
AGENCY:

In this document, the
Commission continues its reform of the
inmate calling services [!CS)
marketplace by responding to points
raised in a petition filed by Michael S.
Hamden, seeking reconsideration of
certain aspects of the Commission's
2015 ICS Order. Specifically, the
Commission am.ends its rate caps to
better allow JCS providers to recover
costs incurred as a result of providing
inmate calling services, including the
costs of reimbursing facilities for any
costs they may incur that are reasonably
aod directly related to the provision of
service. The Order also clarifies the
definition of "maodatory taxes and
fees" aod addresses other arguments
raised by Mr. Hamden.
DATES: The rules adopted in this
document shall become effective
December 12, 2016, except for the
amendments to 47 CFR 64.6010(a) aod
[c), which shall become effective March
13, 2017.
FOR FURTHER INFORMATION CONTACT: Gil
Strobel, Wireline Competition Bmeau,
Pricing Policy Division at (202) 4161540 or at Gil.Strobel@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission Order on
Reconsideration, released August 9,
2016. The full text of this document
may be downloaded at the following
internet address: https:/!apps.fcc.gov/
edocs_public/attachmatch!FCC-16102A1 .docx This document does not
contain new or modified information
collection requirements subject to the
Paperwork Reduction Act of 1995
[PRA), Public Law 104-13.
SUMMARY:

I. Executive Summary
1. Jn this order, we respond to the
petition filed by Michael S. Hamden
and amend our rate caps to improve the
ability of providers to cover costs
facilities may incur that are reasonably
related to the provision of ICS.
• The Commission is statutorily
mandated to ensure !CS rates are just,
fair, aod reasonable aod to promote
access to ICS by inmates aod their
families and friends. Jn response to

Federal Register/Vol. 81, No. 177 /Tuesday, September 13, 2016/Rules and Regulations
claims our prior decision not to include
certain costs in our rate cap calculations

required by the Act. In setting the rate
caps, we declined to include the cost of

threatens the further deployment of !CS,

site commissions, which are payments
from facilities to providers, because we

we are increasing the rate caps to reflect
the costs facilities may incur that are

reasonably related to the provision of
!CS.
• Acting upon the current record,

including Hamden Petition and other
input received after the 2015 !CS Order,
the Commission concludes that facilities
may incur costs directly related to the

provision of !CS. Providers and facilities
claim the 2015 rate caps prevent them
from recovering all of their reasonable
costs. We now revise our rate caps to

expressly account for the possibility of
reasonable facility costs related to !CS.
• Our rate caps continue to reflect the
difference in the per-minute costs

between smaller facilities and their
larger counterparts, thus ensuring

providers are fairly compensated for
their !CS costs.
• After reviewing the record and the

Hamden Petition, we amend the
definition of "Mandatory Tax or

Mandatory Fee." The amended
definition eliminates confusion and
more clearly reflects the Commission's
decision to prohibit providers from
marking up mandatory taxes or fees that
they pass through to consumers, unless
the markup is specifically authorized by
statute, rule, or regulation.
• Having considered the Hamden
Petition and the record as a whole, we
deny all other aspects of the Petition.
Specifically, we are not persuaded to
reconsider our decision to refrain from
regulating site commissions. Nor are we
persuaded, based on the current record,
of the need to further clarify the SingleCall Rule adopted in the 2015 !CS
Order.

found that such payments are not a
legitimate cost of providing !CS. We did
not, however, prohibit providers from
paying site commissions. Instead, we let
providers and facilities negotiate over

62819

!CS providers. The Wright Petitioners
opposed the petitions, stressing the
importance of the "overwhebningly
positive public interest benefits from the
adoption of the [2013 !CS Order]" and
expressing concern that a stay of the
2015 !CS Order would delay relief to
consumers and harm the public interest.
5. On January 22, 2016, the Wireline

Competition Bureau (WCB or Bureau)
issued an order denying the stay
payments are appropriate. Our approach petitions of GTI., Securus, and Telmate.
offered !CS providers and facilities the
The Bureau found that the petitioners
freedom to negotiate compensation that
failed to demonstrate that they would
is fair to each, while also ensuring that
suffer irreparable harm if the 2015 !CS
res consumers are charged rates that are Order was not stayed. The Bureau also
fair, just, and reasonable.
was not persuaded that the petitioners
3. In addition to setting rate caps for
were likely to succeed on the merits of
interstate and intrastate JCS calls, we
their arguments or that a stay would be
discussed what costs, if any, facilities
in the public interest. To the contrary,
incur that are reasonably attributable to the Bureau noted that other parties!CS. Specifically, we considered
particularly !CS consumers-would
whether we should expressly provide
likely be harmed if the relevant
for recovery of such costs through an
provisions of the 2015 !CS Order were
additive to the per-minute rate caps
stayed.
limiting the prices providers may charge
6. After the Bureau issued its order
inmates and their families. The record
denying the stay petitions, the providers
before us on this point was relatively
appealed the 2015 !CS Order to the D.C.
limited. Moreover, the data we had was
Circuit. On March 7, 2016, the court
mixed regarding the costs, if any,
stayed two provisions of the
facilities incur that are reasonably
Commission's !CS rules: 47 CFR 64.6010
related to the provision of !CS. Some
(setting caps on !CS calling rates that
commenters argued that many of the
vary based on the size and type of
activities that facilities claim as ICSfacility being served) and 47 CFR
related costs are actually performed by
64.6020(b)(2) (setting caps on charges
res providers. Other commenters,
and fees for single-call services). The
however, asserted that correctional
D.C. Circuit's March 7 Order denied
whether providers would make site

commission payments and, if so, what

facilities incur a variety of costs related

to !CS that providers do not. These costs
included expenses related to "call
monitoring, responding to JCS system
alerts, responding to law enforcement
requests for records/recordings, call
recording analysis, enrolling inmates for
voice biometrics, and other duties.'' As
we noted, "[e]ven commenters asserting
that facilities incur costs that are

II. Background
2. This Order is the latest in a
properly attributable to the provision of
proceeding that began in 2012, when the !CS do not agree on the extent of those
Commission issued a notice of proposed costs." In the 2015 !CS Order, we
rulemaking 78 FR 4369, January 22,
declined to adopt a per-minute
2013 in response to long-standing
"additive," because of our view that the
petitions seeking relief from certain !CS costs facilities claimed to incur in
rates and practices. The Hamden
allowing !CS were "already built into
Petition seeks partial reconsideration of our rate cap calculations and should not
the 2015 !CS Order, in which we
be recovered through an 'additive' to the
adopted comprehensive reforms to the
!CS rates."
!CS market, including tiered rate caps
4. Following the release of the 2015
for both interstate and intrastate !CS
!CS Order, four !CS providers filed
calls, and limits on ancillary service
petitions for stay before the
charges. In the 2015 !CS Order, we
Commission, including Global Tel 'Link
focused on our core authority over JCS
Corporation (GTI.), Securus
Technologies, Inc. (Securus), Telmate,
rates, adopting rate caps in fulfillment
of our obligation to ensure that
LLC (Tebnate), and CenturyLink. GTI.
compensation for res calls is fair, just,
and Telmate, in particular, argued that
and reasonable. We capped !CS rates at
the Commission was required to include
levels that we found would be just and
the costs of paying site commissions in
reasonable and would ensure that
the rate caps and that it set the rate caps
below the documented costs of many
providers are fairly compensated, as

motions for stay of the Commission's

!CS rules "in all other respects." On
March 23, 2016, the D.C. Circuit
modified the stay imposed in the March
7 Order to provide that "47 CFR 64.6030
(imposing interim rate caps)" be stayed
as applied to "intrastate calling services.
Final briefs from the parties are due to
the Court on October 5, 2016, and oral
arguments have not yet been scheduled.
7. On January 19, 2016, Michael S.
Hamden, an attorney who has both
represented prisoners and served as a
corrections consultant filed a Petition

for Partial Reconsideration, seeking
reconsideration of certain aspects of the

2015 !CS Order. Hamden asks the
Commission to reconsider its decision

not to prohibit providers from paying
site commissions or, in the alternative,
to mandate a "modest, per-minute

facility cost recovery fee that would be
added to the rate caps." 1 In short,
Hamden, like several of the !CS
providers, asserts that at least some
portion of site commissions serves to
reimburse facilities for reasonable costs
1 Although never clearly stated, the Petition
appears to seek to limit any payments to facilities
to the proposed "facility cost-recovery fee" that
would be added to the per-minute rate caps.

62820

Federal Register/Vol. 81, No. 177 /Tuesday, September 13, 2016/Rules aod Regulations

that facilities incur in providing JCS,
and that excluding site commissions
entirely from our rate cap calculations
results in rates that are too low to allow
providers to pay facilities for their
reasonable !CS-related costs and still
earn a profit. Hamden also asks the
Commission to clarify "the meaning of
the tenns 'mandatory fee,' 'mandatory
tax,' and 'authorized fee' as they are
used in the [2015 JCS Order]." Finally,
Hamden seeks clarification that JCS
providers "cannot circumvent the
Second !CS Order's rule regarding
charges for single-call services through
the use of unregulated subsidiaries to
serve as the companies that charge
third-party transaction fees for such
services." On February 11, 2016, the
Commission's Consumer and
Government Affairs Bureau (CGB)
issued a Public Notice seeking comment
on the Hamden Petition. Multiple
parties submitted responses and
oppositions to the Hamden Petition,
including JCS providers, facilities, and
the Wright Petitioners. Hamden also
submitted a reply to the responses and
oppositions on April 4, 2016. We now
act on these filings.
III. Discussion
8. After reviewing the Hamden
Petition, the arguments made in
response to the Petition, and other
relevant evidence in the record, we find
that: (1) At least some facilities likely
incur costs that are directly and
reasonably related to the provision of
!CS, (2) it is reasonable for those
facilities to expect providers to
compensate them for those costs, (3)
such costs are a legitimate cost of JCS
that should be accounted for in our rate
cap calculations, and (4) our existing
rate caps do not separately account for
such costs. Accordingly, out of an
abundance of caution, we increase our
rate caps to better ensure that !CS
providers are able to receive fair
compensation for their services,
including the costs they may incur in
reimbursing facilities for expenses
reasonably and directly related to the
provision of !CS. Specifically, we
increase our rate caps for debit and
prepaid JCS calls to $0.31 per minute for
jails with an average daily population
(ADP) below 350, $0.21 per minute for
jails with an ADP between 350 and 999,
$0.19 per minute for jails with an ADP
of 1,000 or more, and $0.13 per minute
for prisons. As discussed below, we also
increase the rate caps for collect calls by

a commensurate amount.
9. We find that our revised rate caps
will allow inmate calling providers to
recover their costs of providing ICS even
while reimbursing facilities for any

costs they may incur that are reasonably
and directly related to the provision of
ICS. 2 We also find that these rate caps
will adequately ensure that rates for JCS
consumers will be fair, just, and
reasonable. Thus, we grant the Hamden
Petition to the extent that it seeks an
increase in the JCS rate caps to
expressly account for reasonable facility
costs. 3 We also grant the Hamden
Petition to the extent that it seeks a
clarification of the definitions of the
terms "Mandatory Taxes" and
"Mandatory Fees." We deny the
Hamden Petition in all other respects.

A. The Rate Caps Should Account for
Costs Reasonably and Directly Related
to the Provision of JCS
10. The Commission has a statutory
duty to set rates that are fair, just, and
reasonable and to promote access to ICS
by inmates and their families and
friends. Accordingly, one of our goals is
to ensure that inmates and their families
have as much access as possible to this
vital communications service. Some
parties in the reconsideration
proceeding have asserted that our prior
decision not to include certain costs in
our rate cap calculations could pose a
risk to the continued deployment and
development of JCS. Our reforms would
not achieve their purpose if they
resulted in less robust services for
inmates and those who wish to
communicate with them. As a result,
out of an abundance of caution, we are
increasing the rate caps to better reflect
the costs that facilities claim to incur
that are directly aod reasonably related
to the provision of JCS. This action
better enables the Commission to
achieve its twin statutory mandates of
2 As explained below, because we do not regulate
site commissions in this order (and have not done
so previously), any revenues derived under these
rate caps may be passed through to facilities.
s As noted above, Hamden appears to favor an
approach whereby the Commission would adopt an
"additive" to our existing rate caps and prohibit
providers from paying any site commissions beyond
the additive. We maintain our view that prohibiting
site commission payments is not necessary at this
time. As we noted in the 2015 ICS Order, "this
approach is consistent with the Commission's
general preference to rely on market forces, rather
than regulatory intervention, wherever reasonably
possible." Correctional authorities have every
incentive to a.cx::ept whatever commissions
providers can pay within the rate caps given the
benefits ICS confers on both facilities and inmates.
In addition, we note that our approach obviates the
need to address arguments challenging our
authority to regulate site commission payments.
Contrary to the suggestion in one dissent, although
we have not elected to adopt the precise mechanism
that Hamden appears to have advocated for
"offset[ting]" the facilities' claimed costs of
providing access to ICS, our approach to ensuring
that our rate caps adequately account for facilities'
reasonable !CS-related costs is, at a minimum, a
logical outgrowth of the Ham.den Petition.

promoting deployment of JCS aod
ensuring that JCS rates are fair to both
providers and consumers.
11. As the Commission has repeatedly
explained, providers should be able to
recover costs that are "reasonably and
directly related to the provision of JCS"
through the JCS rates. The Commission
has also recognized that correctional
facilities may incur costs that are
reasonably related to the provision of
JCS. With both the Mandatory Data
Collection aod the 2014 JCS FNPRM,
the Commission took steps to determine
the costs involved in providing JCS. For
example, in the Mandatory Data
Collection, the Commission required
JCS providers to submit their costs
related to the provision of ICS,
including costs related to
telecommunications, equipment, and
security. In addition, in the 2014 JCS
FNPRM, the Commission sought
comment on the "actual costs" that
facilities may incur in the provision of
JCS and the appropriate vehicle for
enabling facilities to recover such costs.
The Commission also sought comment
on whether any such costs should be
recoverable though the per-minute rates
JCS providers charge inmates and their
families.
12. After considering a "wide range of
conflicting views" regarding facilities'
costs, we acknowledged, in the 2015 JCS
Order, the possibility that facilities
incur some costs to provide ICS. We
concluded, however, that the record at
that time "indicate[d] that if facilities
incurred any legitimate costs in
connection with ICS, those costs would
likely amount to no more than one or
two cents per billable minute." We
further concluded that the rate caps we
adopted were "sufficiently generous to
cover any such costs." Accordingly, we
declined to adopt any of the proposals
seeking an "additive" to our rate caps to
cover facilities' costs.

B. The Hamden Petition and Underlying
Record Demonstrate That the Existing
Rate Caps May Not Adequately Account
for Facility Costs
13. With the benefit of the record
developed since the 2015 !CS Order, we
now conclude that at least some
facilities likely incur costs directly
related to the provision of JCS and that
those costs may in some instances
amount to materially more than one or
two cents a minute. 4 Providers and
4 We continue to hold that site commission
payments should not be considered in determining
fair or reasonable rates, excapt to the extent those
payments reflect costs facilities incur that are
directly related to the provision of ICS. As we
explained in the 2015 ICS Order, "[p]assing the
non-ICS-related. costs that comprise site

Federal Register/Vol. 81, No. 177 /Tuesday, September 13, 2016/Rules and Regulations
facilities have claimed that the current
rate caps prevent them from recovering
all of their reasonable costs. Similarly,
some parties have argued that our 2015
rate caps may not have been "generous"
or conservative enough to cover all of
the !CS-related costs that we expected
providers to incur.
14. The Haroden Petition asks the
Commission, among other things, to
reconsider its decision not to "mandate
a modest, per-minute facility costrecovery fee that would be added to the
rate caps." Notwithstanding the debate
regarding the nature and extent of the
costs that correctional facilities incur,
the Petition asserts that "it seems clear
that facilities do incur some
administrative end security costs that
would not exist but for JCS." Haroden
notes that the idea of a cost recovery
mechanism has gained support from a
broad range of parties, including "JCS
providers, law enforcement, a state
regulator, and some in the inmate
advocacy community.'' Finally, Hamden
concludes that "[t]he lack of perfectly
accurate data . . . does not preclude a
rational cost recovery mechanism and a
legally sustainable Order." As Haroden
notes, "[e]ven in the absence of absolute
certainty regarding . . . facility
administrative costs, the Commission
can make a rational decision" based on
the record before us.
15. In response to the Haroden
Petition, we received comments from
numerous parties agreeing that the
existing rate caps do not adequately
account for ICS costs that facilities may
incur. While not all of the commenters
agree with Haroden's preferred
approach, many of the comments
submitted assert th.at facilities incur
costs greater than those we allowed for
under our 2015 rate caps. For example,
NSA states that "[i]n many cases, the
duties performed by Sheriffs and jails
are the same or similar in nature as the
security features and duties found by
the Commission as recoverable cost,
including monitoring calls, determining
numbers to be blocked and unblocked,
enrolling inmates in voice biometrics
service and maintenance and repair of
JCS equipment." NSA acknowledges
that providers perform security and
administrative tasks "in some cases/'
but asserts that in many other cases,
those tasks fall to Sheriffs and jails, not
providers. This view is supported by
Pay Tel, which has asserted that "jails,
not JCS providers, perform the lion's
share of administrative tasks associated
commission payments , , , onto inmates and their
families as part of the costs wed to set rate caps
would result in rates that exceed the fair
compensation required by section 276 and that are
not jwt and reasonable, as required by section 201."

with the provision of JCS and, more
importantly . . . handle ALL of the
monitoring of inmate calls."
16. NSA's arguments echo claims
other parties have made in their filings
before the D.C. Circuit. For exarople,
representatives of state and local
governments cite "evidence that jails
and prisons incur real and substantial
costs in allowing access to JCS." More
specifically, they contend that
correctional facilities can spend "over
$100,000 a month to provide JCS
privileges to inmates, most of which
goes into the labor hours required to
facilitate and monitor inmates' use of
JCS." Similarly, Telmate has argued that
our 2015 rate caps are not "sufficiently
generous" to cover the "costs th.at
facilities bear in providing JCS."
17. These argwnents are consistent
with earlier filings claiming that
facilities may incur costs related to the
provision of JCS that are "non-trivial."
Out of an abundance of caution, we now
revise our rate caps to incorporate those
costs more fully.

C. We Increase Our Rate Caps To Better
Reflect Evidence in the Record
18. In view of the further evidence
and arguments we have received, we
now reconsider our earlier rate caps
insofar as they did not separately
account for JCS costs that facilities may
incur. 5 Accordingly, we increase our
rate caps to better reflect the costs that
facilities incur that are reasonably
related to the provision of JCS. In
addition, consistent with our findings in
the 2015 JCS Order and with the
evidence in the record, we recognize
that the per-minute costs associated
with JCS are higher in smaller facilities
than in larger ones. Thus, we increase
our rate caps more for smaller facilities
than for larger ones.• Specifically, we
rely on the analyses submitted by NSA
and by Baker/Wood to increase our rate
caps by $0.02 per minute for prisons, by
$0.05 per minute for larger jails, and by
swe do not, however, revisit the rate structure or
overall methodology used in the 2015 ICS Order,
Specifically, we reject Telmate's argument that our
rate caps "are based on a fl.awed methodology, and
thw cannot be saved by the proposed rate
increase[s]." This argument addresses the
fundamental structure of our rate caps and
methodology and goes to the heart of our 2015 ICS
Order. As such, the argument appears to be an
untimely-and improperly prasented-request for
:reconsideration of that order.
6 Consistent with our conclusion in the 2015 ICS
Order, we find that providers will need more time
to transition all of the country's jails to the new rate
caps than to transition prisons. Accordingly, we
adopt a six-month transition period for jails, in
order to "give providers and jails enough time to
negotiate (or renegotiate) contracts to the extent
necessary to comply" with our new rules.

62821

$0.09 per minute for the smallest jails.7
In adopting these revisions to our rate
caps, we once again rely on our core
ratemaking authority.•
19. As noted above, in the 2015 JCS
Order, we agreed with parties that
argued that facilities' reasonable ICSrelated costs likely aroounted to no
more than one or two cents per minute
and did not require an adjustment to our
rate caps. Upon further consideration,
and with the benefit of an expanded
record, we now conclude th.at we
should increase our rate caps in light of
claims that that some facilities may
incur more significant costs that are
reasonably related to the provision of
JCS. After reviewing the Haroden
Petition, and the record developed in
response to the Petition, we find that
facilities-particularly smaller
facilities-may face costs that are
considerably higher than one or two
cents per minute. Out of an abundance
of caution, we increase our rate caps to
account for this possibility and to better
ensure that providers are fairly
compensated for their reasonable ICS
costs-including costs they may incur
in reimbursing facilities for
expenditures that are reasonably related
to the provision of ICS---<llld that
providers and facilities have stronger
incentives to promote increased
deployment of, and access to, ICS. 9
20. The rate caps we adopted in the
2015 JCS Order were based on 2012 and
2013 data that providers submitted in
response to the Mandatory Data
Collection. While we still find that the
cost data from Mandatory Data
Collection are an appropriate basis for
constructing rate caps, we also
recognize that due to our jurisdictional
limitations, the Mandatory Data
Collection only included cost
information from providers, and not
from facilities. Providers reported their
own costs, but were not obligated to
submit information about costs incurred
by facilities. Indeed, there is no reason
to believe that providers necessarily had
access to the information needed to
determine facility costs. As a result, the
information on facilities' !CS-related
1 As explained below, Baker/Wood and NSA
provided the most credible data ragarding facilities'
costs end we find that a hybrid of those two
proposals yields the most reliable basis for
determining how much we must increase our rate
caps to ensure that providers can compensate
facilities for the costs the facilities incur that are
reasonably related to the provision of ICS. The rate
increases we adopt today are also supported by the
Pay Tel Proposal.
s Accordingly, and for the reasons described
below, we do not prohibit or regulate site
commission payments.
s Several parties have warned that access to ICS
may be reduced if our rate caps fail to account for
facilities' reasonable JCS-related costs.

62822

Federal Register/Vol. 81, No. 177 /Tuesday, September 13, 2016/Rules aod Regulations

costs before the Commission came from
filings received in response to the 2014
JCS FNPRM.1• Unlike the responses to
the Maodatory Data Collection,
however, which required providers to
quantify various costs incurred in
providing JCS, facilities' responses to
the questions in the 2014 JCS FNPRM
about facility costs were purely
voluntary and consisted mostly of more
general, narrative descriptions. The
paucity of quantitative data made
facility costs more difficult to measure
than providers' costs, a problem
exacerbated by disputes in the record
regariling which of the costs involved in
providing JCS could reasonably be
attributed to providers, and which could
reasonably be attributed to facilities.
This led us to discount claims that
facilities faced costs that should be
recovered through the JCS rates.
21. Given these limitations, we relied
almost completely on submissions from
providers and their representatives to
arrive at an estimate of facilities ICSrelated costs in the 2015 JCS Order. Io
contrast, the approach we adopt today
relies largely on proposals submitted by
parties representing a much more
diverse range of interests. The Baker/
Wood Proposal, for example, was
submitted by Darrell Baker, the Director
of the Utility Services Division of the
Alabama Public Service Commission,
and Don Wood, an economic consultant
for Pay Tel Communications who also
has done work for other JCS providers.
And the NSA proposal is based on data
the NSA collected from individual
sheriffs regarding the costs they incur to
provide security and perform
administrative functions necessary to
allow JCS in jails, incluiling the salaries
and the benefits for the officers and
eroployees performing !CS-related
duties. We fiod these two proposals
provide a sounder basis for determining
facilities' !CS-related costs than did the
provider-generated proposals we relied
on in 2015. 11
10 Providers did submit information about total
site commission payments made to facilities, but, as
noted above, we did not take those payments into
account in setting our rate caps. Indeed, we still
find that the bulk of site commission payments
should not be considered in calculating the rate
caps because most of the money providers pay to
facilities is not directly related to the provision of
ICS. We also note that it is likely th.at the costs
mbmitted by providers include other costs that ere
not reasonably related to the provision of ICS. In
our decision today, however, we conclude that the
costs th.at facilities incur that are reasonably related
to the provision of ICS may be more than de
minimis and we therefore increase our rate caps to
better accommodate those costs.
11 We have also taken account of arguments that
correctional authorities and ICS providers have
raised to the D.C. Circuit concerning our decision
in the 2015 Order not to separately account for

22. The rate caps we adopt today are
based on a hybrid of the Baker/Wood
aod NSA Proposals. The Baker/Wood
proposal is premised on Baker's view
that "some form of facility cost recovery
is critical," and is supported by Baker's
and Wood's independent reviews of cost
support data. The NSA Proposal is
based on the NSA's cost survey, which
gathered information on the costs to
sheriffs of providing security and
administrative functions necessary to
allow JCS in jails, including the salaries
aod the benefits for the officers aod
employees performing the !CS-related
duties. Both of these proposals merit
significant consideration, particularly
given that they arrive at similar
conclusions: Baker and Wood
recommend adopting a cost recovery
mechanism of $0.07 per minute for jails
with ADP less than 349, $0.05 for jails
with ADP between 350 and 999, $0.05
for jails with ADP between 1000 and
2500 ADP, aod $0.03 for prisons; NSA,
for its part, supports the adoption of a
cost recovery mechanism in the range of
$0.09 to $0.11 per minute for facilities
with ADP less than 349, $0.05 to $0.08
for facilities with 350 to 2499 ADP,
$0.01 to $0.02 per minute for jails with
ADP greater thao 2500, aod $0.01 to
$0.02 per minute for prisons. Not only
are the two proposals fairly consistent
with each other, they are notably closer
to each other than they are to most other
proposals in the record, including those
that we relied on in the 2015 JCS Order.
23. Even given the similarities
between the NSA and Baker/Wood
Proposals, we acknowledge that the
record on what the costs facilities
actually incur in relation to JCS is still
imperfect. Nonetheless, we find that the
record is sufficient to warrant an
increase in the rate caps. As state and
local governments have explained in
their court filings, even faced with
"less-than-ideal data," it is the
Commission's obligation to ''determine
as best it can !CS-related facility costs."
Thus, based on the information in the
record, including, in large part, the
recommendations submitted by NSA
aod by Baker/Wood, we increase the
rate caps by $0.02 for prisons, and
$0.09, $0.05, and $0.05, respectively, for
small, medium, aod large jails. This
translates into revised debit/prepaid rate
caps of $0.13 per minute for prisons,
$0.19 per minute for jails with ao ADP
greater than 1000, $0.21 for jails with
ADP between 350 aod 999, and $0.31
per minute for jails with ADP below
350. It also leads to revised collect rate
caps of $0.16 per minute for prisons,
potential facility costs when calculating the rate
caps.

$0.54 per minute for jails with ADP
greater thao 1000, $0.54 per minute for
jails with ADP between 350 and 999,
and $0.58 per minute for jails with ADP
less than 350. 12 To arrive at these
numbers, we compared the Baker/Wood
and NSA proposals and, in order to
produce a conservative rate, took the
higher additive rate of the two
proposals.ts In the instance where even
the low end of NSA's proposed rate
range was greater than the rate proposed
by Baker and Wood, we selected the
lower end of the NSA rate raoge to
better account for the suggestions of
both proposals.14
24. The approach we use to increase
the rates to the levels we adopt today
has the primary advantage of being
supported by two separate aod
independent sets of data. It has the
additional advantage of being supported
by credible, independent participants in
this proceeding, including Bak.er, an
objective public service employee who
has participated in this proceeding aod
has been working on inmate calling
reform at the state level,15 and Wood, an
12& we did in the 2015 ICS Ord.er, we adopt a
separate rate cap tier for collect calling, as well as
a two-year step-down transitional period that will
decrease the collect rates over time and, by 2018,
will bring the collect rates down to the debit/
prepaid rates we adopt today. This is consistent
with the Commission's prior actions in adopting a
separate collect calling rate tier based on data
indicating that collect calls were more expensive
than other types of ICS calls and on the
Commission's decision to encourage correctional
institutions to move away from collect calling,
1s Our decision on reconsideration rests on a
desire to take a cautious approach that minimizes
any concerns that our rate caps fail to allow for fair,
just, and reasonable compensation. Indeed, the very
decision to reconsider our earlier order is prompted
by our view that it is better to 9lT on the side of
caution th.an to risk undercompensating providers
and facilities for their reasonable costs that are
directly related to ICS. Consistent with this
approach, when the NSA and Baker/Wood
Proposals differed, we opted for the choice that
resulted in the higher rate cap. This decision is
informed, in part, by the fact that NSA's proposal
already reflects an effort to reduce rates below the
levels that the raw data might mpport, absent any
analysis or refinement. & explained above,
however, our rate caps provide a ceiling, and we
expect that in many instances providers will charge
rates far below the maxi.mu.ms permitted under our
rate caps.
14. NSA proposed a rate increase of $0.09-$0.11
per minute for the smallest jails, while Baker/Wood
proposed adding only $0.07 per minute for those
facilities. Given that the low end ofNSA's proposed
rate range was higher than the rate proposed by
Baker/Wood, we took the lowest number proposed
by NSA (i.e., $0.09/minute).
16 In the Baker/Wood Proposal, Baker and Wood
state that Baker's "experience with ICS in Alabama
informs his view th.at some form of facility cost
recovery is critical. He explained that the APSC
regularly inspects ICS at jails and prisons in
Alabama and is therefore very familiar with the
activities and responsibilities that facility personnel
undertake in administering ICS and in monitoring
inmate calls. He concludes that facilities incur costs
associated with ICS and should be provided an
opportunity to recover their costs."

Federal Register/Vol. 81, No. 177 /Tuesday, September 13, 2016/Rules and Regulations
outside economic consultant to Pay Tel
whom seven !CS providers engaged to
prepare a joint report that was filed with
the Commission. Our approach is also
based on data provided by the NSA,
which, as an organization representing
sheriffs, is well situated to understand
and estimate the costs that facilities face
to provide 1cs.1s
25. Given that we find NSA's cost
data to be credible we disagree with
commenters who suggest the contrary.
Andrew Llpman, in particular,
denigrated NSA's cost survey for
including only three months of data
from only about five percent of NSA's
members." NSA convincingly defends
its cost survey in its Opposition to the
Hamden Petition, however, arguing that
"[t]be Commission fails to explain . . .
why these criticisms doom the NSA cost
survey data even though they all equally
apply to the cost recovery data and
analysis performed by GTL's cost
consultant, which the Commission
apparently accepts." NSA also argues
that the Commission "fails to explain
why it entirely ignores the data
provided by other parties that show a
much higher facility compensation fee
than one or two cents per minute." We
agree with NSA 's arguments aod find
that NSA's cost survey is a credible
(though imperfect) source of data
regarding the costs facilities incur in
relation to !CS. We are particularly
persuaded by NSA's point that the
criticisms of the NSA cost survey made
by Andrew Lipman, and recited in the
2015 !CS Order, apply with equal force
to other proposals, including the
analysis performed by GTL's cost
consultant that supported the one to two
cent estimate that informed our decision
in the 2015 !CS Order. Moreover, we
note that Pay Tel, which has no
1s While agreeing with our assessment that NSA
is wall-equipped to gauge faciliti.98' costs, one
dissenting commissioner nonetheless faults w for
relying (in part) on NSA's estimates of those costs.
In claiming that "the rate increases set forth in this
Order are insufficient to cover the facilityadministration costs" that jails incur in providing
access to ICS, this commissioner relies on raw data
from the NSA survey that NSA itself reasonably
elected to discount when estimating jails' actual
costs. NSA treated its survey data as "inputs" that,
once "compared to and tested by'' information
elsewhere in the record, could be refined to
generate more reliable estimated ranges of facilities'
reasonable costs of providing access to ICS. Those
ranges are the cost data we find credible-particularly given that, as noted above, the NSA and
Beker/Wood Proposals arrive at similar
conclusions. Thus, contrary to the dissent's
contention that our rate caps, as revised in this
Order, are "confiscatory," we are confident that
they fall well within the zone of reasonableness.
11we note as well that Lipman did not identify
his client, except as "certain clients with an interest
in the regulation of inmate calling services," when
filing prior to the 2015 ICS Order. Llpman has
subsequently acted as coUD5el to Securus.

affiliation with NSA, has rebutted many
of the arguments raised by Llpman aod
concluded that NSA's survey results
constitute a "robust and significant data
set."
26. We are confident that the new rate
caps we adopt today will ensure that
inmates and their families have access
to res at rates that are fair to consumers,
providers, and facilities.1a By adjusting
the rate caps to better account for the
reasonable costs that facilities may incur
in connection with res, we ensure that
providers will be able to charge rates
that cover all of their costs that are
reasonably related to the provision of
ICS. 19 Based on our analysis of the data
providers submitted to the Mandatory
Data Collection, the new rates should
allow virtually all providers to recover
their overall costs of providing !Cs.zo To
come to this conclusion, we calculated
each provider's cost per minute, by tier,
based on their reported numbers. We
then compared each provider's cost per
minute to our new rates for each tier.
The difference between these two
amounts allowed us to calculate the net
impact that each provider will face as a
result of our new rate caps. Our analysis
indicates that the new rate caps will
allow all but one provider to recover its
costs, on average. 21 Although we
conclude that virtually all providers
will be able to recover their legitimate
!CS costs (including a reasonable return
1e In sum, we agree with Hamden that
reconsideration of our rates will "pave the way for
the comprehensive reform that the Commission has
promised, that ICS consumers deserve, and that the
ICS industry needs, while also ensuring that
facilities will continue to facilitate ICS and that
providers will earn a reasonable return on their
inveshnents."
1e Indeed, although recognizing that the revised
rate caps will "ensure that ICS consumers avoid
paying unjust, unreasonable and unfair ICS rates,''
the Wright Petitioners assert that our revised rate
caps are so conservative as to be "well above"
providers' costs.
za Based on Commission analysis, this is true for
nBBrly 100 percent of the ICS market. and all of the
largest ICS providers. As noted above, there is only
one small provider that might not be able to cover
all of its JCS-related costs under the new rate caps.
z1 Our analysis of the data indicates that some
providers may lose money on collect calls, but more
th.an make up for any lost revenue with profits from
debit and prepaid calls. In the 2015 ICS Order, we
recognized that collect calling represents a small
and declining percentage of inmate calls. The
record further suggests that collect cells will
continue to decline to a negligible share of ICS
calls. In light of that, we are not concerned about
losses that are recovered and that we predict will
continue to decrease in the future. Providers will
be able to recover their costs as a whole under our
rate caps. Moreover, as noted above, we continue
to be concerned that allowing the rate caps for
collect calls to remain higher than the caps for other
ICS calls on an ongoing basis would create
incentives for providers to drive consumers to make
collect calls. Such a result would drive up the costs
of ICS for the average consumer and, therefore,
would not be in the public in1Brest

62823

on capital) under the new rate caps, we
reiterate that our waiver process
remains available to any providers that
find that the rate caps do not result in
fair compensation for their services. 2 2

D. We Amend the Definition of
"Mandatory Tax or Mandatory Fee"
27. In the 2015 !CS Order, we defined
a Mandatory Tax or Maodatory Fee as
"a fee that a Provider is required to
collect directly from Consumers, and
remit to federal, state, or local
governments.'' In his Petition, Hamden
asks us to clarify these definitions. After
considering the Hamden Petition, the
record developed in response to that
petition, aod the text of the 2015 !CS
Order, we now amend the definition of
Mandatory Tax or Mandatory Fee to
read: 11 A fee that a Provider is required
to collect directly from consumers, and
remit to federal, state, or local
governments. A Mandatory Tax or Fee
that is passed through to a Consumer
may not include a markup, unless the
markup is specifically authorized by a
federal, state, or local statute, rule, or
regulation." The amended definition
more clearly captures the Commission's
decision to allow carriers to collect
applicable pass-through taxes, but to
prohibit markups, other than those
specifically authorized by law. 23
28. In his petition, Hamden claims
that there has been "confusion"
regarding the Commission's definitions
of the terms "authorized fee,"
"mandatory tax," and mandatory fee'' in
the 2015 !CS Order, and regarding
"what fees and taxes the Commission
intended to include as permissible
under those terms." Although some
commenters assert that the terms
"Mandatory Tax" and "Mandatory Fee"
were adequately defined by the 2015
!CS Order, other parties are open to
further clarification from the
Commission. The Wright Petitioners, for
example, assert that "Mr. Ham.den's
comments regarding the clarification of
the rules associated with the definition
of 'Authorized Fee/ 'Mandatory Tax,'
and 'Mandatory Fee' do merit further
consideration."
22 We also reiterate that "[i]f any provider
believes it is being denied fair compensation . . ,
due, for example, to the interaction of our rate caps
with the terms of the provider's existing service
contracts-it may . . • seek preemption of the
requirement to pay a site commission, to the extent
that it believes that such a requirement is a state
requirement and is inconsistent with the
Commission's regulations."
zs This rule allows providers to collect Universal
Service fees, and similar government taxes and fees,
from consumers and remit the funds to the relevant
government entity, in keeping with existing federal
and state requirements. As the 2015 ICS Order
makes clear, we distinguish between such taxes and
fees and site commission payments.

62824

Federal Register/Vol. 81, No. 177 /Tuesday, September 13, 2016/Rules aod Regulations

29. After further review, we agree
with Hamden that we should clarify the
definition of Mandatory Tax and
Mandatory Fee. While the definitions of
these terms were clear from the text of
2015 !CS Order, we take this
opportunity to amend our rules to more
clearly track the language and intent of
the 2015 !CS Order. The prohibition
against markups that we adopted in the
2015 !CS Order is an important part of
our efforts to ensure that the rates and
fees end users pay for !CS are fair, just,
and reasonable. Thus, we now amend
47 CFR 64.6000 to read: "Mandatory
Tax or Mandatory Fee means a fee that
a Provider is required to collect directly
from Consumers, and remit to federal,
state, or local governments. A
Mandatory Tax or Fee that is passed
through to a Consumer may not include
a markup, unless the markup is
specifically authorized by a federal,
state, or local statute, rule, or
regulation. n

E. We Deny All Other Aspects of the
Hamden Petition
30. As previously noted, the Hamden
Petition asks the Commission to
reconsider or clarify two additional
aspects of the 2015 !CS Order. First,
Hamden urges the Commission to
reconsider its treatment of site
commissions. 24 Second, Hamden asks
that the Commission clarify that !CS
providers cannot use unregulated
subsidiaries to circumvent the rule
regariling charges for single call
services. After considering Ham.den's
arguments, as well as the rest of the
record, we deny both requests.
1. There Is No Need To Regulate Site
Commissions at This Time
31. In the 2015 !CS Order, we
affirmed the Commission's previous
finding that "site commissions do not
constitute a legitimate cost to the
providers of providing !CS" aod,
accordingly, did not include site
commission payments in the cost data
we used in setting our rate caps.
Furthermore, although we encouraged
states and correctional facilities to
curtail or prohibit such payments, we
concluded that "we do not need to
prohibit site commissions in order to
ensure that interstate rates for ICS are
fair, just, aod reasonable aod that
intrastate rates are fair ...
z4 As noted above, Hamden asks that the
Commission consider adopting an additive to the
ICS rate caps as an alternative to banning all
payments to facilities. We address that alternative
at length in the discussion above and increase our
2015 rate caps to better accommodate facilities' ICSrelated costs. We find no other changes to our rate
caps are warranted. Nor do we find any need to
regulate site commissions at this time.

32. Hamden now seeks
2. There Is No Need To Further Clarify
reconsideration of this conclusion,
the Single-Call Rule Adopted in the
2015 !CS Order
arguing that the Commission should
"prohibit payments to facilities in all
35. In the 2015 !CS Order, we held
forms." In the absence of such a ban,
that "for fees for single-call and related
Hamden argues, "facilities will continue services and third-party financial
to demand, and res providers will
transaction fees, we allow providers to
continue to pay site commissions
pass through only the charges they incur
. . . ... Hamden also expresses concern without any additional markup."
that if providers are unwilling or unable Hamden asserts that the Commission
to pay site commissions, ICS services
should clarify that the rule adopted in
"may be curtailed, especially in smaller,
the 2015 !CS Order that single-call
less profitable facilities."
service costs must be passed tlrrough to
33. Several comm.enters oppose
end users with no additional markup
Hamden's request. ICSolutions, for
may not be circumvented by providers
example, asserts that we lack the legal
authority to regulate site commissions.2s using unregulated subsidiaries imposing
"excessive financial transaction fees."
NCIC contends that prohibiting or
36. Most commenters disagree with
capping site commissions will result in
Hamden's requested clarifications.
facilities being unable to recover their
Several comm.enters assert that the rule
!CS-related costs, which, in turn, will
regarding charges for single call services
lead to a reduction in inmate access.
is adequately defined in the 2015 !CS
Finally, the Wright Petitioners argue
Order. and as a result, no clarification
that, even if the Commission were to
is needed.
ban site commissions, it is likely that
3 7. Having reviewed the arguments on
providers and correctional facilities
both
sides of the matter, we agree with
would simply "seek new and innovative
the
majority
of commenters that there is
ways to funnel additional funds in
no need to clarify the rule regarding
connection with entering into their
single-call service costs. We are not
exclusive contracts.''
persuaded, based on the current record,
34. After reviewing the Hamden
that the clarifications Hamden seeks are
Petition and the subsequent record, we
either necessary or in the public
are not persuaded to reconsider our
interest. Additionally, we reiterate our
decision to refrain from regulating site
finding from the 2015 !CS Order that "a
commissions. We are not convinced,
major problem with single-call and
based on the current record, that
related services is that customers are
regulation of site commissions is
often unawara that other payment
necessary or in the public interest. As
options are available, such as setting up
we noted in the 2015 !CS Order, the
an account . . .. We encourage
"decision to establish fair and
providers to make clear to consumers
reasonable rate caps for !CS aod leave
that they have other payment options
providers to decide whether to pay site
available to them." We find that no
commissions-and if so. how much to
further action is necessary at this time,
pay-is supported by a broad crossparticularly given that we already have
section of commenters . . .
nnderscor[ing] the reasonableness of our sought further comment on third-party
financial transactions and potential feeapproach." Based on the record on
reconsideration, as well as the record in sharing.
the underlying proceeding, we find that IV. Procedural Matters
the prudent course remains to "focus on
A. Paperwork Reduction Act
our core ratemaking authority in
reforming !CS and not prohibit or
38. This document does not contain
specifically regulate site commission
new or modified information collection
payments.'' 26
requirements subject to the Paperwork
Reduction Act of 1995 (PRA), Public
ze; As was the case in the 2015 ICS Order, we need Law 104-13. Therefore, it does not
not reach these arguments, given our decision to let
contain any new or modified
facilities and providers negotiate a reasonable
information collection burdens for small
approach to facility costs, subject only to providers'
obligations to adhere to our rate caps. In addition,
business concerns with fewer than 25
as discussed above, we have raised the rate caps to
employees, pursuaot to the Small
a level that should ensure that providers are able
Business Paperwork Relief Act of 2002,
to earn a reasonable profit even after compensating
facilities for any costs they incur that are reasonably
related to the provision of ICS. This should help
ensure that facilities recover the costs they incur
that are directly related to the provision of ICS.
ze Our commitment to maintain our approach to
site commission payments is further bolstered by
our decision today to increase the rate caps to
ensure that providers are able to compensate
facilities for the reasonable costs they incur that are

directly related to the provision of ICS. Our
decision to increase our rate caps to better account
for facilities' costs does not require us to cap or
limit site commission payments. In other words,
nothing in our roles, as revised by this Order,
restricts a provider's ability to distribute as it
chooses whatever revenue it collects under the
adopted rate caps.

Federal Register/Vol. 81, No. 177 /Tuesday, September 13, 2016/Rules and Regulations
Public Law 107-198, see 44 U.S.C.
3506(c)(4).

B. Congressional Review Act
39. The Commission will send a copy
of this Order in a report to be sent to
Congress and the Government
Accountability Office pursuant to the
Congressional Review Act. See 5 U.S.C.
801(a)(l)(A).

C. Final Regulatory Flexibility Analysis
40. As required by the Regulatory
Flexibility Act of 1980, see 5 U.S.C. 604,
the Commission has prepared a Final
Regulatory Flexibility Analysis (FRFA)
of the possible significant economic
impact on small entities of the policies
and rules, as proposed, addressed in
this order. The FRFA is set forth in
Appendbc C of the Order.
V. Ordering Clauses

41. Accordingly, it is ordered that,
pursuant to sections 1, 2, 4(i)-(j), 201(b),
215, 218, 220, 276, 303(r), 403, and 405
of the Communications Act of 1934, as
amended, 47 U.S.C. 151, 152, 154(i)-(j),
201(b), 215, 218, 220, 276, 303(r), and
403, 405 and sections 1.1, 1.3. 1.427,
and 1.429 of the Commission's rules, 47
CFR 1.1, 1.3, 1.427, and 1.429, the
Petition for Reconsideration filed by
Michael S. Harnden on January 19,
2016, IS GRANTED IN PART, and is
otherwise DENIED, as described above.
42. It is further ordered that part 64
of the Commission's Rules, 47 CFR part
64, is AMENDED as set forth in
Appendbc A of the Order. These rules
shall become effective December 12,
2016, except for the amendments to 47
CFR 64.6010(a) and (cl. which shall
become effective March 13, 2017.
43. It is further ordered that the
Commission's Consumer and
Governmental Affairs Bureau, Reference
Information Center, SHALL SEND a
copy of this Order on Reconsideration to
the Chief Counsel for Advocacy of the
Small Business Administration.

List of Subjects in 47 CFR Part 64
Claims, Communications common
carriers, Computer technology, Credit,
Foreign relations, Individuals with
disabilities, Political candidates, Radio,
Reporting and recordkeeping
requirements, Telecommunications,
Telegraph, Telephone.

62825

§64.6010 Inmate Calling Services rate
caps.

•

•

•

•

•

(b) No Provider shall charge, in any
Prison it serves, a per-minute rate for
Debit Calling, Prepaid Calling, or
Prepaid Collect Calling in excess of:
(1) $0.13;
(2) [Reserved]

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

*

•

*

*

*

(d) No Provider shall charge, in the
Prisons it serves, a per-minute rate for
Collect Calling in excess of:
Final Rules
(1) $0.16 after the December 12, 2016;
For the reasons discussed in the
(2) $0.15 after July 1, 2017; and
preamble, the Federal Communications
(3) $0.13 after July 1, 2018, and going
Commission amends 47 CFR part 64 as
forward.
follows:
(e) For purposes of this section, the
initial ADP shall be calculated, for all of
PART 64-MISCELLANEOUS RULES
the Correctional Facilities covered by an
RELATING TO COMMON CARRIERS
Inmate Calling Services contract, by
summing the total number of inmates
• 1. The authority citation for part 64 is
from January 1, 2015, through the
revised to read as follows:
effective date of the Order, divided by
the number of days in that time period;
Authority: 47 U.S.C. 154, 254(k);
403(b)(2)(B), (c), Pub. L. 104-104, 110 Stat.
(f) In subsequent years, for all of the
56. Interpret or apply 47 U.S.C. 201, 218, 222, correctional facilities covered by an
225,226,227,228,254(k),276,616,620,and Inmate Calling Services contract, the
the Middle Class Tax Relief and Job Creation ADP will be the sum of the total number
Act of 2012, Public Law 112-96, unless
of inmates from January 1st through
otherwise noted.
December 31st divided by the number of
days in the year and will become
Subpart FF-Inmate Calllng Services
effective on January 31st of the
following year.
• 2. Revise§ 64.6000 paragraph (n) to
4. Effective March 13, 2017, revise
read as follows:
§ 64.6010(a) and (c) to read as follows:
§ 64.6000 Definitions.

•

•

•

•

•

(n) Mandatory Tax or Mandatory Fee
means a fee that a Provider is required
to collect directly from consumers, and
remit to federal, state, or local
governments. A Mandatory Tax or Fee
that is passed through to a Consumer
may not include a markup, unless the
markup is specifically authorized by a
federal, state, or local statute, rule, or
regulation;

•

*

*

•

*

• 3. Effective December 12, 2016,
amend § 64.6010 by revising paragraphs
(b) and (d) through (f) to read as follows:

Size and type of facility

Ch'l49 Jail ADP ............................................................................................................................
350-1l99 Jail ADP ........................................................................................................................
1,000+ Jail ADP ...........................................................................................................................

§64.6010 Inmate Calling Services rate
caps.

(a) No Provider shall charge, in the
Jails it serves, a per-minute rate for
Debit Calling, Prepaid Calling, or
Prepaid Collect Calling in excess of:
(1) $0.31 in Jails with an ADP of 0349;
(2) $0.21 in Jails with an ADP of 350999; or
(3) $0.19 in Jails with an ADP of 1,000
or greater.

*

•

*

*

*

(c) No Provider shall charge, in the
Jails it serves, a per-minute rate for
Collect Calling in excess of:
Collect rate
ca~rMOU

as

effective
date
$0.58
0.54
0.54

Collect rate
cap per MOU
as of July 1,
2017

$0.45
0.38
0.37

Collect rate
cap per MOU
as of July 1,
2018
$0.31
0.21
0.19

62826

•

•

Federal Register/Vol. 81, No. 177 /Tuesday, September 13, 2016/Rules aod Regulations

•

•

•

DATES: This rule is effective October 13,

[FR Doc. 2016-21637 Filed 9-12-16; 8:45 am]

2016.

BIWNG CODE 8712-Cn-P

ADDRESSES: This final rule is available
on the Internet at http://
www.regulations.gov and http://
www.fws.gov/cookeville. Comments aod
materials we received, as well as
supporting documentation we used in
preparing this rule, are available for
public inspection at http:!I
www.regulations.gov, or by
appointment, during normal business
hours, at: U.S. Fish and Wildlife
Service, Tennessee Ecological Services
Field Office, 446 Neal Street,
Cookeville, TN 38501; telephone: 931528--£481; facsimile: 931-528-7075.
FOR FURTHER INFORMATION CONTACT:
Mary Jennings, Field Supervisor, U.S.
Fish and Wildlife Service, Tennessee
Ecological Services Field Office (see
ADDRESSES, above). Persons who use a
telecommunications device for the deaf
(IDD) may call the Federal Information
Relay Service (FIRS) at 800--a77-8339.
SUPPLEMENTARY INFORMATION:

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17

[Docket No. FW8-R4-ES-2015--0129;
4500030113]
RIN 1018-BA93
Endangered and Threatened Wildlife
and Plants; Threatened Species Status
for Platanthera integrilabia (Whita
Frlngeless Orchid)

AGENCY: Fish and Wildlife Service,
Interior.
ACTION: Final rule.
SUMMARY: We, the U.S. Fish and
Wildlife Service (Service), determine
threatened species status under the
Endangered Species Act of 1973 (Act),
as amended, for Platanthera integrilabia
(white fringeless orchid], a plant species
from Alabama, Georgia, Kentucky,
Mississippi, South Carolina, and
Tennessee. This rule adds this species
to the Federal Llst of Endaogered aod
Threatened Plants.

Backgronnd
Below, we update and summarize
information from the proposed listing
rule for the white fringeless orchid (80
FR 55304; September 15, 2015) on the
historical and current distribution of
white fringeless orchid. Please refer to
the proposed listing rule for a summary
of other species information, including
habitat, biology, and genetics.

Distribution
In this final rule, we are updating
information on the species' distribution
from the September 15, 2015, proposed
rule to include two minor changes,
which were brought to our attention
following publication of the proposed
listing rule. First, we are changing the
2014 status of the Forsyth County,
Georgia, population from extant to
uncertain rrable 1), because flowering
plants have not been documented at this
site since 1990 (Richards 2015, pers.
comm.). In addition, we have added
Georgia Department of Transportation
(GDOT) to the list of local, State, or
Federal government entities that own or
manage lands where white fringeless
orchid is present rrable 2). A revised
summary of the species' distribution
follows.

Previous Federal Actions
Please refer to the proposed listing
rule for the white fringeless orchid (80
FR 55304; September 15, 2015) for a
detailed description of previous Federal
actions concerning this species.

TABLE 1--COUNTY-LEVEL DISTRIBUTION OF ExTANT AND UNCERTAIN STATUS WHITE FRINGELESS ORCHID OCCURRENCES, CIRCA 1991 (SHEA 1992) AND 2014 (ANHP 2014, GDNR 2014, KSNPC 2014, MDWFP 2014, NCDENR
2014, SCDNR 2012, SCHOTZ 2015, AND TDEC 2014)
1991
State

Extant
Alabama ............................................

2014

County

Extant

Uncertain

2 ....................... .
1

Calhoun ............................................

Clay ................................................. .

Georgia .............................................

Cleburne ...........................................
DeKalb ..............................................
Jackson ............................................
Marion ..............................................
Tuscaloosa .......................................
Winston ............................................
Bartow ............................................. .
Carroll ...............................................

Uncertain

1
1

1

1
2

1

2

....................... .

Chattooga ........................................ .

1
1
2 ....................... .
1

Cobb ................................................ .
Coweta .............................................

Forsyth ............................................ .

Kentucky ...........................................

Pickens .............................................
Rabun ...............................................
Stephens ..........................................
Laurel ...............................................

McCreary ......................................... .
Mississippi .........................................

South Carolina ..................................
Tennessee ........................................

Pulaski ..............................................
Whitley ..............................................
Alcorn ...............................................
Itawamba ..........................................
Tishomingo .......................................
Greenville ........................................ .
Bledsoe ........................................... .
Cumberland ......................................
Fentress ...........................................
Franklin .............................................

1

1
1
4
1

....................... .

2

2

2
2

1
....................... .

1

2
1

3

2

2
1
2

....................... .

2

5

5