Prison Phone Justice

IN RE:

Docket No. 22071-U: Encartele, Inc.’s Application for Certificate of
Authority to Provide Institutional Telecommunication Services.
Docket No. 22120-U Complaint of Pay Tel Communications, Inc. against
Encartele, Inc.

ORDER ADOPTING AND MODIFYING HEARING OFFICER’S
RECOMMENDED DECISION
I.

Statement of Proceedings

On December 19, 2005, Encartele, Inc. (“Encartele”) filed an application to provide
institutional telecommunications service in Georgia (Docket No. 22071-U). On January 3, 2006,
Pay Tel Communications, Inc. (“Pay Tel”) filed a complaint against Encartele for allegedly
doing business in Georgia without proper certification (Docket No. 22120-U). On April 4, 2006,
the two dockets were consolidated and assigned to a hearing officer.
A hearing was held on July 21, 2006 before Hearing Officer John Tucker. Encartele and
Pay Tel each presented witnesses. Cross-examination was conducted by all parties to the
proceeding. Briefs and Reply Briefs were filed on September 19, 2006 and October 12, 2006
respectively.
On November 20, 2006, a stipulation signed by Staff, Encartele, Pay Tel and the
Consumers’ Utility Counsel Division of the Governor’s Office of Consumer Affairs (“CUC”)
was filed with the Commission (See “Attachment A”). In summary, the terms of the stipulation
provide for the certification of Encartele to provide ITS, the imposition of a $10,000.00 penalty
upon Encartele for providing ITS without a certificate to be paid within thirty days of the date of
the Commission order adopting the stipulation, that Encartele agrees that it will transport all ITS
calls over a public access line, unless and until the Commission modifies its existing rules to
permit ITS providers to use alternative technologies to transport calls, that Encartele notifies all
institutions to which it provided ITS without a certificate of its violation, and that Encartele will
abide by Georgia law, as well as Commission rules and orders.
On November 29, 2006, the Hearing Officer issued a Recommended Decision certifying
the record to the Commission and adopting the Stipulation. The Hearing Officer concluded that
Encartele possesses the technical and financial capability to provide ITS in Georgia, and that its
Docket Nos. 22071-U and 22120-U
Order Adopting and Modifying Hearing Officer’s Recommended Decision
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application should therefore be granted. (Recommended Decision, p. 2). The Hearing Officer
also concluded that the Complaint of Pay Tel should be dismissed upon Encartele’s payment of
the $10,000.00 civil penalty. Id.
II.

Jurisdiction

The Commission has general authority over providers of telephone service pursuant to
O.C.G.A. §§ 46-2-20 and 46-2-21. The Georgia Telecommunications and Competition
Development Act (“Georgia Act”), O.C.G.A. § 46-5-160 et seq., provides the Commission with
authority over providers of telecommunications services. The Georgia Act also provides that
providers of telecommunications services must first obtain certificates of authority from the
Commission. O.C.G.A. § 46-5-163(a). In addition, the Commission has the jurisdiction to
implement and administer the express provisions of the Georgia Act through rulemaking
proceedings and orders in specific cases. O.C.G.A. § 46-5-168(a). The Georgia Act also provides
the Commission with the authority, inter alia, to grant, modify, impose conditions upon, or
revoke a certificate; to resolve complaints against a local exchange company regarding that
company’s service; and to approve and if necessary revise, suspend, or deny tariffs in accordance
with the provisions of Title 46, Chapter 5, Article 4 of the Georgia Code. O.C.G.A. § 46-5168(b)(2), (b)(5), (b)(7).
The Commission also has the authority to impose civil penalties upon companies subject
to its jurisdiction for the willful violation of any law administered by the Commission. O.C.G.A.
§ 46-2-91(a).
III.

Findings of Fact and Conclusions of Law

The Commission adopts the Hearing Officer’s Recommended Findings of Fact. In the
“Discussion and Conclusions of Law” section of the Hearing Officer’s Recommended Decision,
the Hearing Officer recommends that the Commission grant Encartele a certificate of authority
and dismiss Pay Tel’s Complaint against Encartele upon the payment of the $10,000 penalty
provided for in the stipulation submitted by the parties.
The Commission concludes that Encartele has demonstrated that it possesses the
technical and financial capability to provide ITS and should be granted a certificate of authority.
In providing ITS without a certificate of authority, Encartele violated the express terms of the
Georgia Act, specifically O.C.G.A. § 46-5-163(a). The Commission administers the Georgia Act.
The Commission concludes that a penalty should be imposed upon Encartele for its actions in
providing ITS without a certificate of authority. Further, the Commission agrees that the
recommended civil penalty of $10,000, provided for in the stipulation is appropriate.
However, the Commission determines that it is in the best interests of consumers to use
the $10,000 penalty to provide a discount to Encartele’s customers. At the December 19, 2006
Administrative Session, Staff informed the Commission that Encartele had agreed to account for
the $10,000 penalty by a $1 reduction to the surcharge of the first $10,000 ITS collect calls. The
$1 reduction will reduce the surcharge from $2.20 (Local) and $2.10 (Inter/IntraLATA) to $1.20
and $1.10, respectively (the effective cap minus a dollar). Encartele also agreed that the
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following conditions should apply: (1) Encartele must file monthly records to demonstrate
compliance with the $1.00 discount on the surcharge, (2) Encartele must amend its tariffs with
regard to rates in order to be consistent with the Commission ordered caps currently in effect,
and must clarify in the tariff that the rates are maximum rates, and (3) Encartele must make a
best effort to provide notice to its customers within thirty (30) days of when, based on
experience, it contemplates the $10,000 will be used up and the dollar reduction to the surcharge
will no longer be available. The notice must be approved by the Commission Staff.
With respect to the monthly compliance filings, Staff will review the information to
ensure that Encartele has properly implemented the Commission order. Encartele must provide
information sufficient to demonstrate that it has complied with the terms of this order. If the
information is not sufficient to ensure compliance, additional information may be requested.
Because Encartele indicated that there may be some technical difficulties in notifying
customers of the change to the surcharge, it agreed at this point to make its “best efforts” to
provide notice. Should it be determined that it is possible for Encartele to notify its customers of
the increase to the surcharge that will take effect once the $10,000 penalty is used up, then
Encartele must provide such notice.
The Commission also adopts the remaining terms and conditions included within the
parties’ stipulation.
IV.

Ordering Paragraphs

The Commission finds and concludes that the issues presented to the Commission for
decision should be resolved in accord with the terms and conditions as discussed in the preceding
sections of this Order.
WHEREFORE IT IS ORDERED, that the Stipulation agreed to by the parties and the
Hearing Officer’s Recommended Decision is adopted as modified herein.
ORDERED FURTHER, that Encartele is hereby granted a certificate of authority to
provide ITS, subject to terms and conditions set forth herein.
ORDERED FURTHER, that a $10,000 civil penalty be imposed upon Encartele for its
provisioning of ITS in Georgia without first obtaining a certificate of authority from the
Commission. Encartele shall account for the $10,000 penalty through a $1 reduction to the
surcharge in the first 10,000 ITS calls for which Encartele recovers charges. The following
conditions shall apply to the $1 reduction to the surcharge: (1) Encartele must file monthly
records to demonstrate compliance with the $1.00 discount on the surcharge, (2) Encartele must
amend its tariffs with regard to rates in order to be consistent with the Commission ordered caps
currently in effect, and must clarify in the tariff that the rates are maximum rates, and (3)
Encartele must make a best effort to provide notice to its customers within thirty (30) days of
when, based on experience, it contemplates the $10,000 will be used up and the dollar reduction
to the surcharge will no longer be available. The notice must be approved by the Commission
Staff.
Docket Nos. 22071-U and 22120-U
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ORDERED FURTHER, that upon a demonstration by Encartele that it has accounted
for the $10,000 penalty in compliance with the terms and conditions of this order, the Complaint
of Pay Tel in this proceeding shall be dismissed.
ORDERED FURTHER, that all findings, conclusions and decisions contained within
the preceding sections of this Order are adopted as findings of fact, conclusions of law, and
decisions of regulatory policy of this Commission.
ORDERED FURTHER, that any motion for reconsideration, rehearing or oral argument
shall not stay the effectiveness of this Order unless expressly so ordered by the Commission.
ORDERED FURTHER, that jurisdiction over this proceeding is expressly retained for
the purpose of entering such further order or orders as this Commission may deem just and
proper.
The above by action of the Commission in Administrative Session on the 19th day of
December, 2006.

_____________________________
Reece McAlister
Executive Secretary

_____________________________
Stan Wise
Chairman

Date: ________________________

Date: ________________________

Docket Nos. 22071-U and 22120-U
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