Prison Phone Justice

Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554

IN THE MATTER OF
RATES FOR INTERSTATE INMATE CALLING
SERVICES

)
)
)
)

WC Docket No. 12-375

“I am enthusiastically in favor of regulations to cap long distance charges
in the prison phone industry. Please implement regulations that will allow family
members to speak to their incarcerated loved ones at affordable rates. My Son is
located in Jessup Md. For me to call that area cost[s] nothing, but to call my son
the cost for a call of 15 min. cost[s] me $11.35 for each call plus an[ ] additional
$6.95 each time I add time for him to call total cost $56.95 every 6 to 8 weeks.
My husband is 85 and I’m 77 both are in bad helth [sic] and must depend on
others to take us for a visit. I pray that you will be able to make these much
needed changes.”
Charlotte Bane
Suitland, Md.
September 21, 2012, 12:09 a.m.1
COMMENTS OF MICHAEL S. HAMDEN2
Regulating technological communication to promote competitive practices in the public
interest is a high calling that affects the lives of virtually all Americans. The absence of such
regulation can have an equally important, and sometimes, a devastating impact. In this

1

36,690 Public Comments in Support of the Wright Petition, Prison Policy Initiative, page 452
http://www.prisonpolicy.org/phones/nov2012petition.pdf (last accessed 23 March 2013).
2

Hamden, a private practitioner, has more than 25 years of experience representing prisoners in a variety of
matters, including issues pertaining to prison pay telephones. He has previously filed comments regarding practices
of the prison pay phone industry, individually and on behalf of North Carolina Prisoner Legal Services, a nonprofit
inmate advocacy group. The most recent of those filings (2005 – 2010) are listed at:
http://apps.fcc.gov/ecfs/comment search/execute?proceeding=96128&applicant=Hamden&lawfirm=&author=&disseminated minDate=01%2F01%2F1996&disseminated.maxDate=
03%2F23%2F2013&recieved.minDate=01%2F01%2F1996&recieved.maxDate=03%2F23%2F2013&dateComment
Period.minDate=&dateCommentPeriod maxDate=&dateReplyComment minDate=&dateReplyComment maxDate=
&address.city=&address.state.stateCd=&address.zip=&daNumber=&fileNumber=&bureauIdentificationNumber=&
reportNumber=&submissionTypeId=& checkbox exParte=true

proceeding, for example, hundreds of thousands of people have been grievously harmed by the
sharp practices of Inmate Calling Service Providers that operate in correctional settings.3
Unjustifiably high prices, driven by “commissions” and a broad array of fanciful surcharges,
have exploited – and too often, have severed – connections between prisoners and their families
and friends.
The record in this proceeding is replete with first-hand accounts of mothers who have
been unable to afford the cost of telephoning incarcerated loved ones and of children unable to
speak regularly with parents in custody of the state. The same record contains accounts of
family members who agonize over the choice between meeting monthly expenses and struggling
to pay the extortionate rates that result from unconscionable, monopolistic service contracts that
generate extraordinary profits for both of the contracting parties, service providers and
governmental agencies. Consumers are not parties to such negotiations. Because the contracts
are exclusive, the interests of consumers can be disregarded with impunity, and for more than 20
years, they have been.
These practices are not ameliorated by ordinary market forces because competition exists
only as among service providers who vie to offer the highest possible “commission” in exchange
for exclusive contracts. The consumer is powerless to choose telephone services based on the
quality of the service, the rates and surcharges it imposes, or the responsiveness of a particular
service provider to customers. Instead, consumers are relegated to the exclusive carrier selected
by the authority that governs the correctional facility or system; selections that are based on the
most favorable terms the governing authority could negotiate. Since “commissions” are derived
3

See, e.g., 36,690 Public Comments in Support of the Wright Petition, Prison Policy Initiative, page 452
http://www.prisonpolicy.org/phones/nov2012petition.pdf (last accessed 23 March 2013). See also, Petition: Lower
the Cost of Calls from Prison at www.thepetitionsite.com/3/lower-the-cost-of-calls-from-prison (last accessed 23
March 2013)(1,311 signatures).

2

from revenue, competitive prices are rarely a concern for either the service provider or the
governmental agency.4
This lamentable construct has predictably perverse consequences, not the least of which
is that it is self-perpetuating. Ever escalating “commissions” and increasingly imaginative
surcharges relentlessly drive the cost of calls higher. Indeed, the impact extends to the general
public and to lawyers who are tasked with the responsibility to arrange bail or defend their
clients from criminal charges that can result in, or extend, incarceration. As the record shows,
many attorneys simply cannot afford to communicate with clients who are in custody. As a
result, people are sometimes needlessly deprived of their liberty while the public bears the cost
of their incarceration.
These are clear moral imperatives for the FCC to proscribe extortionate prison phone
rates and to prohibit exploitive and unjustifiable surcharges. And the FCC has plenary legal
authority to do so.

4

“For example, when Louisiana issued an RFP [request for proposals] for prison phone services in
2001, it specified that ‘[t]he maximum points, sixty (60) ... shall be awarded to the bidder who
bids the highest percentage of compensation ...,’ and that ‘[t]he State desires that the bidder’s
compensation percentages ... be as high as possible.’”
“When the Alaska Dept. of Corrections (DOC) issued an RFP in 2007, bidders were rated on a
point system with 60% of the evaluation points assigned to cost. The RFP explicitly stated that
‘[t]he cost proposal providing the largest percentage of generated revenues ... to the state will
receive the maximum number of points allocated to cost.’”
And, “[a]ccording to a March 13, 2007 memo from the [Alabama] Department of Finance, the
RFP “proposed to award what amounts to an ‘exclusive franchise’ to the successful bidder based
on the highest commission rate paid to the State on revenues received from users of the [prison]
pay phones.”

John E. Dannenberg, Nationwide PLN Survey Examines Prison Phone Contracts, Kickbacks, accessible at
https://www.prisonlegalnews.org/(X(1)S(mkdthd55iqen34is5imuh4bz))/displayArticle.aspx?articleid=23083&Aspx
AutoDetectCookieSupport=1

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I. SCOPE OF THESE COMMENTS

In the Notice of Proposed Rulemaking released on 28 December 2012, the FCC seeks
renewed comment on alternative proposals put forward by the Petitioners Martha Wright, et al.,
for reform of inmate calling service (“ICS”) in general, and for rate caps applicable to interstate,
interexchange phone calls. The Commission also seeks comment on a number of issues related
to the Petitioners’ proposals and to ICS in general. “Rates for Interstate Inmate Calling
Services,” 78 Fed. Reg. No. 14, pp. 4369 – 4376 (22 January 2013)(hereafter, “Notice”).
II. THE FCC HAS JURISDICTION AND THE LEGAL AUTHORITY TO
RESOLVE ALL OF THESE ISSUES IN THE PUBLIC INTEREST
It is clear that the FCC has jurisdiction over this matter and plenary legal authority to
impose regulations addressing the interests of all the parties to this dispute in a way that serves
the public interest.
A. Interstate Interexchange Rates
(Notice at ¶ 49)
Title 47 U.S.C. Sections 276 and 201 of the Act empower the Commission with a
mandate to (1) “establish a per call compensation plan to ensure that all payphone service
providers are fairly compensated for each and every completed intrastate and interstate call using
their payphone,” § 276(b)(1)(A), and to (2) ensure that “[a]ll charges, practices, classifications,
and regulations for and in connection with such communication service, shall be just and
reasonable” § 201(b).
The statutory language is clear and broad. The Commission is charged with the
responsibility of balancing the competing interests of ICS consumers, who are entitled to just and
reasonable charges and practices, with ICS providers, who are entitled to fair compensation. See,
e.g., Notice at ¶ 16.
4

That delegation of authority is consonant with other statutes granting the Commission
expansive authority. See, e.g., 47 U.S.C. § 151 (conferring upon the Commission broad
regulatory jurisdiction). The Commission’s duties and powers are, by definition, vast: it “may
perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent
with this Act, as may be necessary in the execution of its functions.” 47 U.S.C. § 154(i); accord,
47 U.S.C. § 303(r)(empowering the Commission to make “such rules and regulations and
prescribe such restrictions and conditions . . . as may be necessary to carry out the provisions of
this Act”).
Existing law takes these broad powers and fleshes them out, answering the narrower
questions pertinent to the matters at hand. Specifically, the Commission has plenary authority to
regulate (1) “commissions” on interstate and intrastate ICS calls, and (2) the ancillary surcharges
that ICS providers tack-on to such calls.
B. Intrastate Rates
(Notice at ¶¶ 50 & 52)
Section 276 of the Telecom Act contains a congressional grant of jurisdiction over ICS
providers. See 47 U.S.C. § 276(d)(defining “payphone service” to include inmate telephone
service). Section 276 also extends the Commission’s authority over intrastate rates, in addition
to interstate rates. See, e.g., Illinois Pub. Telecommunications Ass’n v. FCC, 117 F.3d 555, 562
(D.C. Cir. 1997), cert. denied sub nom. Virginia State Corp. Comm’n v. FCC, 423 U.S. 1046
(1998)(affirming Commission’s deregulation of local payphone rates and rejecting argument that
Section 276’s reference to “compensation” implied lack of jurisdiction over “rates”).

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C. Location Rents – “Commissions”
(Notice at ¶¶ 37 & 38)
The FCC has previously determined that facility commissions are not a part of legitimate
costs. See Order on Remand & Notice of Proposed Rulemaking, FCC 02-39, ¶ 15, p. 8, and ¶
38, p. 15 (CC Docket No. 96-128, 21 February 2002). Rather, commissions are negotiable
allocations of profits between the correctional facility (or “site locations”) and the ICS provider.
Id. See also, Second Report & Order, FCC 97-371 (CC Docket No. 96-128, 9 October 1999);
Third Report & Order, FCC 99-7, ¶ 156 (CC Docket No. 96-128, 4 February 1999).
The Commission has previously declared that it has authority to “regulate the contractual
or other arrangements between common carriers and other entities, even those entities that are
generally not subject to Commission regulation.” In the Matter of Promotion of Competitive
Networks in Local Telecommunications Markets, Report and Order, FCC 08-87, ¶ 15 & n.48
(Mar. 21, 2008). The Commission based its decision on opinion of the Court of Appeals for the
District of Columbia in Cable & Wireless P.L.C. v. FCC, 166 F.3d 1224 (D.C. Cir. 1999). In
that case, the court determined that the Commission did not exceed its authority in promulgating
a rule that prevented domestic carriers from paying more than certain, settled rates for
termination services provided by foreign telecommunications companies in order to complete
long-distance calls. The court explained that the Commission “does not exceed its authority
simply because a regulatory action has extraterritorial consequences. . . . Indeed, no canon of
administrative law requires us to view the regulatory scope of agency actions in terms of their
practical or even foreseeable effects.” Id. at 1230.
Thus, under federal statutes, case law, and regulatory decisions, the Commission has well
recognized, broad jurisdiction and authority over contractual arrangements between ICS
providers and correctional facilities which extends to “commissions.”
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D. Surcharges
(Notice ¶ 47)
An emerging and growing cause of the exorbitant cost of ICS service is the arbitrary
imposition of extraneous charges that have little relation to actual costs. These fees come in
many guises, many of them are deceptive and misleading, and nearly all of them are unnecessary
or exorbitant. They have dubious names like “convenience fee,” “bill statement fee,” “account
set-up fee,” “wireless fee,” “connection fee,” “government regulatory fee,” “tax,” and
“regulatory carrier cost recovery fee,” to name just a few. Some of these are one-time charges
and others are recurring, but they have in common the effect of unjustifiably increasing calling
costs without adding value, and at the expense of consumers. And these are generally revenues
that are not shared with correctional facilities through “commissions,” but are retained by ICS
providers to pad profit margins.5
One particularly pernicious category of subterfuge that drives up the excessive cost of
prisoner-initiated phone calls is the ICS practice of charging fees to establish prepaid accounts,
and to process customers payments.6 These “tack-on” charges dramatically increase the cost of
communicating with incarcerated loved ones, but they do not appear as a part of the cost for the
5

One industry official has publicly identified the elimination or reduction of these superfluous charges as a means
to preserve “commission” revenue and to avoid FCC regulation. The CEO of NCIC, which provides telecom
services to inmate facilities, has written an open letter to sheriffs and jail administrators in response to the Notice.
See Bill Pope, The FCC is Taking Steps to Regulate Rates and Fees Charged by Inmate Telephone Providers,
LinkedIn.com (Mar. 8., 2013), http://www.linkedin.com/groups/FCC-is-taking-steps-regulate3400924.S.220528568?view=&gid=3400http://www.linkedin.com/groups/FCC-is-taking-steps-regulate3400924.S.220528568?view=&gid=3400924&type=member&item=220528568 (Some “providers are also adding
on Bill Statement Fees, Wireless Fees and other convenience fees that are as high as $3.95 per call”).
Reported examples include Global Tel*Link’s practices of charging a $4.75 service fee for each $25 credit card
payment to a prepaid phone account; and of charging $5 to close an account and withdraw any remaining balance.
Another example is Securus Technologies’ practice of charging processing fees of up to $6.95 for credit or debit
card payments made by phone or online (in addition to a $2.99 monthly “bill statement fee”). See John E.
Dannenberg, Nationwide PLN Survey Examines Prison Phone Contracts Kickbacks, Prison Legal News, Apr. 2011,
at 6, accessible at:
https://www.prisonlegalnews.org/(X(1)S(mkdthd55iqen34is5imuh4bz))/displayArticle.aspx?articleid=23083&Aspx
AutoDetectCookieSupport=1
6

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call reflected on a telephone bill. Such additional provider-imposed charges should be
prohibited. Additionally, any payment fees charged by third parties (e.g., Western Union and
other payment processors) must be passed through to families at cost with no mark-up or profit
for prisoner phone service providers.7
The FCC’s legal authority to regulate or prohibit these ancillary charges is as certain and
expansive as it is for other aspects of ICS practices. If the FCC establishes of a regulatory
scheme which ensures that “all payphone service providers [including inmate phone service
providers] are fairly compensated for each and every completed intrastate and interstate call,”
additional, extraneous surcharges would, by definition, run afoul of the Commission’s charge to
ensure that “[a]ll charges, practices, classifications, and regulations for and in connection with
such communication service, shall be just and reasonable” Cf. Title 47 U.S.C. § 276(b)(1)(A)
with § 201(b).
Moreover, with respect to this and other aspects of the Commission’s proper role, the
scope of the Commission’s authority should be broadly construed. 47 U.S.C. § 151. See also,
e.g., 47 U.S.C. § 154(i)(Commission authorized to issue such orders, promulgate such
regulations, and take such actions as necessary to effectuate purposes of Act). Accord, 47
U.S.C. § 303(r); 47 U.S.C. § 201(b)(regulation in public interest). See also, e.g., In the Matter of
Promotion of Competitive Networks in Local Telecommunications Markets, Report and Order,
FCC 08-87, ¶ 15 & n.48 (Mar. 21, 2008)(authority to regulate contractual arrangements between
common carriers and other entities not ordinarily subject to FCC regulation); Cable & Wireless
P.L.C. v. FCC, 166 F.3d 1224 (D.C. Cir. 1999)(Commission’s authority not limited by “extraThis issue was recently addressed in New Mexico, where the state’s Public Regulation Commission promulgated a
new rule capping the convenience charges for funding prepaid accounts at $3.00, which in itself seems excessive.
See Press Release, N.M. Pub. Regulation Comm’n, New Mexico Families Benefit Under New Prison Phone
Regulations (Nov. 9, 2012). The abuse, however, is happening in all 50 states. It is but one more example of why
only comprehensive FCC action will lead to real ICS reform nationwide.
7

8

jurisdictional” effects of an otherwise proper exercise of regulatory authority); and FCC v.
Midwest Video Corp., 440 U.S. 689, 706 (1979)(regulation to achieve purpose of the Act is
within the power of the Commission). And the Supreme Court has long recognized that the
Commission’s authority encompasses the regulation of issues and matters “reasonably ancillary
to the effective performance of its regulatory duties.” United States v. Southwestern Cable Co.,
392 U.S. 157, 178 (1968); see also, FCC v. Midwest Video Corp., 440 U.S. 689, 706 (1979)
(approving Commission’s regulatory actions where such actions are “necessary to ensure the
achievement of the Commission’s statutory responsibilities”).
III. ONLY THE FCC CAN ESTABLISH A COMPREHENSIVE REGULATORY SCHEME THAT
ENSURES FAIR COMPENSATION AT JUST AND REASONABLE RATES
The overwhelming technological complexity of the prisoner telecommunications
industry, a morass of almost incomprehensible industry terms and acronyms, and the
monopolistic character of ICS contracts are all beyond the ken of practically all prisoners and
their families.8
State regulatory commissions have expertise and may be familiar with ICS issues that
arise in their jurisdictions, but they have neither the responsibility nor the capacity to regulate a
nationwide industry. Widely divergent regulations, items of call billing that are not tariffed, and
broad discrepancies in calling rates that can only be characterized as arbitrary, all demonstrate
that regulation at the state level has been ineffectual. Federal regulation is required because
coherent and effective policies simply cannot be successfully developed and implemented by 50

8

According to one study, for example, approximately 40% of the national prison population is functionally
illiterate. The Center on Crime, Communities & Culture, Education as Crime Prevention: Providing Education to
Prisoners, Research Brief: Occasional Paper Series 2 (Sept. 1997).

9

independent state utilities commissions. Thus, oversight of the ICS industry by, and guidance
from the Federal Communications Commission would greatly benefit these regulatory officials.9
IV. THE COMMISSION SHOULD ADOPT A COMPREHENSIVE REGULATORY REGIMEN
THAT ELIMINATES PREDATORY ICS PRACTICES WHILE
ENSURING FAIR COMPENSATION AT JUST AND REASONABLE RATES
Despite the best regulatory efforts of state utilities commissions and, notwithstanding
reasoned, incremental efforts by the FCC, the prison phone service industry has been permitted
to exploit the friends and families of prisoners shamelessly. A nationwide industry that wholly
lacks the kind of competition that can protect consumers, widely divergent ICS practices that all
work to the disadvantage of consumers and the public, and the inability of state regulators to
address industry abuses on a comprehensive basis all point to the need for a federal approach to
regulation of ICS Providers. “[T]he record in this proceeding strongly suggests that any solution
to the problem of high rates for inmates must embrace the states.” Order on Remand & NPRM at
¶ 29 (96-128)(12 February 2002).
A. Competing Proposals Reveal Common Ground
The December 2012 Notice outlines two significant proposals for the resolution of these
issues. The Wright petitioners offer an alternative proposal to “‘establish a benchmark rate for
domestic interstate interexchange inmate debit calling service of $0.20 per minute and a
benchmark rate for domestic interstate interexchange inmate collect calling service of $0.25 per
minute, with no setup or other per-call charge.’’’ Notice at ¶ 17.
The ICS Provider proposal is based on the FCC’s “marginal location analysis,” which is
designed to “cover costs and provide a reasonable return at a break-even location with no

See, e.g., The National Association of State Utility Consumer Advocates Resolution 2006 – 2 (2006), urging the
FCC and Congress to reform inmate telephone rates by ensuring just and reasonable calling rates, discouraging or
reducing “commissions,” encouraging debit calls, and requiring just and reasonable rates on collect calls.

9

10

commission.” See, Don J. Wood, Inmate Calling Services: Interstate Call Cost Study (15 Aug.
2008)(hereafter, Wood Report). The Wood Report was filed on behalf of seven members of the
ICS industry.
When the Wood Report cost determinations are compared with the “benchmark rates”
proposed by the Wright Alternative Petition, a clear basis for Commission action emerges.
For collect calls, the data show that at 14 minutes, the industry cost data and the Wright rate
proposal are roughly equal ($3.47, as compared to $3.50). For longer duration calls, the Wright
proposed rate would actually exceed the industry proposal. See Table 1 and Figure 1. As Figure
1 demonstrates, due to the larger per-minute component of the Wright proposed rate, the
difference between the ICS industry cost-showing and the Wright proposal diverge markedly as
call length approaches 20 minutes.

Table 1: Collect Calls

Type of Call
Wright Collect
Rate
ICS Collect Call

Fixed
Cost

Per
Minute
$.25

10
Minutes
$2.50

20
15 Minutes Minutes
$3.75
$5.00

$2.49

$.07

$3.19

$3.54

Figure 1

$3.89

The data show a similar pattern for debit calls. At about 11 minutes, the Wood Report
cost data and the Wright rate proposal are roughly equal ($2.22, as compared to $2.20), and for
longer duration calls, the Wright proposed rate would actually exceed the cost proposed by the
Wood Report. See Table 2 and Figure 2. As Figure 2 demonstrates, due to the larger per minute
component of the Wright proposed rate, the difference between the ICS industry proposal and the
Wright rate increases markedly as call lengths approach 17 minutes.
Table 2: Debit Calls
Fixed
Type of Call
Cost
Wright Debit Rate1
ICS Debit Call2
$1.56

Per
Minute
$.20
$.06

10
Minutes
$2.00
$2.16

20
15 Minutes Minutes
$3.00
$4.00
$2.46
$2.76

Figure 2

As has been convincingly demonstrated by the Petitioners, the rates shown above are well
below the current interstate long distance rates that are being charged for prisoner phone calls in
every state in the nation. In other words, the ICS industry (including some of the largest and
12

most dominant providers) has submitted documentation to the FCC establishing that ICS can
provide services at substantially lower rates than they are presently charging. Moreover, the data
those providers submitted show that, for collect calls of about 14 minutes or more in duration,
they can provide services at lower rates than the Wright Petitioners have demanded.
To put it differently, the Wood Report demonstrates that rates very near those proposed
by the Wright Petitioners yield fair compensation, even without the extortionate rates and the
broad array of extraneous surcharges that are currently borne by those who pay the cost of
prisoner-initiated phone calls.10
In short, it seems there is considerable common ground upon which to forge a
comprehensive resolution to the otherwise intractable injustice of the existing situation, which
may satisfy many interested parties. But to achieve workable benchmark rates that are “fair and
reasonable,” and which fairly compensate ICS providers for “each and every call,” any
benchmark must apply (with such adjustments as may be necessary and appropriate) to both
interstate and intrastate calls. And new technologies and practices (e.g., miscellaneous
surcharges) render any formulae to address one, but not the other, or to leave unscrupulous
billing practices unattended would be untenable from the outset. Rate caps alone simply are not
sufficient to curb the abuses that have developed in the ICS industry.
B. A Comprehensive Regulatory Regimen Will Ensure
Fair Compensation at Just and Reasonable Rates
The FCC should establish: (1) a comprehensive, fair rate (derived from the lower rates
outlined in the Wood Report (“Inmate Calling Services - Interstate Call Cost Study”) for (2) all

These cost data were submitted some time ago, but in today’s technological environment, these costs may now be
less. In an industry which relies heavily on IP technology, the cost difference between local and long distance calls
is expected to be diminishing. The only difference one would expect in costs for the two types of calls is a
difference in transmission costs, but these cost differences have been declining rapidly and may now be infinitesimal
or non-existent.
10

13

intra-state and interstate (3) prisoner collect, pre-paid, and debit telephone calls that (4) covers
legitimate costs, (5) provides a reasonable rate of return to ICS providers, (6) eliminates
“commissions,” (7) forecloses surcharges and alternative means to unjustifiably inflate the cost
of prisoner phone calls, and (8) leaves it to state public utilities commissions to address requested
cost adjustments.
As discussed above, the Wood Report sets out benchmark rates for both collect and debit
calls that closely comport with the rates proposed by the Wright petitioners. Such benchmark
rates should be established for both intra- and interstate prisoner calls. These rates cover all
legitimate aspects of cost, and provide fair compensation for ICS providers.
To promote competition and to ensure just and reasonable rates, the broadest possible
range of calling options should be encouraged, including collect, pre-paid, and debit telephone
calls.
“Commissions” are simply a means of generating windfall profits (beyond profits
generated on calls) and a revenue-generating mechanism for governmental authorities. But they
are largely responsible for already exorbitant and ever increasing rates that exploit prisoners and
their families. “Commissions” must be prohibited.
Similarly, surcharges and alternative means to unjustifiably drive-up the cost of prisoner
calls must be eliminated. ICS should not be permitted to charge fees that have not been tariffed.
And charges billed for the services of third parties (such as Western Union and other payment
processors) should be limited to actual costs with no mark-up or profit for ICS providers.
Finally, once a fair rate is established, the FCC should leave to state utilities commissions
any purported need for cost increases that arise from the provision of service in a particular state.
As cost structures may vary in some limited locations and circumstances, ICS providers should

14

be afforded the opportunity to petition a particular state public utilities commission to request a
corresponding rate adjustment.
In such a case, any deviation from the FCC-established rate would have to be justified
with complete, specific cost information that supports the request. For instance, if costs are
higher in a particular locale, the service provider would have a mechanism to seek an appropriate
rate-adjustment from the state utilities commission so telephone services will be available to
affected prisoners and their families. Consumers, their representatives, prisoner advocates, and
other interested parties would have an opportunity to assess and oppose the proposed rate
deviation. If the supporting documentation were deficient or unpersuasive, the utilities
commission can be expected to deny the requested rate.
CONCLUSION
As observed by the Commission in the Notice, “[a]fter the ICS Provider Proposal was
filed, a consensus appeared to be forming about how best to address inmate calling.” Notice at ¶
14. Indeed, a number of organizations and individuals have explicitly endorsed the proposal first
outlined in comments submitted on 28 October 2008 and recapitulated above.11
For over 20 years, the ICS industry has been permitted to exploit the friends and families
of prisoners shamelessly, despite the best regulatory efforts of state utilities commissions and
notwithstanding reasoned, incremental efforts by the FCC. These regulatory measures have
proven to be ineffectual.
11

See, Comments of Michael S. Hamden, October 28, 2008 (96-128), accessible at
http://apps.fcc.gov/ecfs/document/view?id=6520182602 (last accessed 23 March 2013). Among the organizations
which have embraced this approach are the American Bar Association (representing some 400,000 lawyers), the
National Association of State Utilities Consumer Advocates (representing members in 40 states), the National Legal
Aid and Defender Association (representing some 700 programs and 1200 lawyers), and the National Association of
Criminal Defense Lawyers (representing 12,000 members and 40,000 affiliate members). The proposal has also
been supported by the D.C. Office of the People's Counsel, the executive director of Vera Institute's Commission on
Safety and Abuse in America's Prisons, the Brennan Center for Justice, Ad Hoc Coalition for the Right to
Communicate, the Public Defender for the Eleventh Judicial District of Florida (whose 180 attorneys defend about
100,000 indigent clients each year), and perhaps as many as two dozen private citizens and consumers.

15

Immediate action is urgently needed and long overdue. The Federal Communication
Commission should immediately act to:
(1) Establish a single fair rate for all intra-state and interstate prisoner phone calls by
while allowing legitimate costs and fair compensation at just and reasonable rates,
irrespective of the origination of the call.
(2) Foreclose all opportunities to circumvent the established fair rate by prohibiting
“commissions,” surcharges, and additional fees imposed by prison phone service
providers or their subsidiaries by ensuring that third party payment fees are passed
through to families at cost with no mark-up or profit for ICS providers.
(3) Require calling options, including pre-paid, debit, and collect calls consistent with
sound correctional practices and security concerns; and
(4) Leave it to state utilities commissions to address any purported need for cost increases
associated with the provision of services to a particular locale.
Respectfully submitted this 25th day of March, 2013.

______________________________
Michael S. Hamden
NC State Bar #12752
1612 Homestead Road
Chapel Hill, NC 27516
(919) 605 – 2622
M2007Hamden@cs.com

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