Prisoners Legal Services of Mass Comment on Wright Petition Phone Justice 2013
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Comments of Prisoners Legal Sel'vices of Massachnsetts Introdnction Prisoners Legal Services (PLS) is a non-profit law office serving Massachusetts prisoners. We welcome this opportunity to submit comments in response to the Notice of Proposed Rulemaking issued in FCC 12-167. PLS represents a group of prisoners, family members and attorneys who petitioned the Massachusetts Department of Telecommunications (DTC) to reduce intrastate inmate calling services (rCS) rates and investigate the poor quality of prison telephone service, DTC no. 11-16. PLS undertook this representation after years of witnessing its clients and their family members struggle to maintain ties in the face of un affordable telephone bills and inaudible conversations. On July 19, 2012 the DTC held public hearings in connection with this petition and received an outpouring of grievances from prison families and other consumers over ICS rates and quality of service. The comments we submit below draw upon the oral and written testimony provided by members of the public for that hearing, as well as the affidavits of the petitioners and data gathered by PLS in connection with the petition. l The Petitioners are waiting for the DTC to decide whether to go forward with an adjudicatory proceeding on the Petitioners' claim or to grant the Respondents motion to dismiss. Action by the Federal Communications Commission to establish a just and reasonable rate for interstate calls will provide national leadership for state regulatory agencies in Massachusetts and elsewhere looking to ensure the same principle within their jurisdictions. I Filings and public comments related to the petition are available at http://www.mass.gov/ocabr/government/oca-agencies/dtc-Ip/dtc-ll-16.html. The quotes in the textboxes throughout this document are excerpted from public comment letters submitted to DTC for its July 19,2012 public hearing and available at this website under each individual's name, with the exception of Anna Ledlum's letter, which, by error, is not available online, but is attached as Ex.!. 1 I. The importance of affordable ICS The heavy burden of high prison telephone rates prevents Massachusetts families from keeping in touch with loved ones in prison. As the FCC, Government Accountability Office and Bureau of Prisons have already recognized, keeping in as close contact as possible is paramount to ensuring stability and success both inside and outside of the prison walls? In fact, a half centnry of studies show a consistent relationship between strong family and community contact during incarceration and reduced recidivism rates. 3 Furthennore, where 97% of the prison population will be released to our communities and the Massachusetts DOC's latest available data shows a recidivism rate of 44%, we simply cannot afford to compromise support systems that are proven to contribute to successful reentry and lower recidivism.4 "We look forward to fundamentally functional prison phone services at MCI [Norfolkl for inmates and pertinent families and friends. With God's blessing, Cedric may be paroled in about two years. Phone service now, while he is an inmate, has extended ramifications. It is another crucial factor in building and maintaining his future. He cannot be totally cut off from the "outside world" for two more years, then face society in reality and expect normalcy." Anna Lednum See 28 C.F.R. § 540.100 ("The Bureau of Prisons extends telephone privileges to inmates as part of its overall correctional management. Telephone privileges are a supplemental means of maintaining community and family ties that will contribute to an inmate's personal development."). See also United States Gov't Accountability Office. GAO-12-743, Bureau of Prisons: Growing Imnate Crowding Negatively Affects Inmates, Staff, and Infrastructure (2012), available at http://www.gao.gov/assets/650/648123.pdf; see also United States Gov't Accountability Office, GAO-08-11-893, Bureau of Prisons: Improved Evaluations and Increased Coordination Could Improve Cen Phone Detection 18 (2011), available at http://www.gao.gov/assets/330/322805.pdf. 3 See Commonwealth of Massachusetts Governor's Commission on Corrections Reform, Strengthening Public Safety, Increasing Accountability, and Instituting Fiscal Responsibility in the Department of Correction (i) (2004), available at http://www .mass.gov/eopss/docs! eops/govcommission-corrections-reforrn. pdf; Daniel LeClair, 2 Massachusetts Dep't of Correction, The Effect a/Community Reintegration on Rates ofRecidivism: A Statistical Overview ofData for the Years 1971 Through 1987 at 2, 10, 11 (1990), available at https://www.ncjrs.gov/pdffilesl/Digitizationl137240NCJRS.pdf; Christy A. Visher & Jeremy Travis, Transitions From Pn;"m to Community: Understanding Individual Pathways, 29 Ann. Rev. of Soc. 89, 100 (2003); U.S. Dep't of Justice & Office of the Inspector Gen., Criminal Calls: A Review althe Bureau of Prisons' Management of Inmate Telephone Privileges, Ch. II. n. 6 (Aug. 1999), available at http://www.usdoj.gov/oig/speciaI/9908/;seealso supra note 2 and footnotes 19 and 20 of FCC Notice of Proposed Rulemaking WC Docket No. 12-375. 4 See generally Massachusetts Dep't of Correction, Prison Population Trends (2011), http://www.mass.gov/eopss/docs/dociresearch-reports/pop-trends/poptrends20 11 finaL pdf 2 The DTe received 228 letters from prisoners and their families for the public healing held in July of2012. Almost all, 95%, discuss the reliance of prisoners and their families on the telephone to maintain family bonds and provide mutually needed support, but that the costprohibitive nature of the phone calls is a serious barrier to maintaining this connection. Many plisoners come from the poorest communities in the state so that the high cost of these calls causes families additional financial stress in struggling to keep lines of communication open with their loved ones and further financially straps those who can least afford it. Moreover, many correctional facilities are located in remote areas far from where prisoners' families live and not accessible by public transportation, making phone communication all the more important. "We are elderly and retired. We have health issues and the distance to visit our son is too much, therefore our only means of communication are via telephone .... We live on a limited income and do the best we call to provide funds to our son so that he can make telephone calls home, however due to the high cost of a 20 minute telephone call ... our communication is extremely limited. It is very important for all of us to keep the lines of communication open to keep a family bond. Also, our son is challenged with a terminal illness and it is important for all of us to be able to stay well informed of each of our health conditions and issues." Henrique and Joyceanne Nunes "[T]he pain I feel when I have to hurriedly tell my daughter that our phone time is up and I can only talk to her again next week, is hard to bear. She doesn't understand why it's such a big deal for daddy to call her especially when she can talk all day on her cell phone without worries ... [want to l<eep in close contact with my children so they won't go down the road I traveled. Hearing their voices and giving them my wisdom is an important way to insure they remain on the positive path. I hope you will help us-the prisoners~ to stay connected with our families by lowering the cost of phone calls." Michael Gomes "My dad works very few hours on his job. Most of the time he has to choose between taklingl my call or hanging up because there [are] bills to pay. It br[eaks] his heart but he has to do it. I can go months sometimes without any outside contact. He Jives in California so he can't visit .... [f prices could be reduced, I believe it would bring more friend and family support, not only into my life but into others as wen." eyria I ..ewis "This company [Securus] has very lousy service ... J call home twice per day, usually so I can talk to my fiancee during the day and at night to speak with our children, as this is important. I also rely on the phone because visit hours are Friday 8am-9:30am which often is the hours my fiancee works and when our daughters are at daycare. Unfortunately, as a result of the phone rates~ the calls have been becoming less frequent. As a result of the calls being less frequent, our children's behavior and emotional attitude has changed." Robert Assad 3 n. The need to eliminate site commissions In the Notice, Sec. Ill, A (37), the Commission requests comment on site commissions paid to facilities, including the ways that commissions are used, how contracts vary facility by facility, and whether commissions cause telephone rates to be unreasonable in violation of 47 U.S.C .. § 201(b). Massachusetts practices demonstrate that site commissions do not reflect the cost of providing rcs, but are kickbacks to correctional agencies made by ICS providers to secure contracts and passed on to consumers. Under both § 20] (b) and Massachusetts law,s commissions should be treated as shared profit. A. Commission rates and the use offunds generated by commissions in Massachusetts PLS has presented to the DTC an affidavit of expert witness Douglas Dawson analyzing the rates of the Massachusetts Department of Corrections (DOC) and four of the Massachusetts counties whose rcs contracts PLS had obtained 6 Commissions account for nearly sixty percent ofthe rates paid by customers in Plymouth County, 50-52 percent in the three other counties, and approximately 24 percent in the DOC. 7 Commissions paid to comlty facilities in Massachusetts 8 are placed in a fund available for use by the facilities while commissions paid to the Department See infi'a Section II(C). Amended Aff. of Douglas Dawson, attached as Exh. 2, pp. 6-8. The rates relied upon on this affidavit were based on the most recent contracts available as of the date it was filed, April 20, 2012. Some or all contracts relied upon may have since expired. 7 Id. 8 See "An Act transferring county sheriffs to the Commonwealth." Senate. No. 2045. Section 12.a (enactnlent of the Senate and House of Representatives providing that inmate telephone funds shall remain with the office ofthe sheriff in abolished counties) (2009); see also Appendix C to "Inmate Fees as a Source of Revenue: Review of Challenges." Report olthe Special Commission to Study the Feasibility qlEstablishing Inmate Fees (Power Point). Massachusetts Executive Office of Public Safety and Security (July 1.2001) (listing use offees collected by counties and DOC). 5 6 4 of Correction are transferred to the General Fund of the Commonwealth 9 In the case of county facilities, the commission funds are used for the general welfare of the plisoners, 10 and often SUppOlt programming and treatment for plisoners. 11 Although PLS clients in county facilities lack adequate programs and treatment, it is unjust and unreasonable to fund these rehabilitative activities as a hidden cost in telephone bills paid by the families of plisoners. It is even more unfair to require DOC telephone consumers to pay extra into the state budget. This is a hidden tax on a largely low-income and vulnerable population. B. The effect of commissions on ICS rates in Massachnsetts As the Dawson affidavit demonstrates, the cost of providing ICS service varies little between states and between facilities, largely because of advances in technology and the centralization of rcs operations. Yet rates vary widely between states. Commissions appear to be responsible for most, if not all, of this disparity. rcs consumers in Massachusetts counties typically pay a per-call surcharge of$3.00 for intra-state calls, which is the maximum pennirted by Massachusetts law,12 plus $ 0.10 per minute; inter-state call surcharges run as high as $3.95. The consumers in state prisons pay a See G.L. c. 29 § 2 (April 1, 2003). G.L. c. 127 § 3 ("Any monies derived from interest earned upon the deposit of such money and revenue generated by the sale or purchase of goods or services to persons in the correctional facilities may be expended for the general welfare of all the inmates at the discretion of the superintendent. "). 11 Transclipt of Massachusetts Department of Telecommunications and Cable public healing for docket number 11-16 Testimony of Russell Homsy, Assistant General Counsel of Suffolk County Sheriffs Office, at p.88, lines 18-24 and p.89, lines 1-3, relevant pages attached as Exh. 3. 12 Investigation by the Dept. of Telecommunications And Energy on its own motion regarding (1) implementation o/Section 276 o/the Telecommunications Act of 1996 relative to Public Interest Payphones, (2) Entry and Exit Barriers/or the Payphone Marketplace, (3) New England Telephone and Telegraph Company d/b/a NYNEX's Public Access Smart-pay Line Service, and (4) the rate policy/or operator services providers, ORDER ON PAYPHONE BARlERS TO ENTRY AND EXIT, AND OSP RATE CAP, D.P.U'/D.T.E. 97-88/97-18 (Phase II) (April 17, 1988). 9 10 5 surcharge of$0.65 for debit calls plus $0.075 per-minute and $0.86 for collect and advance pay calls, plus $0.10 per-minute. As discussed below in Section III, PLS has received myriad complaints of dropped calls in both county and state facilities resulting in multiple surcharges for a single conversation. ICS consumers in states that have eliminated site commissions by statute pay far lower rates. The rate in New York is less than five cents per minute for all calls, and in Michigan it is $0.12 per minute for intra-state and $0.15 for interstate, with no surcharge in either state. In Nebraska, consumers pay a surcharge (except for local calls) of$0.70 and $0.05 per minute. 13 All three states have eliminated commissions. By the terms of Massachusetts 14 rcs contracts, half or more of the telephone bill that county consumers pay covers site commissions rather than the cost of service, and DOC consumers pay approximately a quarter of their bill toward the commissions. Indeed, in fiscal year 2012, the DOC collected $1,717,504 from ICS consumers (and transferred it to the state general fund),15 while in fiscal year 2010, the latest year for which we have complete data, Suffolk County Jail and House of Con'ection alone collected $1,320,000. 16 Thus commissions are responsible for much of the difficnlty reported by families of prisoners in bearing the cost of communicating with their loved ones. 13 See Dawson Affidavit at 8-9. 14 New York, see McKinney's Correctional Law § 623 (2008); Michigan, see Act No. 245, Public Acts of 2008 (effective Jnly 18, 2008), available at http://www .legislature.mi.gov /documents/2007 -2008/publicact/pdf/2008-P A -0245 .pdf; Nebraska see Department of Correctional Services, Administrative Regulation 205.023, Section XII, available at http://www.corrections.state.ne.us/pdf/ar/maillAR %20205.03 .pdf. 15 See "Commission History, Fiscal Year 2012," from Attachment C to Massachusetts Department of Correction Request for Responses for a Secure Inmate Calling System, DOC File No. 13-DOC-Imnate Phone, December 11, 2012, attached as Exh. 4. 16 http://www.mass.gov/eopss/docs/eops/inmate-fee-final-7-1-ll.pdf at 32. 6 C. Commissions are not a legitimate business cost and should be treated as shared profit Like 47 U.S.C. § 201, Massachusetts law requires that telephone rates must be just and reasonable,17 pennitting a utility to meet its cost of service and make a "fair and reasonable return" on its investment. 18 Thus under Massachusetts law, as under Federal law, ICS providers may not pass on to consumers a charge which is unrelated to the cost of service. Commissions do not reimburse correctional facilities for any actual cost of providing telephone service. As noted above, commissions paid to county facilities in Massachusetts are placed in a fund available for use by the Sheriff, 19 while commissions paid to the Department of Correction are transferred to the General Fund of the Commonwealth 2o Con'ectional facilities, by requesting that ICS bidders offer commissions, base their selection of contractor at least in part on the amount of cash inducement offered rather than solely seeking high quality service at the most affordable rates for prison consumers. The telephone companies, in turn, offer cash inducements to win contracts, paid for by the consumers. While the FCC has not previously barred ICS providers from including the cost of commissions in interstate rates, it has refused to allow companies to pass on the cost of commissions to customers through preemption of state rate caps or through a surcharge above 17 See G.L. C. 159, § 14 See Hingham v. Dept' of Telecommunications and Energy, 433 Mass. 198,203 (2000) (citing Lowell Gas. Co. v. Dept. o/Public Uti/s., 324 Mass. 80, 94-95 (1949». 19 See "An Act transferring county sheriffs to the Commonwealth," Senate. No. 2119, Section 12.a (enactment of the Senate and House of Representatives providing that inmate telephone funds shall remain with the office of the sheriff in abolished counties) (2009) (attached as Exh. 5); see also Appendix C to "Inmate Fees as a Source of Revenue: Review of Challenges," Report of the Special Commission to Study the Feasibility ofEstablishing inmate Fees (Power Point) , Massachusetts Executive Office of Public Safety and SecUlity (July I, 200 I) (listing use offees collected by counties and DOC). 20 See G.L. c. 29 § 2 (April 1,2003). 18 7 state rate caps for local collect calls, recognizing that commissions are not a business COSt. 21 The Regulatory Commission of Alaska (RCA) and Georgia Public Service Commission (GPSC) have also detennined that commissions are not a cost of service and have refused to let telephone companies pass on the cost of commissions to consumers22 The inclusion of a commission requirement in a bid solicitation for regulated utility service conflicts witb the regulatory objective of ensUling that utility costs are necessarily incurred and rates are just and reasonable.... By allowing commissions to be recovered through rates, the governing regulatory body acquiesces in this commission-based bid process and promotes a system where the service provider has an incentive to increase the price of service regardless of the actual costs incurred. 23 In Massachusetts, ICS providers have attempted to argue that commissions are equivalent to fees or payments made to govemment agencies. However, under Massachusetts law, commissions are not governmental fees 24 A governmental fee is collected "not to raise revenues but to compensate the govenunental entity providing the services for its expenses.,,25 Regulatory fees are ordinarily "imposed by an agency upon those subject to its regulation" to "serve regulatory purposes," raising money "to help defray the agency's regulation-related expenses.,,26 The Massachusetts Executive Office of Administration and Finance, following In re Implementation o/Pay Telephone Reclassification and Compensation Provisions of Telecommunications Act of 1996. ORDER ON REMAND & NOTIC'E OF PROPOSED RULEMAKING ("FCC Prison Payphone Order"), FCC No. 02-39,2002 WL 252600 **7, 17 F.C.C.R. 6347 (Feb. 21, 2002). 22 Re Evercom Systems Inc., ORDER GRANTING IN PART, AND DENYING IN PART, PETITION FOR RECONSIDERATION, Regulatory Commission of Alaska No. U-00-143, 2001 WL 1246903 (April 24,2001); Re Investigate Long Distance Charges, CORRECTED ORDER, Georgia Public Service Commission No. 14530-U, 2002 WL 31096880 (March 19, 2002). 23 Re Evercom Systems. Inc., Regulatory Commission of Alaska, 2001 WL 1246903 at *4. 24 Emerson College v. City (~fEoston, 391 Mass. 415 (1984), at 424. See also Nextel Communications ofMid-Atlantic, Inc. v. Town ofRandolph, 193 F.Supp.2d 311, 321 (D. Mass, 2002), Greater Franklin Developers Ass'n v. Town of Franklin, 49 Mass.App.Ct. 500 (2000). 25 Id., at 425. 26 Nuclear Metals, Inc. v. Low-Level Radioactive Waste Management Ed., 421 Mass. 196 (1995), citing Justice Breyer's opinion in San Juan Cellular Tel. Co. v. Public Servo Comm 'n of P.R., 967 F.2d 683, 685 (1st Cir. 1992). 21 8 these principles, provides in its fee-setting procedures that "[fJees may not be used purely as a tool to raise revenue, but should reflect the government's expense in providing the service associated with the fee.,,27 Commission payments to the correctional facilities in Massachusetts are used to raise general revenue in precisely the way that a governmental fee may not. They are not used to cover costs related to ICS but, rather, payments to the DOC are channeled into the general fund of the state treasury,28 while county facilities use the commissions for the general welfare ofthe prisoners 29 In addition, commissions are not regulatory fees because they do not "bear at least a 'rough correlation to the expense to which the State is put in administering its licensing procedures or to the benefits those who make the payments receive. ",)0 The large amounts collected in commissions -- $1,717,504 to the DOC in FY 2012, and $1,320,000 to the Suffolk County Jail and House ofCorrectionJI -- surely dwarf the actual cost of any rCS-related expenses that are not already assigned to the providers under the tenns of the contract. Executive Office of Administration and Finance, "Procedures for Setting Fees" (ANF 6), June 25,2008, Appendix C, at p. 30, available at http://www.mass.gov/anflbudget-taxes-andprocurement/admin-bulletins/procedures-for-setting-fees-anf-6.html. 28 See G.L. c. 29 § 2 (April 1, 2003). 29 G.L. c. 127 § 3, "Any monies derived from interest earned upon the deposit of such money and revenue generated by the sale or purchase of goods or services to persons in the correctional facilities may be expended for the general welfare of all the inmates at the discretion of the superintendent. " )0 Walton v. N.Y. Slate Dep't ofCorr. Svces., 921 N.E.2d 145, 151 (N.Y. Court of Appeals 2009) (citation omitted) (holding, where state legislature had passed a law banning commissions from telephone charges, that customers were not entitled to a refund of charges paid previously because the practice did not violate the state constitution, commissions were not a tax or fee, and therefore there was no entitlement to a refnnd as an unlawful tax or fee). 31 See "Commission History, Fiscal Year 2012," from Attachment C to Massachusetts Department ofConcction Request for Responses for a Secure Inmate Calling System, DOC File No. 12-DOC-lnmate Phone, December 11,2012, attached as Exh. 4; .http://www.mass.gov/eopss/docs/eops/inmate-fee-final-7-1-II.pdf at 32. 27 9 Neither do commissions reimburse con'ectional facilities for the rental value of the telephones' location. Indeed, the FCC has held that prison payphones actually add value to the premises: "A payphone that 'earns just enough revenue to warrant its placement, but not enough to pay anything to the premises owner' is 'a viable payphone ... because the payphone provides increased value to the premises.' Therefore, location rents are not a cost ofpayphones but should be treated as projit.,,32 The New Mexico Public Regulation Commission similarly detennined that the space occupied by prison payphones has no rental value, noting that prisons have a legal obligation to provide access to telephone service, telephones do not occupy an additional room, and prisons have no other potential paying tenant other than one commissary at each elaC!'1'!ty. 33 In Massachusetts, as elsewhere, the rcs providers have argued that site commissions are a required cost of doing business because they are demanded by facilities in requests for proposals. A utility regulator cannot, of course, dictate the terms of ICS contracts. However, the providers' argument asks that utility regulators subordinate their own legal standard to the dictates of correctional facilities. Taken to the extreme, such an argument suggests that a facility could in its RFR require 90 percent commissions, or could require services and hardware that fail to meet safety, environmental or other regulatory standards. It is trne that protecting consumers from bearing the cost of commissions, as the 'Just and reasonable" standard requires, 32 FCC Prison Payphone Order at **4, quoting Implementation of the Pay Telephone Reclassification and Compensation Provisions of the Telecommunications Act of 1966, THIRD REPORT AND ORDER, AND ORDER ON RECONSIDERATION OF THE SECOND REPORT AND ORDER, 14 FCC Rcd.2545, 2562 (l999),pet. Den. Sub nom American Public Comm. Council! FCC, 215 F.3d 51 (D.C. Cir. 2000) ("Third Report and Order") (emphasis supplied). 33 In the Matter of a Commission Inquiry into the Rates and Charges of Institutional Operator Service Providers, RECOMMNENDED DECISION OF THE HEARING EXAMINER, New Mexico Public Regulation Commission No. 07-00316-UT, November 4,2010, at 67 ("New Mexico Rate Inquiry"), adopted by the Commission in ORDER REMANDING CASE ON THE ISSUE OF RATE-OF-RETURN, December 22,2010, at 2. 10 will limit drastically or eliminate the amount of commissions that facilities can require and that providers can offer. But contracts are bounded by many aspects of consumer protection law. This agency is not powerless to enforce its own standards. D. The FCC should support state efforts to protect ICS consumers from site commissions Ensuring that consumers pay a just and reasonable rate is the guiding principle of state regulatory law across the country.J4 The FCC's leadership on this issue is essential to give meaning to this common standard. Many states have already protected consumers from site commissions in intra-state rates, through statute, the discretion of correctional agencies, or - in See Ala. Code § 37-1-80 (2013); Alaska Stat. § 42.05.381 (2013); Ariz. Rev. Stat. Ann. § 40361 (2007); Ark. Code Ann. § 23-4-103 (West 2012); Cal. Pub. Util. Code § 451 (2012); Colo. Rev. Stat. § 40-3-101 (2013); Del. Code. Ann. tit. 26, § 303 (2013); D.C. Code § 34-911 (2013); Ga. Code Ann. § 46-2-23 (West 2012); Haw. Rev. Stat. § 269-16 (2013); Idaho Code Ann. § 61301 (2013); 220 Ill. Compo Stat. 5 / 9-101 (2013); Ind. Code § 8-1-2-4 (2012); Iowa Code § 476.1D (2013); Kan. Stat. Ann. § 66-1,189 (2013); Ky. Rev. Stat. Ann. § 278.030 (2012); La. Rev. Stat. Ann. § 45:163 (2012); Me. Rev. Stat. tit. 35-A, § 301 (2012); Md. Code Ann., Pub. Util. Cos. § 4-201 (West 2013); Mass. Gen. Laws ch. 159, § 17 (2012); Minn. Stat. § 237.05 (2012); Miss. Code Ann. § 77-3-33 (2012); Mo. Rev. Stat. § 392.200 (2012); Mont. Code Ann. § 69-3-807 (2011); Neb. Rev. Stat. § 75-119 (2012); Nev. Rev. Stat. § 704.040 (2013); N.H. Rev. Stat. Ann. § 374:1 (2012); N.J. Rev. Stat. § 48:3-1 (2013); N.M. Stat. Ann. § 63-9A-8.1 (2012); N.Y. Pub. Servo Law § 91 (Consol. 2013); N.C. Gen. Stat. § 62-132 (2012); N.D. Cent. Code § 49-04-02 (2011); Ohio Rev. Code Ann. § 4905.22 (2012); Okla. Stat. tit. 17, § 137 (2012); Or. Rev. Stat. § 759.035 (2011); 66 Pa. Cons. Stat. § 1301 (2012); R.I. Gen. Laws § 39-2-1 (2011); S.c. Code Ann. § 58-3-140 (2011); S.D. Codified Laws § 49-31-4 (2012); Tenn. Code Ann. § 65-4-122 (West 2012); Tex. Util. Code Ann. § 53.003 (2011); Utah Code Ann. § 54-3-1 (2012); Vt. Stat. Ann. tit. 30, § 218 (2010); Va. Code Ann. § 56-234 (2012); Wash. Rev. Code § 80.36.080 (2012); W. Va. Code § 24-3-1 (2012); Wis. Stat. § 196.03 (2013); Wyo. Stat. Ann. § 37-15-404 (2012). See also Conn. Gen. Stat. § 16-20 ("If any public service company or private water company uureasonably fails or refuses to furnish adequate service at reasonable rates to any person within the territorial limits within which the company has, by its charter, authority to furnish the service or, in the case of a nonfranchised, nonchartered private water company, the general territorial limits within which it operates, and if no other specific remedy is provided in this title or in regulations adopted thereunder, the person may bring a written petition to the Department of Public Utility Control alleging the failure or refusal."); Conn. Gen. Stat. § 16247b (2013) ("(b) Each telephone company shall provide reasonable nondiscriminatory access and plicing to all telecommunications services, functions and unbundled network elements and any combination thereof necessary to provide telecommunications services to customers."). 34 II the case of Alaska and Georgia - through the rulings of state regulatory agencies. 35 In other states, such as Massachusetts, ICS consumers are struggling to rid themselves of this burden. If the FCC fails to protect consumers from paying site commissions through interstate rates, this will undennine the efforts of those states that have already acted to protect consumers. ICS providers may seek to recover the cost of commissions through interstate rates where they are banned from passing on such charges through intrastate rates. This burden will fall hardest on families of plisoners held in far-off states, those least able to visit in person. Perhaps more importantly, FCC action is needed in order to encourage states that have not yet acted, such as Massachusetts, to give meaning to the "just and reasonable" standard. E. The need to eliminate per-call surcharges IOCS service were reliable, then it might be reasonable to suggest that some cost be recovered up fi'ont in a surcharge, rather than spread out in per-minute charges, and that consumers making a short call should effectively pay more per-minute than those making longer calls. However, because ICS service is unreliable, consumers often pay the same surcharge two or three times for a single call, whether because the call is dropped or because the connection is For statutes and regulations, see Califomia, Cal. Gov't Code § 15819.40 Amended by Stats. c. 175 (S.B.S1), R 1, eff. Aug. 24, 2007; Michigan, Act No. 245, Public Acts of2008 (effective July 18, 2008); Nebraska Department of Correctional Services, Administrative Regulation 205.023, Section XII, available at http://www.corrections.state.ne.us/pdf/ar/mail/AR %20205.03.pdf; New York, McKinney's Correctional Law § 623 (2008); Rhode Island, R.I. Gen. Laws New Mexico, N.M.S.A. 1978, Section 33-14-1 (2001); § 42-56-38.l(c) (2007); South Carolina, S.C. St. § 10-1-210 (2008); Washington D.C., D.C. Code § 24-263.01 (2001). Michigan, Act No. 245, Public Acts of2008 (effective July 18, 2008); Nebraska, Department of Correctional Services, Administrative Regulation 205.023, Section XII, available at www.corrections.state.ne.us/pdf/ar/maiIlAR%20205.03.pdf; for rulings of state regulatory agencies, see Re Evereom Systems Inc., ORDER GRANTING IN PART. AND DENYING IN PART. PETITION FOR RECONSIDERATION, Regnlatory Commission of Alaska No. U-OO143,2001 WL 1246903 (April 24,2001); Re Investigate Long Distance Charges, CORRECTED ORDER, Georgia Public Service Commission No. 14530-U, 2002 WL 31096880 (March 19, 2002). 35 2007, 12 so bad they must reinitiate. This would be an unfair burden even if the surcharge were small, but with exorbitant surcharges such as charged in Massachusetts and elsewhere, dropped and inaudible calls create an intolerable burden on prisoners' families. The Notice, Sec. III, A (19), asks for data and comments regarding multiple per call charges for a single call. Petitioners in the pending complaint with the DTC reported bad connections and dropped or cut off calls as the most pervasive problems they faced as ICS consumers. In the 32 affidavits filed with the petition, consumers reported experiencing static frequently. Although some reported experiencing static in about a third of thc calls, many reported that most or almost all of the calls were plagued by static, making the call virtnally inaudible and forcing them to reinitiate the call incurring another surchargc. They also reported dropped or cut off calls in as many as 60 to 70% of the calls. 36 The 228 letters the DTC received £i'om prisoners and their loved ones in 2012 very clearly echo the same problems and frustrations experienced by the 32 petitioners who submitted affidavits in2010. Experience with dropped calls was mentioned in 79% of the letters, while bad connections and/or poorly maintained equipment was mentioned in 68% of the complaints. Below are some excerpts from those letters. In addition to bad connections and dropped calls, the comments of prisoners and their families to the DTC in 2012 frequently repOlied billing problems, including overcharging, (43%); false detection of third party calls (17%); and excessive playing of recorded announcements during the call (25%). See Amendment 1 and Supplement to Petition at 6-14 at http://www.mass.gov/ocabr/docs/dtc/docketslll-16/amend 1suppS181 O.pdf. 36 13 '''1 am a customer of global tel link and am having trouble with my phone service. I am experiencing caUs dropping. I can hear him when hel'sl talking but he cannot hear me. He Ihasl to call me back several times in order for the phone to get back right. This is still taking money off my accoun!. .. ! don't have ... trouble getting calls from anyone else that caUs my phone." Sonia Sellers "Despite the high cost of telephone calis, we have experienced poor quality connections, at other times we could hear our son but he could not hear us and vise-versa. We have experienced dropped calls, and that is an increased expense because the largest portion of the call is to connect for the first minute. Further, at least three times per call an over-riding and intrusive telephone recording states ''''this call is from a Massachusetts Correctional Facility." We are well aware that our son is incarcerated and do not need this over-riding and intrusive recording to interrupt our conversation that we are paying for." Henrique and Joyceanne Nunes "The quality of the phone system is very poor, despite the exorbitant rces they charge. I constantly have to tell my son to speak up; there is always static in the phone; my son often states he cannot heal' me, so he will have to cut my call short, only to change to another phone, which is sometimes even worse than the first one." Lula Koonce Sec. III, A (19) also requests comment on how to ameliorate the problem of multiple surcharges for a single call. In addition to eliminating the surcharge altogether, res providers should: 1) repair or replace all non- or malfunctioning telephone equipment as part of providing its service, including telephone units and lines; 2) calibrate three-way calling detection systems such that prisoner telephone calls in the state are not prematurely tenninated unless genuine attempts to evade telephone security measures are initiated; 3) provide each of their customers who initiate or rcceive calls from prisoners and have prepaid accounts with the company a detailed accounting of how the funds deposited into such accounts are actually allocated and spent; and 4) limit the number of recorded warnings concerning the recording and monitoring of calls that are played during a prisoner telephone call to one at the beginning of such call. The Petitioners' suggestion that a call reinitiated within two minutes should not incur another per-call charge is constructive, to the extent that per-call charges are permitted as part of the pricing structure. However, PLS fears that such a policy might be inconsistently implemented, leaving consumers to seek refunds ~ 14 if they can ~ through a burdensome and often ineffective phone company process. In fact, 41 % of the public comments received by the DTe state that customer service is unresponsive to complaints by consumers. "Some of the problems that I am encountering with the GTL service is: Idlropped Callis], no response from the customer service dcpartmentl,] ... IcJommunication on the phone sometimes breaks up, [iJf mouey is placed on the phone by inmates, when we call and can not get through and attempt to recall sometimes the system states that we have a lower amount or none at all. We then have to wait for an hour or so until the system resets itself." Ricardo Feliciano " ... GTL takes no responsibility on the quality of their phone service, eveu after I med complaints to them they have never admitted any error in their system and Hever have refunded me on caBs where I was disconnected or overbilled." Brian Davis PLS therefore urges that per-call surcharges be eliminated. There is no reason that IeS providers cannot recover costs plus a reasonable return on investment through per-call charges, as demonstrated by existing IeS contracts with no surcharges, such as those in New York, Rhode Island and Michigan. Per-minute charges would appear to be even more likely to yield a profit for interstate calls than intrastate, since these are most likely to substitute for in-person visits and therefore to be of substantial duration. III. The need for per-minnte rate caps A cap on the per-minute rate is necessary to ensure just and reasonable IeS charges. The Dawson Affidavit highlights large differences in res rates between various states and between state and county facilities in Massachusetts. The fact that providers are able to profitably offer low rates in some jmisdictions (under five cents per minute in New York) suggests that where rates are much higher the providers and facilities (through commissions) are reaping profits far in excess of their costS. 37 37 See Dawson Affidavit pp. 8-9. 15 In support of this argument Dawson points to technological changes that have centralized rcs operations and reduced capital investment costs. Not only has this created economies of scale and brought down the cost of providing rcs service, it has also radically reduced or eliminated the difference in the cost ofproviding rcs to different facilities, be they small or large 38 In essence, ifICS service can profitably be offered at under $0.10 in some facilities, it can profitably be offered at that rate in all facilities. Dawson supported the benchmark rates proposed in the Wright Petitioner's Alternative Petition of2007, of $0.20 per minute for debit calls and $0.25 per minute for collect calls. However, in the attached affidavit he argues that technological changes since then have further reduced the cost of providing service, and he estimates that per-minute costs have probably been cut in half sincc 2007, supporting a far lower rate. IV, Marginallocatioll methodology In the Notice, Sec. III, A (24), the Commission asks ifit is appropriate to rely on "marginal location methodology" adopted to calculate public payphone rates in order to calculate ICS rates, as advocated in the CIS Provider Proposal. PLS has not analyzed this question in detail, but does not agree that marginal location methodology is appropriate for analyzing the costs of rcs. It is clear, however, that ICS rates should take into acconnt the far higher volume of calls at prison pay phoncs than other pay phones, which resnlts in greater profits than at pnblic pay-phones even at a lower per-call or per-minute rate. While public pay phones have fallen to disuse as residential service and then cell phone service expanded, plisoners remain a captive market for the pay phones in their facilities. 38 See Dawson Affidavit pp. 9-27. 16 In its 2005 Request for Responses, the Massachusetts DOC required 1,028 telephones for prisoners,39 and it is fair to assume that the existing contractor, GTL, maintains approximately that number of telephones today. There are approximately 11,000 prisoners in DOC custody,40 all of whom must use these telephones for all legal and personal phone caIls. This means that on average about eleven prisoners depend exclusively on each telephone for all calls. DOC statistics for FY 2012 show that accepted phone caIls totaled 48,699,751 minutes, which means that each telephone was used on average about 47,374 minutes over the year and, on average, about 130 minutes each day41 While PLS does not have data on public pay phone usage, it seems apparent that these telephones do not come close to such usage, but rather are largely abandoned and frequently broken. PLS clients report having to wait to use telephones 42 ICS use in Massachusetts would seem not only to dwarf pubic payphone use, but even to exceed residentiallandline use. It is extremely doubtful that many landlines exclusively serve ten individuals (particularly given the availability of cell phones and the spreading of calls between home and office), or are in use an average of 130 minutes per day. V. Impact of Rate reductions on call volume In the Notice, Sec. III, A (24), the Commission asks whether call volumes have increased where call rates have been lowered. PLS does not have data on the plice-sensitivity of call See Exh. 6, DOC Request for Responses, July 11,2005, Attachment B, "Required Number of Imnate Telephone Instruments." 40 See Exh 7, Weekly Count Sheet, Massaehusetts DOC, March 18, 2013, p.2. 41 See DOC Request for Responses for a Secure Inmate Calling System, DOC File NO. 13-DOCInmate Phone, December I 1,2012, Attachment C, attached as Exh. 4 42 See public comments submitted to DTC of Michael Borodine at http://www.mass.gov/ocabr/docs/dtc!docketsll 1-16/mborodinecmts.pdf; Thomas Koonce at http://www.mass.gov/ocabr/docs/dtc/docketsll 1-16/tkooncecmts.pdf; and Lula Koonce at http://www.mass.gov/ocabr/docs/dtc/docketsll 1-16/Ikooncecmts.pdf. 39 17 volume. However, many prisoners have stated that they cannot afford to speak with their loved ones as frequently or as long as they would like43 , suggesting that demand for rcs service would increase if rates were limited. VI. Billing-Related Call Blocking rcs providers in Massachusetts are reluctant to enter into agreements with Local Exchange Carriers to provide for billing collect calls, as described in the Notice, Sec. II, A (40), meaning that collect calls will not be placed to most homes, unless their carrier has an agreement with the rcs provider. Massachusetts rcs consumers are therefore forced to go through the process of establishing a prepaid account with the provider for the facility housing their loved one, and must pay an exorbitant fee to do so. While the Massachusetts DOC has insisted that GTL eliminate service charges to set up prepaid accounts, consumers who receive calls £i'om county facilities pay Securus a 13.9% service charge and to set up a prepaid account with a credit card, or $6.95 for a $50 deposit. This charge essentially increases telephone call costs by almost 14%. In an era of computelized billing and instant credit card transfers such fees cannot bear any relation to the actual costs of administering prepaid accounts. The FCC should regulate this as an important component ofICS rates. See letters submitted to DTC for public comment of: Tyran Daniels attacbed at Exh. 8; Dennis Kelley at http://www.mass.gov/ocabr/docs/dtc/docketslll-16/dkelleycmts.pdf; Ky Jamcs at http://www.mass.gov/ocabr/docs/dtc/dockets/ll-16/kjamescmts.pdf; Michael Rompa at http://www.mass.gov/ocabr/docs/dtc/docketslll-16/mrompacmts.pdf; Robert Assad at http://www.mass.gov/ocabr/docs/dtc/docketslll-16Irassadcmts-20 120802102415 .pdf; Pernell Saunders at http://www.mass.gov/ocabr/docs/dtc/docketslll-16/psaunderscmts.pdf; Michael Marney at http://www.mass.gov/ocabr/docs/dtc/docketslll-16/mmarneycmts.pdf; Michael Gomes at http://www.mass.gov/ocabr/docs/dtc/dockets/ 11-16/mgomescmts.pdf; Brian Davis at http://www.mass.gov/ocabr/docs/dtc/docketslll-16Ibdaviscmts.pdf; Cyria Lewis at http://www.mass.gov/ocabr/docs/dtc/docketslll-16/c1ewiscmts.pdf 43 18 Conclusion Massachusetts rcs consumers look to the FCC to vindicate their right to just and reasonable rates, which is the same under governing state law as under federal law. FCC regulation will not only ensure affordable interstate calls to many who now simply cannot afford them, it will also establish guidance as our state regulatory agency evaluates intrastate rates. This matter is urgent for children and other relatives who long to speak with loved ones in prison, and for prisoners who need family ties and outside connections for successful reentry. We hope the FCC will act speedily to end profiteering at the expense of these consumers. 19 EXHIBIT 1 July 13, 2012 Anna Lednum 121 Palmetto Drive Edgewood, MD 21040 Prisoner's legal Services Attn: Ms. Leslie Walker 10 Winthrop Square rd 3 Floor Boston, MA 02110 Subject: Phone Service For Inmates at MCI -Norfolk, MA Concerning Cedric lednum, W88861 Dear Ms. Walker: I am the mother of Cedric Lednum, W88861, an inmate at MCI - Norfolk, MA. Since his Dad and I support Cedric's phone debit account, we truly appreciate and thank you for your efforts to rectify the very poor phone service we receive. Cedric says it may help you to hear from others involved, as well as the inmates; otherwise I would simply not bother you with our complaints. Cedric calls us averaging four times per week, depending on what needs to be discussed (health, real estate, family, etc.) MCl's phone service is deplorable. I will try to be concise in my details. 1) Cedric's Voice Quality: Always very poor. Volume weak with a "cave" effect often during calls. The words are often garbled and his sentences are obliterated or interrupted by static, clicking and announcements. This results in indiscernible speech and missed content. 2) Dropped Calls: Occasionally our call is simply dropped/cut off, or ended one or two minutes early. 3) Switching Phones: Due to the poor phone service, often we must drop a call and try again. Cedric will go to a different phone; usually it is having the same problems also. 4) Repeated Calling: Again, due to the poor quality of phone reception repeated calling is common occurrence. Having to repeat the call is expensive, and especially troublesome when due to Poor Service. 2 5) "20 Minute" Call Rule: Not only is repeating the call expensive and troublesome, but there are times when we have to discuss personal family business. The rule of "20 Minute Calls" becomes ridiculous because the majority of the time is spent trying to establish a decent connection and we can't discuss our personal matters within this timeframe. I feel this rule "fills someone's coffers" unnecessarily. 6) Inaccurate Debit Amounts: Very frequently erroneous remaining debit amounts are quoted; this results in difficulty budgeting and replenishing Cedric's phone fund in a timely manner. We look forward to fundamentally functional prison phone services at MCI for inmates and pertinent families and friends. With God's blesSing, Cedric may be paroled in about two years. Phone service, now, while he is an inmate, has extended ramifications. It is another crucial factor in building and maintaining his future. He cannot be totally cut off from the "outside world" for two more years, then face society in reality and expect normalcy. letters for communication are wonderful. No letter, however, can compare to hearing Cedric's voice and conversing with him. We love him dearly. He is a wonderful person and son. Phone conversation not only provides voice contact, but also immediacy and voice inflections, i.e., modulations of voice: tone, pitch and distribution of stress placed on particular phrases/words. We anxiously await his calls. They are very important to us as well as to Cedric. Again, we thank you greatly for your representation to improve the phone service for the inmates at MCI. Yours truly, Anna R. lednum EXHIBIT 2 Before the COMMONWEALTH OF MASACHUSETTS DEPARTMENT OF TELECOMMUNICATIONS AND CABLE No. D.T.C 11-16 PETITION OF REIPIENTS OF COLLECT CALLS FROM PRISONERS AT CORRECTIOANL INSTITUTIONS IN MASSACHUSETTS SEEKING RELIEF FROM THE UNUST AND UNREASONABLE COST OF SUCH CALLS AMENDED AFFIDAVIT OF DOUGLAS A. DAWSON I. INTRODUCTION 1. My name is Douglas A. Dawson, and I am President of CCO Consulting, Inc. ("CCO"), located at 7712 Stanmore Drive, Beltsville, Maryland, 20705. CCO is a general telephone consulting firm. CCO works for over 450 communications companies, which includes competitive local exchange companies (CLECs), local telephone companies, cable TV providers, electric companies, wireless providers, wireless companies, municipalities and governments and internet service providers. 2. This affidavit has been amended at one place. In paragraph 17 I have changed the commission rate collected by DOC and added a footnote explaining the change. 3. I have specific experience that is relevant to the issues in this case. This case involves the cost of providing local and long distance calling for jails and prisons. I have assisted in the launch of over 50 long distance companies in my career. In that role, I have done just about everything possible associated with creating or running long distance companies. I am familiar with all regulatory aspects oflong distance service including the development of prices and costs and the writing and filing of tariffs. I have helped numerous companies select the hardware for providing long distance service. I have negotiated numerous times with wholesale long distance providers such as Sprint, AT&T, Level3 and Century Link. I understand the details about the underlying long distance networks and issues associated with using them. I have had extensive experience with and, consequently, have an in-depth understanding of the capabilities and configurations of network switching systems, which lie at the heart of what all telephone systems can do. I also have helped numerous companies with the provisioning of ancillary long distance products such as calling cards, operator services, pre-paid cards, international toll, and Voice Over IP (VoIP) long distance. 4. In this affidavit, I have bcen asked to support the original petitioners in the case who claim that the rates charged for prison calling in Massachnsetts are unreasonable. Recently Securus and OTL made arguments in their responsive pleadings asking for the case to be dismissed and said that the petitioners provided insufficient evidence that the rates charged in the state are too high. I believe that the DTC should hear this case. My primary argument is that there are other states with lower long distance rates for prisons, and the fact that prison providers accept contracts in those other states is sufficient evidence that thc rates in Massachusetts are higher than necessary. Further, Respondents make claims that the costs of providing prison calling have increased since the original petition for this case was filed in 2009. I will argue below that the prison provider's costs to provide long distance services have dropped precipitously in the last few years. The petitioners have retained me as an expert witness and the original plan was for me to file extensive testimony once this docket moved forward. For now, since time is short, my goal is to explain briefly why the claims made by Securus and OTL are without merit and why the DTC should hear this case. S. For the reasons set forth in this affidavit and based on my extensive background in the telecommunications field, I conclude that the rates charged for calling in Massachusetts are excessive. I further contend that thc costs of providing prison calling has dropped precipitously over the last few years, rather than increased as claimed by the petitioners. In brief, in this affidavit, I will a) discuss my background and qualifications in the field of telecommunications, b) briefly discuss 2 how the rates in Massachusetts are higher than rates in many other places, and c) discuss how costs have dropped dramatically for prison telephone providers in the last few years. n. Background 6. I received a Bachelor of Science in Accounting from the University of Maryland in 1977. In addition, I received a Masters degree in Mathematics from the University of California at Berkeley in 1985. 7. I began my telephone career in 1975 as a test technician building telephone switches for Litton Industries in College Park, Maryland. In this position I did system integration testing and learned in detail how early digital switches operate. 8. My next telephone job began in 1978 with John Staurulakis, Inc. ("JSI"). JSI is a telephone consulting firm that specializes in consulting for independent telephone companies (those smaller telephone companies that were not part of the Bell System). In this job, I worked on separations cost of service studies for Independent Telephone Companies. In this role, I had my first detailed exposure to developing the costs of providing telephone service. Additionally, I performed numerous traffic studies for switches. These studies were used to determine the patterns of customer usage for switches, and were used to determine costs, but also were used to determine the most efficient way to configure the switch and the network. 9. Next, in 1981 I became a Staff Manager ofIndustry Relations at Southwestern Bell Telephone Company in St. Louis, Missouri. Southwestern Bell was a huge regional telephone company that is now part of AT&T. My functions there included tracking issues that impacted Bell's relationships with the independent telephone industry, calculating and negotiating various interconnection and settlement rates between companies for local calling and other network arrangements, and overseeing the review of an independent telephone company's traffic and toll cost studies. In performing the traffic studies I had hands on experience working with measuring usage on 3 a number of different brands of switches. I also served tor a period of time as a member ofthe rate case team for the Missouri operations. In working on rate cases, I further developed my knowledge of calculating and developing telephone costs. 10. In my next position, beginning in 1984, I gained operating telephone company experience at CP National in Concord, California. CP National was a holding company that owned, among other things, 13 telephone companies. I had several jobs with increasing responsibility and ended as Director of Revenues. In that capacity, I oversaw a large group that performed telephone accounting, separations and traffic engineering studies for a seven-state area. My group also monitored earnings, developed access and local rates, maintained tariffs, filed rate cases, and monitored and commented in state and federal regulatory proceedings. In this role, I was directly responsible for setting rates and for defending those rates in front of various regulatory authorities. Thus, I testified in a number of rate-making cases and regulatory proceedings in California, Texas, Nevada, Oregon and Arizona and New Mexico. Part of my responsibility at CP National included calculating costs and setting rates for four separate operator centers where the company maintained telephone operators for completing collect and other types of operator-assisted calls. While at CP National, I also became responsible for earnings monitoring and rate case development for electric, gas and water properties. II. In my next position, 111 1991 I again joined John Staurulakis, Inc. in vanous capacities. My final position there was as Director of Special Projects. In that capacity, I oversaw all projects and clients who were not historically part of JSI's core cost separations business. Some of the projects I worked on included assisting clients in launching long distance companies and to become internet service providers; studying and implementing traditional and measured local calling plans; developing optional toll and local calling plans; performing embedded Total Element Long-Run Incremental Cost ("TELRIC") and incremental cost studies for products and services; assisting in local rate case preparation and defense; and conducting cross-subsidy studies 4 determining the emhedded overlap between telephone services. In this role, I gained in-depth experience in long distance rates rate setting and the regulatory process. I also became thoroughly familiar with the underlying costs of running a long distance company, and providing telephone servIce. 12. In 1997, I became a founder and owner of Competitive Communications group, LLC. The company has subsequently been reformed as CCO Consulting, LLC. My title at CCO is President and I am directly responsible for all of the consulting work perfonned by our company. As a firm we offer the following telephone consulting products and services that are needed by companies that are launching new ventures or entering new markets, all under my direct control and supervlSlon: • • • • • • • • Engineering services, including: • Analysis of telephone hardware for switching and networks • Detailed network design and development • Developing switching specifications and provisioning new switches into service • Developing RFPs and analyzing vendors; Development of financial business plans; Market segmentation studies to understand markets and customers; Competitive research including rates and services of other providers; Strategic analysis and planning; Marketing plans; Regulatory work including certification of companies to provider service, development and filing of tariffs and regulatory compliance to make certain companies are meeting regulatory requirements; Implementation assistance for start-up companies including: • Negotiating interconnection agreements with other carriers • Negotiating network implementation and collocation of equipment with other carriers; • Choosing vendors for billing, back office, operator services and other external requirements • Ordering trunks (telephone lines that go between different networks) • Detailed hands-on project management; • Assistance in developing and implementing accounting systems; • Development of rates; 5 • m. Calculation of costs. RATE ISSUES 15. The purpose of this section is to highlight a few other states where rates are significantly lower than the rates charged today in Massachusetts, which is sufficient proofthat the rates in Massachusetts are too high. If and when this case proceeds to an evidentiary hearing, I will provide a more detailed and comprehensive analysis of rates in other states as they compare to Massachusetts. 16. One thing that anybody who looks at prison calling rates will instantly see is how widely the rates vary. This is often the case even within the same prison or jail where the rates for state and interstate rates might be quite different, although the costs are nearly identical. Generally it seems like prison telephone providers will charge as much for calls as they can get away with in each jurisdiction. As can be seen by a few of the rates I list below, there is a big discrepancy even within Massachusetts between the rates charged by state prisons and those charged by County facilities. 17. Following are some examples of the rates charged in Massachusetts today. The first rates below are the rates used by GTL for the Massachusetts Department of Corrections. In this document I will refer to those as the DOC rates. The DOC Commission rate is rates is 15% for debit calls and 30% for collect calls. The composite effective Commission rate is 24%. I In the 'Third Amendment to Contract for a Secure Inmate Calling System and Related Serves, DOC File No. 1000-PHONE2006' dated September 9, 2010 the commission rate was lowered to 30% on collect calls and 15% on debit calls. In the most recent 'RFR for a Secure Inmate Calling System and Related Services, DOC File No. 13-DOC-Inmate Phone' the effective commission rate for the two types of calling combined can be calculated at just over 24% for 2012 based on the revenues and commissions listed on the final page of Attachment C. That page shows $7,132,095.44 of calling revenue for 2012 and $1,717,504.80 of commissions paid. I 6 Debit Calls Local State IntraLata State InterLata Interstate $0.65 $0.65 SO.65 $0.65 Surcharge plus Surcharge plus Surcharge plus Surcharge plus $0.075 $0.075 $0.075 $0.075 Collect Calls Local State IntraLata State InterLata Interstate $0.86 $0.86 $0.86 $0.86 Surcharge plus Surcharge plus Surcharge plus Surcharge plus $0.10 $0.10 $0.10 $0.10 18. per minute per minute per minute per minute per minute per minute per minute per minute In addition to the DOC rates, there are contracts for different rates among many County and city-owned correctional facilities. Following are some examples of these other rates: Rates for the Plymouth County Sheriff's Department (GTL) The Plymouth rates include a 60% commission plus a monthly fee of$2.89 for anybody who receives a bill. All Calls Local State IntraLata State InterLata Interstate $3.10 for $3.10 for $2.60 for $3.95 for the the the the 1sl minute 1sl minute 1sl minute 1SI minute and then and then and then and then $0.10 $0.10 $0.10 $0.89 Suffolk County Sheriff's Department (Securus) The Suffolk rates include a 50% commission. Debit Calls Local State IntraLata State InterLata Interstate $0.50 per minute $0.50 per minute $0.50 per minute $0.50 per minute Collect Calls Local State IntraLata State InterLata Interstate $2.85 $2.85 $3.00 $3.00 Surcharge plus Surcharge plus Surcharge plus Surcharge plus 7 $0.10 $0.10 $0.10 $0.89 per minute per minute per minute per minute per minute per minute per minute per minute Hampden County Sheriff's Department (Securus) The Hampden rates include a 52% commission plus payment of $3,500. All Calls Local State IntraLata State InterLata Interstate $2.50 Surcharge plus $0.50 per call $2.50 Surcharge plus $0.10 per minute $2.50 Surcharge plus $0.10 per minute $3.95 Surcharge + $0.89 the 1st minute then $0.10 per minute Barnstable County Sheriff's Department (Securus) The Barnstable rates include a 52% commission All Calls Local Interstate State IntraLata & InterLata $3.00 Surcharge plus $0.10 per minute $3.95 Surcharge plus $0.89 per minute $3.00 Surcharge plus the following per minute rates: Day 0-10 Miles 11 - 14 Miles 15+ Miles $0.10 for 1st minute then $0.06 per minute $0.10 for 1st minute then $0.09 per minute $0.10 for 1st minute then $0.10 per minute Evening 0- 10 Miles 11 - 14 Miles 15+ Miles $0.074 for 1st minute then $0.055 per minute $0.10 for 1st minute then $0.055 per minute $0.10 for 1st minute then $0.061 per minute Night/Wknd 0 - 10 Miles 11 - 14 Miles 15+ Miles $0.046 for )"t minute then $0.036 per minute $0.054 for 1st minute then $0.036 per minute $0.078 for 1st minute then $0.036 per minute 19. Following are now some examples of state rates that are priced far lower than some of the rates being used in Massachusetts particularly by the Counties. These are examples of the collect calling rates from some other state DOC contracts. New York (UnisysN AC) All calls $0.048 per minute with no surcharge Michigan (Embarq) 8 Local State IntraLata State InterLata Interstate $0.12 per minute with no surcharge $0.12 per minute with no surcharge $0.12 per minute with no surcharge $0.15 per minute with no surcharge Rhode Island (GTL) Local State IntraLata State InterLata Interstate $0.70 per call with no surcharge $0.70 per call with no surcharge $0.70 per call with no surcharge $1.30 Surcharge plus $0.30 per minute Nebraska (PCS) Local State IntraLata State InterLata Interstate $0.70 per call with no surcharge $0.70 Surcharge plus $0.05 per minute $0.70 Surcharge plus $0.05 per minute $0.70 Surcharge plus $0.05 per minute 20. The fact that there are states that have lower rates than Massachusetts is reason enough for DTC to investigate the rates charged in Massachusetts prisons and jails, especially given the lack of significant discrepancy in the cost of providing these services across states. Fnrther, the fact that there is a big disparity between the rates charged by the State and Counties is yet another reason why this docket should move forward. IV. THE FALLING COSTS OF PRISON CALLING 21. Like the rest of the telephone industry, the methods and costs of providing prison long distance have dropped precipitously over the last few years. There are several technological changes in the industry that have enabled the prison providers to drastically streamline their operations and greatly increase profit margins. These changes relate to the ability to process calls from centralized locations, which is often referred to as 'using the cloud'. There is also a 9 dramatic change ongoing in the cost of transport and bandwidth that have made it cheaper to connect to ajail facility. Finally, the large providers like Securus and OTL have benefitted greatly by centralization and economies of scale. 22. Of these changes, the most important one is the ability to process and switch prison calls at locations outside the prisons. In the past each prison would have needed a telephone switching device of some sort that would have required a significant capital investment. Further, the requirement of having sophisticated equipment at prisons also meant that the prison calling provider had to maintain an extensive fleet of technicians to keep the dispersed equipment in the network functioning. But the day of needing to make big capital investments at prisons is gone. Today, the prison providers can deploy one, or a few large softswitches in their network nationwide to handle the calls from all ofthejails and the prisons on their network. 23. This change to a centralized switching and processing has been further enabled by a change in the way that calls get to and from prisons to the outside world. It was not too many years ago that prison providers had to buy very expensive TI s to carry voice calls. And since one T1 can handle 24 calls at most, larger prisons required multiple T1 s. Today the prisons (along with many normal businesses) are converting to IP based voice switching. The prison provider now can order DSL, a cable modem or some other sort of ethernet connection at a prison and use that connection to route calls back to the centralized switching location. These connections are significantly less expensive than TI s and are more efficient. This new method of sending and receiving calls over ethernet is generically referred to as Voice over IP (VoIP). 24. Today there is very little capital investment made by prison telephone provider at each prison. All of the brains of the prison calling network are housed now at large centralized 10 locations. Today a prison calling system consists primarily of the telephones, an ethernet pipe to the outside world and some sort of small data router. Everything else is done at the centralized hubs in the network. One of the benefits of centralization for the prison providers is that there is significantly less labor required to keep prison systems operating. It was not unusual in the past for a prison telephone provider to maintain large f1eets of service personnel who were needed to trouble shoot and keep the prison telephone systems operating. Today that task is mostly done from a centralized location and technicians rarely have to visit the prisons other than to deal with the telephone handsets. When trouble shooting is needed it can usually be done be a technician from the centralized hub. The savings in labor costs are dramatic compared to just a few years ago. 25. I have participated in many dockets in the past that looked at prison calling systems where the prison providers testified about their investments in developing centralized software for handling the penological requirements of a prison. In the not too distant past they would have to create different versions of software for different prisons and different states. However, software has also gotten much more sophisticated in the last few years. Prison calling providers now have one large software system that will handle just about any penological need and allows providers to quickly choose the functions they want from a menu to apply to a given prison. In the past they might have maintained different versions of software for different prison systems, but today they maintain one giant program that can accommodate every system. 26. Prison telephone systems are the perfect example of an economy of scale business. The morc jails and prisons anyone provider can add to their system, the more profitable they can be for every prison on the network. Most of a prison provider's costs are now II fixed at big hub locations and a much smaller percentage of their costs are driven incrementally at each prison. 27. Several years ago I did costs estimates of the cost of prison calling where I estimated that the cost per minute was in the six to seven cent per minute range. I have not yet updated that estimate for the issues discussed above, but I would have to guess today that the net effect of all of the above changes have probably cut the cost at least in half on a per minute basis. Almost every important cost component of prison calling has gotten significantly less expensive over the past few years. V. SUMMARY 28. This affidavit summarizes an abundance of evidence that prison rates are now out of line with costs, which I am prepared to present in more detail as this case proceeds. First there are states where prison providers are operating today using rates that are significantly lower than the rates charged in Massachusetts today, while costs across states remain virtually the same. That fact alone is enough evidence that there is room for rate cuts in the rates here and that Massachusetts rates are umeasonable. Secondly, the prison providers are benefitting from tremendous reductions in their cost of providing service without having seen any corresponding cut in the rates they charge. Prison providers should, of course, make a profit, but the existing rates yield excessive profits that are unnecessarily burdensome to consumers in this instance. There are sufficient issues worth exploring in this docket that would support this Commission taking a harder look at prison telephone rates in Massachusetts. DOUGLAS A. DA WSON dc·346162 12 EXHiBiT 3 DEPARTMENT OF TELECOMMUNICATIONS AND CABLE 1 1 COMMONWEALTH OF MASSACHUSETTS 2 DEPARTMENT OF TELECOMMUNICATIONS AND CABLE 3 DOCKET NO.: 4 DTCll-16 5 6 ************************* 7 PETITION OF RECIPIENTS OF COLLECT CALLS FROM * 8 PRISONERS AT CORRECTIONAL INSTITUTIONS IN * 9 MASSACHUSETTS SEEKING RELIEF FROM THE UNJUST * 10 AND UNREASONABLE COST OF SUCH CALLS * 11 * * * * * * * * * * * * * * * * * * * * * * * * * 12 13 14 BEFORE: HEARING OFFICER KALUN LEE 15 16 OFFICE OF THE DIVISION OF INSURANCE 17 First Floor, Hearing Room E 18 1000 Washington Street 19 Boston, Massachusetts 20 Thursday, July 19, 2012 10:00 a.m. - 5:00 p.m. 21 22 23 Laurie J. Jordan 24 Professional Court Reporter DEPARTMENT OF TELECOMMUNICATIONS AND CABLE 88 MR. HOMSY: 1 Good afternoon. 2 Homsy. 3 Suffolk County Sherriff's Department. I am Russ I am the Assistant General Counsel with the THE HEARING OFFICER: 4 Since you are 5 not entered into this matter, if I could just ask you 6 to spell your name for the court reporter. MR. HOMSY: 7 8 Sure, R-U-S-S-E-L-L, H-O-M-S-Y. THE HEARING OFFICER: 9 And the phone 10 number I have for you is 617-704-6535. 11 MR. HOMSY: 12 THE HEARING OFFICER: 13 That's correct. Then you may begin. 14 MR. HOMSY: Thank you. I just wanted 15 to point out that the use for the funds we receive 16 from the commissions, what those are actually used 17 for. 18 Those funds are generally used for lots 19 of inmate programming. Life-skills programs, GED 20 programs for inmates, vocational programs and 21 reentry programs. 22 supplies. 23 are necessary but things that help inmates during the 24 time cf their incarceration like library supplies, They're also used for inmate These are generally not of the types that DEPARTMENT OF TELECOMMUNICATIONS AND CABLE 89 1 certain recreational supplies, computers and 2 software. 3 commissions derived are used to spend on. 4 This is what the funds from those I also want to point out that the 5 telephone systems that are used in these facilities 6 are not garden-variety telephone systems, which is 7 what I'm hearing it's often compared to. 8 buy a calling card and it's very similar in terms of 9 the cost of those systems. 10 Where you Here we have a system that's tied to 11 inmate accounts, which costs considerably more. 12 There's a very advanced system in place for 13 monitoring the telephone calls. 14 public and victims from harassing calls. 15 provides unfettered attorney-client communication. 16 Those are all things that are used as part of this 17 system. 18 And it protects the It also The benefits of those funds I think we 19 all can agree are beneficial to the inmates 20 themselves. 21 security of the institutions. 22 beneficial to the public as a whole. And they are also very Those funds are used to help prevent 23 24 They are beneficial to the staff and recidivism. They provide security to the staff at EXHIBIT 4 Department of Correction Request for Responses for an Secure Inmate Calling System & Related Services DOC File No. 13-nOC-Inmate Phone December ,11} 2012 RFR for a Secure Inmate Calling System & Relaied Services DOC File Number: 13-DOC-Inmate Phone December 11\ 2012 Attachment C Current Inmate Call Volume and Commission History SUMM.ARYBYMONTfl-ALL CALL TYPES , ~J~u~lv~,2~O~1~I____~__~I.~,2~1~1,~4.8~'2~-+i__~3209~,~36~8~ ___j ____4~,O~4~5,~8~85~~ Amrust, 2011 1,141,032 September, 2011 1,055,988 Ocmber,2011 1,154,263 · i . I, I 288,941 3,779,846 274,499 3,601,850 299,541 3,964,056 1 i!-,Nc:o"-v:.::e",m",b,,,erL,:::20",1",1_t-_1"".=-18"'9"',9""7-'1_-1__----'3=00, 649 4,032,564 I December, 2011 1,288,070 317,734 4,247,364 I January, 2012 1,201,485 307,839 4,158,387 I Februarv,2012 1,143,967 310,474 4,165,804 i March, 2012 1,270,034 335,562 4,499,781 I April, 2012 I I May, 2012 I i 2=---i1__---'3'--'1~5"',1"'03"--_-l-_4"',=.:20"'O"-,4""6"'3_-i 1,250,0..:,4 1,223,165 311,637 4,119,418 \ June, 20 12?-c-..c-"---c.,,,i.,---c-'-l,:.;,1""65",A",2,,,0'cc-cc+II ",-_.293,6. 16., ... ,. ••.,., .. 1.............. 3.884'~.'.33 .. _, K.· .,.·.·.·.•··.·\t~laW:I::'l.4,294:9)j'· ',. ·i(3A6~,963 ,....... ··.·.<t8~~9,75t . .. Commonwealth of Massachusetts 50 Maple Avenue, Suite 3 Department of Correction Milford, Massachusetts 01757 EXHIBIT 5 Senate, No. 2045, printed as amended [Senate. April 28, 2009 - Text of the Senate Bill transferring county sheriffs to the Commonwealth, (Senate No. 2031, printed as amended)] The Commonwealth of Massachusetts IN THE YEAR OF TWO THOUSAt"\TD AND NINE 1 SECTION 1. Section 17 of chapter 37 ofthe General Laws, as appearing in the 2006 Official Edition, is hereby amended by striking out the second and third paragraphs and 3 4 inserting in place thereof the following paragraph:The sheriffs of the counties of Barnstable, Bristol, Norfolk, Plymouth and Suffolk and of 5 the former counties of Berkshire, Essex, Franklin, Hampden, Hampshire. Middlesex and 6 Worcester shall each receive a salary of$123.209. The sheriff of the cormty of Dukes shall 7 receive a salary of$97 ,271. The sheriff ofthe county of Nantucket shall receive a salary of 8 $71,332. 9 10 SECTION 2. Chapter 64D of the General Laws is hereby amended by striking out sections 11 to 13, inclusive. and inserting in place thereof the following 2 sections:- 11 Section 11. Except for Barnstable and Suffolk counties. there shall be established upon 12 the books of each county of a transferred sheriff, the government of which county has not been 13 abolished by chapter 34B or other law, a fund, maintained separate and apart from all other 14 funds and accounts of each county, to be known as the Deeds Excise Fund. 15 Notwithstanding any general or special law to the contrary, except for Barnstable and 16 Suffolk counties, on the fIrst day of each month, 10.625 per cent ofthe taxes collected in the 17 county of a transferred sheriff under this chapter shall be transmitted to the Deeds Excise Fund 18 for each county. The remaining percentage of taxes collected under this chapter, including all 19 taxes collected under this chapter in Barnstable and Suffolk counties and all counties the 20 government of which has been abolished by chapter 34B or other law, but not including the 21 additional excise authorized in section 2 of chapter 163 of the acts of 1988, shall be transmitted 22 to and retained by the General Fund in accordance with section 10. 23 Section 12. (a) There shall be within the executive office for administration and fInance 24 a county government fmance review board to consist ofthe secretary of administration and 25 fmance or his designee, the commissioner of revenue or his designee a county commissioner 26 annually selected by the Massachusetts Association of County Commissioners and the state 27 auditor or his designee. The secretary of administration and fmance or his designee shall serve 28 as chairperson of the board. 29 (b) Notwithstanding any general or special law or county charter to the contrary, the 30 arumal or supplementary budget of a county shall not take effect until reviewed and approved by 31 the board. Except for Barnstable and Suffolk counties, the board shall not approve a budget of a 32 county unless it is satisfied that: 33 34 (l) the estimates of revenue are reasonable and adequate funding has been provided for all necessary county expenditures; (2) of the amounts deposited in the Deeds Excise Fund for each county from revenues 36 derived under this chapter: (i) not more than 60 per cent of the deposits shall be disbursed and 37 expended for meeting the costs ofthe operation and maintenance of the county; and (ii) not less 38 than 40 per cent shall be disbursed and expended for the automation, modernization and 39 operation ofthe registries of deeds; and 40 (3) with respect to funds appropriated for the purpose designated in subclause (ii) of 41 clause (2) and which are not dedicated to the Deeds Excise Fund in each county under section 42 11, the submitted proposed budget shall provide a continuing amount of expenditure of not less 43 than 102.5 per cent ofthe amount expended for that purpose in the precedi.'1g fiscal year. 44 In the case of Barnstable county, the board shall not approve a budget unless it is 45 satisfied that the estimates of revenue are reasonable and that adequate funding has been .~ provided for all necessary county expenditures. 47 (c) If a proposed budget is disapproved by the board, the county commissioners or a 48 successor body shall, with the approval of the county advisory board, if applicable, and within 49 30 days of notification of disapproval ofthe proposed budget, resubmit a revised proposed 50 budget to the board which addresses the board's concerns. 51 (d) The board shall develop guidelines for implementing this section. 52 SECTION 3. Notwithstanding any general or special law to the contrary, the offices of 53 the Barnstable, Bristol, Dukes, Nantucket, Norfollc, Plymouth, and Suffolk county sheriffs are 54 hereby transferred to the commonwealth as provided in this act. 55 SECTION 4. Notwithstanding any general or special law to the contrary, all functions, 56 duties and responsibilities of the ottice of a transferred sheriff pursuant to this act including, but q not limited to, the operation and management of the county jail and house of correction, and any 58 other statutorily authorized functions of that office, are hereby transferred from the county to the 59 commonwealth. 60 SECTION 5. Notwithstanding any general or special law to the contrary, the 61 government of Barnstable, Bristol, Dukes, Nantucket, Norfolk, Plymouth and Suffolk counties, 62 except the office of county sheriff, shall retain all existing authority, functions and activities for 63 all purposes including, but not limited to, the purposes established in chapters 34, 34A, 35 and 64 36 of the General Laws or as otherwise authorized by this act. This act shall not affect the 65 existing county boundaries. 66 SECTION 6. All valid liabilities and debts of the office ofa transfen'ed sheriff which are 67 in force on the effective date of this act shall be obligations of the commonwealth as of that 68 date, except as may be otherwise provided in this act. All assets of the offices of a transferred 69 sheriff on the effective date of this act shall become assets of the commonwealth, except as 70 otherwise provided in this act, 71 SECTION 7. (a) Notwithstanding any general or special law to the contrary, all rights, 72 title and interest in real and personal property, including those real property improved upon 73 through construction overseen by the division of capital asset management and maintenance and 74 paid with commonwealth funds and which are controlled by the office of a transferred sheriff on 75 the effective date of this act including, without limitation, all correctional facilities and other 76 buildings and improvements, the land on which they are situated and any fixtures, wind 77 turbines, anteunae, communication towers and associated structures and other communication 78 devices located thereon or appurtenant thereto, shall be transferred to the commonwealth, 79 except as otherwise provided in this act. This transfer of all buildings, lands, facilities, fixtures 80 and improvements shall be subject to chapter 7 of the General Laws and the jurisdiction of the commissioner of capital asset management and maintenance as provided therein, except as 82 otherwise provided in this act. The commonwealth shall take all necessary steps to ensure 83 continued access, availability and service to any assets transferred to the commonwealth under 84 this subsection, to a local or regional organization that currently uses such assets. 85 (b) If a transferred sheriff occupies part of a building or structure owned by a county, the 86 county shall lease that part of the building or structnre to the commonwealth under reasonable 87 terms detennined by the commissioner ofthe capital asset management and maintenance. 88 (c) The transfer under this section shall be effective and shall bind all persons, with or 89 without notice, without any further action or documentation. Without derogating from the 90 foregoing, the commissioner of capital asset management and maintenance may, fi"om time to 91 time, execute and record and file for registration with any registry of deeds or the land court, a certificate confirming the commonwealth's ownership of any interest in real property formerly 93 94 controlled by the office of a transferred sheriff pursnant to this section. (d) This section shall not apply to the land and buildings shown as Parcel C on a Plan of 95 Landin Braintree, Mass, dated October 2, 1997, prepared by County of Norfolk Engineering 96 Dept., 649 High Street, Dedham, filed at the Norfolk county registry of deeds in plan book 454, 97 page 128. (e) This section shall not apply to the former Barnstable county house of Gon"ection 98 located at the Barnstable County Complex on state highway route 6A in the town of Barnstable. 99 SECTION 8. Once the commonwealth has refmanced any outstanding bonds of the 100 Plymouth County Correctional Facility Corporation, said corporation shall be dissolved and its 101 assets shall be transfelTed to the commonwealth. The criminal detention facility constructed 102 under chapter 425 afthe acts of 1991 shall be transfen-ed to the commonwealth. The revenue held by the corporation in the Repair and Replacement and Capital Improvement Accounts shall 104 be transferred to the Plymouth Sheriffs Facility Maintenance Trust Account. The Plymouth 105 sheriff shall make expenditures from this account only for the maintenance, repair and 106 replacement of the sheriff s facilities. 107 SECTION 9. All leases and contracts of the office ofa transferred sheriff which are in 108 force on the effective date of this act shall be obligations of the commonwealth and the 109 commonwealth shall have authority to exercise all rights and enjoy all interests conferred upon 110 the county by those leases and contracts except as may be otherwise provided in this act. 111 SECTION 10. Notwithstanding any general or special law to the contrary, begirming in 112 fiscal year 2010 and thereafter until terminated, Barnstable, Bristol, Dukes, Nantucket, Norfolk, 113 and Plymouth counties shall appropriate and pay to their respeetive county retirement boards, 114 and any other entities due payments, amounts equal to the minimum obligations to fund from 115 their own revenues in fiscal year 2009 the operations of the office of the sheriff for the purpose 116 of covering the unfunded cOlmty pension liabilities and other benefit liabilities of the retired 117 sheriffs office employees that remain in the county retirement systems, as determined by the 118 actuary of the public employee retirement administration commission. Pursuant to section 20 of 119 chapter 59 of the General Laws, the state treasurer shall assess the city of Boston and remit to 120 the State-Boston retirement system an amolmt equal to the minimnm obligation of Suffolk 121 county to fund from its own revenues in fiscal year 2009 the operations of the office of the 122 sheriff. The secretary of administration and [mance shall establish a plan for county 123 governments to payoff these unfunded county pension liabilities and shall establish an 124 amortization schedule to accomplish this task. These payments shall remain in effect for the 125 duration of that amortization schedule, which shall not exceed the funding schedule established 126 by the respective county retirement board. lfthe unfunded pension liability ofretil'ees exceeds any county's minimum obligation to fund operations from its own revenues as set forth in this 128 section, the retirement system for such county may extend its pension funding schedule to the 129 extent necessary to eliminate that excess unfunded pension liability. In the case of any such 130 county, when the COW1ty has paid such unfunded pension liabilities in full, or the cOW1ty has 131 completed the amortization schedule as established under this section, whichever occurs first, 132 the county's obligation to make payments of its minimum obligations to fund its sheriffs office 133 operations, as determined under this section, shall terminate. 134 In fiscal year 2010 and succeeding years, if the amoW1t that represents 31.875 per cent of 135 deeds excise collections in a county exceeds the cost ofthe operation ofthe office ofthe sheriff, 136 including health insurance and retirement costs, such COW1ty shall provide suffIcient deeds 137 excise revenue to the commonwealth to fund those costs as identified by the general appropriations act for that fiscal year. Any deeds excise revenue ofthe 31.875 per cent 139 collected by a county that is in excess of the costs of operations of the office of the sheriff 140 as identified in the annual state budget shall remain with the county's Deeds Excise Fund to 141 fund obligations of the county tmder section I of chapter 64D of the General Laws. Amounts in 142 this paragraph shall be as determined by the secretary of administration and finance, in 143 consultation with the appropriate sheriff and county officials. 144 SECTION II. Notwithstanding any general or special law to the contrary, any funds 145 including, but not lmiited to cOW1ty correctional funds and other sources of income and revenue, 146 to the credit of the offIce of a transferred sheriff on JW1e 30, 2009, shall be paid to the state 147 treasurer, but the COW1ty treasurer may pay appropriate fiscal year 2009 sheriffs department 148 obligations after JW1e 30, 2009. Payment of obligations to be charged to (he sheriffs fiscal year 149 2009 budget as approved by the county government fmance review board shall be within that 150 budget or shall be approved by the secretary of administration and finance. 151 SECTION 12. (a) Not'hithstanding any general or special law to the contrary and except 152 for all counties the governments of which have been abolished by chapter 34B or other law, 153 revenues of the office of sheriff in Barnstable, Bristol, Dukes, Nantucket, Norfolk, Plymouth 154 and Suffolk counties for civil process, inmate telephone and commissary funds, shall remain 155 with the office of sheriff. 156 (b) In order to encourage umovation and enterprise, each sheriff's office shall annually 157 confer with the house and senate committees on ways and means regarding that sheriff s efforts 158 to maximize and maintain grants, dedicated revenue accounts, revolving accounts, fee for 159 service accounts and fees and payments from the federal, state and local governments and other 160 such acconnts and regarding which revenues shall remain with the sheriff's office. 161 162 163 164 165 (c) Any sheriff who has developed a revenue source derived apart from the state treasury may retain that funding to address the needs of the citizens within that county. Cd) Any unencumbered carry-forward deeds excise or other funds to the credit of the sheriff on June 30, 2009 shall be paid to the state treasurer. (e) Notwithstanding any general or special law or county charter to the contrary, 166 regional services and contracts for such services, including, but not limited to, regional 167 communication centers and law enforcement support, shall continue until expired, termu1ated or 168 revoked under the terms of the agreement or contract for such services. 169 SECTION 13 Ca) All employees of the office oftransfened sheriff, including those who 170 on the effective date of this act hold permanent appointment in positions classified under 171 chapter 31 of the General Laws or those who have tenure in their positions by reason of section 9A of chapter 30 ofthe General Laws or do not hold such tenure, are hereby transferred to that 173 transferred sheriff as employees of the commonwealth, without interruption of service within 174 the meaning of said section 9A of said chapter 30 or said chapter 31 and without reduction in 175 compensation or salary grade. 176 (b) Notwithstanding any general or special law to the contrary, employees of the office 177 of a transferred sheriff shall continue to retain their right to collectively bargain pursuant to 178 chapter 150E of the General Laws and shall be considered sheriffs office employees for the 179 purposes of said cbapter 150E. 180 (c) All petitions, requests, investigations and other proceedings duly brought before the 181 office of a transferred sheriff or duly begun by that sheriff and pending on the effective date of 182 this act, shall continue unabated and remain in force, but shall be assumed and completed by the office of a transferred sheriff. 184 (d) All orders, rules and regulations duly made and all approvals duly granted by a 185 transferred sheriff which are in force on the effective date of this act, shall continue in force and 186 shall thereafter be enforced until superseded, revised, rescinded or canceled in accordance with 187 law by that sheriff. 188 189 190 (e) All books, papers, records, documents and eqnipment which, on the effective date of this act, are in the custody of a transferred sheriff shall be transferred to that sheriff. (f) All duly existing contracts, leases and obligations of a transferred sheriff shall 191 continue in effect. An existing right or remedy of any character shall not be lost or affected by 192 this act. 193 194 SECTION 14. The rights of all employees of each office of a transferred sheriff shall continue to be governed by the terms of collective bargaining agreements, as applicable. If 195 collective bargaining agreement has expired on the transfer date, the terms and conditions of 196 such agreement shall remain in effect until a successor agreement is ratified and funded. 197 SECTION 15. Notwithstanding any general or speeiallaw to the contrary, a transferred 198 sheriff in office on the effective date of this act shall become an employee of the commonwealth 199 with salary to be paid by the commonwealth. The sheriff shall remain an elected official for the 200 purposes of section 159 of chapter 54 of the General Laws. The sheriff shall operate pursuant to 201 chapter 37 of the General Laws. The sheriff shall retain administrative and operational control 202 over the office of the sheriff, the jail, the house of correction and any other occupied buildings 203 controlled by a transferred sheriff upon the effective date of this act. The sheriff and sheriff s 204 office shall retain and operate under all established common law power and authority and 205 consistent with chapters 126 and 127 of the General Laws and any other relevant General Laws. 206 SECTION 16. Notwithstanding any general or special law to the contrary, a transferred 207 sheriff shall be considered an "employer" as that term is defmed in section 1 of chapter 150E of 208 the General Laws for the purposes of said chapter 150E. The sheriff shall also have power and 209 authority as employer in all matters including, but not limited to, hiring, firing, promotion, 210 discipline, work-related injuries and internal organization ofthe department. 211 SECTION 17. (a) Notwithstanding any general or special law or rule or regulation to the 212 contrary, the sheriff, special sheriff, deputies, jailers, superintendents, deputy superintendents, 213 assistant deputy superintendants, keepers. officers, assistants and other employees ofthe office 214 of a transferred sheriff, employed on the effective date of this act in the discharge of their 215 responsibilities set forth in section 24 of chapter 37 ofthe General Laws and section 16 of 216 chapter 126 of the General Laws shall be transferred to the commonwealth with no impairment 217 of employment rights held on the effective date of this act, without interruption of service, "", without impairment of seniority, retirement or other rights of employees, without reduction in 219 compensation or salary grade and without change in union representation, Any collective 220 bargaining agreement in effect on the effective date of this act shall continue in effect and the 221 terms and conditions of employment therein shall continue as if the employees had not been so 222 transferred. Nothing in this section shall confer upon any emplo yee any right not held on the 223 effective date of this act or prohibit any reduction of salary, grade, transfer, reassignment, 224 suspension, discharge layoff or abolition of position not prohibited before the effective date of 225 this act. Such employees shall not be considered new employees for salary, wage, tax, health 226 insurance, Medicare or any other federal or state purposes, but shall retain their existing start 227 and hiring date, seniority and any other relevant employment status through the transfer. 228 (b) All demands, notices, citations, writs and precepts given by a sheriff, special sheriff, ""g deputy, jailer, superintendent, deputy superintendent, assistant deputy superintendent, keeper, 230 officer, assistant or other employee of the office of a transferred sheriff, as the case may be, on 231 or before the effective date ofthis act shall be valid and effective for all purposes unless 232 otherwise revoked, suspended, rescinded, canceled or terminated. 233 (c) Any enforcement activity imposed by a sheriff or special sheriff or by any deputies, 234 jailers, superintendents, deputy superintendents, assistant deputy superintendents, keepers, 235 officers, assistants or other employees of the office of a transferred sheriff before the effective 236 date of this act shall be valid, effective and continuing in force according to the terms thereof 237 for all purposes unless superseded, revised, rescinded or canceled. 238 (d) All petitions, hearings appeals, suits and other proceedings duly brought against and 239 all petitions, hearings, appeals, suits, prosecutions and other legal proceedings begun by a ;AO sheriff, special sheriff, deputy, jailer, superintendent, deputy superintendent, assistant deputy 241 superintendent, keeper, officer, assistant or the employee of the office ofa transferred sheriff, as 242 the case may be, which are pending on the effective date of this act shall continue unabated and 243 remain in force notwithstanding the passage of this act. 244 (e) All records maintained by a sheriff or special sheriff or by any deputies, jailers, 245 superintendents, deputy superintendents, assistant deputy superintendents, keepers, officers, 246 assistants and other employees of the office of a transfelTed sheriff on the effective date of this 247 act shall continue to enjoy the same status in a court or administrative proceeding, whether 248 pending on that date or commenced thereafter, as they would have enjoyed in the absence of the 249 passage of this act. 250 SECTION 18. All officers and employees of the office ofa transferred sheriff 251 transferred to the service of the commonwealth shall be transferred with no impairment of 252 seniority, retirement or other rights of employees, without reduction in compensation or salary 253 grade and without change in union representation, except as otherwise provided in this act. Any 254 collective bargaining agreement in effect for transferred employees on the effective date of this 255 act shall continue as ifthe employees had not been so transferred until the expiration date of the 256 collective bargaining agreement. Nothing in this section shall confer upon any employee any 257 right not held on the effective date of this act prohibit any reduction of salary, grade, transfer, 258 reassignment, suspension, discharge, layoff or abolition of position not prohibited before that 259 date. 260 SECTION 19. (a) Notwithstanding any general or special law to the contrary, employees 261 or retired employees of the office ofa transferred sheriff and the surviving spouses of retired 262 employees of the office of a transferred sheriff who are eligible for group insurance coverage as 263 provided in chapter 32B ofthe General Laws or who are insured under said chapter 32B, shall 264 have that eligibility and coverage transferred to the group insurance commission effective 4 265 months after the effective date ofthis act and those employees shall cease to be eligible or 266 insured under said chapter 32B. These employees shall not be considered to be new employees. 267 The group insurance commission shall provide uninterrupted coverage for group life and 268 accidental death and dismemberment insurance and group general or blanket insurance 269 providing hospital, surgical, medical, dental and other health insurance benefits to the extent 270 authorized under chapter 32A of the General Laws. Employees who were covered by a 271 collective bargaining agreement on the effective date of this act shall continue to receive the 272 group insurance benefits required by their respective collective bargaining agreements until a 273 successor agreement is ratified and funded. (b) The human resources division of the executive office for administration and [mance 275 shall assume the obligations ofthe office of a transferred sheriff to employees who become state 276 employees and who are covered under a health and welfare trust fund agreement established 277 under section 15 of chapter 32B of the General Laws pursuant to a collective bargaining 278 agreement until the expiration date of the collective bargaining agreement 279 (c) The group insurance commission shall evaluate, in consultation with appropriate 280 county officials and county treasurers, the value of any monies in a claims trust fund established 281 pursuant to section 3A of said chapter 32B ofthe General Laws that would otherwise have been 282 reserved for claims made by employees of a transferred sheriff Any monies therein shall be 283 transferred to the group insurance commission on the effective date of this act. 284 SECTION 20. Notwithstanding chapter 32 of the General Laws or any other general or 2P- special laws to the contrary, the retirement system in the county of a transferred sheriff shall 286 continue pursuant to this section and shall be managed by the retirement bomd as provided in :his section. Employees of a transferred sheriff who retired on or before the effective date of this act shall be members of the county retirement system, which shall pay the cost of benefIts annually to such retired county employees and their survivors. The annuity savings funds of the employees of transferred sheriffs who become state employees pursuant to this act shall be transferred from that county retirement system to the state retirement system, which shall thereafter be responsible for those employees, subject to the laws applicable to employees whose transfer from one governmental unit to another results in the transfer from one retirement system to another, except for paragraph (c) of subdivision (8) of section 3 of said chapter 32. All other provisions governing the retirement systems of the c01111ties of Barnstable, Bristol, Dukes, Nantucket, Norfolk, Plymouth and Suffolk shall remain in effect. 7 SECTION 21. County conunissioners, county sheriffs, county treasurers, county 8 retirement systems, the State-Boston retirement system, and all executive branch agencies and J9 officers shall cooperate with the secretary of administration and fmance in effecting the orderly 00 transfer of the county sheriffs to the commonwealth. The secretary may establish working groups as considered appropriate to assist in the implementation of the transfer. 101 SECTION 22. There shall be a special commission to consist of 10 members, 1 of whom 302 303 shall be a member of the Massachusetts Sheriffs Association, 1 of whom shall be a county 304 commissioner of a county of a transferred sheriff as appointed by the chairs of the county 305 commissioners of the counties of transferred sheriffs 2 of whom shall be appointed by the 306 speaker of the house ofrepresentatives, 1 of whom shall be appointed by the minority leader of 307 the house ofrepresentatives, 2 of whom shall be appointed by the president of the senate, 1 of 308 whom shall be appointed by the minority leader of the senate and 2 of whom shall be appointed 309 by the governor for the purpose of mal(ing an investigation and study relative to the 1$ r 7 reorganization or consolidation of sheriffs' offices, to make formal recommendations regarding 311 such reorganization or consolidation and to recommend legislation, if any, to effectuate such 312 recommendations relating to the reorganization, consolidation, operation, administration, 313 regulation, governance and finances of sheriffs' offices, 314 The chairman of the commission shall be selected by its members, Section 2A of 315 chapter 4 of the General Laws shall not apply to said commission. So long as a member of the 316 commission discloses, in writing, to the state ethics commission any financial interest as 317 described in section 6, 7 or 23 of chapter 268A of the General Laws which may affect the 318 members work on the commission, the member shall not be deemed to have violated said 319 section 6, 7 or 23 of said chapter 268A. Four members of the commission shall constitute a 320 quorum and a majority of all members present and voting shall be required for any action voted by the cormnission including, but not limited to, voting on formal recommendations or 322 323 recommended legislation. The commission, as part of its review, analysis and study and in making such 324 recommendations regarding the reorganization, consolidation, operation, administration, 325 regulation, governance and finances of sheriffs' offices, shall focus on and consider the 326 following issues, proposals and impacts: 327 (l) the possible consolidation, elimination or realignment of certain sheriffs' offices and 328 the potential cost savings and other efficiencies that may be achieved by eliminating, 329 consolidating and realigning certain sheriffs' offices to achieve pay parity; 330 331 (2) any constitutional, statutory or regulatory changes or anlendments that may be required in order to effectuate allY such consolidation or reorganization; 332 333 334 (3) the reallocation of duties and responsibilities of sheriffs' office as a consequence of any such consolidation or reorganization; (3 112) the best management practices associated with the current use of civil process 335 funds, including the amount of civil process funds collected by each county sheriff and the 336 actual disposition of said funds currently, and, in the event of consolidation, realignment, 337 elimination or reorganization, the collection and use of civil process fees in the future; and 338 (4) the consideration of any other issues, studies, proposals or impacts that, in the 339 judgment of the commission, may be relevant, pertinent or material to the study, analysis and 340 review of the commission. 341 All departments, divisions, commissions, public bodies, authorities, boards, bureaus or 342 agencies ofthe commonwealth shall cooperate with the commission for the purpose of 343 providing information or professional expertise and skill relevant to the responsibilities of the 344 commission subject to considerations of privilege or the public records law. 345 The commission shall submit a copy of a fmal report of its findings resulting from its 346 study, review, analysis and consideration, including legislative recommendations, if any, to the 347 governor, president ofthe senate, speaker of the house of representatives, the chairs of the house 348 and senate committees on ways and means and the chairs of the joint committee on state 349 administration and regulatory oversight and the clerk ofthe house ofrepresentatives not later 350 than June 1,2010. 351 SECTION 23. A sheriff transferred under this act shall provide a detailed account to the 352 secretary of administration and fmance of all contracts entered into before July 1, 2009; 353 provided, however, that for any contracts entered into after April 1, 2009, the contract shall not 354 be approved without the approval of the secretary of administration and finance. The account shall include, but not be limited to, descriptions of the nature of the contract, the length of the 356 contract and amounts currently owed. 357 SECTION 24. Not less than 90 days after the effective date of this act, a sheriff 358 transferred under this act shall provide to the secretary of administration and fInance a detailed 359 inventory of all property in the sheriff s possession which shall include, but not be limited to 360 vehicles, weapons, office supplies and other equipment. 361 SECTION 25. This act shall take effect on July 1, 2009. EXHIBIT 6 The Commonwealth of Massach usetts Department of Correction Request for Responses for an Secure Inmate Calling System & Related Services DOC File No. lOOO-Phone2006 July 11,2005 RFR for a Secure Inmate Calling System & Related Services DOC File Number 1000-Phone2006 2005 July 11, Attachment B Required Number of Inmate Telephone Instruments Location Bay State Correctional Center Boston Pre-Release Center Bridgewater State Hospital Lemuel Shattuck Hospital Correctional Center Mass Alcohol & Substance Abuse Center (MASAC) Massachusetts Treatment Center MCI - Cedar Junction MCI - Concord MCI - Framingham MCI - Norfolk MCI - Plymouth MCI - Shirley North Central Correctional Institution at Gardner Northeastern Correctional Center Old Colony Correctional Center Pondville Correctional Center South Middlesex Correctional Center Souza Baranowski Correctional Center ( Shirley) TOTAL Commonwealth of Massachusetts 50 Maple A"cnne, Suite 3 Inside Inmate Telephones Outside Inmate Telephones Special Mgmt Unit Tele[lhoncs Coin Telephones 24 12 6 18 4 0 0 0 2 3 I 2 0 0 3 18 0 0 59 79 7 2 20 5 2 3 0 4 2 2 2 I 4 2 0 57 13 4 4 0 II 2 123 0 85 64 1 7 " 106 18 59 5 0 II 11 11 0 0 2 0 2 0 0 159 7 9 4 918 61 49 42 2 2 2 0 2 Department of Correction Milford, Massachusetts 02202 EXHIBIT 7 -~ ~~ -~~-'r-~ Massachusetts Depal1ment of Correction Weekly Count Sheet 3!18i20B DATe: DeSIGN CAPACITY MAXIMUM ,1ylCi CEDAR JUNCTION @ WALPOLE SOUZA - BARANOWSKI C. v. SUB-TOTAL MAXIMUM ~ MEDIUM BAY STA I E CORRECTIONAL CENTER MASSACHUSE' IS ! REA'rvIEN! CENTER Me CEDAR JUNCTION 1i) WALPOLE MC CONCORD I i Me: FRAl'lillNGHAJV {FEfvlALE) ,lvlCI FRAMINGHAM: ATU (FEMALE) MCI "ORFOlK !\:lC1 SHIRLEY dVlecnum) NCC: GARDNER @ BRlDGEVVA i ER SHA j TUCK CORRECTfONAL UN1T(S4) STATE HOSP: !AL 1i) BRiDGEWATER ocee 1 SUB-TOTAL MED1UM MINIMUM MA ALCOHOL AND SUBS lANCE ABUSE CEN I ER Mel SHiRLEY ilvllnjmum) NeC! GARDNER (l'djnirnumi 1) OCCC SUB·TOTAL MINIMUM MIN/PRE-RELEASE BaS I ON PRE-RELEASE MCt PLYMOUTH NECC @ CONCORD PONDViLLE CORRECTIONAL CENTER SOU i H IAiDDLESEX C.C.(FEMALE\ SUB·TOTAL MIN/PRE-RELEASE DOC DOC DOC DOC PERCENT OCCUPANCY 739 I 1.197 I 1,936 1 265 561 72 614 388 64 1.084 720 568 480 24 331 5 0e N 71 1.258 358 256 1.445 132%1 1'17'~'cl 122'/,] 124':/0 106% 99°;0 205% 92S·'O 400% 133% 1,182 164% 173°;0 '164'/0 227 5.068 980 786 30 341 7.633 236 299 30 153 65S·'0 270 25 90% 83% i 27'}b 665 i50 151 150 151% 1 86% 169 168 i 13% MIN 111 (i;C MIN 238 159% MIN 183% MIN 10:% MIN 13-1% 183 128 20 15 35 15 6 21 8.029 11,051 686 . e n.s. 13 304 n.a. n.8, ""}...,"') ~~ 11.355 64 49 24 I r .a. n.a, 7 60% n.a. :nmates jn Feders, CustOdy J"PI'\ates jn interstates 1411 75~1'~ n.a . n.a. r\.8, D.a. 18 PRE 161 PRE 174 PRE 1'.4 PRE 104 PRE 40% 1 inmates m County Houses of Corre:tlon inmates if'< DYS Custoc:y SUS- TOTALDOC INMA res IN NON-DOC FACILITIES GRAND TOTAL JURISDICTION POPULATION 125% 150S'o 127 1 5751 100 125 676 CONTRACT PRE-RELEASE{COMMUNITY BEDS B) BROOKE HOUSE WOMEN & CHILDREN'S PROGRAM SUS·TOTAL CONTRACT MINfPRE·RELEASE DOC FACILITIES CUSTODYTOTALPOPULATlON FACILITY POPULATION 561 1.024 1.585 100 , revised 4/11 n.a. n.a. 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