Prison Phone Justice

ALJ/CF1/gp2

Date of Issuance: 10/19/2020

BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA

Order Instituting Rulemaking to Consider
Regulating Telecommunications Services
Used by Incarcerated People

FILED
PUBLIC UTILITIES COMMISSION
OCTOBER 6, 2020
SAN FRANCISCO, CALIFORNIA
RULEMAKING 20-10-002

ORDER INSTITUTING RULEMAKING
Summary
In this Order Instituting Rulemaking, the California Public Utilities
Commission (Commission) will consider how to ensure incarcerated people and
their families have access to intrastate telecommunication service at just and
reasonable rates. To that end, the Commission will consider whether it should
exercise its jurisdiction over the telephone corporations that provide that service
and, if so, how.
1. Jurisdiction
The California Constitution and Public Utilities Code vest in the California
Public Utilities Commission (Commission) regulatory authority over public
utilities, including telephone corporations.1 The Public Utilities Code defines
Cal. Const., art. XII, §§ 3, 6; see also Pub. Util. Code, § 216, subd. (b) (“Whenever any . . .
telephone corporation . . . performs a service for, or delivers a commodity to, the public or any
portion thereof for which any compensation or payment whatsoever is received, that . . .
telephone corporation . . . is a public utility subject to the jurisdiction, control, and regulation of
the commission and the provisions of this part.”).
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“telephone corporations” as “every corporation or person owning, controlling,
operating, or managing any telephone line for compensation within this state”2
and, in turn, defines “a telephone line” to include “all conduits, ducts, poles,
wires, cables, instruments, and appliances, and all other real estate, fixtures, and
personal property owned, controlled, operated, or managed in connection with
or to facilitate communication by telephone, whether such communication is had
with or without the use of transmission wires.”3 This is a broad definition and,
for purposes of this Order Instituting Rulemaking (OIR), the Commission has
preliminarily determined that the companies providing communications services
to people incarcerated in California are telephone corporations within the
meaning of the Constitution and Public Utilities Code, and thus subject to the
Commission’s jurisdiction. Additionally, at least some of the companies that
provide communications services to incarcerated people hold Certificates of
Public Convenience and Necessity (CPCN). This Commission has the statutory
authority to grant and to revoke CPCNs, to condition the grant of CPCNs, and to
regulate CPCN holders.4
The Commission has a statutory mandate to ensure that a public utility’s
rates, terms, and services are just and reasonable,5 and has plenary authority to
carry out this mandate.6

2

Pub. Util. Code, § 234, subd. (a).

3

Pub. Util. Code, § 233.

4

Pub. Util. Code, §§ 1001-1013.

5

Pub. Util. Code, § 451.

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2. Background
The criminal justice system places an undue financial burden on low
income families and communities of color who face disproportionate rates of
incarceration, in particular through costs imposed on incarcerated people and
their families as part of being in prison or in jail. “Due to a variety of market
failures in the prison and jail payphone industry . . . inmates in correctional
facilities, or those to whom they placed calls, incurred prohibitive per-minute
charges and ancillary fees for payphone calls.”7 As the Federal Communications
Commission (FCC) has explained:
Excessive rates for inmate calling deter communication
between inmates and their families, with substantial and
damaging social consequences. Inmates’ families may be
forced to choose between putting food on the table or paying
hundreds of dollars each month to keep in touch. When
incarcerated parents lack regular contact with their children,
those children—2.7 million of them nationwide—have higher
rates of truancy, depression, and poor school performance.
Barriers to communication from high inmate calling rates
interfere with inmates’ ability to consult their attorneys,
impede family contact that can “make[] prisons and jails safer
spaces,” and foster recidivism.8
Even the industry that provides these services admits that “‘calling rates
[for incarcerated people] often exceed, sometimes substantially, rates for

Pub. Util. Code, § 701. The Commission may not, of course, exercise its authority where preempted by federal law, see U.S. Const., art. VI, cl. 2, or where to do so would expressly
contradict state law, see Assembly v. Pub. Util. Com. (1995) 12 Cal. 4th 90, 103.
6

7

Global Tel*Link v. FCC (D.C. Cir. 2017) 866 F.3d 397, 401.

8

Id. at 405 (quoting the FCC’s brief; internal citations omitted).

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ordinary toll calls . . . .’”9 Nor do incarcerated people in this State fare especially
well: According to the Prison Phone Justice campaign, the average cost of a
fifteen-minute intrastate phone call placed from one of California’s jails or
prisons is $1.23, the 28th most expensive in the nation.10 By comparison, the same
phone call in New Hampshire costs twenty cents.11 Within California, the cost of
a 15-minute phone call with a young person incarcerated in a juvenile facility
varies from county to county. In some counties, these calls are free, but a
15-minute call from a youth to their family can range from $2.40 in Solano
County, to $6.00 in San Mateo County to $13.65 in San Benito County.12 Despite
these rates being unreasonable, the Commission has not previously regulated the
rates of telephone services provided to incarcerated people in California’s jails
and prisons, allowing telephone corporations to provide services pursuant to
contracts the Commission does not review. Similarly, the FCC has not overseen
provision of interstate communications services to prisons and jails.
In 2015, the FCC attempted to fill the regulatory gap, imposing fee caps on
both interstate and intrastate inmate calling services.13 In 2017, however, the
U.S. Court of Appeals for the D.C. Circuit struck down that portion of the

9

Id. at 405 (quoting the brief of a group of prison phone providers).

10

Prison Phone Justice, available at https://www.prisonphonejustice.org/.

11

Id.

The Financial Justice Project, Young Women’s Freedom Center and Children’s Defense FundCalifornia, “Price of Justice: Juvenile Phone Calls,” accessed August 24, 2020, available at
https://sfgov.org/financialjustice/.
12

13

Rates for Interstate Inmate Calling Services (Nov. 5, 2015) 30 FCC Rcd. 12763.

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FCC’s 2015 Order that attempted to impose intrastate rate caps as beyond the
FCC’s statutory authority.14 There the matter stood until 2020.
The Covid-19 pandemic has exacerbated many pre-existing inequalities,
those inequalities inherent in the criminal justice system among them. Due to the
pandemic, incarcerated people are facing significant limitations on access to their
families. This issue is even more troubling for those who are facing sentences of
over a year and incarcerated minors.
On July 20, 2020, prompted in part by the COVID-19 pandemic, FCC
Chairman Ajit Pai sent a letter to the President of the National Association of
Regulatory Utility Commissioners (NARUC) “implor[ing] NARUC and state
regulatory commissions to take action on intrastate inmate calling services rates
to enable more affordable communications for the incarcerated and their
families.”15 NARUC—of which this Commission is a member—responded three
days later, asking state utility commissions to review the rates and terms under
which telecommunications services are provided to incarcerated people “and act,
where appropriate.”16
Moreover, on August 8, 2020, the FCC released its Report and Order and
Fourth Further Notice of Proposed Rulemaking in its Rates for Interstate Inmate
Global Tel*Link, 866 F.3d at 412. See also 47 U.S.C. § 201 (giving the FCC authority to review
the rates of “every common carrier engaged in interstate or foreign communication by wire or
radio . . . .”).
14

Letter from Ajit Pai to Brandon Presley (July 20, 2020), available at
https://docs.fcc.gov/public/attachments/DOC-365619A1.pdf.
15

Nat’l Ass’n of Reg. Util. Comm’rs, NARUC Urges Members to Review Inmate Calling Rates (July
23, 2020), available at https://www.naruc.org/about-naruc/press-releases/naruc-urges-membersto-review-inmate-calling-rates/.
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Calling Services docket. Among other things, the FCC proposes to update its rate
caps on interstate calls. However, the FCC recognizes that its authority does not
encompass intrastate calls and “given that the vast majority of calls made by
incarcerated individuals are intrastate calls, we urge our state partners to take
action to address the egregiously high intrastate inmate calling services rates
across the country.”17
This Commission now takes up that call.
3. Preliminary Schedule
3.1.

Preliminary Scoping Memo

The Commission opens this OIR on its own motion to ensure that
incarcerated people in this State pay just and reasonable rates for
telecommunications service, under just and reasonable terms and conditions. In
most cases, the telephone calling options for incarcerated people are limited to
one or more of the following types: collect, debit account, or pre-paid account.
Also, incarcerated people typically cannot choose their own calling provider.
These factors, combined with unrestricted rates, have often resulted in
unreasonably high phone bills for incarcerated people, including minors, and
their families.
This rulemaking will be conducted under Article 6 of the Commission's
Rules of Practice and Procedure, “Rulemaking.”18 As required by Rule 7.1(d),
this OIR includes a preliminary scoping memo, a schedule for this rulemaking,
Report and Order and Fourth Further Notice of Proposed Rulemaking, Rates for Interstate
Inmate Calling Services, WC Docket No, 12-375 (rel. Aug. 7, 2020), at ¶ 4.
17

All references to “Rules” are to the Commission’s Rules of Practice and Procedure unless
otherwise indicated.
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preliminarily determines the category of this proceeding and the need for
hearings, and addresses other matters that are customarily the subject of scoping
memos as set forth below, and preliminarily determines the category of this
proceeding and the need for hearing.
3.2.

Initial Questions and Information

The main issue to be addressed in this proceeding is how should the
Commission regulate the rates, terms, and conditions of telecommunications
services provided to incarcerated people in California to ensure they are just and
reasonable. Within 30 days of Commission adoption of this OIR, we direct the
respondents named in Section 4 below and invite others to respond to the
following questions:
1. Should the Commission exercise its authority to regulate
the companies that provide those telecommunications
services to incarcerated minors and people in California
and, if so, how?
2. Should the Commission set rate caps for intrastate calling
for incarcerated people, including video calls?
3. Should the Commission limit the types of additional fees
providers can charge users of calling services for
incarcerated people?
4. Should the Commission act to protect calling services for
incarcerated people with communications disabilities by
limited charges for inmate calling services calls involving
the use of text telephones (TYY)?
The precise issues to be addressed and the process for addressing those
issues will be set forth in an Assigned Commissioner’s Scoping Memo.

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3.3.

Categorization; Ex Parte Communications;
Need for Hearing

The Commission’s Rules of Practice and Procedure require that an order
instituting rulemaking preliminarily determine the category of the proceeding.
As a preliminary matter, we determine that this proceeding is ratesetting because
while our consideration and approval of this matter would establish policy or
rules affecting a class of regulated utilities we may also consider and/or establish
rates for communication services for incarcerated people. Accordingly, ex parte
communications with the Assigned Commissioner, other Commissioners, their
advisors and the Assigned Administrative Law Judge (ALJ) are permitted only
as described at Public Utilities Code § 1701.3(h) and Article 8 of the Rules.19
We are also required to preliminarily determine if hearings are necessary.
We preliminarily determine that hearings may be necessary.
3.4.

Preliminary Schedule

The preliminary schedule is:
SCHEDULE
EVENT

DATE

Comments on OIR filed and served

November 9, 2020

Reply comments on OIR filed and served

November 19, 2020

Prehearing conference

December 10, 2020

Scoping memo

Q1 2021

Information Gathering (To be determined, TBD)

TBD

Proposed Decision

Q2- Q3 2021

19

Interested persons are advised that, to the extent that the requirements of Rule 8.1 et seq.
deviate from Public Utilities Code sections 1701.1 and 1701.3 as amended by Senate Bill 215,
effective January 1, 2017, the statutory provisions govern.

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EVENT

DATE

Commission Decision

Q2 -Q3 2021

A telephonic prehearing conference (PHC) will be held for the purposes of
(1) taking appearances, (2) discussing schedule, scope and process, and
(3) informing the scoping memo. The telephonic PHC shall be held beginning at
1:00 p.m. on December 10, 2020. The call-in number for this PHC is:
1-877-715-0719; participant code: 721-383. The Assigned ALJ or Assigned
Commissioner may issue additional guidance on pre-PHC statements.
The Assigned Commissioner or the Assigned ALJ may change the
schedule to promote efficient and fair administration of this proceeding. Today’s
decision sets a PHC and the due date for comments on the OIR. The schedule for
the remainder of the proceeding will be adopted in the Assigned Commissioner’s
Scoping Memo.
It is the Commission’s intent to complete this proceeding within 18 months
of the date this decision is adopted. This deadline may be extended by order of
the Commission.20
If there are any workshops in this proceeding, notice of such workshops
will be posted on the Commission’s Daily Calendar to inform the public that a
decision-maker or an advisor may be present at those meetings or
workshops. Parties shall check the Daily Calendar regularly for such notices.

20

Cal. Pub. Util. Code, § 1701.5(a).

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4. Respondents
Telephone corporations holding current CPCNs approved by this
Commission providing wireline service are named as respondents to this
proceeding. These are identified as Competitive Local Carriers, Competitive
Local Resellers, Local Exchange Carriers, Interexchange Carriers, and
Interexchange Resellers. Digital Voice Service Registrants that do not require a
CPCN are also named as respondents.
5. Service of OIR
This OIR shall be served on all respondents.
In the interest of broad notice, this OIR will be served on the official
service lists for the following proceedings:
 R.11-03- 013 (California Lifeline).
 R.18-07-006 (Affordability of Utility Service).
In the interest of broad notice, this OIR will be served on the following
non-profit organizations concerned with incarcerated peoples’ and/or consumer
advocates for communications services:
 #Cut50
 Access Support Network
 ACLU NorCal
 Ameelio
 Anti-Recidivism Coalition
 APLA Health
 California Catholic Conference
 California Coalition for Women Prisoners
 California Immigrant Policy Center
 California Low-Income Consumer Coalition

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 California Public Defenders Association
 Center on Juvenile and Criminal Justice
 Children’s Defense Fund
 Community Housing Partnership
 Drug Policy Alliance
 Ella Baker Center for Human Rights
 Essie Justice Group
 Financial Justice Project
 Freedom for Immigrants
 Friends Committee on Legislation of California
 Initiate Justice
 Lawyers' Committee for Civil Rights of the San Francisco Bay
Area
 Legal Services for Prisoners with Children
 Media Alliance
 MILPA
 Monterey Peace and Justice Center
 Pangea Legal Services
 Prison Phone Justice
 Prison Works Focus
 Prisoners with Children
 Public Policy Research & Consulting
 Returning Home Foundation
 San Francisco Financial Justice Project
 San Francisco Public Defender
 TGI Justice Project
 The Center for Accessible Technology
 The Greenlining Institute
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 The Utility Reform Network
 TransLatin@ Coalition
 Urban Peace Institute
 Western Center on Law and Poverty
 Women’s Policy Institute (WPI)
 Worth Rises
 Young Community Developers
 Young Women's Freedom Center
 Youth Law Center
In the interest of broad notice, this OIR will be served on the to the
following state and local agencies concerned with prison communications
services contracts:
 California State Association of Counties
 California Department of Corrections
Service of the OIR does not confer party status or place any person who
has received such service on the Official Service List for this proceeding, other
than respondents. Instructions for obtaining party status or being placed on the
official service list are given below.
6. Filing and Service of Comments and Other
Documents
Filing and service of comments and other documents in the proceeding are
governed by the Commission’s Rules of Practice and Procedure.
7. Addition to Official Service List
Addition to the official service list is governed by Rule 1.9(f) of the
Commission’s Rules of Practice and Procedure.
Respondents are parties to the proceeding (see Rule 1.4(d)) and will be
immediately placed on the official service list.
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Any person will be added to the “Information Only” category of the
official service list upon request, for electronic service of all documents in the
proceeding, and should do so promptly in order to ensure timely service of
comments and other documents and correspondence in the proceeding. (See
Rule 1.9(f).) The request must be sent to the Process Office by e-mail
(process_office@cpuc.ca.gov) or letter (Process Office, California Public Utilities
Commission, 505 Van Ness Avenue, San Francisco, California 94102). Please
include the Docket Number of this rulemaking in the request.
Persons who file responsive comments thereby become parties to the
proceeding (see Rule 1.4(a)(2)) and will be added to the “Parties” category of the
official service list upon such filing. In order to ensure service of comments and other
documents and correspondence in advance of obtaining party status, persons should
promptly request addition to the “Information Only” category as described above; they
will be removed from that category upon obtaining party status.
8. Subscription Service
Persons may monitor the proceeding by subscribing to receive electronic
copies of documents in this proceeding that are published on the Commission’s
website. There is no need to be on the official service list in order to use the
subscription service. Instructions for enrolling in the subscription service are
available on the Commission’s website at http://subscribecpuc.cpuc.ca.gov/.
9. Intervenor Compensation
Intervenor Compensation is permitted in this proceeding.
Pursuant to Pub. Util. Code § 1804(a)(1), a customer who intends to seek
an award of compensation must file and serve a notice of intent to claim
compensation by 30 days after the prehearing conference. Parties new to

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participating in Commission proceedings may contact the Commission’s Public
Advisor.
10.

Public Advisor
Any person or entity interested in participating in this rulemaking who is

unfamiliar with the Commission’s procedures should contact the Commission’s
Public Advisor in San Francisco at (415) 703-2074 or (866) 849-8390 or e-mail
public.advisor@cpuc.ca.gov. The TTY number is (866) 836-7825.
O R D E R
IT IS ORDERED that:
1. This Order Instituting Rulemaking is adopted pursuant to Rule 6.1 of the
Commission’s Rules of Practice and Procedure.
2. The preliminary categorization is ratesetting.
3. The preliminary determination is that hearings may be needed.
4. The preliminarily scope of issues is as stated above Section 3.
5. A telephonic prehearing conference is set beginning at 1:00 p.m. on
December 10, 2020.
6. Comments on the Order Instituting Rulemaking (OIR) are due no later
than November 9, 2020. Reply comments on the OIR are due no later than
November 19, 2020. The schedule for the remainder of the proceeding will be
adopted in the Assigned Commissioner’s Scoping Memo.
7. The following types of telephone corporations holding a Certificate of
Public Convenience and Necessity (CPCN) approved by this Commission
providing wireline service are respondents to this Order Instituting Rulemaking:
Competitive Local Carriers, Competitive Local Resellers, Local Exchange

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Carriers Interexchange Carriers, and Interexchange Resellers. Digital Voice
Registrants that do not require a CPCN are also named as respondents.
8. The telephonic corporations listed in Ordering Paragraph 7 shall, and any
other person may, file comments responding to this Order Instituting
Rulemaking by November 9, 2020.
9. The Executive Director will cause this Order Instituting Rulemaking to be
served on all respondents and on the service lists for the following California
Public Utilities Commission proceedings: Rulemaking (R.) 11-03- 013 and
R.18-07-006.
10. In addition, the Executive Director will cause this Order Instituting
Rulemaking to be served on the California State Association of Counties and the
California Department of Corrections and the following organizations:
 #Cut50
 Access Support Network
 ACLU NorCal
 Ameelio
 Anti-Recidivism Coalition
 APLA Health
 California Catholic Conference
 California Coalition for Women Prisoners
 California Immigrant Policy Center
 California Low-Income Consumer Coalition
 California Public Defenders Association
 Center on Juvenile and Criminal Justice
 Children’s Defense Fund
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 Community Housing Partnership
 Drug Policy Alliance
 Ella Baker Center for Human Rights
 Essie Justice Group
 Financial Justice Project
 Freedom for Immigrants
 Friends Committee on Legislation of California
 Initiate Justice
 Lawyers' Committee for Civil Rights of the San Francisco Bay Area
 Legal Services for Prisoners with Children
 Media Alliance
 MILPA
 Monterey Peace and Justice Center
 Pangea Legal Services
 Prison Phone Justice
 Prison Works Focus
 Prisoners with Children
 Public Policy Research & Consulting
 Returning Home Foundation
 San Francisco Financial Justice Project
 San Francisco Public Defender
 TGI Justice Project
 The Center for Accessible Technology
 The Greenlining Institute
 The Utility Reform Network
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 TransLatin@ Coalition
 Urban Peace Institute
 Western Center on Law and Poverty
 Women’s Policy Institute (WPI)
 Worth Rises
 Young Community Developers
 Young Women's Freedom Center
 Youth Law Center
11. Any party that expects to claim intervenor compensation for its
participation in this Rulemaking must file its notice of intent to claim intervenor
compensation within 30 days of the prehearing conference (See Rule 17.1(a)(2).)
This order is effective today.
Dated October 8, 2020, at San Francisco, California.

MARYBEL BATJER
President
LIANE M. RANDOLPH

MARTHA GUZMAN ACEVES
CLIFFORD RECHTSCHAFFEN
GENEVIEVE SHIROMA
Commissioners

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