Prison Phone Justice

Page 1 of 1
Matilda Sanders
From:

Ann Bassett [abassett@lawfla.com]

Sent:

Tuesday, June 26,2007 3:47 PM

To :

Filings@psc.state,fl.us

Subject:

Docket 060614-TC

Attachments: 2007-06-26, 060614, Global, TCG Emergency Motion for Protective 0rder.pdf

The person responsible for this electronic filing is:
Floyd R. Self
Messer, Caparello & Self, P.A.
P.O. Box 15579
Tallahassee, FL 32317

(850)222-0720
fself@!.awfla.com
The Docket No. is 060614-TC- Complaince investigation of TCG Public Communications, Inc. for apparent violation of Section
364.183(l, Florida Statutes, Access to Company Records, and determination of amount and appropriate method for refunding
)
overcharges for collect calls made from inmate pay telephones.
This is being filed on behalf of Global Tel*Link Corporation and TCG Public Communications
Total Number of Pages is 9
Emergency Motion for Protective Order of TCG Public Communications, Inc. and Gobal Tel*Link Corporation
Ann Bassett
Messer, Caparello & Self, P.A.
2618 Centennial Place (32308)
P.O. Box 15579
Tallahassee, FL 32317
Direct Phone: 850-201-5225
Fax No. 850-224-4359
Email Address: <abass&t@lawfla.com>
Web Address: <www.lawfla.com >

SEC
OTH

6/26/2007

M E S S E RC A P A R E L L O Q S E L F , P . A .
Attorneys At Law
www.lawfla.com

June 26,2007

ELECTRONIC FILING
Ms. Ann Cole, Director
Commission Clerk and Administrative Services
Room 1 10, Easley Building
Florida Public Service Commission
2540 Shumard Oak Blvd.
Tallahassee, Florida 32399-0850
Re:

Docket No. 060614-TC

Dear Ms. Cole:
Enclosed for filing on behalf of TCG Public Communications, Inc. and Global Tel*Link
Corporation is an Emergency Motion for Protective Order of TCGPublic Communications Inc. and
Global Tei*Link Corporation.

FRS/amb
Enclosures
cc
David Silverman, Esq.
Ms. Roberta Bass, Assistant to Chairman Edgar
Mr. William Garner, Assistant to Commissioner Carter
Mr. Jeremy Susac, Assistant to Commission McMurrian
Mr. Larry Harris, Assistant to Commissioner Argenziano
Ms. Samantha Cibula, Acting Assistant to Commissioner Skop
Ms. Mary Bane, Executive Director
Michael Cooke, Esq., General Counsel

_____

-__--________

______.__

GDCUHtLi: N t . : " ~ ~ CATC
~-

Regional Center Office Park / 2618 Centennial Place / Tallahassee, Florida 32308
Mailing Address, P . 0 Box 15573 / Tallahassee, Florida 32317
Main Telephone: (850) 222-0720 / Fax: (850) 224-4359

05089

JUN26g.

BEFORE THE FLORIDA PUBLIC SERVICE COMMISSION
In re: Compliance investigation of TCG Public
Communications, Inc. for apparent violation of
Section 364.183(1), F.S., Access to Company
Records, and determination of amount and
appropriate method for refunding overcharges
for collect calls made from inmate pay telephones.

)
)
)

Docket No. 060614-TC

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)
)

EMERGENCY MOTION FOR PROTECTIVE ORDER OF
TCG PUBLIC COMMUNICATIONS INC.AND
GLOBAL TEL*LINK CORPORATON
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TCG Public Communications, Inc. (“TCG”), and Global Tel*Link Corporation
(“Global”), pursuant to Sections 120.57, 364.183, and 364.185, Florida Statutes, and Rules 28106.204 and 28-1 06.206, Florida Administrative Code, hereby file this Emergency Motion for
Protective Order to direct that the Staff of the Florida Public Service Commission proceed with
any discovery or information gathering pursuant to the discovery procedures set forth in the
Florida Rules of Civil Procedure as is required by Rule 28-106.204. In support of this Motion,
TCG and Global state as follows:
I. Introduction and Background

1.

This docket was formally opened by the Commission Clerk at the request of the

Commission Staff on September 13, 2006, by Document Number 08315. As is reflected by the
title of this docket, this is a prosecutorial proceeding involving both allegations that TCG has
violated Commission statutes and allegations of overcharges to be refunded to customers.
2.

TCG is certificated by the Commission to provide pay telephone service. At the

present time, TCG is a wholly owned subsidiary of Global. Global is also certificated by the
Cominission to provide pay telephone service. Prior to June 2, 2005, TCG was a wholly owned
subsidiary of AT&T Corp. Pursuant to an asset purchase agreement dated February 17, 2005,
AT&T Corp. sold certain assets to Global, including TCG. The asset purchase agreement closed
on or about June 2,2005, at which time TCG became a wholly owned subsidiary of Global.
3.

The opening of this docket comes after an informal investigation of TCG’s inmate

phone service at the Miami-Dade County Correctional Department’s facilities. This informal
investigation dates back to approximately March, 2004. During the time of the informal
investigation, and prior to August, 2005, the Commission Staff conducted certain tests at the
Miami-Dade Correctional Department facilities and otherwise received data requested from TCG
and/or AT&T, as applicable.
4.

Beginning in August 2005, after AT&T informed the Commission Staff of the

asset transfer of TCG to Global, Global and the Commission Staff met, TCG and Global
provided certain requested information to the Commission Staff, TCG/Global and the
Commission Staff cooperatively participated in a test of the equipment at the Miami-Dade
Pretrial Detention Facility, and TCG/Global otherwise cooperated with the requests of the
Commission Staff to the extent TCGiGlobal was in possession of the data requested by the
Commission Staff.
5.

Since the opening of this docket in September 2006 through last week, the

Commission Staff has correctly changed its mode of operation from an informal investigation
approach to that of formal adversarial litigation parties. Consistent with the change to a formal
adversarial posture, the Commission Staff has propounded two separate sets of interrogatories

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and two separate requests for production of documents to TCG. In addition, the Commission
Staff has served subpoenas for documents on Global, AT&T, and Evercom Systems, Inc., TCG’s
sub-vendor on the Miami-Dade Correctional Department contract. Since the commencement of
this docket, undersigned counsel has been counsel of record for this matter with respect to both
the discovery to TCG and the subpoena to Global and has otherwise been the primary contact
between TCG/Global and the Commission Staff with respect to this docket. The Commission’s
website identifies undersigned counsel as the attomey of record for this docket.
6.

As of the date of this Motion, the Commission has not yet issued a formal or

preliminary administrative complaint as contemplated by Rule 28-106.201 5, Florida
Administrative Code, nor has the Commission Staff issued a Staff Recommendation regarding
the inmate phone service at the Miami-Dade County Correctional Department facilities.
However, Commission Staff has represented to TCG/Global that such a recommendation has
been prepared and is to be filed on June 27,2007, and that the substance of the recommendation
will allege certain violations, overcharges, refunds, fines and penalties, and other potential relief.
While a Staff Recommendation is not an order of the Commission, and it could be rejected or
modified, in whole or in part, by the Commission, at a minimum, all of the facts and
circumstances since the opening of this docket demonstrate a litigation adversarial relationship
between the Commission Staff and TCG/Global.
11. Request for Protective Order

7.

On Friday, June 25, 2007, Kim Gordon-Perez, an official with the Miami-Dade

County Correctional Department and the primary operational contact between TCG/Global and
the County, contacted TCG/Global’s manager for the Miami-Dade contract. Ms. Gordon-Perez
3

informed TCG/Global that she had received a request from the Commission Staff to conduct an
immediate test of the TCGIGlobal inmate phone system equipment. This request from the
Commission Staff was not first communicated to any TCG or Global employee nor, critically, to
undersigned counsel as counsel of record in this docket. Miami-Dade has made arrangements
with the Commission Staff to conduct the requested test on Wednesday, June 27, 2007. Since
the request was made TCG/Global and undersigned counsel have yet to receive notice of this
request from the Commission Staff.
8.

This morning (June 26, 2007)’ Ms. Gordon-Perez again contacted TCGiGlobal’s

contract manager and advised TCG/Global that Commission employee Mr. Paul Vickery
contacted Ms. Gordon-Perez to now request access to the TCG/Global equipment within the
Miami-Dade County Correctional Department’s facilities to conduct three days of testing and to
request other information from the County pertaining to the TCG/Global inmate phone systems.
Since the request was made TCG/Global and undersigned counsel have yet to receive notice of
this request from the Commission Staff.

9.

TCG and Global do not object to the Commission Staff conducting discovery

regarding the inmate phone service equipment in the Miami-Dade County Correctional
Department facilities. However, as a matter of due process under the United States Constitution
and the Constitution of the State of Florida, as well as procedural faimess under the Uniform
Rules of Administrative Procedure, now that there is a formal open docket, the Commission Staff
must conduct itself pursuant to the discovery rules, and only such discovery rules, of the Florida
Rules of Civil Procedure.

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10.

On information and belief, Global has been advised by the Florida Department of

Corrections (“FDOC”) that the Commission Staff has requested information from the FDOC
regarding TCG and/or Global inmate phone services at state andor county correctional facilities
in Florida.

Again, TCG and Global do not object to the Commission Staff seeking information

from third parties, as it has already done from Global, AT&T, and Evercom in this docket. But
such information can only be lawfully obtained pursuant to the discovery procedures set forth in
the Florida Rules of Civil Procedure utilizing subpoenas, as has already been done by the
Commission Staff with respect to Global, AT&T, and Evercom. The purpose of such discovery
processes is clear - adverse parties are entitled as a matter of due process to be informed as to the
information that is being sought by an adverse party so that the party may protect its rights and
interests. For example, already in this case when the Commission Staff subpoenaed information
from Evercom, TCG filed a motion to quash in part, or in the alternative to otherwise limit, the
Evercom subpoena in order to protect TCG’s confidential information. Without such notice,
there was a possibility that proprietary confidential business information of TCG may have been
disclosed on the public record which TCG was able to protect because TCG had timely notice of
the discovery requests. With respect to the apparent requests being made by the Commission
Staff to the FDOC, Global is a party to a bid dispute regarding the state contract for inmate
phone services, and the Commission Staffs actions outside of the formal discovery process
could unintentionally have an adverse impact on those proceedings. Again, due process and
fundamental fairness require that TCG and Global have notice of any information being sought
from any third party so that the companies can protect their business interests.

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11.

Commission Staff counsel has advised undersigned counsel that the Commission

is entitled to independently investigate in this matter pursuant to Section 364.185, Florida
Statutes. However, this statute no longer affords the Commission Staff with a means to gather
information that is to be used in an existing docketed matter for the purpose of building a
prosecutorial case for enforcement, overcharges, refunds, fines, penalties, or any other such
adverse action. This case ceased to be a Section 364.185 investigation when it became a
docketed matter, the purpose of which is the Commission S t a r s attempt to prove alleged
violations of the statutes and a determination of the amount and appropriate method for
refunding alleged overcharges. While the Commission Staff certainly may “investigate” to
prepare a Staff Recommendation or to otherwise develop its prosecution case, the Uniform
Rules, and in particular Rule 28-106.206, Florida Administrative Code, clearly require the
Commission Staff to utilize only the discovery process: “After commencement of a proceeding,
parties may obtain discovery through the means and in the manner provided in Rules 1.280
through 1,390, Florida Rules of Civil Procedure.”
12.

Even assuming the applicability of Section 364.185, or any other investigation

authority of the Commission, the Commission Staff has failed to comply with the process set
forth in the statute. Section 364.185 states that when the Commission is “making investigations,
inspections, examinations, and tests and exercising any power conferred by this chapter’’ that
“the telecommunications company shall be notified of and be represented at the making of such
investigations, inspections, examinations, and tests.” The Commission Staff has completely
failed to communicate its requests for tests or its other requests for information to any TCG or
Global employee. More critically, since these efforts are unquestionably directed to gathering

6

information for use in this docket, Commission Staff has failed to communicate such requests to
the counsel of record in this docket.’

IV. Conclusion
WHEREFORE, TCG and Global respectfully request that this Commission grant this
Emergency Motion for Protective Order, to direct its Staff to conduct any further investigation in
this matter pursuant to the discovery rules of the Florida Rules of Civil Procedure, and to grant
such other relief as is required by due process and in the interest of justice.
/

FLOYI~?
SELF, E s Q ’
Messer, Caparello & Self, P.A.
Post Office Box 15579
Tallahassee, FL 323 17
(850) 222-0720 (voice)
(850) 558-0656 (direct facsimile)
Email: fself@lawfla.com

-

~

Counsel for
TCG Public Communications, Inc. and
Global Tel*Link Corporation

’

It should be noted that the exception in Section 364.185 to the requirement to provide prior notification and
representation does not apply in this case. The exception is for onsite field inspection of equipment used to provide
telecommunications services to the transient public. The inmate phones that are the subject of this investigation can
not be used by the transient public and cannot be accessed by the Commission Staff or even TCG and Global
employees without the express permission of the Miami-Dade County Correctional Department since the telephone
equipment at issue is located in the cell blocks of the confinement facilities. Access to this equipment requires that
cell blocks be locked down, that security background and clearance checks be made, and that the personnel
inspecting, testing, or repairing the equipment be escorted at all times for their personal safety and security. This is
just not the same thing as walking up to and testing a pay telephone in front of a convenience store.

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CERTIFICATE OF SERVICE

I H E B B Y CERTIFY that a true and correct copy of the foregoing has been served on the
following parties by U.S. Mail this 26'hday of June, 2007.
Lee Eng Tan
Office of General Counsel
Florida Public Service Commission
2540 Shumard Oak Blvd.
Tallahassee, FL 32399-0850
Patrick Wiggins
Office of General Counsel
Florida Public Service Commission
2540 Shumard Oak Blvd.
Tallahassee, FL 32399-08 50
David Silver", Esq.
Global Tel*Link
12011 Lee Jackson Memorial Hwy, Suite 320
Fairfax, VA 22033
Tracy W. Hatch, Esq.
AT&T Communications of the Southern
States, Inc.
315 S. Calhoun Street, Ste 750
Tallahassee, FL 32301
Jon C. Moyle, Jr.
Moyle, Flanigan, Katz, Breton, White &
Krasker, P.A.
118 North Gadsden Street