Prison Phone Justice

Federal Communications Commission

DA 23-638

Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Incarcerated People’s Communications Services;
Implementation of the Martha Wright-Reed Act
Rates for Interstate Inmate Calling Services

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WC Docket No. 23-62
WC Docket No. 12-375

ORDER
Adopted: July 26, 2023

Released: July 26, 2023

By the Chief, Wireline Competition Bureau, and the Chief, Office of Economics and Analytics:
I.

INTRODUCTION

1.
By this Order, the Wireline Competition Bureau (WCB) and the Office of Economics and
Analytics (OEA) adopt instructions, a reporting template,1 and a certification form to implement the 2023
Mandatory Data Collection relating to incarcerated people’s communications services (IPCS). Our
actions today are taken pursuant to the authority delegated to WCB and OEA by the Commission and
largely implement the proposals set forth in the 2023 IPCS Mandatory Data Collection Public Notice,2
with refinements and reevaluations responsive to record comments.
II.

BACKGROUND

2.
On January 5, 2023, the President signed into law the Martha Wright-Reed Just and
Reasonable Communications Act (Martha Wright-Reed Act or Act),3 which expanded the Commission’s
statutory authority over communications between incarcerated people and the non-incarcerated, including
“any audio or video communications service used by inmates . . . regardless of technology used.”4 The
new Act also amends section 2(b) of the Communications Act of 1934, as amended (Communications
Act), to make clear that the Commission’s authority extends to intrastate as well as interstate and
international communications services used by incarcerated people.5
3.
The Martha Wright-Reed Act directs the Commission to “promulgate any regulations
necessary to implement” the Act, including its mandate that the Commission establish a “compensation
plan” ensuring that all rates and charges for IPCS “are just and reasonable,” not earlier than 18 months

The reporting template consists of a Word document and Excel spreadsheets. For simplicity, we refer to these
respective portions of the reporting template as the Word template and the Excel template.
1

WCB and OEA Seek Comment on Proposed 2023 Mandatory Data Collection for Incarcerated People’s
Communication Services, WC Docket Nos. 23-62, 12-375, Public Notice, DA 23-355 (WCB/OEA Apr. 28, 2023)
(2023 IPCS Mandatory Data Collection Public Notice or Public Notice).
2

Martha Wright-Reed Just and Reasonable Communications Act of 2022, Pub. L. No. 117-338, 136 Stat. 6156; 47
U.S.C. §§ 152(b), 153(1)(E), 276(b)(1)(A), (d).
3

4

Martha Wright-Reed Act § 2(a)(2), (b).

5

Id. § 2(c).

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and not later than 24 months after the Act’s January 5, 2023 enactment date.6 The Act requires the
Commission to consider, as part of its implementation, the costs of “necessary” safety and security
measures, as well as “differences in costs” based on facility size or “other characteristics.”7 It also allows
the Commission to “use industry-wide average costs of telephone service and advanced communications
services and the average costs of service of a communications service provider” in determining just and
reasonable rates.8
4.
The Martha Wright-Reed Act contemplates an additional data collection by requiring or
allowing the Commission to consider certain types of other costs necessary to its implementation. Prior
to the enactment of the Martha Wright-Reed Act, the Commission had sought provider data related to
audio communications services provided to incarcerated persons on three occasions, as part of its ongoing
efforts to establish just and reasonable rates for those services, while ensuring that providers are fairly
compensated for such services.9 To ensure that it will have the data it needs to meet its substantive and
procedural responsibilities under the Act, the Commission delegated authority to WCB and OEA to
“update and restructure” its most recent data collection (the Third Mandatory Data Collection) “as
appropriate in light of the requirements of the new statute.”10 This delegation requires that we collect
“data on all incarcerated people’s communications services from all providers of those services now
subject to” the Commission’s authority, including, but not limited to, requesting “more recent data for
additional years not covered by the [Third Mandatory Data Collection].”11
5.
In accordance with this delegation, WCB and OEA developed proposals for the 2023
Mandatory Data Collection that updated and expanded the instructions and reporting templates from the
Third Mandatory Data Collection, and issued a Public Notice seeking comments on all aspects of the
proposed revisions to the collection.12 Concurrently, in accordance with the Paperwork Reduction Act of
1995 (PRA), the Commission published a notice in the Federal Register seeking comment on potential
burdens of the proposed reporting requirements.13

6

Id. §§ 2, 3(a); 47 U.S.C. § 276(b)(1)(A).

7

Martha Wright-Reed Act § 3(b)(2).

8

Id. § 3(b)(1).

Rates for Interstate Inmate Calling Services, WC Docket No. 12-375, Report and Order and Further Notice of
Proposed Rulemaking, 28 FCC Rcd 14107, 14172-73, paras. 124-26 (2013) (adopting the First Mandatory Data
Collection); Rates for Interstate Inmate Calling Services, WC Docket No. 12-375, Second Report and Order and
Third Further Notice of Proposed Rulemaking, 30 FCC Rcd 12763, 12862, para. 198 (2015) (adopting the Second
Mandatory Data Collection); Rates for Interstate Inmate Calling Services, WC Docket No. 12-375, Third Report
and Order, Order on Reconsideration, and Fifth Further Notice of Proposed Rulemaking, 36 FCC Rcd 9519, 961920, para. 221 (2021) (2021 ICS Notice or 2021 ICS Order) (adopting the Third Mandatory Data Collection).
9

Incarcerated People’s Communications Services; Implementation of the Martha Wright-Reed Act; Rates for
Interstate Inmate Calling Services, WC Docket Nos. 23-62, 12-375, Notice of Proposed Rulemaking and Order,
FCC 23-19, at 2, 33, paras. 2, 84 (2023) (2023 IPCS Notice or 2023 IPCS Order).
10

2023 IPCS Order at 33-34, paras. 84-85. The Commission directed WCB and OEA to “implement any
appropriate modifications” to the Third Mandatory Data Collection, including updating the instructions and
reporting template for that collection, “to the extent appropriate to timely collect . . . information to cover the
additional services and providers now subject to [the Commission’s] authority.” Id. at 33-34, para. 85.
11

12

Public Notice at 2.

Federal Communications Commission, Information Collection Being Reviewed by the Federal Communications
Commission, 88 Fed. Reg. 27885 (May 3, 2023) (60-Day PRA Notice).
13

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DA 23-638

6.
We received comments from several IPCS providers, public interest advocates, and other
interested parties in response to the Public Notice,14 and one comment in response to the PRA notice.15
We have thoroughly considered all of these filings in adopting the requirements for the final 2023
Mandatory Data Collection.
III.

DISCUSSION
A.

Implementing the 2023 Mandatory Data Collection

7.
Pursuant to our delegated authority, we adopt the 2023 Mandatory Data Collection
Instructions, Word and Excel templates, and certification form as proposed in the Public Notice, with
some exceptions discussed below. Commenters generally support the broad contours and specific
requirements of the data collection as proposed and do not challenge our proposal to retain the overall
reporting structure and organization of the Third Mandatory Data Collection as the basis for this
collection.16
8.
Commenters offer various suggestions that, in their view, would improve the proposed
data collection.17 In light of these comments, we reevaluate some of our proposals and refine certain
aspects of the instructions and templates, as set forth in greater detail below, while retaining the overall
structure of the data collection as proposed. These refinements include modifying the treatment of video
IPCS and safety and security measures, clarifying the reporting of costs related to site commissions, and
revising certain proposed definitions. We conclude that the modifications we make “appropriately
balance the need for ‘detailed and specific instructions and templates’ and the desire to avoid unduly
burdening providers.”18
9.
In finalizing the requirements for the data collection, we do not resolve issues pending in
the 2023 IPCS Notice, as some commenters propose.19 Doing so would exceed the authority the
Commission delegated to WCB and OEA.20 The Public Notice expressly foreclosed “seek[ing] additional
comment on the questions and other issues previously raised in the 2023 IPCS Notice or in relevant prior
Commission or Bureau notices,”21 and we do not address commenters’ proposals to the contrary in this

We received comments or replies in response to the Public Notice from Ameelio; Global Tel*Link Corporation
d/b/a ViaPath Technologies (ViaPath); Pay Tel Communications, Inc. (Pay Tel); Securus Technologies, LLC
(Securus); Worth Rises; and the Wright Petitioners.
14

15

ViaPath Paperwork Reduction Act Comments (filed July 3, 2023) (ViaPath PRA Comments).

Pay Tel Comments at 1; Securus Comments at 1; ViaPath Comments at 3; Worth Rises Comments at 1; Wright
Petitioners Comments at 2.
16

ViaPath Comments at 4; Pay Tel Comments at 3, 4, 6-7; Securus Comments at 2, 5; Wright Petitioners Comments
Appx. A, Brattle Report at 13-14, para. 28 (Brattle Report).
17

Rates for Interstate Inmate Calling Services, WC Docket No. 12-375, Order, 37 FCC Rcd 368, 370, para. 7.
(WCB/OEA 2022) (Third Mandatory Data Collection Order or Third MDC Order).
18

See, e.g., Pay Tel Comments at 3 (seeking a determination that all safety and security measure costs are
recoverable); but see Worth Rises Reply at 3 (“There simply is no basis for [Pay Tel’s] claim that all safety and
security measures are recoverable through IPCS rates.”).
19

A change in the Commission’s rules requires action by the full Commission and cannot be adopted by WCB and
OEA on delegated authority. Third MDC Order, 37 FCC Rcd at 371, para. 8 (explaining that a data collection is
“not the proper administrative vehicle to . . . change Commission rules”).
20

Public Notice at 2; see also 2021 ICS Order, 36 FCC Rcd at 9618-19, paras. 218, 221 (explaining that the purpose
of a data collection is to provide the Commission with sufficient information to resolve various issues it is
considering).
21

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Order. Instead, the purpose of the data collection is to provide the Commission with an objective
foundation for addressing the issues it must resolve to implement the Martha Wright-Reed Act.22
10.
In the sections that follow, we first address the overall scope of the data collection and
then turn to proposals to revise specific instructions.
B.

Overall Scope of the Data Collection
1.

Reporting Period

11.
We limit the data collection to calendar year 2022, consistent with our proposal in the
Public Notice.23 We find that the data from 2022 will provide the most pertinent and the best indicator of
relevant costs. Some commenters propose that we expand the data collection reporting period beyond just
2022.24 Others argue that the burden of requiring additional years of data would “outweigh[] any material
benefit.”25 We decline to expand the reporting period. Data from 2022 represent the most recent data
available, and are therefore likely to be more representative of future operations by IPCS providers than
data from prior years. To the extent that data from prior years would be useful in determining just and
reasonable rates, we already have data regarding audio IPCS, including investments, expenses, revenues,
demand, site commission payments, and ancillary services charges and practices, from the Third
Mandatory Data Collection. We recognize that those data are limited to audio IPCS, but find that the
burdens associated with collecting video data for prior years would outweigh any potential benefit. In
particular, the pandemic had a substantial impact on providers’ operations and likely accelerated the
implementation of (and therefore increased the costs and revenues associated with) video IPCS as a
substitute for in-person visitation, such that data from those prior years may not be representative of
providers’ future operations.26 As a result, we find that collecting data solely for 2022 will best equip us
to set rate caps that reflect providers’ operations going forward and avoid the burdens associated with
collecting additional data that may not be representative or are already available for prior periods.27

22

See 2021 ICS Order, 36 FCC Rcd at 9618-19, paras. 218, 221.

23

Public Notice at 3.

See, e.g., Worth Rises Comments at 3 (suggesting that we expand the data collection to include “safety and
security expense data” from 2020 and 2021 so as to have three years of such data to reconcile and compare); Worth
Rises Reply at 5; see also Wright Petitioners Comments, Brattle Report at 3, para. 4 (suggesting that the
Commission should expand the entire data collection to capture 2021 data as well). But see ViaPath Reply at 2
(“The Bureaus should reject calls to expand the proposed MDC beyond what is ‘appropriate in light of the
requirements’ of the MWR Act.”); Securus Reply at 2-4.
24

See, e.g., Securus Comments at 2 (reasoning that “there is little value” in requiring data, specifically on intrastate
costs, beyond 2022, because such costs are “not materially different” from interstate costs and have not been isolated
by providers); Pay Tel Reply at 4 (agreeing with Securus that “the reporting period for voice and video calling
services should be limited to the 2022 calendar year”); Securus Reply at 8.
25

See, e.g., Third MDC Order, 37 FCC at 381, para. 36 (finding that the record indicated that “providers [may have]
incurred large one-time costs related to COVID-19,” which posed the risk of “atypical, one-time expenses . . . being
considered normal company costs”); Pay Tel Reply at 4 (explaining that “safety and security data for 2020 and 2021
is not reconcilable with past or present data submissions due to the paradigm-shifting effects of the COVID
pandemic” to argue imposing reporting requirements for safety and security costs for those years “would impose a
significant burden with little to no material benefit”).
26

In our 60-Day PRA Notice, we estimated that it would take IPCS providers an average of 230 hours to respond to
the data collection. 60-Day PRA Notice, 88 Fed. Reg. at 27885. ViaPath argues that we have “grossly
underestimated the amount of time it will take IPCS providers to respond to the proposed MDC.” ViaPath PRA
Comments at 3. We previously rejected ViaPath’s almost identical argument regarding our burden estimate for the
Third Mandatory Data Collection, explaining that ViaPath “is the largest calling services provider, ‘with an
estimated market share approaching 50%.’ Given that market share, we would expect that [ViaPath’s] total
response time would far exceed any industry average, regardless of the number of estimated hours.” Third MDC
(continued….)
27

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12.
While we recognize the incremental benefits of having more comprehensive cost data,
most of the categories of data that we seek in this data collection were addressed in the previous data
collection, such that collecting these data from years prior to 2022 would be largely redundant. To the
extent we seek new categories of data, the burden on providers to produce those data would be
significant. Given the burdens already imposed by this revised data collection which are necessary to
implement the new statute, as well as the comparatively shorter timeframe for submitting responses,28 we
decline to impose an additional burden by expanding the reporting period as some commenters propose.
2.

Cost Reporting and Cost Allocation

13.
In the Public Notice, we proposed to adapt the cost reporting and cost allocation
methodologies specified for the Third Mandatory Data Collection for use in the 2023 Mandatory Data
Collection. No commenter challenges this overall approach or suggests fundamental changes to our
proposals for applying those methodologies to video IPCS. Instead, commenters suggest relatively
discrete modifications to our proposed instructions for reporting company-wide cost data and for
allocating reported costs among cost categories.29 After considering these comments, we adopt the cost
allocation methodology essentially as proposed, with modifications to the instructions designed to help
providers understand our cost allocation methodology and to obtain further information on how providers
implement it. We also modify the instructions to establish, at the facility-specific level, the same
reporting structure for capital assets and expenses that is in place at the company-wide level.
14.
As a general matter, our changes to the cost reporting and cost allocation instructions
reflect an understanding, from our review of the Third Mandatory Data Collection submissions, that
certain providers’ internal accounting and recordkeeping systems limit those providers’ ability to provide
highly disaggregated cost data and to finely tune their cost allocation procedures.30 Given these
limitations, our revised instructions generally require providers to describe in greater detail their
implementation of our cost reporting and cost allocation instructions, rather than prescribe additional cost
reporting and cost allocation requirements for which certain providers may not have the internal
accounting systems needed to comply with such requests.
15.
For example, we require providers to describe the types of costs they include in various
capital and operating expense categories, rather than list the types of costs that are to be included in each
category, as one commenter suggests.31 We also require providers to describe in greater detail the factors
they use to allocate certain types of shared and common costs among audio IPCS, video IPCS, and
(Continued from previous page)
Order, 37 FCC Rcd at 380 n.105 (citing 2021 ICS Order, 36 FCC Rcd at 9550, para. 74). The record in this
proceeding provides no indication that ViaPath’s market status has changed or that our proposed burden estimate did
not reflect the industry average. Nevertheless, we will revise our average burden estimate to account for the
additional effort required to comply with the changes from our proposals that we adopt in this Order. Our revised
estimate, which will be included in the subsequent 30-day PRA notice related to this data collection, will reflect the
likely burden of the data collection.
28

As discussed below, responses to this data collection will be due 97 days from the date of this Order.

Wright Petitioners Comments, Brattle Report at 5, 7, 8, paras. 10, 15, 17 (suggesting the Commission could
improve the data collection by “providing more detailed instructions on what costs should be included in a category”
and by providing examples of how providers should allocate shared costs).
29

Securus Reply at 2-3 (arguing that “[p]recision will not be improved by requiring providers to artificially allocate
costs into ever more discrete buckets that in no way reflect how expenses are tracked in the normal course of
business,” and noting the difficulty smaller providers would encounter in trying to perform “highly granular
allocations”); ViaPath Comments at 3-4.
30

Wright Petitioners Comments, Brattle Report at 7, para. 15 (contending that we should require providers “to list
out example[s] of the types of services and associated costs they are attributing to each [operating expense
category]”).
31

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nonregulated services, rather than specifying factors for providers to use in performing those allocations.32
We find that these revisions will help the Commission understand the nature of the reported costs, without
imposing significant additional burdens on providers that would be unlikely to result in more useful
information.33
16.
We reject, however, ViaPath’s proposal that we permit providers to “use the allocation
methodologies that best reflect [their] business and the way in which [they] keep[] [their] books and
records as long as the provider[s] document[] and explain[] [such] methodologies in [their] MDC
response[s].”34 The detailed cost allocation hierarchy set forth in the proposed instructions was carried
forward from the instructions for the Third Mandatory Data Collection and, as such, reflects the
Commission’s directive that the Third Mandatory Data Collection collect, “to the extent possible, uniform
cost . . . data from each provider.35 In directing that we “update and restructure” that prior data
collection,36 the Commission did not propose or suggest that we should undertake wholesale revisions to
the core methodologies of the Third Mandatory Data Collection by allowing each provider to devise its
own allocation methodology. As the Wright Petitioners point out, allowing providers to devise their own
cost allocation methodologies in the previous data collection led to “large discrepancies between costs
allocated towards capital expenses and operating expenses,”37 with providers assigning costs
inconsistently among the categories provided and reporting nonregulated service costs as inmate calling
services costs.38 Allowing providers to use their own allocation methodologies also would substantially
increase the back-end burden on all parties that want to process and analyze the reported data, because of
the extent and complexity of the adjustments that would be necessary to correct for inconsistencies among
providers’ responses. The cost allocation hierarchy set forth in the instructions provides a necessary and
workable framework within which to standardize and compare the data submitted, while, as we recognize
above, affording providers flexibility to implement the cost allocation instructions in a manner that
reflects their accounting and recordkeeping systems.

See id. at 4, para. 9 (suggesting the possible use of a cost allocation factor “based on speed requirements,
bandwidth consumption, or storage costs of audio versus video calls” to allocate common costs between audio and
video IPCS); Securus Reply, Attach. Declaration of Charlie J. Choe, Brian F. Pitkin, and Steven E. Turner
Regarding the Proposed 2023 Mandatory Data Collection (FTI Declaration) at 13-14, paras. 6-7 (discussing factors
that Securus may use to allocate costs to services using tablets, noting “[t]ablets may provide access to . . . a
multitude of other [nonregulated] services”).
32

Relatedly, we decline to identify and exclude specific types of costs that could be characterized as unrelated to the
provision of IPCS from any particular category. Wright Petitioners Comments, Brattle Report at 15-16, para. 33.
The 2023 IPCS Notice invited comment on which types of costs should be reflected in IPCS rates, and we indicated
that advocacy concerning issues before the Commission in the rulemaking would not be considered in this context.
See 2023 IPCS Notice at 21, para. 49; Public Notice at 2.
33

ViaPath Comments at 3-4; ViaPath Reply at 4. But see Wright Petitioners Reply at 5 n.11 (“As the Commission
has previously concluded, concerns about different approaches to cost allocation are not a reason for the
Commission to decline to take action.” (citing the 2021 ICS Order, 36 FCC Rcd at 9544, para. 59)). We once again
reject ViaPath’s argument, previously raised in response to the Third Mandatory Data Collection, regarding the
differences in book and record keeping between non-dominant and dominant carriers. ViaPath PRA Comments at 4.
As WCB found in the Third MDC Order, “[w]hether providers are dominant has no bearing on the Commission’s
authority to mandate the manner in which ICS providers report cost data. Our requests apply to all ICS providers.”
Third MDC Order, 37 FCC Rcd at 381, para. 37 & n.109 (internal quotation marks and citation omitted).
34

35

2021 ICS Order, 36 FCC Rcd at 9621, para. 225.

36

2023 IPCS Order at 33, para. 84.

37

Wright Petitioners Comments, Brattle Report at 4, para. 7.

38

Id. At 6-7, para. 13.

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DA 23-638

Overall Reporting Categories

17.
We adopt our proposal to require providers to allocate their investments and expenses
among audio IPCS, video IPCS, safety and security measures, various types of ancillary services, and
other services and products.39 We find, subject to certain refinements related to safety and security
measures, that these categories are well-suited to provide the Commission with the information it needs to
comply with its ratemaking responsibilities under the Communications Act and the Martha Wright-Reed
Act without unduly burdening providers.
18.
We decline to require providers to subdivide their audio and video IPCS costs into more
discrete categories based on the type of audio or video service being provided, as some parties suggest.40
While we recognize that video IPCS costs may vary based on the equipment used to provide the service,41
we find that the best way to address this possibility is to ask providers to report the per-unit costs of the
devices used for video IPCS. This information, combined with the requirement that providers report their
video IPCS costs on a facility-by-facility basis while describing the video services provided at each
facility, should provide sufficient information to measure any cost differentials among different video
services without imposing on providers the burden of subdividing video IPCS costs into more discrete
categories.
19.
We adopt our proposal to allow, but not require, providers to subdivide their investments
and expenses for audio IPCS, video IPCS, safety and security measures, and ancillary services between
interstate/international and intrastate services.42 While we recognize that providers likely experience “no
meaningful difference[s]” between the costs of providing interstate/international and intrastate IPCS
(other than the costs of terminating audio communications in foreign destinations),43 we find this option
properly allows providers the flexibility to inform the Commission if they do incur different costs based
on the jurisdictional nature of the services they provide.
4.

Safety and Security Measures

20.
We adopt our proposal to require providers to allocate the annual total expenses they
incurred in providing safety and security measures among seven categories using the provider’s best
estimate of the percentage of those expenses attributable to each category.44 After considering the

See Public Notice at 4; Securus Comments at 2 (agreeing that providers should endeavor to allocate their costs
among traditional voice service, video calling services, ancillary services, and nonregulated services); ViaPath
Comments at 3 (supporting separate cost categories for audio and video IPCS).
39

See Public Notice at 4; Securus Comments at 2 (asserting that “[t]here is no need to further segregate costs into
subcategories of voice and video service”); ViaPath Comments at 4.
40

ViaPath Comments at 4 (stating that “video IPCS provided over a tablet may have different costs than video IPCS
provided over a dedicated unit such as a kiosk”); Wright Petitioners Comments, Brattle Report at 16 (suggesting the
providers’ “overall cost structure of providing video calling services” is impacted by the cost of equipment).
41

42

See Public Notice at 4-5.

43

ViaPath Comments at 4.

Public Notice at 5. The seven categories, as set forth in the instructions adopted in this Order, are
Communications Assistance for Law Enforcement Act (CALEA) compliance measures (i.e., safety and security
measures that providers took to comply with CALEA); law enforcement support services; communication security
services; communication recording services; call monitoring services; voice biometrics services; and other safety
and security measures. With the exception of the CALEA compliance measures category, these categories update
categories used in the Third Mandatory Data Collection. Calling Services for Incarcerated People Third Mandatory
Data Collection Instructions, §§ IV.C.3.b., IV.D.2.c., http://www.fcc.gov/sites/default/files/2022_mdc__instructions_to_third_mandatory_data_collection_1.18.2022.docx (link provided in Third MDC Order at Appx. A,
Third Mandatory Data Collection Instructions and Template).
44

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comments regarding this proposed allocation process, we modify the instructions for this allocation to
make them clearer and more comprehensive.
21.
Some providers take issue with our proposed seven-category framework for reporting
safety and security measure costs, claiming that their internal accounting systems do not align with these
categories and that providers will have difficulty allocating their costs in the manner proposed.45 We do
not find these arguments persuasive. As Securus concedes, the cost categories we proposed are similar to
categories employed in the Third Mandatory Data Collection.46 Accordingly, we find, as we did with the
Third Mandatory Data Collection, that the proposed categories provide a comprehensive and workable
framework for dividing safety and security measure costs into reasonably homogenous groupings that
“should capture all [safety and] security costs,”47 particularly with our addition of multiple examples of
costs for each category. To the extent that providers make measures available that do not fit within the
first six categories,48 the data collection also includes a catch-all category for “Other Safety and Security
Measures.”49
22.
The Martha Wright-Reed Act requires the Commission to consider “costs associated with
any safety and security measures necessary to provide” IPCS in setting IPCS rates.50 While the
commenters present sharply divergent views as to whether providers should be allowed to recover the
costs of various types of safety and security measures through their rates,51 our purpose here is to ensure,
to the extent consistent with the providers’ internal accounting and recordkeeping,52 that the data
collection generates, in a timely manner, sufficient information for the Commission to implement
ViaPath Comments at 5 (noting “it may be difficult” for providers to separate their safety and security costs and
allocate those costs into the seven categories); ViaPath Reply at 5 (repeating its position that it may not be possible
to separate all safety and security costs into the Commission’s categories); Pay Tel Comments at 2 (arguing that
providers’ accounting systems are not designed to track safety and security costs separately); Pay Tel Reply at 1-2
(agreeing with Securus and ViaPath “that it will be difficult for providers to report safety and security cost
information in the manner proposed by the Commission”); compare with Securus Reply at 8 (“[T]he 3rd MDC in
fact did ask for cost data for these same categories of security services (excluding CALEA).”); Worth Rises Reply at
2, 4 (challenging certain providers’ assertions that they cannot separate these costs and asserting that “[i]t is absurd
to believe that the providers do not have the means to separate their safety and security costs across all IPCS
categories”).
45

Securus Comments at 4 (noting that the categories are the same as those established in the Third Mandatory Data
Collection “[w]ith the exception of the addition of CALEA expenses”).
46

Third MDC Order, 37 FCC Rcd at 374, para. 19 (establishing a category-based framework for reporting costs and
additional information on security measures, and finding this approach to be comprehensive).
47

See ViaPath Comments at 5; Pay Tel Comments at 4 (proposing the Commission collect data on safety and
security measures that are ancillary or supplementary to IPCS).
48

We find that imperfect alignment between our framework and providers’ accounting systems fails to compel an
alternative approach, especially where record proposals suggesting alternative approaches or changes are predicated
on policy determinations beyond the scope of this Order. The Commission’s obligation to “consider costs
associated with any safety and security measures necessary to provide” IPCS is imposed by statute, and is not
contingent on the particularities of the various “way[s] in which providers record costs.” Martha Wright-Reed Act
§ 3(b)(2); Pay Tel Comments at 4; Wright Petitioners Reply at 5 n.11 (“As the Commission has previously
concluded, concerns about different approaches to cost allocation are not a reason for the Commission to decline to
take action.” (citing the 2021 ICS Order, 36 FCC Rcd at 9544, para. 59)).
49

50

Martha Wright-Reed Act § 3(b)(2).

Pay Tel Comments at 4-5 (arguing that safety and security costs are “by definition, recoverable costs” and
suggesting that due to the lack of “a uniform system of accounting for IPCS providers,” reported costs for safety and
security measures will vary depending on how providers record those costs and interpret the Commission’s
instructions); Worth Rises Reply at 2-4; Wright Petitioners Reply at 2.
51

52

Securus Reply at 2; Pay Tel Reply at 5.

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“whatever decision it makes regarding the necessity of safety and security measures.”53 This necessarily
requires tradeoffs between pinpointing the costs of each safety and security measure providers offer and
the providers’ ability to produce (and the Commission’s ability to process) highly disaggregated safety
and security measure cost data within the 18 to 24 month statutory timeframe.54 We find the proposed
reporting structure and associated categories, modified as described below, to be the most effective means
of balancing these competing considerations.
23.
One commenter claims that the proposed categories “will not provide a full or accurate
picture of how safety and security costs are associated with the service offering,”55 while other
commenters propose that we should “provid[e] examples and or definitions . . . of certain security
services and costs that would fall under the seven categories,” and that the required safety and security
cost data should, in general, be more granular.56 The proposed instructions already include multiple
examples of safety and security measures that fall within each of the seven categories. We find that these
lists, as revised in response to the comments, are sufficiently comprehensive to allow providers to sort
their safety and security measures into the categories we have established. However, because some
commenters may not have understood the examples we provided,57 we have reorganized the relevant
instructions to simplify them and increase their clarity. Specifically, we modify both the company-wide
and the facility-by-facility instructions to first require providers to assign each of their safety and security
measures to one of the seven listed categories and second to allocate their aggregate costs of providing
safety and security measures among these categories.
24.
In addition, we give providers the option to supplement what we require them to submit
should they determine that more specific categories are needed to reflect their operations. Specifically,
when allocating these costs, providers may divide the seven listed categories into subcategories of their
own choosing, and thereby report costs in a more detailed manner. We find that allowing for further
subdivision will better enable providers to submit a “full [and] accurate picture” of their costs in a way
that “meaningfully distinguish[es] among these costs,” while also retaining the uniform reporting
structure that is necessary for us to effectively compare cost data among providers.58 We also adopt a
suggestion that we instruct providers to assign any safety and security measure that does not precisely
match any of our provided examples to the category that provides the best fit, and to allocate the costs of
such measures accordingly.59 Directing providers to categorize services in this manner will give them
additional flexibility in applying the categories to their own internal accounting structures.60
53

Worth Rises Reply at 2.

54

Martha Wright-Reed Act § 2(d).

55

Pay Tel Comments at 3; Pay Tel Reply at 2.

Wright Petitioners Comments, Brattle Report at 10, para. 22. Conversely, Securus argues that the Public Notice
“provides no rationale for why the proposed . . . level of disaggregation is necessary to implement” the requirement
that we “consider the costs associated with any safety and security measures necessary to provide” IPCS. Securus
Comments at 4. However, the Public Notice explicitly proposed that this disaggregation would “facilitate the
Commission’s consideration” of “costs associated with any safety and security measures necessary to provide”
IPCS, as required under the Act. Public Notice at 5. In sum, in order to assess and distinguish between “necessary”
and unnecessary costs, the Commission must obtain as comprehensive an understanding of such costs as is feasible
under the circumstances.
56

57

Public Notice at 3-4; ViaPath Comments at 5; Pay Tel Comments at 5; Securus Comments at 3-4.

58

Pay Tel Comments at 3.

59

Wright Petitioners Comments, Brattle Report at 10, para. 22.

We decline to adopt Securus’s proposal to remove the category for CALEA compliance measures. Securus
Comments at 4. Questions of the applicability of CALEA to IPCS providers are not relevant to the purpose of the
data collection. Wright Petitioners Reply at 5 (arguing in opposition to proposals to remove the CALEA-related
cost category, “[t]he Commission need not resolve at this time whether all IPCS providers are exempt from the
(continued….)
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25.
To further help providers allocate safety and security costs among the established
categories, we modify the instructions to include additional guidance. These changes address certain
commenters’ concerns about their ability to allocate their security costs among each category within our
seven-category reporting framework without further guidance.61 However, given providers’ concerns
with their ability to implement the seven-category framework,62 we decline to require that the expenses
allocated to each of the seven categories be further allocated among the various safety and security
measures within each category.63 Conversely, we also decline to adopt Pay Tel’s proposal that we limit
our collection to “data regarding Safety and Security Measures associated with distinct and separate
‘system[s], product[s], or service[s]’ which are provided as ancillary components to the IPCS offering.”64
As an initial matter, those measures are effectively encompassed within our categories. To the extent that
Pay Tel is proposing that we only collect such data, that approach would require that we prejudge which
safety and security measures are “necessary,” which would be beyond the scope of our delegated
authority.65
26.
We also decline to subdivide the safety and security measures reporting category into
different real-time and non-real-time subcategories, as one commenter urges.66 We find that the
granularity already included in the safety and security reporting requirements is sufficient to provide the
Commission with the data it will need to set just and reasonable rates caps for IPCS. The additional

(Continued from previous page)
CALEA requirement” and find that only providers subject to CALEA compliance and with reportable costs “should
allocate those costs in the appropriate category. . . . There is no reason to eliminate the category.”). We require data
on providers’ costs of complying with CALEA, to the extent they are incurred, so that the Commission may decide
whether to include or exclude these costs from the underlying rates. Worth Rises Reply at 5. If, as Securus claims,
CALEA is not applicable to IPCS, then providers should have no costs to report in this category and the reporting
burden (if any) will be minimal. Securus Comments at 4-5; Wright Petitioners Reply at 2, 5.
ViaPath Comments at 5 (“separating the costs associated with safety and security measures from other IPCS costs
may not be possible in all cases, especially using” the seven-category framework); Pay Tel Comments at 3-4;
Securus Comments 3-5; Wright Petitioners Comments, Brattle Report at 10, para. 22.
61

Securus Comments at 4 (taking issue with the proposed structure, level of disaggregated data sought, and
categories for collecting information regarding providers’ safety and security measures ); Securus Reply, FTI
Declaration at 14 (“A key concern is that many of the [safety and security] services do not fit neatly into the
categories as outlined by the Commission.”); Pay Tel Comments at 3-5 (criticizing the seven-category framework,
and disputing its accuracy and usefulness); Pay Tel Reply at 3 (opposing record proposals that would require actual
expense reporting of safety and security costs by arguing that “the Commission has appropriately realized” that the
reporting of actual expenses may not be possible if the provider’s record keeping systems do not allow for precise
allocations); ViaPath Comments at 5 (noting that “it may be difficult” to perform the proposed cost allocation for
safety and security measures).
62

Worth Rises Comments at 2 (proposing that the Commission require providers to allocate expenses for each “line
item” reported under each safety and security category); Pay Tel Reply at 3 (explaining that “if an [IPCS] provider’s
books and records do not show a precise allocation, then some estimate is required in order to categorize safety and
security costs” and that “the reporting of ‘actual expenses’ in the manner [certain commenters] proposed simply is
not possible in all cases, as the Commission has appropriately recognized”); Securus Reply at 2 (“Advocates appear
to believe that the collection of ever more information subdivided into ever more discrete categories will heighten
precision and diminish the ability of providers to submit inflated costs. This belief simply does not reflect reality.”).
63

64

Pay Tel Comments at 4.

See Third MDC Order, 37 FCC Rcd at 371, para. 8 (finding that data collections, such as this one, are “not the
proper administrative vehicle” to make policy determinations).
65

See Worth Rises Comments at 1-2 (suggesting that we should require providers to allocate their costs of providing
safety and security measures among real-time audio, real-time video, non-real-time audio, and non-real-time video);
Worth Rises Reply at 2.
66

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burden more subdivision would impose on providers outweighs any potential benefit of further
disaggregation.
27.
One commenter observes that “there are no safety and security costs associated with
ancillary services of the type contemplated” for IPCS.67 We agree that this is likely the case for most
providers, but those providers can simply enter “0” in the appropriate Excel template cells. Accordingly,
we will include the proposed inquiries asking providers to report any safety and security costs they incur
in connection with their ancillary services. We find that this approach will accommodate potential
variation among providers’ practices without burdening any provider.68
28.
Lastly, we supplement questions in the Word template in order to obtain additional
information on providers’ safety and security measures.69 Commenters discuss certain nuances that may
apply to the implementation of safety and security measures and consequent cost allocation issues that are
not fully addressed by the questions proposed (e.g., differences based on infrastructure and devices used
to provide IPCS, and circumstances in which safety and security services apply to both IPCS and
nonregulated services).70 We agree with these commenters on the need to seek additional information
from providers regarding their safety and security measures and attendant practices. Commenters also
dispute the extent to which “providers’ accounting systems” are—or are not—“designed to track ‘safety
and security’ costs.”71 Given this ambiguity as to providers’ accounting practices for safety and security
measures, particularly in light of providers’ concerns about their ability to apply their accounting systems
to the categories we proposed, we find that additional information concerning providers’ accounting
practices and how they allocate their internal data among our seven categories will assist the Commission
in accurately determining the costs of providers’ safety and security measures and distinguishing between
“essential and non-essential costs.”72 Accordingly, we modify the instructions and Word template to
obtain information on these subjects, in order to provide the Commission with a more comprehensive and
accurate understanding of providers’ implementation of, and accounting and recordkeeping practices
regarding, safety and security measures.73
67

Securus Comments at 4.

68

Id.

Worth Rises Comments at 1-2; Wright Petitioners Comments, Brattle Report at 16-18, para. 34; Wright
Petitioners Reply at 3-4.
69

Wright Petitioners Comments, Brattle Report at 9-10, paras. 20-22 (suggesting that providers’ costs to provide
security features may differ “depending on the video access infrastructure”);Worth Rises Reply at 1-2 (advocating
that the Commission not limit the definitions of audio IPCS and video IPCS based on the technologies used to
deliver the services); Wright Petitioners Reply at 3-4 (evaluating some record proposals to collect more safety and
security data before urging the Commission to “not collect less data than proposed”).
70

Pay Tel Comments at 2 (arguing that safety and security are “integral” to IPCS such that “providers’ accounting
systems are not designed to track ‘safety and security’ costs (as opposed to specific security-related service
offerings)” as separable components of the service); Pay Tel Reply at 5 (repeating the statement); ViaPath
Comments at 5 (arguing that “correctional facilities face ‘legitimate security interest[s]’ when it comes to” IPCS and
so “separating the costs associated with safety and security measures from other IPCS costs may not be possible in
all cases”); but see Wright Petitioners Reply at 4-5 (pointing out that “a review of publicly available contracts
indicates that safety and security costs are broken out in certain contracts”); Worth Rises Reply at 4 (arguing that
“providers consistently offer many of their safety and security services to corrections agencies on an optional basis
with a separate price, which demonstrates an analysis of related expenses”).
71

Pay Tel Comments at 4 (arguing that “[a]s crafted, the reporting form conflates essential and non-essential costs
into a single category”).
72

We decline to adopt Pay Tel’s proposal to develop a separate template for facilities to submit data on their own
costs of providing safety and security measures. Pay Tel Comments at 5. Although we acknowledge that facilities
are more likely to have this information than providers, this proposal goes beyond our delegated authority.
73

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Video IPCS

29.
We adopt the majority of our proposals related to video IPCS, but make targeted changes
to capture more complete information.74 As the record now makes clear, the costs of providing video
IPCS likely vary depending on the specific infrastructure, devices, methods, technologies, and features
used to provide those services. We find that this data collection should attempt to capture those variations
at a more granular level than we proposed, to the extent possible without unduly burdening providers.
Informed by the record compiled in response to the Public Notice,75 we agree that additional information
concerning video IPCS would assist the Commission in its ratemaking efforts and therefore add general
inquiries regarding the technical requirements of the providers’ video IPCS offerings, the infrastructure
used to provide those services, and the reasons for and costs of any data storage associated with those
services, among other matters.
30.
Service Parameters. To help the Commission understand the providers’ video IPCS
offerings, we require providers to describe in detail each video service they provided during 2022.76
Providers must also identify, among other matters, each transmission technology used to provide each
type of video service they provided to incarcerated people, provide any information they have regarding
service parameters and performance indicators, and describe any steps they take to monitor whether the
service functions properly.77 We also require providers to state whether they, as opposed to the
correctional facilities, provide any broadband connection needed for the providers’ IPCS offerings; the
extent to which they use those connections to provide audio as well as video IPCS; and the extent to
which facilities use those connections for their own communications.
31.
Infrastructure. We require providers to describe the infrastructure they used to provide
video IPCS, including any infrastructure that is located within correctional facilities.78 We find that
information on the type of infrastructure facilities deployed and its technical capabilities, to the extent the
providers have that information, will help the Commission evaluate providers’ video IPCS offerings.
Accordingly, we have added a question to the Word template that directs providers to explain whether
they, as opposed to the facilities they serve, provide and maintain any infrastructure that is located within
facilities. We also direct providers to submit any information they have on the nature and capabilities
(e.g., speed and latency) of the video IPCS infrastructure located within the facilities they serve, including
use and general capability of Wi-Fi routers, if known.
32.
Data Storage. We add additional inquiries to the Word template designed to capture data
on the storage costs associated with video IPCS in comparison to audio IPCS, as well as other

See generally Wright Petitioners Comments, Brattle Report at 16-18, para. 34 (suggesting several proposed
additions to video IPCS-related data requests); cf. Securus Reply at 2 (challenging, generally, the relevance and
appropriateness of the proposals in the Brattle Report); ViaPath Reply at 2-3 (contending that the Brattle Report’s
proposals exceed the mandate of the Martha Wright-Reed Act).
74

See generally Wright Petitioners Comments, Brattle Report at 16-18, para. 34 (generally discussing additional
inquiries for us to consider regarding video IPCS).
75

Ameelio Reply at 3 (noting that the facility’s network equipment and broadband connection has an impact on
video IPCS and offering alternative methods the Commission could use to collect more complete information on
video IPCS), see also Wright Petitioners Comments, Brattle Report at 14 (suggesting the Commission collect data
on performance indicators for video IPCS).
76

Ameelio Reply at 3 (proposing that either specifying parameters for performance indicators to be reported against
or allowing providers to specify the parameters over which they provide video IPCS and the resulting performance
indicators would produce “a more complete picture of IPCS performance”).
77

See id. (identifying the impact that a facility’s network equipment has on video call quality and noting “[f]or
example, if a facility has a relatively low-speed broadband connection, or a limited number of WiFi access points,” a
provider’s video IPCS “might be limited by factors that are extrinsic to the provider’s service”).
78

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information regarding data storage policies and practices.79 Based on information in publicly available
contracts, the Wright Petitioners suggest expanding our data storage-related questions to request
information on data retention policies and the data processing and analysis costs associated with video
IPCS.80 We agree that additional questions regarding the quantity of data stored and the storage period
will help the Commission understand the costs associated with video IPCS.81 Likewise, if, as the Wright
Petitioners suggest, data storage costs vary depending on the storage method and underlying technology
used,82 information on those factors may also be useful to help the Commission discharge its ratemaking
responsibilities. We therefore include an additional narrative request asking providers to explain these
matters. We find that allowing providers to submit a narrative response to this request imposes less of a
burden on providers than would a more granular approach, such as requiring providers to report this
information on a facility-by-facility basis.
33.
Other Video IPCS Information. We also add questions about how providers market and
sell video IPCS to consumers. These questions include inquiries regarding whether video IPCS is offered
as a stand-alone service or is “bundled” with other services. We also include questions asking whether
video IPCS rates are based on minutes of use, number of communications, or data usage, and whether
there are any limitations or conditions on how incarcerated people may use video IPCS.83 We find that
these questions provide the best approach for ensuring that the data collection captures information on
providers’ rate structures and practices affecting video IPCS.84
34.
We decline to adopt one commenter’s proposal that we require providers to “track and
report usage data for apps that are not free to the end-user.”85 Although such usage data might be helpful
in providing context for the provision of IPCS on tablets and any associated costs, that is not the focus of
this collection. Rather, we directly address the fundamental elements of providing IPCS on tablets by
requiring providers to submit data on video sessions, audio minutes, and inputs for providing audio and
video IPCS (e.g., hardware, software, and network connectivity), as well as costs exclusively attributable
to IPCS versus other services. We find that these questions are sufficient to address, and more directly
target, any issues that may be particular to the provision of IPCS on tablets.
6.

Site Commissions

35.
As a general matter, we adopt the questions concerning company-wide and facility-level
site commissions proposed in the Public Notice, which were largely based on the Third Mandatory Data
Collection, as well as the proposed updates to the related instructions and templates.86 Those updates
Wright Petitioners Comments at 5 (identifying how IPCS providers store video IPCS as a type of data for the
Commission to collect); see also Wright Petitioners Comments, Brattle Report at 19-20, paras. 35-36 (discussing
data storage costs for video IPCS and offering proposals); see also Ameelio Reply at 2 (noting that the costs to store
a video call may be as much as ten times higher than similar costs for storing voice calls).
79

Wright Petitioners Comments, Brattle Report at 19, para. 35 (stating “[i]f data is stored for a long time, there is a
need for more storage capacity”); see also Ameelio Reply at 2 (stating that the costs for storing video and voice calls
“scales linearly with the number of months of storage required by the correctional facility”).
80

Wright Petitioners Comments, Brattle Report at 18-20, paras. 35-36 (asking that we collect data on duration of
storage of video calls and the costs of storage).
81

Id. at 19, para. 36 (explaining that “[r]ecent advancements in technology have made it cost effective to store large
amounts of data” and that “cloud storage solutions are [now] significantly cheaper than data storage solutions that
were traditionally used”).
82

83
84

Id. at 16-18, para. 34 (identifying these as topics to include in the data collection, among other proposals).
2023 IPCS Notice at 19, para. 45.

Ameelio Reply at 2 (citing the Wright Petitioners Comments, Brattle Report at 21 (identifying services that are
potentially ancillary to video IPCS on which the Commission could collect data)).
85

86

Public Notice at 8.

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include additional questions seeking information on interstate, intrastate, and international site
commissions, as well as information concerning site commissions for both audio and video services.87 No
commenter opposed the adoption of this general framework. The Wright Petitioners additionally propose
that the instructions include a diagram or chart explaining the structure of our site commission data
requests.88 We agree that visual aids may improve the accuracy and consistency of the data reporting by
helping providers better understand how to allocate their data among the different categories of site
commissions.89 Accordingly, we have added diagrams to the instructions.
36.
We decline, however, to adopt the related request that we add instructions requiring
providers to report specific details regarding each type of site commission.90 The updated instructions
and templates already require providers to submit this level of detail at the facility-level.91 For instance,
with regard to what qualifies as a legally mandated site commission, the instructions require that
providers include a citation to the authority requiring such payment in the attached Excel template.92
Moreover, for in-kind site commissions, the Word template requires providers to describe “each payment,
gift, exchange of services or goods, fee, technology allowance, or product provided to the Facility that
[the provider] classif[ies] as an In-Kind Site Commission payment” for both legally mandated and
contractually prescribed site commissions.93 Thus, the instructions and templates are already designed to
provide the level of transparency sought.
C.

Specific Instructions
1.

Definitions

37.
Commenters generally support or do not comment on our proposed definitions. We
therefore adopt the proposed definitions with certain modifications, as explained below.
38.
Audio IPCS and Video IPCS. The proposed instructions included a definition of “IPCS,”
but did not separately define “Audio IPCS” or “Video IPCS.” We adopt a request that we define each of
these terms because we require cost allocation “between audio IPCS and video IPCS,”94 and defining the
relevant terms will help avoid potential confusion in making this allocation. We therefore add the
following definitions to the instructions:
Audio IPCS means, for the purpose of this data collection, all services
classified as inmate calling services within the meaning of 47 CFR
§ 64.6000(j), including (a) Interconnected VoIP; (b) Non-interconnected
VoIP; (c) all Telecommunications Relay Services (TRS), including the
use of a device or transmission service to access TRS; and (d) all pointto-point video services made available to incarcerated people for

87

Id.

88

Wright Petitioners Comments, Brattle Report at 11, para. 23.

89

Id.

90

Id. at 12, para. 24.

Incarcerated People’s Communications Services, 2023 Mandatory Data Collection Instructions at 53-59,
§ IV.D.2.b (2023 MDC Instructions) (linked to by Appx. A, infra).
91

92

Id.

Incarcerated People’s Communications Services, 2023 Mandatory Data Collection Word Template at 24-25,
questions 65, 68 (linked to by the 2023 MDC Instructions at 66, Appx. A, Mandatory Data Collection Word
Template).
93

94

Securus Comments at 5.

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communication in American Sign Language (ASL) with other ASL
users.95
Video IPCS means any video communications service used by
incarcerated people for the purpose of communicating with individuals
outside the correctional institution where the people are incarcerated,
regardless of the technology used. It typically includes an integrated
audio component, and excludes all services classified as Audio IPCS, as
well as Other Products and Services, such as one-way entertainment,
educational, religious, vocational, and instructional programming.
39.
We decline to restrict the definitions of Audio IPCS “to voice-only calling services using
either circuit switched or VoIP technology” and Video IPCS “to real-time remote or on-site video
visitation services,” as one commenter suggests.96 The Martha Wright-Reed Act unequivocally expands
the definition of IPCS to include advanced communications services.97 Advanced communications
services broadly include “any audio or video communications service used by inmates for the purpose of
communicating with individuals outside the correctional institution where the inmate is held, regardless of
technology used.”98 We therefore do not limit the definitions of Audio IPCS or Video IPCS to specific
types of technology used to transmit the services.99
40.
Safety and Security Measures. We proposed a broad definition of “safety and security
measures,” in accordance with the Martha Wright-Reed Act’s directive that the Commission “shall
consider,” as part of its ratemaking, “costs associated with any safety and security measures necessary to
provide” telephone service and advanced communications services in correctional institutions.100 This
approach was designed to allow the Commission the broadest possible view of the costs that providers
and facilities incur. We agree, however, with Pay Tel’s observation that the proposed definition is “so
broad as to encompass the entirety of IPCS.”101 To eliminate this issue, we revise the definition of “safety
and security measures” to read:
[A]ny safety or security surveillance system, product, or service,
including any such system, product, or service that: helps the Facility
ensure that Incarcerated People do not communicate with persons they
are not allowed to communicate with; helps monitor and record on-going
communications; or inspects and analyzes recorded communications.
Safety and Security Measures also include other related systems,
products, and services, such as a voice biometrics system, a PIN system,
or a system concerning the administration of subpoenas concerning
The services described in clauses (c) and (d) in this definition must be made available to incarcerated people with
communication disabilities, to the extent required by 47 CFR § 64.6040, because they enable communication that is
functionally equivalent to Audio IPCS. See id. § 225(a)(3). Therefore, they shall be treated as Audio IPCS for
purposes of this data collection, notwithstanding any video component of those services.
95

Securus Comments at 5; see also Securus Reply at 3-4 (maintaining that the Commission lacks authority to
regulate the rates for non-real time audio and video services); contra Worth Rises Reply at 1 (challenging Securus’s
position and proposal as being based in a “desire to limit the definition of audio and video IPCS [which] is driven by
an intent to exclude services from regulation that Congress made no signal it intended to exclude”).
96

97

Martha Wright-Reed Act § 2(a)(2); see also Worth Rises Reply at 1-2.

98

47 U.S.C. §§ 153(1)(E), 276(d); Worth Rises Reply at 1-2.

99

Worth Rises Reply at 1-2.

100

Martha Wright-Reed Act § 3(b)(2).

Pay Tel Comments at 4 (arguing that that the proposed definition “creates a feedback loop where providers are
being asked to report the entirety of their service costs . . . in a ‘catch all’ category”).
101

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communications. The classification of a system, product, or service as a
Safety and Security Measure does not mean that it is part of a Provider’s
IPCS-Related Operations.102
41.
Provider, Contractor, and Subcontractor. In our proposed definitions, we sought to
clarify the relationship between two types of IPCS providers—contractors and subcontractors—to provide
notice of filing obligations to entities that may not have previously been subject to our authority.103 We
conclude, however, that further revisions are necessary. Pay Tel suggests that the Commission “should
take steps to ensure that it is apprised of situations where multiple entities are involved in providing a
covered service to avoid instances of incomplete or duplicated data.”104 While it does not explain what
the Commission should do in the event multiple entities are involved in the provision of IPCS, we agree
that clarification of the definitions of “Provider” and “Subcontractor” will ensure we receive the data
necessary to achieve “insight into overall service costs.”105 We therefore amend our proposed definitions
of “Provider” and “Subcontractor” to make clear that any contractor or subcontractor that is providing
IPCS, regardless of whether that entity has a contract directly with the facility or with another provider, is
considered to be a provider for the purposes of the data collection.
42.
Facility. In the proposed instructions, we proposed including definitions for several
synonyms for the term “Facility,” given the apparently interchangeable use of different terms in both the
Martha Wright-Reed Act and the Commission’s rules.106 One provider suggests eliminating the four
separate terms used “to reference a prison or jail,” and points out that “the Instructions themselves
repeatedly use the term Facility.”107 We agree that the inclusion of these terms is redundant and could
cause confusion.108 We therefore delete the defined terms “Correctional Facility,” “Correctional
Institution,” and “Detention Facility” and edit the definition of “Facility” to include these terms
synonymously. We likewise make conforming edits to refer only to “Facility” throughout the final
instructions, templates, and certification form.
43.
Miscellaneous Definitional Edits. We have also made various administrative revisions to
the definitions. These include grammatical corrections, consistent use of terms, and other non-substantive
edits.
2.

Facility-Specific Data

44.
We adopt, in modified form, the suggestion that we require providers to indicate via a
checkbox “whether [facility-specific] data submitted is at the facility level or has been allocated from a
contract, in order to ensure that contract-level data is correctly allocated to the facility level.”109 We find
We proposed defining “Safety and Security Measures” as “including any such system, product, or service that
allows Incarcerated People to communicate using IPCS as permitted by the Facility . . . ” Incarcerated Peoples’
Communication Services, 2023 Mandatory Data Collection, Proposed Instructions at 12,
https://docs.fcc.gov/public/attachments/DOC-393014A1.docx (last visited July 13, 2023) (2023 MDC Proposed
Instructions) (linked to by the Public Notice at 12, Appx. A, Proposed Mandatory Data Collection Instructions,
Templates, and Certification Form. We now exclude this language from the definition.
102

103

2023 MDC Proposed Instructions at 8, 12.

Pay Tel Comments at 7; see also ViaPath Reply at 5-6 (urging us “to ensure that all entities providing IPCS
respond to the MDC”).
104

105

Pay Tel Comments at 6-7.

106

2023 MDC Proposed Instructions at 9; see also Martha Wright-Reed Act §§ 2(b), 3(b), 4; 47 CFR § 64.6000.

Securus Comments at 5 (referencing the terms “Correctional Facility, Correctional Institution, Detention Facility,
and Facility”).
107

108

Id.

109

Wright Petitioners Comments, Brattle Report at 4, 22-23, paras. 8, 41.

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that obtaining this information may help eliminate confusion when attempting to understand how
providers arrived at the amounts reported in their cost categories.110 However, we determine that this area
is too nuanced for a checkbox and therefore revise the Word template to direct providers to identify
whether the facility-specific data they report were recorded at the company, contract, or facility level.
This requirement will clarify whether data were recorded at the facility-level or whether they have been
allocated and must be justified. Because this step would be helpful and impose only minimal burdens on
reporting providers, we add this question to the Word template.
3.

Telecommunications Relay Services Costs

45.
We amend the Word template to allow providers the option of providing information
regarding any cost increases resulting from the TRS requirements adopted in the 2022 ICS Order.111 In
that order, the Commission adopted several requirements to improve access to communications services
for incarcerated people with communication disabilities.112 IPCS providers must provide incarcerated
people with communications disabilities with access to all relay services eligible for TRS Fund support in
any correctional facility where broadband is available and where the average daily population
incarcerated in that jurisdiction totals 50 or more persons.113 It also required that where inmate calling
service providers are required to provide access to all forms of TRS, they also must allow ASL direct, or
point-to-point, video communication.114 The Commission clarified and expanded the scope of the
restrictions on inmate calling service providers assessing charges for TRS calls, expanded the scope of the
required Annual Reports to reflect the above changes, and modified TRS user registration requirements to
facilitate the use of TRS by eligible incarcerated persons.115 Providers have had to comply with certain of
these requirements (i.e., the limitations on charging) since they became effective earlier this year, while
compliance with other requirements is mandated beginning January 1, 2024, or, in some cases, pending
approval by the Office of Management and Budget pursuant to the Paperwork Reduction Act.116
46.
Because this data collection seeks data only for calendar year 2022, providers’
submissions will not fully reflect any additional costs they incur in complying with the new TRS
requirements. In recognition of this fact, Securus and Pay Tel urge that providers be given the option of
submitting data estimating the costs of implementing the new requirements, even if those costs were not
incurred in calendar year 2022.117 We find this suggestion reasonable and therefore modify the Word
template to allow, but not require, providers to report their estimates of their annual incremental costs of
complying with the TRS requirements adopted in the 2022 ICS Order, to the extent those costs are not

110

Id. at 4, para. 8.

Rates for Interstate Inmate Calling Services, WC Docket No. 12-375, Fourth Report and Order and Sixth Further
Notice of Proposed Rulemaking, FCC 22-76 at 8-28, paras. 19-65 (2022) (2022 ICS Order or 2022 ICS Notice).
111

112

Id.

47 CFR § 64.6040(b)(2). TRS are “telephone transmission services that provide the ability for an individual who
is deaf, hard of hearing, deaf-blind or who has a speech disability to engage in communication by wire or radio . . .
in a manner that is functionally equivalent to the ability of a hearing person who does not have a speech disability to
communicate using voice communication services.” 47 U.S.C. § 225(a)(3); 47 CFR § 64.601(a)(43).
113

114
115

47 CFR § 64.6040(b)(2)(ii).
Id. §§ 64.611, 64.6040, 64.6060.

See Federal Communications Commission, Rates for Interstate Inmate Calling Services, 87 Fed. Reg. 75514
(Dec. 9, 2022). Amendments to 47 CFR §§ 64.611(k)(1)(iv)-(v), 64.6040(c), and 64.6060(a)(5)-(7) will not become
effective until the Office of Management and Budget (OMB) completes any review required under the Paperwork
Reduction Act (PRA), and the Commission establishes an effective date by subsequent Public Notice.
116

117

Securus Comments at 2; Pay Tel Reply at 3-4.

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reflected in their data for 2022.118 Annual incremental costs of TRS compliance are those the provider
would not have incurred but for its compliance with these TRS requirements. Shared and common costs
will already be reflected in the data providers will be reporting for 2022 and thus should be excluded from
the annual incremental costs of TRS compliance.
4.

Facility Costs of Providing Safety and Security Measures

47.
We adopt our proposal to require providers to report any verifiable and reliable
information in their possession about the costs the facilities they serve incur to provide safety and security
measures in connection with the provision of IPCS, as well as any verifiable and reliable information on
other facility-incurred costs that are not directly related to safety and security. Any such information will
provide the Commission with a more comprehensive picture of the total costs of providing IPCS. Pay Tel
has encouraged us to include facilities’ costs in any effort to calculate the costs of IPCS.119 It argues that
facilities incur recoverable costs “in making IPCS available” and supports our “efforts to document and
acknowledge these costs.”120
48.
The record also suggests, however, that providers are “highly unlikely” to have such
information on facilities’ costs. One commenter proposes that the Commission develop a reporting
template for use by facilities and seek this information directly from facilities.121 Although we
acknowledge that facilities may be more likely to have access to this information than providers,
collecting data directly from facilities would raise a number of difficulties. Any attempt to seek data
directly from facilities would arguably exceed the authority delegated to WCB and OEA by the
Commission regarding this data collection.122 Attempting to expand the data collection to include
facilities would also pose significant practical challenges. Doing so would greatly expand the group of
entities subject to the data collection and would multiply the burdens imposed by the collection.
Furthermore, developing a template, seeking comments, and collecting responses from facilities would
significantly delay the data collection and could prevent the Commission from meeting the statutory
timeframe established by the Martha Wright-Reed Act. Accordingly, we decline to adopt this proposal.
We emphasize, however, that the Commission has repeatedly encouraged correctional officials to submit
data on their IPCS-related costs, including any costs they incur for safety and security measures.123
49.
Finally, we adopt our proposal to require providers to be able to produce, on request,
documentation sufficient to explain and justify the accuracy and reliability of any data they report
regarding the costs incurred by facilities.124 This requirement will enable the Commission to evaluate the
Securus Comments at 2; Pay Tel Reply at 4 (“Because the Commission has adopted rules which may impose
significant new costs on IPCS providers, the Commission should enable data collection on estimated costs
associated with those rules.”).
118

Pay Tel Comments at 5 (“[C]osts which should be recoverable by facilities are not limited to what the
Commission proposes to label as ‘safety and security’ costs. . . . Pay Tel supports the Commission’s efforts to
document and acknowledge these costs.”).
119

Id. (“[C]osts which should be recoverable by facilities . . . [include] costs . . . incurred by facilities in making
IPCS available.”).
120

121

Id.

2023 IPCS Order at 33, para. 84 (directing WCB and OEA to collect data “from all providers of those services
now subject to [the Commission’s] expanded authority under the Martha Wright-Reed Act and the Communications
Act”).
122

2021 ICS Notice, 36 FCC Rcd at 9666, para. 324; 2022 ICS Notice at 44, para. 96; 2023 IPCS Notice at 24-25,
paras. 56-57.
123

Public Notice at 6. Absent a future order adjusting the retention period, providers shall retain any such
documentation until any rules the Commission adopts to implement the Martha Wright-Reed Act have become
effective and are no longer subject to judicial review.
124

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reliability and accuracy of any such data. It will minimize burdens by not requiring the submission of
such documentation with providers’ responses but only requiring the retention and subsequent production
of the relevant documents upon request—documents which providers would likely retain in the normal
course of business. No commenters challenged this aspect of our proposal. We find that this requirement
will help ensure that the Commission will be able to evaluate the accuracy and reliability of the data
submitted while adding only a minimal additional burden on providers.
5.

Admissions, Releases, and Turnover Rates

50.
We modify the Excel template to make the questions regarding facility-specific total
admissions, total releases, and weekly turnover rates optional. In the Third Mandatory Data Collection
Order, WCB and OEA identified these metrics as important to helping the Commission correct for the
possibility that other population metrics, such as average daily population, might not fully account for all
the costs of providing audio IPCS at smaller jails.125 We therefore required the submission of facilityspecific data on admissions, releases, and weekly turnover rates as part of the Third Mandatory Data
Collection and, in the Public Notice, proposed to incorporate that requirement into the 2023 Mandatory
Data Collection.126 However, our review of providers’ responses to the Third Mandatory Data
Collection,127 as well as comments on the proposed instructions,128 make clear that requiring these data
would impose a significant burden on providers without producing meaningful results, due in large part to
difficulties providers encounter in obtaining accurate data from correctional officials.129
51.
As one commenter explains, “IPCS providers do not track or have adequate information
to respond to questions about ‘weekly turnover,’ ‘total admissions,’ or ‘total releases’ at each correctional
facility they serve.”130 Another provider explains that it has “no way of gauging the accuracy of this data
or whether the sample size was useful.”131 In attempting to balance competing considerations regarding
the potential importance of these data and the relative inaccessibility, we make the reporting of this
information optional. This approach will reduce the burdens on providers,132 while still allowing them to
report this information where possible.133

Third MDC Order, 37 FCC Rcd at 372 n.37 (finding that this information well help correct issues in reported
data for population metrics and citing the 2021 ICS Notice, 36 FCC Rcd at 9662-63, para. 319, for its discussion on
the impact of turnover rates between jails with ADP’s below 1,000 and higher population facilities); see also 2021
ICS Notice, 36 FCC Rcd at 9962-63, para. 319 (establishing the points that generally jails with ADPs smaller than
1,000 face higher admissions and turnover rates than facilities with larger populations and noting one provider’s
estimated weekly turnover rates representing a significant disparity in this relationship between jails and prisons).
125

126

Third MDC Order, 37 FCC Rcd at 371-72, paras. 11-12; 2023 MDC Proposed Instructions at 44.

Multiple providers indicated they did not track the data and were unable to obtain them from correctional
officials.
127

Securus Comments at 6-7 (discussing issues with reporting of facility-specific demand data including turnover
data and arguing that the Department of Justice’s, Office of Justice Programs, Bureau of Justice Statistics’ datasets
on turnover rate is “likely to be superior to anything providers can glean in hit-or-miss efforts”); ViaPath Comments
at 7 (listing issues with collecting this information generally).
128

Id. at 6 (explaining the efforts Securus undertook to report turnover rate and related data for the Third Mandatory
Data Collection and the results of those efforts).
129

130

ViaPath Comments at 7.

Securus Comments at 6 (discussing its view of the data received from the “small fraction” of facilities that
responded to its queries for these data).
131

See id. at 7 (stating that “[t]he Commission can ease some of the burden by eliminating the obligation to gather
this data (or at least make it optional)”).
132

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6.

DA 23-638

Bundling

52.
We modify the Word template to obtain specific information on the extent to which
providers bundle IPCS with nonregulated services and on the steps providers employ to ensure that the
costs of their nonregulated services are not allocated to IPCS or associated ancillary services.134 Although
we did not explicitly include questions about bundling in our proposals, in the Public Notice, we sought
comment on whether there were “additional data” that providers should be required to submit in response
to the Mandatory Data Collection.135 The Wright Petitioners explain that bundling data are needed
because providers offer different services that “may or may not be bundled together when reporting the
data,”136 potentially inflating the costs reported for regulated services.
53.
We agree that data on service bundles will assist the Commission in understanding what
services are provided and how they are provided, and, most importantly, in establishing just and
reasonable IPCS rates. We therefore add questions to the Word template that direct each provider to
report, among other information, whether it offers regulated and nonregulated services as a bundle and, if
so, to identify each of the components included in the bundle; to identify which components are regulated
or nonregulated and the standalone price of each component; to state whether bundling affects the
provider’s overall costs and, if so, how; and to indicate whether the provider’s bundling practices vary by
facility or by contract.
7.

Financial Reports

54.
We adopt our proposal to require all providers to submit audited financial statements or
reports for 2022, or, in the absence of an audited financial statement or report, similar financial
documentation for 2022 to the extent produced in the ordinary course of business.137
D.

Timeframe for Provider Responses to the Data Collection

55.
In the Public Notice, we sought comment on our proposal to require providers to file their
responses to the data collection within 90 days of the release of this Order.138 The proposed timeframe,
which admittedly is somewhat shorter than the timeframe for the previous mandatory data collection,139
reflects the time constraints the Martha Wright-Reed Act imposes for “promulgat[ing] any regulations
necessary to implement” the Act.140
(Continued from previous page)
133 Because we make this this requirement optional, we do not address Securus’s suggestion that the Commission
rely on potentially relevant data from the U.S. Department of Justice, Office of Justice Programs, Bureau of Justice
Statistics. Id. at 6-7.
Wright Petitioners Comments, Brattle Report at 20, para. 37 (“When the same provider supplies a regulated and
unregulated product, especially when the unregulated product is a necessary input to the regulated service, the
provider can charge monopoly prices in the unregulated market. For IPCS, if there are regulations on video calling
and the calling requires the use of tablets, the providers can charge monopoly prices for the unregulated services and
each supernormal profits.”).
134

135

Public Notice at 7.

Wright Petitioners Comments, Brattle Report at 7 n.11 (“For example, some providers offer video calling through
tablets but these tablets also offer a wide range of additional ‘enhanced services’, such as games, books, movies, emessaging, and picture/video messaging.”).
136

2023 MDC Proposed Instructions at 4-5. We note that this exception for the ordinary course of business is only
applicable to the submission of this alternative documentation and does not extend to other requirements of the data
collection, and we remind providers to follow the instructions for each section of the data collection.
137

138

Public Notice at 9.

139

Third MDC Order, 37 FCC Rcd at 385, para. 46 (requiring responses in 120 days).

140

Martha Wright-Reed Act § 3(a).

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56.
Providers instead propose requiring responses to the data collection 120 days following
release of this Order.141 ViaPath asserts that “[p]roviders need a reasonable amount of time to complete
the report”142 and Securus comments that “90 days is an insufficient period of time” to respond to the data
collection.143 ViaPath contends that “a slight extension of the MDC filing deadline is reasonable.”144 We
agree with ViaPath and establish October 31, 2023 as the date on which provider responses will be due,
unless final PRA authority for this collection is not granted prior to then. Given the date of release of this
Order, this represents an extension of an additional week from the originally proposed 90-day deadline,
which, while not as extensive as sought, will nonetheless allow providers additional time to prepare their
submissions. We find that granting this extension will still provide the Commission with sufficient time
to promulgate regulations to implement the Martha Wright-Reed Act consistent with the Act’s time
constraints.
E.

Digital Equity and Inclusion

57.
As part of our continuing effort to advance digital equity for all,145 including people of
color, persons with disabilities, persons who live in rural or Tribal areas, and others who are or have been
historically underserved, marginalized, or adversely affected by persistent poverty or inequality, we
invited comment on any equity-related considerations146 and benefits (if any) that may be associated with
the proposals and issues associated with the data collection.147 Specifically, we sought comment on how
our proposals for that collection may promote or inhibit advances in diversity, equity, inclusion, and
accessibility.
58.
We conclude that the Mandatory Data Collection adopted here will promote digital
equity, particularly for incarcerated people and their families. In recent years, the Commission has
collected data from providers of calling services for incarcerated people as part of its ongoing efforts to
establish just and reasonable rates for those services that reduce the inequitable financial burdens
unreasonable rates impose on incarcerated people and their loved ones, while ensuring that providers are
fairly compensated for their services.148 The information IPCS providers submit in their data collection
responses will help the Commission advance these goals in accordance with the Communications Act and
ViaPath Comments at 2; Securus Comments at 5; Pay Tel Reply at 5; ViaPath Reply at 3; Securus Reply at 9; but
see Wright Petitioners Reply at 6 (“urg[ing] the Commission to retain the proposed 90-day requirement”).
141

ViaPath Comments at 3; see also Pay Tel Reply at 5 (explaining that “[a]dditional time to prepare data collection
submissions would help alleviate [the data collection’s burden] by facilitating staffing flexibility and allowing for
deconfliction with other reporting deadlines”).
142

Securus Comments at 5-6; see also ViaPath Reply at 3 (“The proposed 90-day response deadline is
insufficient.”).
143

144

ViaPath Comments at 3.

Section 1 of the Communications Act provides that the FCC “regulat[es] interstate and foreign commerce in
communication by wire and radio so as to make [such service] available, so far as possible, to all the people of the
United States, without discrimination on the basis of race, color, religion, national origin, or sex.” 47 U.S.C. § 151.
145

The term “equity” is used here consistent with Executive Order 13985 as “the consistent and systematic fair, just,
and impartial treatment of all individuals, including individuals who belong to underserved communities that have
been denied such treatment, such as Black, Latino, and Indigenous and Native American persons, Asian Americans
and Pacific Islanders and other persons of color; members of religious minorities; lesbian, gay, bisexual,
transgender, and queer (LGBTQ+) persons; persons with disabilities; persons who live in rural areas; and persons
otherwise adversely affected by persistent poverty or inequality.” See Exec. Order No. 13985, 86 Fed. Reg. 7009,
Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal
Government (Jan. 20, 2021).
146

147

Public Notice at 9-10.

148

Supra note 9.

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the Martha Wright-Reed Act.
IV.

PROCEDURAL MATTERS

59.
Regulatory Flexibility Act. The Regulatory Flexibility Act of 1980, as amended
requires that an agency prepare a regulatory flexibility analysis for notice and comment
rulemakings, unless the agency certifies that “the rule will not, if promulgated, have a significant
economic impact on a substantial number of small entities.”150 Accordingly, we have prepared a
Supplemental Final Regulatory Flexibility Analysis (FRFA) concerning the possible impact of the rule
changes contained in this Order on small entities. The Supplemental FRFA supplements the Final
Regulatory Flexibility Analyses completed by the Commission in the Rates for Interstate Inmate Calling
Services proceeding and is set forth in Appendix B.
(RFA),149

60.
Final Paperwork Reduction Act Analysis. The Order contains new or modified
information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law
104-13. It will be submitted to OMB for review under section 3507(d) of the PRA. OMB, the general
public, and other Federal agencies are invited to comment on the new or modified information collection
requirements contained in this proceeding. In addition, we note that pursuant to the Small Business
Paperwork Relief Act of 2002, Public Law 107-198; see 44 U.S.C. § 3506(c)(4), we previously sought
specific comment on how the Commission might further reduce the information collection burden for
small business concerns with fewer than 25 employees.151 We have assessed the effects of the data
collection on small business concerns, including those having fewer than 25 employees, and find that to
the extent such entities are subject to the collection, any further reduction in the burden of the collection
would be inconsistent with the objectives behind the collection.
V.

ORDERING CLAUSES

61.
Accordingly, IT IS ORDERED that, pursuant to the authority contained in sections 1, 2,
4(i)-(j), 155(c), 201(b), 218, 220, 255, 276, 403, and 716 of the Communications Act of 1934, as
amended, 47 U.S.C. §§ 151, 152, 154(i)-(j), 155(c), 201(b), 218, 220, 255, 276, 403, and 617 and the
authority delegated in sections 0.21, 0.91, 0.201(d), 0.271, and 0.291 of the Commission’s rules, 47 CFR
§§ 0.21, 0.91, 0.201(d), 0.271, 0.291 and paragraphs 84 and 85 of the 2023 IPCS Order, this Order IS
ADOPTED.

5 U.S.C. §§ 601–612. The RFA has been amended by the Small Business Regulatory Enforcement Fairness Act
of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996).
149

150

5 U.S.C. § 605(b).

Rates for Interstate Inmate Calling Services, WC Docket No. 12-375, Report and Order on Remand and Fourth
Further Notice of Proposed Rulemaking, 35 FCC Rcd 8485, 8536-37, para. 146 (2020).
151

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62.
IT IS FURTHER ORDERED that the Commission’s Office of the Secretary, Reference
Information Center, SHALL SEND a copy of this Order, including the Supplemental Final Regulatory
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.
FEDERAL COMMUNICATIONS COMMISSION

Trent Harkrader
Chief
Wireline Competition Bureau

Giulia McHenry
Chief
Office of Economics and Analytics

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APPENDIX A
2023 Mandatory Data Collection Instructions,
Templates, and Certification Form
The instructions, templates, and certification form for the 2023 Mandatory Data Collection are available
through this link:
https://www.fcc.gov/2023-ipcs-mandatory-data-collection.

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APPENDIX B
Supplemental Final Regulatory Flexibility Analysis
1.
As required by the Regulatory Flexibility Act of 1980, as amended (RFA),1 a
Supplemental Initial Regulatory Flexibility Analysis (Supplemental IRFA) was incorporated in the 2023
Mandatory Data Collection Public Notice, released in April 2023.2 The Wireline Competition Bureau
(WCB) and the Office of Economics and Analytics (OEA) (collectively, WCB and OEA) sought written
public comment on proposals in the Public Notice, including comment on the Supplemental IRFA. No
comments were filed addressing the Supplemental IRFA.3 The Public Notice sought comment on
proposals to implement the 2023 Mandatory Data Collection in the Commission’s Incarcerated People’s
Communications Services (IPCS) proceeding and supplements the Final Regulatory Flexibility Analyses
completed by the Commission in the Rates for Interstate Inmate Calling Services and other Commission
orders pursuant to which this data collection will be conducted.4 This present Supplemental FRFA
conforms to the RFA.5
A.

Need for, and Objectives of, the Order

2.
In the Order, WCB and OEA adopt policies and specific requirements to implement the
forthcoming 2023 Mandatory Data Collection for IPCS.6 In the 2023 IPCS Order, the Commission
adopted a new data collection requirement.7 The Commission determined that this data collection would
enable it to “meet both [its] procedural obligations (to consider certain types of data) and [its] substantive
responsibilities (to set just and reasonable rates and charges)” under the Martha Wright-Reed Act and the
Communications Act of 1934, as amended (the Communications Act).8 Likewise, it directed WCB and

See 5 U.S.C. § 603. The RFA, see 5 U.S.C. §§ 601-612, has been amended by the Small Business Regulatory
Enforcement Fairness Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996).
1

WCB and OEA Seek Comment on Proposed 2023 Mandatory Data Collection for Incarcerated People’s
Communication Services, WC Docket Nos. 23-62, 12-375, Public Notice, DA 23-355, at 13, Appx. B (Supplemental
Initial Regulatory Flexibility Analysis) (WCB/OEA Apr. 28, 2023) (2023 IPCS Mandatory Data Collection Public
Notice or Public Notice); Incarcerated People’s Communications Services; Implementation of the Martha WrightReed Act; Rates for Interstate Inmate Calling Services, WC Docket Nos. 23-62, 12-375, Notice of Proposed
Rulemaking and Order, FCC 23-19, at 33, paras. 84 (2023) (2023 IPCS Notice or 2023 IPCS Order).
2

3

Public Notice at 10-11.

Rates for Interstate Inmate Calling Services, WC Docket No. 12-375, Report and Order and Further Notice of
Proposed Rulemaking, 28 FCC Rcd 14107, 14201, Appx. C (Final Regulatory Flexibility Analysis) (2013)
(implementing the First Mandatory Data Collection); Rates for Interstate Inmate Calling Services, WC Docket No.
12-375, Second Report and Order and Third Further Notice of Proposed Rulemaking, 30 FCC Rcd 12763, 12944,
Appx. E (Final Regulatory Flexibility Analysis) (2015) (implementing the Second Mandatory Data Collection);
Rates for Interstate Inmate Calling Services, WC Docket No. 12-375, Third Report and Order, Order on
Reconsideration, and Fifth Further Notice of Proposed Rulemaking, 36 FCC Rcd 9519, 9668, Appx. C
(Supplemental Final Regulatory Flexibility Analysis) (2021) (implementing the Third Mandatory Data Collection).
4

5

See 5 U.S.C. § 604.

In the 2023 IPCS Order, the Commission ordered a new mandatory data collection to ensure the proper
implementation of the Martha Wright-Reed Act. 2023 IPCS Order at 33, para. 84; Martha Wright-Reed Just and
Reasonable Communications Act of 2022, Pub. L. No. 117-338, 136 Stat. 6156 (Martha Wright-Reed Act or the
Act). The accompanying 2023 IPCS Notice included an Initial Regulatory Flexibility Analysis. 2023 IPCS Notice
at 38, Appx. A (Initial Regulatory Flexibility Analysis). The 2023 IPCS Mandatory Data Collection Public Notice
also included a Supplemental Initial Regulatory Flexibility Analysis. 2023 IPCS Mandatory Data Collection Public
Notice at 13, Appx. B (Initial Regulatory Flexibility Analysis).
6

7

2023 IPCS Order at 33, para. 85.

8

2023 IPCS Order at 33, para. 84.

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OEA “to update and restructure the most recent data collection as appropriate to implement the Martha
Wright-Reed Act.”9
3.
The Order determines the overall scope of the data collection including: limiting the data
collection reporting period to calendar year 2022; defining cost reporting and cost allocation
methodologies; defining reporting categories; requiring providers to allocate safety and security measures
among seven categories; requiring that providers submit additional information for video IPCS; and
adding questions concerning company-wide and facility-level site commissions. The Order also clarifies
specific instructions for data collection to provide clarity for the providers completing the forms. Finally,
the Order establishes that providers must submit responses by October 31, 2023. Pursuant to their
delegated authority, WCB and OEA have prepared instructions, reporting templates, and a certification
form for the 2023 Mandatory Data Collection10 and are issuing this Order to adopt all aspects of these
documents.
B.

Summary of Significant Issues Raised by Public Comments in Response to the IRFA

4.
There were no comments filed that specifically addressed the proposed rules and policies
presented in the Supplemental IRFA.
C.

Response to Comments by the Chief Counsel for Advocacy of the Small Business
Administration

5.
Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the
Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the
Small Business Administration (SBA), and to provide a detailed statement of any change made to the
proposed rules as a result of those comments.11 The Chief Counsel did not file any comments in response
to the rules and policies proposed in the Supplemental IRFA.
D.

Description and Estimate of the Number of Small Entities to Which the 2023
Mandatory Data Collection Will Apply

6.
The RFA directs agencies to provide a description of, and where feasible, an estimate of
the number of small entities that may be affected by the 2023 Mandatory Data Collection. The RFA
generally defines the term “small entity” as having the same meaning as the terms “small business,”
“small organization,” and “small governmental jurisdiction.”12 In addition, the term “small business” has
the same meaning as the term “small-business concern” under the Small Business Act.13 A “smallbusiness concern” is one which: (1) is independently owned and operated; (2) is not dominant in its field
of operation; and (3) satisfies any additional criteria established by the SBA.14
7.
As noted above, an IRFA was incorporated in the 2023 IPCS Notice.15 In that analysis,
the Commission described in detail the small entities that might be affected. Accordingly, in this Order,
9

Id.

10

See Appx. A, supra.

11

5 U.S.C. § 604(a)(3).

12

See id. § 601(6).

See id. § 601(3) (incorporating by reference the definition of “small-business concern” in the Small Business Act,
15 U.S.C. § 632). Pursuant to 5 U.S.C. § 601(3), the statutory definition of a small business applies “unless an
agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity
for public comment, establishes one or more definitions of such term which are appropriate to the activities of the
agency and publishes such definition(s) in the Federal Register.”
13

14

See 15 U.S.C. § 632.

2023 IPCS Notice at 38, Appx. A (Initial Regulatory Flexibility Analysis); 2023 IPCS Mandatory Data Collection
Public Notice at 13, Appx. B (Initial Regulatory Flexibility Analysis).
15

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for the Supplemental FRFA, we incorporate by reference from these previous Regulatory Flexibility
Analyses the descriptions and estimates of the number of small entities that may be impacted by the
Order.
E.

Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements for Small Entities

8.
The 2023 Mandatory Data Collection will impose new or modified reporting,
recordkeeping and other compliance obligations on small entities. The Order requires IPCS providers to
submit data and other information on, among other matters, calls, demand, operations, company and
contract information, information about facilities served, revenues, site commission payments, the costs
of safety and security measures, video IPCS, and ancillary fees. WCB and OEA estimate that
approximately 30 IPCS providers will be subject to this one-time reporting requirement. In the aggregate,
WCB and OEA estimate that responses will take approximately 7,950 hours and cost approximately
$493,224.
F.

Steps Taken to Minimize the Significant Economic Impact on Small Entities and
Significant Alternatives Considered

9.
The RFA requires an agency to provide, “a description of the steps the agency has taken
to minimize the significant economic impact on small entities . . . including a statement of the factual,
policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the
other significant alternatives to the rule considered by the agency that affect the impact on small entities
was rejected.”16
10.
The 2023 Mandatory Data Collection is a one-time collection and does not impose a
recurring obligation on providers. Because the Commission’s 2023 IPCS Order requires all IPCS
providers to comply with the 2023 Mandatory Data Collection,17 the collection will affect smaller as well
as larger IPCS providers. WCB and OEA have taken steps to ensure that the data collection template is
competitively neutral and not unduly burdensome for any set of providers and have considered the
economic impact on small entities in finalizing the instructions and the template for the 2023 Mandatory
Data Collection. For example, the 2023 Mandatory Data Collection requires the collection of data for a
single calendar year instead of three calendar years, as in previous data collection. In response to the
comments, WCB and OEA have refined certain aspects of the data collection, including modifying the
treatment of audio IPCS and safety and security measures, clarifying the reporting of costs related to site
commissions, and revising certain proposed definitions. WCB and OEA have also revised instructions
for cost reporting and cost allocation that will help the Commission understand the nature of the reported
costs, without imposing significant additional burdens on providers. WCB and OEA reorganized
instructions for our proposed seven-category framework for reporting safety and security measure costs to
simply them and increase clarity. Further, the instructions for the data collection include relevant
diagrams to facilitate providers’ responses and improve the accuracy and consistency of the data they
report. The instructions allow, but do not require, providers to subdivide their audio and video IPCS costs
into more discrete categories based on the type of audio or video service being provided, as some parties
suggest, to give providers greater flexibility in reporting these costs.
11.
WCB and OEA considered but rejected alternative proposals to allow providers to use
their own allocation methodologies because of the undue burden it would have on the interested parties
and the Commission to analyze and correct inconsistent responses. The modifications adopted in the
Order avoid unduly burdening small and other responding providers while ensuring that providers have
sufficiently detailed and specific instructions to respond to the data collection. The data collection also

16

5 U.S.C. § 604(a)(6).

17

2023 IPCS Order at 33, para. 84.

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Federal Communications Commission

DA 23-638

makes certain questions optional to reduce reporting burdens, including the questions regarding
correctional facility-specific total admissions, total releases, and weekly turnover rates.
G.

Report to Congress

12.
The Commission will send a copy of the Order, including this Supplemental FRFA, in a
report to be sent to Congress pursuant to the Congressional Review Act.18 In addition, the Commission
will send a copy of the Order, including this Supplemental FRFA, to the Chief Counsel for Advocacy of
the Small Business Administration. A copy of the Order, and Supplemental FRFA (or summaries
thereof) will also be published in the Federal Register.19

18

5 U.S.C. § 801(a)(1)(A).

19

See id. § 604(b).

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