The Honorable Julius Genachowski
Chairman
Federal Communications Commission
445 12th Street, S.W.
Washington, DC 20554

Re:

Comment in the Matter of Rates for Inmate Calling Services,
WC Docket No. 12-375

Dear Commissioner Genachowski:
The American Bar Association (ABA) submits the following comments in response
to the Commission’s Notice of Proposed Rulemaking on WC Docket No. 12-375,
with respect to Inmate Calling Services (ICS).
The ABA is a world-wide voluntary professional organization, with nearly 400,000
members and more than 3,500 entities committed to serving its members, improving
the legal profession, eliminating bias and enhancing diversity, and advancing the rule
of law throughout the United States and around the world.
In a recent report, the Pew Center on the States found that one out of every thirty-one
adults in the United States is either on probation, parole, or behind bars.1 The report
also found that one in four of those released from behind bars will be re-incarcerated
within three years.2 For those incarcerated or on parole, their family and community
connections will play a crucial role in determining whether or not they become that
one in four.
We commend the Federal Communications Commission (FCC) for addressing
changes to the rules governing rates for interstate interexchange inmate calling
services (ICS). For more than 25 years the ABA has steadfastly maintained that any
limitations placed on “prisoners’ communications should be the least restrictive
necessary to serve the legitimate interests of institutional order and security and the
protection of the public.”3 The ABA Standards on the Treatment of Prisoners (the
Standards) also recognizes the important link between a prisoner’s communication
with family and community, and their successful re-entry into society. Notably,
Standards 23-1.1 (“General principles governing imprisonment”), 23-1.2 (“Treatment
of prisoners”), 23-8.7 (“Access to telephones”), 23-8.8 (“Fees and financial
obligations”), and 23-8.9 (“Transition into the community”) stress that correctional
facilities should initiate re-entry planning during incarceration, ensure open and
affordable lines of communication between a prisoner, their family, and community,
1

STATE OF RECIDIVISM: THE REVOLVING DOOR OF AMERICA’S PRISONS 1, PEW CENTER ON THE
STATES (Washington, DC: The Pew Charitable Trusts, April 2011).
2

Id.
ABA Standards for Criminal Justice, Legal Status of Prisoner, Standard 236.1.(a)(1981)(communication rights).
3

and not burden the prisoner with arbitrary fees during incarceration. By charging
prisoners exorbitant fees for phone use, many correctional facilities operate in
contravention of these standards.
In addition, the ABA House of Delegates voted unanimously in August 2005 to adopt
a resolution solely focused on telephone access. It provides:
RESOLVED, That the American Bar Association encourages federal,
state, territorial and local governments, consistent with sound
correctional management, law enforcement and national security
principles, to afford prison and jail inmates reasonable opportunity to
maintain telephonic communication with the free community, and to
offer telephone services in the correctional setting with an appropriate
range of options at the lowest possible rates.
The Association has previously filed comments on several occasions with the FCC in
regard to long-pending rulemaking.
The ABA is also committed to protecting the interests of immigrant detainees who
are a particularly vulnerable population. During the late 1990’s, the ABA worked
with the then-Immigration and Nationality Service (now the Department of Homeland
Security Immigration and Customs Enforcement, of ICE) to develop the ICE National
Detention Standards. The ICE Standards are comprehensive and encompass a diverse
range of issues, including access to telephones. In 2012 the ABA adopted the ABA
Civil Immigration Detention Standards which state that, “Residents should have
reasonable and equitable access to modestly priced telephone services. Charges
imposed for phone use should be competitive with rates charged to the public.”4 The
Department of Homeland Security detains over 400,000 immigrants every year in
facilities around the country, including federal prisons and state and local jails. The
men and women in immigration detention are not serving criminal sentences. Rather,
they are in detention for violations of civil immigration laws. Immigration detention
is not meant to be a punishment, but rather is used to ensure that noncitizens appear in
immigration court. Nevertheless, these men and women are held in regular jails, often
with criminal inmates, rather than in facilities that reflect the Department of
Homeland Security’s civil immigration authority. Despite the /ICE standards,
immigration detainees continue to struggle with inadequate access to telephones,
legal representation and legal materials, and other issues.
The Federal Communications Commission (FCC) has before it an opportunity to help
guide correctional facilities back in line with these Standards and related policy, and
help reduce the high rates of recidivism plaguing our country. To accomplish this,
the ABA recommends that the FCC cap rates within the inmate calling services (ICS)
market, open up the ICS market to outside competition, and bar states from receiving
site commissions. The FCC not only has the statutory authority, but is statutorily
4

ABA Civil Immigration Detention Standards, VI. Communications, B. Telephonic and other RealTime Communications, 2.

compelled to regulate the telecommunications market so that prisoners and their
families are not subjected to unfair and unreasonable rates at the hands of selfinterested telecommunications providers and state agencies.
For immigration detention facilities, the ABA also recommends: 1) that service
providers be required to offer the broadest range of calling options, consistent with
sound correctional practices, to include toll-free-calling, debit calling and collect
calling; 2) the elimination of per-call charges which make calls to legal representative
unreasonably expensive; 3) a prohibition on allowing only prepaid calling options
which can delay communication following a detainee’s transfer and which have
resulted in refusals to return funds which remain in a detainee’s account after their
transfer; 4) that interstate rates for calling be set at a level no higher than intrastate
rates; 5) that certain free calls be available to assist detainees who are representing
themselves; 6) and that calls to a legal representative be provided to detainees at no
cost.

CURRENT PRISON PHONE CALL RATES
A prisoner’s ability to maintain a close connection with his family and community
while incarcerated rests largely on phone calls. Many correctional facilities are built
hundreds of miles from urban centers, causing prisoners to be held great distances
from family and community support services. Since most prisoners tend to come
from low-income families, in-person visits are not a realistic option. For yet another
subset of prisoners, written communication is hampered due to literacy problems. In
the end, telephonic communication becomes the lifeline between the prisoner and the
people who will help support him during incarceration and upon his release. For the
last twenty years, however, this lifeline has been eroded due to the absurdly high rates
that prisoners’ families are required to pay in order to receive phone calls from loved
ones.5 These excessive and arbitrary phone rates are the unfair and unreasonable
result of monopolistic business practices between states and telecommunications
providers, and a lack of regulation and oversight by governmental agencies.
Up until 1984, commercial payphone services within state correctional facilities
across the country were operated almost exclusively by AT&T, and were offered at
5

See PRISON PHONE CONTRACT DATA / KICKBACKS / DAYTIME COLLECT CALL RATES, NATION INSIDE
(2012) available at http://nationinside.org/images/pdf/RATE_CHART_10_30_12.pdf (data based on
prison phone contracts obtained via public records requests from all 50 states, revised as of December
31, 2012). A local 30-minute phone call can range anywhere from free-of-charge in Alaska, to over
$9.00 in Colorado, Maine, or Montana; an intrastate 30-minute phone call can be as little as $1.40-2.40
in Florida, Nebraska, New York, and Rhode Island, but as much as $14.00 in Kansas, over $16.00 in
South Dakota, and almost $25.00 in Oregon; an interstate 30-minute phone call will cost the recipient
anywhere from under $5.00 in states such as Nebraska, New York, and Florida, to over $30.00 if
placed from a prisoner in Alabama, Alaska, Colorado, Connecticut, Georgia, Illinois, Minnesota, North
Carolina, Ohio, Oregon, or Washington.

the same price as similar services offered to the general public.6 AT&T was broken
up by the United States Department of Justice in the mid-1980s due to antitrust
violations, and since then States have entered into individual exclusive agreements
with a host of telecommunications providers.7 These exclusive agreements between
states and telecommunications providers construct insurmountable barriers to entry
for other interested service providers who could provide similar, if not better,
services, for less cost to prisoners.
Instead of awarding exclusive agreements to the telecommunications provider who
offers the lowest costs to the state, and thus the lowest rates to prisoners, states
choose a provider based on which company is willing to return the largest portion of
revenue to the state in the form of commissions.8 In other words, whichever company
is willing to charge prisoners the most on behalf of the state that is holding them
captive. As of December 31, 2012, over half of the states received a 40% or greater
commission off of these exclusive provider agreements, the average commission rate
of all states coming in at 41.9%.9

THE ABA STANDARDS ON THE TREATMENT OF PRISONERS
The first volumes of the ABA Criminal Justice Standards were issued in 1968, and
have guided criminal justice policy makers and practitioners ever since. Warren
Burger, former Chief Justice of the Supreme Court of the United States, described
these standards as “the single most comprehensive and probably the most
monumental undertaking in the field of criminal justice ever attempted by the
American legal profession,” further recommending that everyone connected with
criminal justice “become totally familiar” with their substantive content.10
Policy groups and practitioners around the world have commended the ABA
Standards on the Treatment of Prisoners. The Human Rights Watch praised the most
recently revised Standards, stating that their implementation “would advance the
protection of internationally recognized human rights in US prisons and jails… the

6

See Steven J. Jackson, Ex-Communication: Competition and Collusion in the U.S. Prison Telephone
Industry, 22 CRITICAL STUDIES IN MEDIA COMMUNICATION 263, 268 (2005).
7

Id. at 269.
David Fisher, Reach Out and Gouge Someone: The boom in prison phone systems, U.S. NEWS &
WORLD REPORT (April 27, 1997) available at
http://www.usnews.com/usnews/biztech/articles/970505/archive_006873.htm.
8

9

See PRISON PHONE CONTRACT DATA, supra note 3.
Martin Marcus, The Making of the ABA Criminal Justice Standards: Forty Years of Excellence, 23
ABA CRIMINAL JUSTICE (Winter 2009) available at
http://www.americanbar.org/content/dam/aba/publications/criminal_justice_magazine/makingofstanda
rds_marcus.authcheckdam.pdf.
10

Standards would help ensure respect for the rights of prisoners while meeting the
needs of institutional order and security.”11
A Prisoner’s Access to Telephones
The ABA Standards on the Treatment of Prisoners, Standard 23-8.7. Access to
telephones, provides:
(a) Correctional authorities should afford prisoners a
reasonable opportunity to maintain telephonic
communication with people and organizations in the
community, and a correctional facility should offer
telephone services with an appropriate range of options
at the lowest possible rate, taking into account security
needs. Commissions and other revenue from telephone
service should not subsidize non-telephone prison
programs or other public expenses.12
With the imposition of such high rates on local, intrastate, and interstate calls,
correctional authorities are hardly affording prisoners a “reasonable opportunity to
maintain telephonic communication with people and organizations in the
community.” Many of those incarcerated do not earn money while incarcerated, and
those that do are paid almost nothing.13 Moreover, most correctional facilities only
offer collect calling options. This means that the cost of a prisoner attempting to keep
in touch with the outside world falls to his family and community support networks.
In most cases however, these families and community support networks cannot afford
to accept charges, because correctional facilities fail to “offer telephone services with
an appropriate range of options at the lowest possible rate.”
As previously stated, the exclusive agreements between states and
telecommunications providers only give prisoners one option: pay the absurd cost, or
have no telephonic communication at all. Furthermore, since these agreements are
made on the basis of which provider will charge the most to prisoners, and in return
give the most back to the state, the rates offered to inmates are anything but the
“lowest possible.”
Finally, states that enter into contracts with high commission rates use those funds to
“subsidize non-telephone prison programs or other public expenses.” The bulk of the
rates are used to offset the commissions required by the state, and are not related to
11

David C. Fathi, Letter Supporting Proposed ABA Standards on the Treatment of Prisoners, HUMAN
RIGHTS WATCH (July 22, 2009) http://www.hrw.org/news/2009/07/22/letter-supporting-proposed-abastandards-treatment-prisoners.
12
STANDARDS ON TREATMENT OF PRISONERS 23-8.7 (2010).
13
See Peter Wagner, The Prison Index: Taking the Pulse of the Crime Control Industry, PRISON
POLICY INITIATIVE (2003).

the actual expenses incurred by the telecommunication provider. In most instances,
the commissions are placed into general correctional facility operational funds, which
cover expenses completely unrelated to phone use.14 Other states place the money
into general state funds, used to fund public expenses that may be completely
detached from correctional facilities all together.15
In the end, commissions charged on phone calls end up serving as a tax or a fine,
levied against families who have loved ones incarcerated.16 In essence, the
commission portion of the rates operate “as an additional punishment imposed on the
consumer for no reason other than that a family member of the consumer has been
incarcerated.”17

Charging Prisoners Fees
The ABA Standards on the Treatment of Prisoners, Standard 23-8.8. Fees and
financial obligations, provides:
(a) Unless a court orders otherwise in a situation in
which a prisoner possesses substantial assets,
correctional authorities should not charge prisoners fees
for any non-commissary services provided them during
the period of imprisonment, including their food or
housing or incarceration itself, except that correctional
authorities should be permitted to assess prisoners
employed at or above minimum wage a reasonable
portion of their wages in applicable fees.18
In requiring commissions as part of agreements with telecommunications providers,
correctional facilities are indirectly charging prisoners fees for non-commissary
services provided to them during their period of incarceration. As previously stated,
over forty states require commissions from telecommunications providers.19 While
the initial payment for phone usage goes to the provider, a substantial portion of that
payment goes right back to the correctional facility or the state through commissions.
Through this cycle, correctional facilities are indirectly charging prisoners fees for the
programs and services funded by these commissions.

14

See Justin Carver, An Efficiency Analysis of Contracts for the Provision of Telephone Services to
Prisons, 54 FED. COMM. L.J. 391, 400 (2002).
15
Id.
16
Id.
17
Id. at 400-01.
18
STANDARDS ON THE TREATMENT OF PRISONERS 23-8.8 (2010).
19
See PRISON PHONE CONTRACT DATA, supra note 3.

Familial Relationships and Re-entry
The ABA Standards on the Treatment of Prisoners, Standard 23-1.1. General
principles governing imprisonment, provides:
(a) A correctional facility should be safe and orderly
and should be run in a fair and lawful manner.
(b) Imprisonment should prepare prisoners to live
law-abiding lives upon release. Correctional authorities
should facilitate prisoners’ reintegration into free
society by implementing appropriate conditions of
confinement and by sustained planning for such
reintegration.20
Standard 23-1.2. Treatment of prisoners, provides:
In order to effectuate these principles, correctional
authorities should: (a) provide prisoners with… (vi)
conditions conducive to maintaining healthy
relationships with their families… [and] (viii)
comprehensive re-entry planning….21
Standard 23-8.9. Transition into the community, provides:
(a) Governmental officials should ensure that each
sentenced prisoner confined for more than [6 months]
spends a reasonable part of the final portion of the
term of imprisonment under conditions that afford the
prisoner a reasonable opportunity to adjust to and
prepare for re-entry into the community. A
correctional agency should provide community-based
transitional facilities to assist in this reintegration
process.
(b) In the months prior to anticipated release of a
sentenced prisoner confined for more than [6 months],
correctional
authorities
should
develop
an
individualized re-entry plan for the prisoner …
Preparation for re-entry should include assistance in
locating housing, identifying and finding job
opportunities, developing a resume and learning
interviewing skills, debt counseling, and developing or
resuming healthy family relationships.22
20

STANDARDS ON THE TREATMENT OF PRISONERS 23-1.1 (2010).
STANDARDS ON THE TREATMENT OF PRISONERS 23-1.2 (2010).
22
STANDARDS ON THE TREATMENT OF PRISONERS 23-8.9 (2010).
21

The Public Service Commissioner of Louisiana, Foster Campbell, has called high
prison phone rates a crushing blow for poor families trying desperately to stay in
contact with loved ones behind bars.23 Low-income families end up with monthly
phone bills reaching several hundred dollars, and are forced to make hard financial
decisions; for some families, the cost of keeping in touch with their incarcerated
loved one surpasses rent as their largest monthly expense.24 Ultimately, many
families are forced to restrict or cut off entirely contact with their incarcerated
relatives. This lack of communication between a prisoner and his family has
devastating consequences on their post-release relationship with each other.
Family and community ties do not begin right when a prisoner steps off the bus that
returns him home, instead such relationships are forged prior to and throughout their
period of incarceration.25 Prisoners convey that one of the biggest obstacles in
maintaining and building these social ties is the difficulty of communication; in
particular the high cost for families to visit and accept collect calls.26 Some prisoners
even choose to withdraw from their families in part or entirely in order to protect
them from burdensome collect call bills.27
A prisoner’s post-release relationship with his family and community is one of, if not
the most significant factor in determining whether or not he will re-offend or violate
parole. This conclusion has been reached consistently in dozens of studies over the
past seventy-five years.
A prisoner’s release from incarceration is a critical transition in his life, during which
it is imperative that he stay away from substance abuse, find employment, refrain
from further criminal behavior, and maintain a positive attitude. Immediate
connections with family, friends, and community-based organizations upon release
have been shown to help recently released prisoners achieve these goals.28 Moreover,
23

Greg Garland, PSC probing rates for inmate phone calls, THE ADVOCATE (2011)
http://theadvocate.com/home/928995-79/story.html.
24

See Jackson, supra note 4, at 272.
See William D. Bales & Daniel P. Mears, Inmate Social Ties and the Transition to Society: Does
Visitation Reduce Recidivism?, 45 J. RES. IN CRIME & DELINQ. 287, 290 (2008); see also Creasie
Hairston, James Rolling, and Han-jin Jo, Family Connections During Imprisonment and Prisoners’
Community Re-entry 1, JANE ADDAMS CENTER FOR SOCIAL POLICE AND RESEARCH, UNIVERSITY OF
ILLINOIS AT CHICAGO (2004).
25

26

See Nancy G. La Vigne, Samuel Wolf, & Jesse Jannetta, Voices of Experience: Focus Group
Findings on Prisoner Re-entry in the State of Rhode Island 24, URBAN INSTITUTE (2004).
27
Id.
28
See Marta Nelson, Perry Deess, & Charlotte Allen, The First Month Out: Post-Incarceration
Experiences in New York City 6, VERA INSTITUTE OF JUSTICE (1999) (a study of recently released
prisoners in New York City found that families not only provide material support, such as housing,
food, and finances, but also emotional support in the form of acceptance and encouragement); see also
Nancy G. La Vigne, Christy Visher, & Jennifer Castro, Chicago Prisoner’s Experiences Returning
Home 7-8, 10, URBAN INSTITUTE (2004) (a study of recently released prisoners in Chicago found that

such connections alleviate some of the fear, loneliness, and confusion many prisoners
feel when they first re-enter society from the confines and structure of incarceration.29
For many released prisoners, an actively supportive family keeps them from turning
to drug abuse or engaging in other behavior that would violate their conditions of
parole.30 Moreover, family acceptance and support plays a large role in an exprisoner’s confidence and attitude upon release, encouraging him to confidently look
for work, develop new relationships, and begin planning for the future.31 Overall,
many prisoners who violate parole or re-offend report that they did so because they
felt isolated, helpless, and desperate, in large part because of a lack of family
support.32
Individually and collectively, the foregoing practices also make it more difficult for
incarcerated people to communicate with their lawyers. Telephone calls are an efficient
means for attorneys to communicate with incarcerated clients, particularly when literacy
or English-speaking skills are a factor. It is regularly less burdensome for an attorney to
speak with a client over the telephone than to travel to the facility and conduct a meeting
or personal interview. The high cost of prisoner phone calls makes it difficult or
impossible for many prisoners’ lawyers to accept their calls. The vast majority of
incarcerated people are represented by public defenders or court-appointed attorneys who
operate with extremely limited budgets. When attorneys are able to accept prisoner calls,
the high cost of the calls cuts into the attorneys’ budgets, making it difficult for them to
afford other items necessary to their clients’ defense. This has serious implications given
the constitutional protections surrounding a prisoner’s ability to communicate with
counsel.

ACCESS TO COUNSEL FOR IMMIGRATION DETAINEES

92% of participants relied on the financial support of their family at some point in the first few months
after release, and 77% of those still looking for employment were relying on income from their
spouses, family, and friends); see also Christy Visher, Vera Kachnowski, Nancy La Vigne, & Jeremy
Travis, Baltimore Prisoner’s Experiences Returning Home 6, URBAN INSTITUTE (2004) (a similar
study in Baltimore found that 51% of prisoners were receiving financial support from families one-tothree months after release, and 80% were still living with family members); see finally La Vigne,
Visher, & Castro, supra note 24, at 17 (the participants of the Rhode Island focus groups noted that
finding employment while incarcerated was a major obstacle, therefore a strong family and community
network upon release was a significant factor for them in finding a job).
29
See Marta Nelson, Perry Deess, & Charlotte Allen, The First Month Out: Post-Incarceration
Experiences in New York City 6, VERA INSTITUTE OF JUSTICE (1999).
30

Id. at 10 (such support came in the form of family members accompanying ex-prisoners to Narcotics
Anonymous meetings, or having relatives accompany them whenever they left the house to help
temper their temptations).
31
Id. at 11.
32
Id. at 23.

In regards to legal telephone calls for immigration detainees, the Civil Detention
Standards state, “Residents should have no-cost access to telephones, e-mail and
video technology in order to communicate with legal representatives, according to the
provisions under this section and Standard VI.B Telephonic and Other Real-Time
Communications.”33
Of particular concern to the ABA is immigration detainees’ ability to use telephones
to identify and access attorneys.34 Men, women and children lack the right to
government funded counsel in immigration proceedings and the ABA’s 2010 study,
Reforming the Immigration System found that 84% of detained immigrants lacked
representation. Nearly all immigration detainees have active legal cases since most
detainees are held pending final resolution of their immigration cases. For that
minority of detainees who are able to obtain counsel, ICE has the option to transfer a
detainee to any detention facility within the United States. ICE detention facilities are
often located in rural areas, far from the pro-bono representation.35 Many facilities are
located an hour or more from metropolitan centers where attorneys practice, making
interaction with clients an impediment to representation. This makes telephonic
communication imperative. In light of this situation, any factor which increases the
expense of telephone calls limits a detainee’s access to justice.
The ABA’s Commission on Immigration operates a detainee correspondence project
including a toll-free hotline accessible to immigration detainees across the country.
In the course of taking calls from detainees several recurring obstacles to effective
communication with legal representatives have been observed which appear to be
particular practices impacting access to counsel. Many facilities holding immigration
detainees automatically cut off telephone calls after 15 minutes. This leads to the
need for detainees to redial numbers multiple times, often leading to additional
charges. Costs per call are high, particularly interstate calls to legal representatives
and family members. Many detention facilities require that detainees establish
prepaid calling accounts which delay their ability to communicate with legal
representative and their families. And typically, detainees are not able to transfer
accounts to a new detention facility following a transfer. Finally, collect calls from
detention facilities are high, the high cost of collect calls which makes it impossible
for pro bono legal representatives to accept such calls.
_________

THE CURRENT PROPOSED RULEMAKING BY THE FCC
As just discussed, these high ICS rates place a great number of correctional facilities
in contravention of the ABA Standards on the Treatment of Prisoners. The FCC has
33

ABA Civil Immigration Detention Standards, VII. Access to Legal Services, A.7.

34
35

Heartland Alliance National Immigrant Justice Center, Isolated in Detention (September 2010), at 8,
available at http://www.immigrantjustice.org/isolatedindetention.

authority under the Telecommunications Act of 1996 (the Act) to enact regulations
that establish rate caps, open up the ICS market to outside competition, and bar site
commissions as part of agreements between states and telecommunications providers.
In doing so, the FCC would guide these facilities back into compliance with the ABA
Standards on the Treatment of Prisoners.

Re:

III.
A.

ENSURING ICS RATES ARE JUST AND REASONABLE
Rate Caps in the ICS Market

Section 201(b) of the Act provides that all charges in connection with
telecommunication services “shall be fair and reasonable.”36 The Act again
emphasizes consumer protection in providing that the FCC and the states “should
ensure that universal service is available at rates that are just, reasonable, and
affordable.”37
The ABA recommends that the FCC use its authority under section 201(b) to set “the
lowest possible rate, taking into account security needs,” as required by the ABA
Standards on the Treatment of Prisoners, Standard 23-8.7(a). Such a fair and
reasonable rate would “afford prisoners a reasonable opportunity to maintain
telephonic communication with people and organizations in the community,” also
required under Standard 23-8.7(a).
In placing just and reasonable caps on prison phone call rates, the FCC would protect
prisoners’ families by providing them affordable rates at which to stay in touch with
their loved ones. Moreover, by setting caps at the lowest possible rate which still
allows phone service providers to recoup their expenses, the FCC would be ensuring
that “all payphone service providers are fairly compensated for each and every
completed intrastate and interstate call.”38
Finally, setting rates that are fair and reasonable is conducive for prisoners
“maintaining healthy relationships with their families,” and provides prisoners
“conditions that afford [them] a reasonable opportunity to adjust to and prepare for
re-entry into the community,” as required by ABA Standard on the Treatment of
Prisoners, Standards 23-1.2(a) and 23-8.9(a).

Re:

36

III.
C.
36.

ENSURING ICS RATES ARE JUST AND REASONABLE
Additional Proposals in the Record
Competition in the ICS Market

47 U.S.C. § 201(b) (1996).
47 U.S.C. § 254(i) (2008).
38
47 U.S.C. § 276(b)(1)(A) (1996).
37

“The Telecommunications Act of 1996 is the first major overhaul of
telecommunications law in almost 62 years. The goal of this new law is to let anyone
enter any communications business -- to let any communications business compete in
any market against any other.”39 One of the driving forces behind the passing of the
Act was the intent of Congress to introduce competition into the telecommunications
market, in order to protect consumers from abuse at the hand of monopolistic
business practices.40
Section 253(a) of the Act provides that “[n]o State or local statute or regulation, or
other State or local legal requirement, may prohibit or have the effect of prohibiting
the ability of any entity to provide any interstate or intrastate telecommunications
service.”41 Section 253(d) goes on to provide that if the FCC finds “that a State or
local government has permitted or imposed any statute, regulation, or legal
requirement” that violates section 253(a), the FCC “shall preempt the enforcement of
such statute, regulation, or legal requirement.”42
The ABA recommends that the FCC use its statutory authority under section 253(d)
of the Act to preempt states from entering into exclusive provider agreements, and
open up the ICS market to fair and widespread competition. Even though states have
not enacted statutes or regulations that require exclusive contractual agreements
between correctional facilities and telecommunications providers, “by allowing only
one company to be the provider of service to a prison, the state has put into place a
‘legal requirement’ that prevents entry into the market.”43 Such legal requirements of
state and local officials are in violation of section 253(a) of the Act, and give the FCC
authority to intervene and preempt enforcement under section 253(d).
Furthermore, section 251(a) of the Act provides that it is the general duty of
telecommunications carriers “to interconnect directly or indirectly with the facilities
and equipment of other telecommunications carriers.”44 In essence, this section
requires that a telecommunications provider which controls a prison’s
telecommunications services to lease its facilities to rivals. This is in order to allow
rivals to enter the market without incurring substantial costs, therefore removing
another barrier to entry and promoting market competition.45 Under such
hypothetical agreements, providers would share all the same facilities, including
existing security systems.46 By operating under exclusive provider agreements,

39

Telecommunications Act of 1996, FEDERAL COMMUNICATIONS COMMISSION (May 31, 2011)
http://transition.fcc.gov/telecom.html.
40
See Carver, supra note 12, at 401-02.
41
47 U.S.C. § 253(a) (1996).
42
47 U.S.C. § 253(d) (1996) (emphasis added).
43
See Carver, supra note 12, at 402 (emphasis added).
44
47 U.S.C. § 251(a)(1) (1999).
45
See Carver, supra note 12, at 403.
46
Id.

competing providers are being denied access to existing facilities, a practice in
violation of section 251(a) of the Act.
Finally, telecommunications providers and states operate against the express intent of
the Act by preventing third-party providers to compete collaterally. Several
companies have surfaced over the past decade that offer telephonic services through
remote call forwarding techniques.47 These techniques allow a prisoner to access the
cheaper local call rates when calling family members who live far away, while still
being subjected to the same security checks (call monitoring, recording, and number
verification) as calls placed through the contracted providers.48 Prisoners who use
these services however, are often punished,49 and many contracted providers block
numbers that operate through such services.50
By preventing states from engaging in monopolistic business practices, and opening
up the ICS market to outside competition, the FCC would allow the market to
actually work. Rates would drop as companies are forced to compete with one
another within the same prison market. As rates drop, prisoners gain increased access
to telephonic communication with their family and community support services, and
are better equipped to successfully re-enter society, bringing correctional facilities
back in line with the ABA Standards on the Treatment of Prisoners.

Re:

III.
ENSURING ICS RATES ARE JUST AND REASONABLE
C.
Additional Proposals in the Record
37-38. Site Commissions

There is a distinct difference between ICS rates in states that have barred site
commissions as part of telecommunications provider agreements and those that have
not. The average cost of a 30-minute phone call from a prisoner to their families
from a prisoner in a state that has barred site commissions is $2.31 for local, $3.99 for
intrastate, and $8.89 for interstate.51 Compare those 30-minute averages with states
that still require commissions: $2.95 for local, $8.80 for intrastate, and $18.99 for
interstate.52
While some states have begun to ban commissions as part of agreements with
telecommunications providers,53 this is not evidence that “the market is working.”
47

See Jackson, supra note 4, at 273.
Id.
49
Id.
50
Id.
48

51

See PRISON PHONE CONTRACT DATA, supra note 3.
Id.
53
Id. (the eight states that have banned commissions as part of telecommunications agreements are
California, Michigan, Missouri, Nebraska, New Mexico, New York, Rhode Island, and South
Carolina).
52

These actions are instead forced responses by states due to large settlements and
judgments being levied against telecommunications providers as the result of
questionable billing practices within their correctional facilities.54 Such practices
include: “programing phones to start billing before the recipient accepts the call;
imposing surcharges in excess of those allowed; failing to discount calls made at offpeak times; and charging for unauthorized calls.”55 Many prisoners also complain
that their calls are prematurely cut off, forcing them to re-dial their family members
and subject them to repeated connection charges.
Though some states have taken responsive action due to these billing practices, many
have not. Instead of waiting further decades for lawsuits to pile up and force state
legislative responses, the ABA recommends that the FCC take action now and bar
states from receiving site commissions as part of agreements with
telecommunications providers. Doing so would not only cause a sharp drop in the
rates prisoners are forced to pay, but would prevent correctional authorities from
charging prisoners fees for non-commissary services, a practice in violation of the
ABA Standards on the Treatment of Prisoners, Standard 23-8.8(a).

Re:

III.
D.

ENSURING ICS RATES ARE JUST AND REASONABLE
Cost/Benefit Analysis of Proposals

As discussed in-depth previously, high phone rates that prevent communication
between a prisoner and his family are devastating to his chances of living a lawabiding life upon release. Placing caps on ICS rates, opening up market competition,
and barring site commissions will work to lower the costs prisoners and their postrelease support networks must pay to keep in contact, and help rebuild the lifeline
between them.
Some correctional authorities argue that eliminating commissions and reducing rates
will lead to a loss in prison programs and guards.56 But, despite the fact that these
rates and commissions are in violation of the ABA Standards on the Treatment of
Prisoners to begin with, any loss in revenue would be made up for in long-term cost
savings.
54

See Jackson, supra note 4, at 272 (beginning in the early 1990s, telecommunication providers were
agreeing to settlements, and having judgments levied against them, in amounts as high as $1.7 million
for illegal prison billing practices; in a 2001 settlement, MCI agreed to pay back $500,000 in illegal
overcharges to families of those incarcerated in California); see also Jonathan Martin, AT&T to pay
Washington prisoners’ families $45 million in telephone class action settlement, THE SEATTLE TIMES
(February 3, 2013) http://blogs.seattletimes.com/opinionnw/2013/02/03/att-to-pay-washingtonprisoners-families-45-million-in-telephone-class-action-settlement/ (in February 2013, AT&T agreed
to pay $45 million to settle a class action lawsuit brought by families of prisoners in Washington State
correctional facilities).
55
See Carver, supra note 12, at 398-99.
56

See Greg Garland, PSC probing rates for inmate phone calls, THE ADVOCATE (2011)
http://theadvocate.com/home/928995-79/story.html.

Recent studies show that recidivism has been growing at an alarming rate.57 In
recognizing this trend, and the significant cost burden it places on states, policy
makers have increased efforts to reduce future criminal activity and violations of
parole in order to keep bodies out of prison beds.58 Regulations that lower phone
rates, which in-turn lead to more successful re-entry for prisoners and reduced
recidivism, fall squarely in line with these policy trends, and benefit society as a
whole.
Prohibitively high calling rates also implicate the prisoners’ and detainees’ ability to
communicate with their counsel, to the extent it undermines the ability of counsel to
confer with the client about the facts, possible witnesses, and other issues regarding
presentation of the evidence. Telephone calls are an efficient means for attorneys to
communicate with detained clients, particularly when literacy or English-speaking
skills are a factor. It is less burdensome for an attorney to speak with a client over the
telephone than to travel to the facility and conduct a meeting or personal interview.
The high cost of prisoner phone calls makes it difficult or impossible for many
prisoners’ lawyers to accept their calls. When attorneys are able to accept prisoner
calls, the high cost of the calls cuts into the attorneys’ budgets, making it difficult for
them to afford other items necessary to their clients’ defense.
To encourage access to legal calls service providers should offer a broad range of
calling options, consistent with sound correctional practices. Toll-free calling, debit
calling, and collect calling are options that offer different advantages at varying costs.
To the extent that existing technology does not permit full access to toll-free numbers
for security reasons, correctional authorities should work proactively with telephone
service providers to develop and refine technology that extends security features to
toll-free calls. Although correctional authorities must be mindful of security concerns
when determining what calling options to offer, some telecommunications experts
and numerous correctional systems have found that alternatives to collect call-only
policies – such as the debit-calling option presently in place in a significant number of
facilities – can satisfy legitimate security concerns.
Second, telephone services in the correctional setting should be offered at the lowest
possible rates. A wide range of calling options and fair competition in the
marketplace will help control excessive costs. Non-exclusive contracts, contracts with
multiple vendors, the provision of debit cards through multiple vendors, and
unrestricted vendor access to correctional telephone networks are all measures that
promote fair competition which will lead to reasonably priced telephone services for
prisoners and their families. Greater oversight of the terms and conditions –
particularly the site commissions – of service contracts will enable service providers
to lower their cost of service and pass those savings on to consumers.
57
58

See STATE OF RECIDIVISM, supra note 2.

See Christian Henrichson & Ruth Delaney, The Price of Prisons: What Incarceration Costs
Taxpayers 12, VERA INSTITUTE OF JUSTICE (2012).

Part I. Rate Caps, Per-call Charges and Commissions
Addresses NPRM #18
The FCC asked if the elimination of the per-call charge would help ensure just and
reasonable ICS rates; ways to prevent multiple per-call charges for a single
conversation that is disconnected by security triggers and subsequently allowed to
continue while maintaining appropriate security measure; and what other steps could
be taken to prevent inmates from being charged multiple per-call charges for what
amounts to one conversation.
The ABA is concerned that per-call charges impede communication between
immigration detainees and their legal representatives. The National Detention
Standards which regulate, in part, access to telephones by ICE detainees states in
relevant part, “The facility shall not restrict the number of calls a detainee places to
his/her legal representatives, nor limit the duration of such calls by rule or automatic
cut-off, unless necessary for security purposes or to maintain orderly and fair access
to telephones.”59 In our experience, these rules are not consistently followed at all
detention centers; calls are routinely terminated by the facility after 15 or 20 minutes.
For detainees who are preparing their legal case with their attorney, several
consecutive calls may be required to complete their discussion. In those facilities
which have a per-call charge such interruptions can impede communication with their
lawyer due to the sheer expense.
The ABA recommends the FCC eliminate per-call charges as has been accomplished
in Indiana, Michigan, New Mexico, New York, Oregon and Texas,60 or if per-call
charges are deemed necessary, impose a cap on per-call charges capped at under
$1.00.

Part I. Rate Caps, Per-call Charges and Commissions
Addresses NPRM #33
The FCC noted that prepaid calling is an alternative to collect and debit calling which
allows inmates or their family member to prepay for minutes. The FCC questioned
how to handle monthly fees, how to load an account and minimum required account
balance, and asked what are other concerns or considerations with prepaid calling.
The ABA is concerned with the manner in which prepaid calling accounts are
established in certain facilities which house ICE detainees. As noted above
immigration detainees are often transferred from one detention facility to a facility in
a different state for the convenience of ICE. It is imperative in such cases that their
59

2000 Detention Operations Manual, Telephone Access, V. F. Telephone Usage Restriction; 2011
Performance Based National Detention Standard, 5.6 Telephone Access, F. Legal Calls, 1. Restrictions
60
Can we cite the Comment by the Human Rights Defense Center – Holly’s comment?

attorney be able to contact them by telephone and in many facilities the attorney is
required to establish a prepaid calling account with a minimum balance. Attorneys
have reported to the ABA that when their clients are moved to yet another facility the
attorney is required to set up a new account at the new facility, while they have been
denied refunds from the account established at the first facility. Therefore the ABA
would recommend that facilities be prohibited from allowing prepaid calling only, but
offer detainees additional methods of payment such as collect or debit calling.

Part I. Rate Caps, Per-call Charges and Commissions
Addresses NPRM 34
The Commission at NPRM 34 asks to the extent that interstate rates for inmate calling
services are significantly higher than intrastate rates, how would a requirement that
ICS providers set interstate rates at a level no higher than intrastate, long-distance
rates affect the justness and reasonableness of those rates?
At NPRM 50 the Commission notes that only a portion of the telephone calls inmates
make from correctional facilities are interstate, interexchange ICS.
While most people who are convicted of a state crime are also imprisoned within that
state, the same cannot be said for ICE detainees who are routinely moved around the
country based on where ICE beds are available. Therefore, ICE detainees, more than
any other group of prisoners are more often housed away from their family and legal
representatives, and therefore calls from ICE detainees would have a significantly
higher percentage of interstate, interexchange calls.
To encourage telephone access to legal representatives for ICE detainees the ABA
recommends that interstate rates for inmate calling be set at a level no higher than
intrastate rates.
Part IV – Other Calling and Rate-related Issues
Addresses NPRM 39
The Commission requested comments on no-cost calls for prisoners and detainees.
The importance of allowing for certain classes of free calls has been recognized for
immigration detainees in the National Detention Standards which provide that certain
categories of telephone calls must be free for persons in immigration detention.
Detainees are permitted to contact free legal services providers while seeking
representation; The Executive Office of Immigration Review and local immigration
court; the Board of Immigration Appeals; federal and state courts where the detainee
is or may become involved in a legal proceeding; consular officials; DHS/Office of
Inspector General, the United Nations High Commission for Refugees; federal, state
or local government offices to obtain documents relevant to his/her immigration case;
immediate family or others for emergencies, and the ICE/Office of Professional

Responsibility Joint Intake Center. The ability to reach out to these entities without
charge is particularly important for detainees who represent themselves in
immigration proceedings.

Conclusion
That ABA has continually held that any limitations placed on ”prisoners’
communications should be the least restrictive necessary to serve the legitimate
interests of institutional order and security and the protection of the public.”61
The practice of reaching into the wallets of prisoners and their families to fund
prisons via payphone service rates is in violation of the ABA Standards on the
Treatment of Prisoners and the Telecommunications Act of 1996. These practices are
tearing families apart, and significantly conflict with and undermine more
fundamental correctional policies aimed at promoting successful reentry and at
reducing recidivism. The FCC can play a substantial role in helping to correct these
unethical practices by removing barriers to entry for competing telecommunications
providers, barring site commissions, and enforcing caps on prison phone call rates.

*****
For additional information on these issues, or to tap into our membership expertise on
these subjects, please contact Thomas Susman (202-626-3920;
Thomas.Susman@americanbar.org), Director of the ABA’s Governmental Affairs
Office, or Bruce Nicholson (202-662-1769; Bruce.Nicholson@americanbar.org),
Senior Counsel, ABA GAO, or Kristi Gaines (202-662-1763,
Kristi.Gaines@americanbar.org.
*****

61

ABA Standards for Criminal Justice, Legal Status of Prisoner, Standard 236.1.(a)(1981)(communication rights).