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FCC Public Notice Seeking Comment on Third Mandatory Data Collection for Inmate Calling Services, 2021

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PUBLIC NOTICE
Federal Communications
45 L Street NE
Washington, DC 20554

Commission
News Media Information 202-418-0500
Internet: www.fcc.gov
TTY: 888-835-5322

DA 21-1192
Released: September 22, 2021
WIRELINE COMPETITION BUREAU AND OFFICE OF ECONOMICS AND
ANALYTICS SEEK COMMENT ON UPCOMING THIRD MANDATORY
DATA COLLECTION FOR INMATE CALLING SERVICES
WC Docket No. 12-375
Comment Date: 30 days after date of publication in the Federal Register
Reply Comment Date: 45 days after date of publication in the Federal Register
I.

INTRODUCTION AND BACKGROUND

By this Public Notice, the Wireline Competition Bureau (WCB) and the Office of Economics and
Analytics (OEA) (collectively, WCB/OEA) seek comment on the contours and specific requirements of
the forthcoming Third Mandatory Data Collection for inmate calling services (ICS).1 In the 2021 ICS
Order, the Commission directed WCB/OEA to develop a new data collection related to providers’
operations, costs, demand, and revenues.2 The Commission explained that it would use the collected data
to set permanent interstate and international ICS provider-related rate caps that more closely reflect
providers’ costs of serving correctional facilities.3 The Commission also emphasized that the data would
enable it to evaluate and, if warranted, revise the current ancillary service charge caps.4
The Commission delegated authority to WCB/OEA to implement this Third Mandatory Data
Collection, including “determining and describing the types of information required related to providers’
operations, costs, demand, and revenues,” and directed WCB/OEA to develop a template and instructions
for the collection.5 The Commission also directed WCB/OEA to consider record suggestions regarding,
among other matters, data granularity, cost allocation, and specificity in definitions and instructions in
In the 2020 ICS Notice, the Commission sought comment on whether and how the Commission should proceed
with any new data collection. 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, 8532-33, paras. 132-33
(2020 ICS Notice). The record demonstrated the need to “collect, in a more consistent and directed manner, the data
and information necessary to respond to the various criticisms in the record about the imperfections and
inconsistencies in the data from 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, FCC 21-60, at 100, para. 218 (2021) (2021 ICS Order or 2021 ICS Notice).
1

2021 ICS Order at 100, para. 218. The Commission has conducted two prior mandatory data collections relating
to inmate calling services in the past eight years—the 2013 First Mandatory Data Collection and the 2015 Second
Mandatory Data Collection. See, e.g., id. at 100-01, para. 219 (discussing the two prior data collections).
2

3

See, e.g., id. at 30-31, para. 71.

4

Id. at 101-02, para. 221.

Id. at 100, 101-02, paras. 218, 221. The draft instructions and template for the Third Mandatory Data Collection
are posted on the Commission’s website. See Appx. A. The template consists of a Word document and Excel
spreadsheets. For simplicity, we refer to these respective portions of the template as the Word template and the
Excel template.
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designing the data collection,6 and “to require each provider to fully explain and justify each step of its
costing process” including, where appropriate, “to specify the methodology the provider shall use in any
or all of those steps.”7
II.

OVERALL STRUCTURE OF THE DATA COLLECTION

Pursuant to our delegated authority, WCB/OEA have drafted proposed instructions, a template,
and a certification form for the Third Mandatory Data Collection.8 We seek comment on all aspects of
these documents. Do they sufficiently implement the requirements the Commission articulated for the
mandatory data collection in the 2021 ICS Order?9 If not, what steps should we take to improve the
proposed documents? The Commission’s prior data collections have demonstrated that detailed and
specific instructions and templates are essential to ensure that providers use similar procedures to
determine and report their costs, revenues, and other data.10 We invite comment on whether the proposed
instructions and template are sufficiently detailed to accomplish this objective. If not, what additional
instructions, inquiries, or fields should we add? Conversely, are there any instructions, inquiries, or fields
that should be removed because they are unnecessary to ensure that providers report uniform and accurate
data and other information?
A.

Instructions to the Third Mandatory Data Collection

We seek comment on whether the instructions provide sufficient guidance to ensure that
providers use uniform methodologies and report the required information in a consistent manner. What
improvements can WCB/OEA make to the instructions? Are there any changes that would clarify the
instructions or increase uniformity across providers’ responses, particularly regarding how to report and
allocate their costs? If so, what specific changes should we make? Are there any definitions that are
unclear?11 Are there any undefined terms we should define? Is there alternative or additional language
that would minimize ambiguity in any instruction? The proposed instructions also include many requests
that are not specifically described below. We seek comment on all aspects of the proposed instructions,
including on those requests that we do not address individually in this Public Notice.
Reporting Period. The proposed instructions generally seek data for each calendar year from
2019 through 2021, but seek cost data only for calendar year 2021, in part to minimize the burden of
responding to this data collection. Is this the correct period for general data requests, such as revenues,
site commission payments, and calling minutes? Is cost data only for calendar year 2021 the most
relevant to collect? Would cost data from 2019, on the other hand, provide the most representative data
set, given that the data from 2020 and 2021 will reflect the impact of the COVID-19 pandemic upon
operations?12 Should we adopt a longer or shorter period for any set of requests? If so, why? Are there
2021 ICS Order at 102-03, paras. 223-25. The Commission also directed WCB/OEA to “incorporate lessons
learned from the two prior data collections to ensure that [the Commission] collect[s], to the extent possible, uniform
cost, demand, and revenue data from each provider.” Id. at 103, para. 225; see also id. at 103-04, para. 226
(directing WCB/OEA to collect, at a minimum; information designed to enable the Commission to meet certain
objectives).
6

7

2021 ICS Order at 104, para. 227.

8

See Appx. A, infra.

9

See 2021 ICS Order at 102-04, paras. 223-27.

Id. at 103, para. 224 (highlighting one commenter’s view that “many of the issues with the current dataset appear
to have arisen due to differing provider interpretations of instructions and terms, and that the Commission should
minimize the potential for such differing interpretations as much as possible”).
10

11

See, e.g., id. at 103, para. 224.

Letter from Gregory R. Capobianco, Counsel for the Wright Petitioners, to Marlene H. Dortch, Secretary, FCC,
WC Docket No. 12-375 (filed Sept. 3, 2021) (Wright Petitioners Sep. 3, 2021 Ex Parte) (identifying the potential
impact of the COVID-19 pandemic upon the data collection).
12

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any specific known and measurable changes to ICS-related investments, expenses, revenues, and demand
over the next few years that are not reflected in the data the proposed instructions seek to collect?
Financial Information. The proposed instructions require providers to report financial data in
accordance with generally accepted accounting principles and specify that the carrying value of all assets
shall reflect the results of recent impairment testing that accurately removes any overstatement of carrying
value otherwise recorded in a provider’s book of accounts. Under generally accepted accounting
principles, an asset or asset group is impaired when its carrying amount, that is, the value reflected on the
balance sheet, net of depreciation or amortization, exceeds its fair market value. In that case, the value of
the impaired asset or asset group is written down and the reduced value is reflected on the balance sheet
and a loss is recorded on the income statement. Is this the correct approach? If not, why not? How often
do providers test their assets for impairment and how often are they required to do so under generally
accepted accounting principles? Are additional instructions needed to ensure that the carrying value of
providers’ assets is not overstated?13 If so, what other instructions should we adopt?
We seek comment on whether providers maintain sufficient records to enable them to respond
fully to the data collection. If not, what additional steps should we take to ensure that the Commission
has sufficient information to set reasonable permanent provider-related rate caps for interstate and
international ICS and to revise the current ancillary service change caps? Should we adopt workarounds
that would provide reasonable proxies for any financial data that providers are unable to report and, if so,
what workarounds should we specify?
Cost Allocation. We propose several steps for providers to follow in allocating their costs among
various services, as set forth in the proposed instructions. What refinements, if any, should we make to
our proposed cost allocation methodology? Is there an alternative methodology that would better ensure
that providers allocate their costs in a manner consistent with how they are incurred? If so, what is that
methodology and why would it produce more accurate results than the proposed method?14 Are there
additional allocation steps or instructions that would result in greater uniformity in providers’ cost
allocation procedures or greater accuracy in the cost allocation results?15 Do all or most providers
routinely track certain data in the normal course of operating their businesses that should be used to
develop allocators for particular costs or groups of costs? Are there additional steps we should take to
ensure that each provider will directly assign its investments and expenses to the extent possible?
Similarly, are there additional steps we can take to ensure that each provider will allocate shared and
common investments and expenses in a cost-causative manner?
Response Granularity. We propose that all providers submit data both at the company-wide level
and for each correctional facility in which the provider offered calling services during the reporting
period.16 We seek comment on this approach. Assuming we should require providers to report data on a
facility-level basis, how should we require providers that track costs only on a contract level to respond?
Are the cost allocation procedures set forth in the instructions sufficient to enable these providers to
allocate costs down to the facility and, if not, what additional procedures should we require? Are there
any additional data we should seek that would help ensure that providers allocate costs to facilities in a
manner that more accurately reflects how such costs are incurred? How and to what degree should a
provider document or explain the way it derives facility-level costs?

See 2021 ICS Order at 37, para. 86; id. at 33, para. 77 (explaining how Global Tel*Link Inc. (GTL) argued that it
could not respond to a WCB request for additional cost, revenue, and cost allocation information because it “does
not maintain records that would allow it to respond,” leading the Commission to adjust GTL’s reported data in
setting interim provider-related rate caps).
13

14

See, e.g., id. at 102-03, para. 223.

15

Wright Petitioners Sept. 3, 2021 Ex Parte (discussing the need for clear cost allocation methodology).

16

See, e.g., 2021 ICS Order at 102-03, para. 223.

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The proposed instructions give providers the option of reporting their investment and expense
data for ICS and related ancillary services without separating them into interstate and intrastate
components or, if they prefer, to perform that separation prior to reporting their data. This approach
reflects the fact that we are unaware of any material cost differences between providing interstate and
intrastate calling services based on the record in this proceeding to date.17 Is that understanding correct?
Are there any data for which a separation into interstate and intrastate components would be helpful in
determining the costs providers incur solely in providing interstate and international calling services and
related ancillary services?
B.

Template

We propose to require providers to submit the requisite data using a reporting template, to be
filed through the Commission’s electronic comment filing system (ECFS).18 The proposed template
consists of a Word document (Appendix A to the instructions) for responses requiring narrative
information and Excel spreadsheets (Appendix B to the instructions) for responses that require specific
numbers or information. We seek suggestions for improvements we can make to the template. Is there an
alternative organization that would reduce any perceived burdens? Are there other organizational or
substantive improvements we can make to the reporting requirements? Are there inquiries we should add
to the templates? Are there inquiries we should eliminate? If so, why? Do any questions require
clarification?
III.

SPECIFIC INQUIRIES

General Categories of Information Requested. The proposed instructions require providers to
submit certain types of information related to their operations, costs, demand, and revenues. Are the
categories of data described in sufficient detail in the proposed instructions? Are there additional
categories or subcategories of information we should require providers to submit, in order to gather
accurate, consistent, and sufficiently disaggregated data?19 Is there additional information that would help
quantify the relative financial importance of different products and services in each provider’s business
portfolio or ICS operations? Is there additional information we could seek to facilitate a thorough
accounting of the providers’ investments, particularly to distinguish investments in intangible assets that
were created internally from investments in intangible assets and goodwill generated by acquisitions or
asset purchases? If so, how should we draw this distinction and how should any distinctions be reflected
in the development of permanent rate caps? Is there additional information we should seek to help
thoroughly account for a provider’s recurring capital expenses or recurring operating expenses? Should
customer deposits be subtracted from the provider’s net investment in assets, the base upon which an
allowable rate of return is calculated? Do customer deposits represent non-investor-supplied capital?
Does the provider pay interest on the outstanding customer deposit balance? Is the provider able to earn a
return on the outstanding customer deposit balance? Are there additional subcategories of data we should
seek that will enable the Commission to better estimate providers’ costs of serving individual correctional
facilities?
Demand for Interstate and International Calling Services. We propose to seek information on
providers’ demand for interstate and international calling services by requiring providers to report billed
minutes, unbilled minutes, average daily population, number of telephones installed, and the number of
kiosks installed. Are there other types of data that would provide a more accurate picture of demand such
See, e.g., Rates for Interstate Inmate Calling Services, Report and Order and Further Notice of Proposed
Rulemaking, 28 FCC Rcd 14107, 14175, para. 134 (2013) (highlighting the existence of uniform intrastate and
interstate ICS rates).
17

See, e.g., Inmate Calling Services Mandatory Data Collection, WC Docket No. 12-375, General Instructions,
https://docs.fcc.gov/public/attachments/DOC-343708A3.docx (Second Mandatory Data Collection Instructions).
18

See, e.g., 2021 ICS Order at 30-31, para. 71 (emphasizing the need for such data in order to allow the Commission
to develop permanent interstate provider-related rate caps for all correctional facilities).
19

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as the number of beds, or the rate of new account generation, at a particular facility? For example, would
the rates of new account generation or account termination serve as accurate proxies for demand, or
otherwise reflect cost drivers that could be used to better allocate provider costs? Could a measure of
demand other than minutes be used as the unit of sale for the permanent rate caps? If providers do not
know the average daily population of certain facilities they serve, what data could they report to provide a
reasonable proxy for average daily population in those instances? What impact has the COVID-19
pandemic had on the cost of providing and the demand for intrastate, interstate, and international calling
services? Do providers expect that impact to persist?
Data for Jails with Fewer than 1,000 ADP.20 In the 2021 ICS Order, the Commission observed
that the record then before it did not “allow [it] to reasonably set permanent or even new interim interstate
rate caps for jails with less than 1,000 average daily population.”21 What types of data would provide a
more accurate picture of the costs providers incur in serving such jails? What are the specific factors that
differentiate the costs associated with serving such jails from the costs of serving larger jails? What data
should we collect to analyze those factors?22 What are the one-time costs that providers incur to initiate
service for a newly incarcerated person in such jails as compared to larger jails? Should we require
providers to separately report these one-time costs? If so, what are the appropriate one-time cost
categories? The record suggests that higher turnover in jails with less than 1,000 ADP may affect
providers’ and facilities’ costs.23 How should providers be required to report turnover data, and how can
we analyze those data to identify the impact of turnover on provider and facility costs, or to distinguish
between them? Are there additional data we can request that would help the Commission quantify and
evaluate the effect of turnover?
Site Commissions. We propose to require that providers separately identify the amounts of
(1) legally mandated, (2) contractually prescribed, (3) monetary, and (4) in-kind site commission
payments. Are there other categories of information we should seek regarding site commissions? How
should providers submit information concerning in-kind payments? For example, should we require
providers to describe their in-kind payments in detail and assign them a dollar value? In the 2021 ICS
Order, the Commission observed that the record did not allow it to “determine on a permanent basis
whether and what portion of [site commission] payments are legitimately related to the cost” of providing
inmate calling service.”24 What types of information should we seek to help make this determination?
Should we, for example, require providers to explain whether they agree to pay site commission on ICS
calls to get footholds in facilities where they can offer non-ICS products and services that will not be
subject to site commission payments obligations? If so, how can we ensure that providers allocate their
site commission payments between their ICS-related operation and those other operations in a costcausative manner?
Security Services. As the Commission explained in the 2021 ICS Notice, to determine whether
any costs associated with security services should be recovered through ICS rates, it first must be able to
determine whether any of those costs are directly related to the provision of ICS and distinguish them
from other security costs incurred by correctional institutions.25 To facilitate this determination, the
proposed instructions would require providers to report security costs in connection with the providers’
ICS-related and non-ICS-related operations. Are there other data we should seek concerning such costs?
The Commission explained in the 2021 ICS Order that “[a]lthough in some places we use the term ‘smaller jails’
to refer to facilities with average daily populations less than 1,000, that usage is not meant to imply that such jails
are small in any absolute sense.” Id. at 141-42, para. 311 n.932.
20

21

E.g., id. at 13, para. 30.

22

See 2021 ICS Notice at 140-41, paras. 307-08.

23

See id. at 144-45, para. 319.

24

2021 ICS Order at 45, para. 102 (internal quotations and citations omitted).

25

2021 ICS Notice at 146-47, para. 323.

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What categories of security costs are properly considered directly related to ICS? What categories are
not? How should we require providers to separate and report security costs which are legitimately or
directly related to ICS from general facility security costs? Should we require providers to specify
whether any such cost is incurred by the ICS provider or the facility?26 Are there any other data we could
collect that would assist the Commission in determining whether security costs are directly or legitimately
related to the provision of ICS? Should we collect specific data about security costs that may not be
directly or legitimately related to the provision of ICS, such as costs incurred to monitor and record every
call made by an incarcerated person?
Ancillary Service Charges. We propose to require providers to report revenues and disaggregated
costs incurred for ancillary services.27 We seek comment on this proposal, as reflected in the instructions.
In the 2021 ICS Order, the Commission observed that the existing record did not allow it to “adjust [the]
caps on ancillary service fees beyond the new cap on fees for single-call services and third-party financial
transaction fees.”28 The Commission found that there was “no reliable way to exclude ancillary service
costs from [the] provider-related rate caps calculations at this time.”29 What other revenue or
disaggregated cost data should we seek to enable the Commission to evaluate and, if warranted, revise the
current ancillary service charge caps and/or isolate and exclude ancillary service costs from any future
calculations related to per-minute rate caps?30
In the 2021 ICS Order, the Commission identified “confusion among industry stakeholders
regarding the relationship between the automated payment fee and third-party financial transaction fees as
they relate to credit card processing fees.”31 To determine how credit card processing works in relation to
these two ancillary services, we propose to require providers to report the total amount of revenues
derived from charging automated payment fees and third-party transaction fees, to report the amount of
that total that is credit card processing separately, and specify whether the provider, an affiliate, or a third
party performs the processing. Do commenters agree with this approach? If not, how should we require
providers to report credit card processing revenues embedded in revenues derived from these two
ancillary service charges?
The Commission also expressed concern about “the adverse effect of revenue-sharing
arrangements between calling service providers and third-party financial institutions” in the context of
ancillary services.32 To assist the Commission in understanding the prevalence and effect of such
agreements, we propose to require providers to identify revenue-sharing agreements related to ancillary
services and the revenues shared under those agreements. What other information should we seek on
revenue-sharing agreements?
Additional Data. Beyond the foregoing, are there other types of data we should require providers
to submit to ensure that we fully capture the costs of providing ICS? Are there additional data that may
enable the Commission to better understand the costs ICS providers and correctional facilities incur in
The 2021 ICS Notice observed that there is record evidence suggesting that some of the security and surveillance
functions described by the National Sheriffs’ Association as being performed by correctional facility staff appear to
duplicate some of the security functions that providers report as costs. Id. at 146-47, para. 323 & n.966.
26

27

See 47 CFR § 64.6000(a).

2021 ICS Order at 13, 34, paras. 30, 79. The instructions for the Second Mandatory Data Collection required
certain ancillary service revenues to be reported separately, but providers were not required to report their ancillary
service costs separately from other inmate calling services costs. Further, providers were not required to separately
report costs relating to any specific ancillary service. See Second Mandatory Data Collection Instructions at 9-10.
28

By consequence, the Commission allowed such costs to “remain as part of the industry costs” used in the
calculations for the interim rate caps. 2021 ICS Order at 34, para. 79.
29

30

See, e.g., id. at 35, para. 80.

31

2021 ICS Notice at 149-50, para. 327.

32

Id. at 152-53, para. 333.

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connection with ICS? How should any such data be compiled and used to ensure that direct and shared
and common costs are assigned or allocated in the most cost-causative manner? What data should we
collect concerning international calling costs to isolate those costs and to eliminate the risk of double
counting?33
Are there other issues we should consider regarding the data we propose to collect? Should we
seek data on the marketing and sale of inmate calling services, such as contracts by which correctional
facilities purchase calling services on behalf of incarcerated persons at fixed monthly rates? If so, what
data should we ask for? For example, should we direct providers to identify in narrative responses the
terms of any bulk-purchasing arrangements they have with correctional facilities?34 What data should we
ask for from providers that enter into service arrangements, such as GTL’s contract with San Francisco,
whereby incarcerated people receive free telephone service?
IV.

MISCELLANEOUS

In the 2021 ICS Order, the Commission delegated to WCB/OEA the authority to “require
providers to submit any additional information that they deem necessary to help the Commission
formulate permanent rate caps or to revise [the] rules governing ancillary service charges.”35 We propose
to require all providers to submit audited financial statements or reports, or similar documentation, for the
relevant reporting period, to the extent they have been produced in the ordinary course of business.36 Are
there other reports or documentation we should seek? Should we require providers to provide copies of
all or a random sample of their ICS contracts to assist Commission staff in verifying or crosschecking
data submitted in response to the Third Mandatory Data Collection?
Separately, in the 2021 ICS Order, the Commission reasoned that the benefits of conducting a
third data collection “far outweigh any burden on providers” given the “adverse impact that unreasonably
high rates and ancillary services charges have on incarcerated people and those family and loved ones
they call.”37 While we do not revisit this general finding, we do seek to maximize the benefits of this data
collection while minimizing the costs to the extent we can. We therefore seek comment on whether our
proposals will meet the Commission’s objectives in requiring the data collection.38 If not, what additional
questions should we ask to ensure the Commission has all the data it needs to set permanent rate caps,
evaluate ancillary service fees, and adjust the caps for those fees, if necessary? Conversely, are there
ways that we could minimize the burden on providers while still ensuring we collect all the data the
Commission needs to meet its goals? If so, what specific changes do commenters propose in this regard?
We also seek to ensure that smaller providers are not disproportionately burdened by this data collection,
while recognizing that data from smaller providers is critical to the Commission’s ratemaking process
going forward.39 Do commenters have suggestions as to how we can get the information we need from
smaller providers in a less burdensome way? If so, how?
In the 2021 Order, the Commission eliminated the separate interim rate cap that had applied to
interstate collect calls, an action that reflected a record establishing that collect calls now play only a
Id. at 154, para. 338 (highlighting commenter concerns that rate caps for international calls may be double
counting providers’ costs for international calls, because those costs are already included in the overall ICS costs the
Commission used to set interim interstate rate caps).
33

See, e.g., 2021 ICS Order at 102-03, para. 223. “Bulk purchasing” in this context refers to the purchase by a
correctional facility of ICS at fixed monthly rates or other similar arrangements such as unlimited calling plans at
fixed rates. See Wright Petitioners et al. Comments at 16.
34

35

Id. at 104, para. 227.

36

See Second Mandatory Data Collection Instructions at 1.

37

2021 ICS Order at 101-02, para. 221.

38

Id. at 101-04, paras. 221-26.

39

Id. at 13, 21, 143-46, paras. 30, 47, 306-10, 316-21.

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limited role in the inmate calling services marketplace and that there is at most a relatively small
difference between the costs of providing collect and non-collect inmate calling services calls.40
Consistent with that Commission action, the proposed instructions do not differentiate among debit,
prepaid, and collect calls. We seek comment on whether the instructions should distinguish among these
call types. If so, why and for which specific components of the proposed data collection?
Finally, as part of the Commission’s continuing effort to advance communications equity for all,41
including people of color and others who have been historically underserved, marginalized, and adversely
affected by persistent poverty and inequality, we invite comment on any equity-related considerations42
and benefits (if any) that may be associated with the upcoming Third Mandatory Data Collection.
Specifically, we seek comment on how our proposals for that collection may promote or inhibit advances
in diversity, equity, inclusion, and accessibility.
V.

PROCEDURAL MATTERS

Filing of Comments and Replies. Pursuant to sections 1.415 and 1.419 of the Commission’s
rules, 47 CFR §§ 1.415, 1.419, interested parties may file comments and reply comments on or before the
dates indicated on the first page of this document. Comments may be filed using the Commission’s
Electronic Comment Filing System. See FCC, Electronic Filing of Documents in Rulemaking
Proceedings, 63 Fed. Reg. 24121 (May 1, 1998).43


Electronic Filers: Comments may be filed electronically using the Internet by accessing the
ECFS: https://www.fcc.gov/ecfs/.



Paper Filers: Parties who choose to file by paper must file an original and one copy of each
filing. If more than one docket or rulemaking number appears in the caption of this proceeding,
filers must submit two additional copies for each additional docket or rulemaking number.



Filings can be sent by commercial overnight courier, or by first-class or overnight U.S. Postal
Service mail. All filings must be addressed to the Commission’s Secretary, Office of the
Secretary, Federal Communications Commission.


40

Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority
Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701. U.S. Postal
Service first-class, Express, and Priority mail must be addressed to 45 L Street, NE,
Washington, DC 20554.

Id. at 19, para. 42.

Section 1 of the Communications Act of 1934, as amended, provides that the Commission “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.
41

We define the term “equity” 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).
42

The Protective Order issued in this proceeding permits parties to designate certain material as confidential. Rates
for Inmate Calling Services, WC Docket No. 12-375, Order, 28 FCC Rcd 16954 (WCB 2013); see also Rates for
Inmate Calling Services, WC Docket No. 12-375, Order, 35 FCC Rcd 9267 (WCB 2020) (clarifying nonconfidential treatment for certain information). Filings that contain confidential information should be appropriately
redacted and filed pursuant to the procedure described therein.
43

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Effective March 19, 2020, and until further notice, the Commission no longer accepts any hand or
messenger delivered filings. This is a temporary measure taken to help protect the health and
safety of individuals, and to mitigate the transmission of COVID-19.44

Comments and reply comments must include a short and concise summary of the substantive
arguments raised in the pleading. Comments and reply comments must also comply with section 1.49
and all other applicable sections of the Commission’s rules. We direct all interested parties to include the
name of the filing party and the date of the filing on each page of their comments and reply comments.
All parties are encouraged to use a table of contents, regardless of the length of their submission. We also
strongly encourage parties to track the organization set forth in this Public Notice and the instructions in
order to facilitate our internal review process.
People with Disabilities. We ask that requests for accommodations be made as soon as possible
in order to allow the agency to satisfy such requests whenever possible. Send an email to
fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at (202) 418-0530.
Ex Parte Presentations. This proceeding shall be treated as a “permit-but-disclose” proceeding in
accordance with the Commission’s ex parte rules.45 Persons making ex parte presentations must file a
copy of any written presentation or a memorandum summarizing any oral presentation within two
business days after the presentation (unless a different deadline applicable to the Sunshine period applies).
Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation
must (1) list all persons attending or otherwise participating in the meeting at which the ex parte
presentation was made, and (2) summarize all data presented and arguments made during the
presentation. If the presentation consisted in whole or in part of the presentation of data or arguments
already reflected in the presenter’s written comments, memoranda, or other filings in the proceeding, the
presenter may provide citations to such data or arguments in the prior comments, memoranda, or other
filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be
found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission
staff during ex parte meetings are deemed to be written ex parte presentations and must be filed
consistent with section 1.1206(b) of the Commission’s rules.46 Participants in this proceeding should
familiarize themselves with the Commission’s ex parte rules.
Supplemental Initial Regulatory Flexibility Act Analysis. As required by the RFA,47 the
Commission has prepared a Supplemental Initial Regulatory Flexibility Analysis (Supplemental IRFA) of
the possible significant economic impact on small entities by the policies and rules proposed in the Public
Notice. The Supplemental IRFA is set forth in Appendix B. The Commission requests written public
comments on the Supplemental IRFA. Comments must be identified as responses to the Supplemental
IRFA and must be filed by the deadlines for comments provided in the Public Notice. The Commission
will send a copy of the Public Notice, including this Supplemental IRFA, to the Chief Counsel for
Advocacy of the Small Business Administration (SBA).48 In addition, summaries of this Public Notice
and the Supplemental IRFA will be published in the Federal Register.49
Final Paperwork Reduction Act Analysis. The Public Notice 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 the Office of Management and Budget (OMB) for review under section
See FCC Announces Closure of FCC Headquarters Open Window and Change in Hand-Delivery Policy, Public
Notice, 35 FCC Rcd 2788 (OS 2020).
44

45

47 CFR § 1.1200 et seq.

46

47 CFR § 1.1206(b).

47

See 5 U.S.C. § 603.

48

See 5 U.S.C. § 603(a).

49

Id.

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DA 21-1192

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.50 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(4), we previously sought comment on how the Commission will further reduce the information
collection burden for small business concerns with fewer than 25 employees.51
Additional Information. For further information, please contact Erik Raven-Hansen, Wireline
Competition Bureau, Pricing Policy Division, at (202) 418-1532 or erik.raven-hansen@fcc.gov, or Peter
Bean, Wireline Competition Bureau, Pricing Policy Division, at (202) 418-0786 or peter.bean@fcc.gov.
Please copy mandatorydatacollection@fcc.gov on any email correspondence.
-FCC-

Contemporaneously with the publication of this Public Notice in the Federal Register, we will publish a notice in
the Federal Register seeking comment pursuant to the PRA on the information collection requirements for the
Mandatory Data Collection in the 2021 ICS Order and this Public Notice. We will consider comments submitted in
response to both Federal Register notices in finalizing this information collection for submission to OMB.
50

51

2020 ICS Order on Remand, 35 FCC Rcd at 8536-37, para. 146.

10

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DA 21-1192

APPENDIX A
Mandatory Data Collection Instructions and Templates
The draft instructions and template for the Third Mandatory Data Collection are available at this
link: Third Mandatory Data Collection Instructions.

11

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DA 21-1192

APPENDIX B
Supplemental Initial Regulatory Flexibility Analysis
1.
As required by the Regulatory Flexibility Act of 1980, as amended (RFA),1 the Wireline
Competition Bureau (WCB) and the Office of Economics and Analytics (OEA) (collectively, WCB/OEA)
have prepared this Supplemental Initial Regulatory Flexibility Analysis (Supplemental IRFA) of the
possible significant economic impact on small entities by the policies and rules proposed in this Public
Notice. We request written public comments on this Supplemental IRFA. Comments must be identified
as responses to the Supplemental IRFA and must be filed by the deadlines for comments provided on the
first page of this Public Notice. The Commission will send a copy of the Public Notice, including this
Supplemental IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA).2 In
addition, the Public Notice and the Supplemental IRFA (or summaries thereof) will be published in the
Federal Register.3
A.

Need for, and Objectives of, the Proposed Data Collection

2.
In this Public Notice, WCB/OEA seek comment on the contours and specific
requirements of the forthcoming Third Mandatory Data Collection for inmate calling services (ICS).4 In
the 2021 ICS Order, the Commission adopted a new data collection requirement.5 The Commission
determined that this data collection would enable it to adopt permanent interstate and international rate
caps, protect consumers against unjust and unreasonable ancillary service charges, and improve its
continuing review of the inmate calling services marketplace.6
3.
Pursuant to their delegated authority, WCB/OEA have drafted proposed instructions and
a template for the Third Mandatory Data Collection7 and are issuing the Public Notice to seek comment
on all aspects of these documents.
B.

Legal Basis

4.
The legal basis for any action that may be taken pursuant to the Public Notice is
contained in sections 1, 2, 4(i)-(j), 201(b), 218, 220, 276, and 403 of the Communications Act of 1934, as
amended, 47 U.S.C. §§ 151, 152, 154(i)-(j), 201(b), 218, 220, 276, and 403.
C.

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

5.
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 Third 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.”8 In addition, the term “small business” has
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

2

See 5 U.S.C. § 603(a).

3

Id.

In the 2020 ICS Notice, the Commission sought comment on whether and how the Commission should proceed
with any new data collection. See 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, 8532-33, paras. 132-33
(2020) (2020 ICS Notice). That Notice included an Initial Regulatory Flexibility Analysis. Id. at 8547, Appx. D.
4

5

2021 ICS Order at 100, para, 218.

6

2021 ICS Order at 101-02, para. 221.

7

See Appx. A, infra.

8

See 5 U.S.C. § 601(6).

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DA 21-1192

the same meaning as the term “small-business concern” under the Small Business Act.9 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.10
6.
Regulatory Flexibility Analyses were incorporated in the 2020 ICS Notice and 2021 ICS
Order.11 In those analyses, the Commission described in detail the small entities that might be affected.
Accordingly, in this Public Notice, for the Supplemental IRFA, we hereby incorporate by reference the
descriptions and estimates of the number of small entities from these previous Regulatory Flexibility
Analyses.
D.

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

7.
The Public Notice seeks comments on the specifics of the Third Mandatory Data
Collection to ensure calling services rates, charges, and practices are just and reasonable. The Third
Mandatory Data Collection requires ICS providers to submit, among other things, data and other
information on calls, demand, operations, company and contract information, information about facilities
served, revenues, site commission payments, and ancillary fees.
E.

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

8.
The RFA requires an agency to describe any significant alternatives that it has considered
in reaching its proposed approach, which may include the following four alternatives (among others):
“(1) the establishment of differing compliance or reporting requirements or timetables that take into
account the resources available to small entities; (2) the clarification, consolidation, or simplification of
compliance and reporting requirements under the rules for such small entities; (3) the use of performance
rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such
small entities.”12 We will consider all of these factors when we receive substantive comment from the
public and potentially affected entities.
9.
The Third Mandatory Data Collection is a one-time request and does not impose a
recurring obligation on providers. Because the Commission’s 2021 ICS Order requires all ICS providers
to comply with the mandatory data collection, the collection will affect smaller as well as larger ICS
providers. The Commission has taken steps to ensure that the data collection template is competitively
neutral and not unduly burdensome for any set of providers. Additionally, the Public Notice asks whether
there are ways of minimizing the burden of the data collection on providers while still ensuring that the
Commission collects all the data needed to meet its goals.
10.
WCB/OEA will consider the economic impact on small entities, as identified in
comments filed in response to the Public Notice and this Supplemental IRFA, in reaching its final
conclusions and finalizing the instructions and the template for the Third Mandatory Data Collection.
F.

Federal Rules that May Duplicate, Overlap, or Conflict with the Proposed Rules

11.

None.

See 5 U.S.C. § 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.”
9

10

See 15 U.S.C. § 632.

2020 ICS Notice, 35 FCC Rcd at 8547, Appx. D (Initial Regulatory Flexibility Analysis); 2021 ICS Order, 35
FCC Rcd at 8542-46, Appx. C (Supplemental Final Regulatory Flexibility Analysis).
11

12

5 U.S.C. § 603(c)(1)-(4).

13

 

 

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