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Posted 12-20-2024. It is relevant due to the nearby James V. Allred Unit prison.
Federal Communications Commission DA 24-1277
Before theFEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
In the Matter of
Incarcerated People’s Communications Services;
Implementation of the Martha Wright-Reed Act
Rates for Interstate Inmate Calling Services
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WC Docket No. 23-62
WC Docket No. 12-375
ORDER
Adopted: December 19, 2024 Released: December 19, 2024
By the Chief, Wireline Competition Bureau:
I. INTRODUCTION
1. By this Order, we grant in part Securus Technologies, LLC’s request to waive the Commission’s per-minute pricing rules as applied to video IPCS to enable Securus to continue offering uninterrupted video incarcerated people’s communications services (IPCS) while it completes development of a new video IPCS platform that is able to bill on a per-minute basis. See Petition of Securus Technologies, LLC for Waiver to Extend the Compliance Date for 47 C.F.R. § 64.6080 as Applied to Video Calling Services, WC Docket No. 23-62 (filed Dec. 6, 2024) (Securus Waiver Petition or Petition); Declaration of Jessica Lust in Support of Securus Technologies, LLC’s Petition for Waiver, WC Docket No. 23-62 (filed Dec. 6, 2024) (Lust Declaration). Because Securus seeks relief from the Commission’s per-minute pricing rules as applied to video IPCS to enable it to continue offering its per session video IPCS services while it develops a per-minute capable billing platform, the waiver we grant today encompasses all of the Commission’s new rules applicable to the video IPCS per-minute pricing requirement – sections 64.6010(a) and 64.6080 of the rules. 47 CFR §§ 64.6010(a), 64.6080.
For the reasons discussed below, we find there is good cause to grant Securus’s waiver request in part until September 1, 2025.
II. BACKGROUND
2. The 2024 IPCS Order implemented the expanded authority granted to the Commission by the Martha Wright-Reed Just and Reasonable Communications Act of 2022 (Martha Wright-Reed Act or Act), Martha Wright-Reed Just and Reasonable Communications Act of 2022, Pub. L. No. 117-338, 136 Stat. 6156 (2022). adopting comprehensive reforms that will significantly reduce the financial burdens incarcerated people face to communicate with their loved ones. See generally Incarcerated People’s Communications Services; Implementation of the Martha Wright-Reed Act; Rates for Interstate Inmate Calling Services, WC Docket Nos. 23-62, 12-375, Report and Order, Order on Reconsideration, Clarification and Waiver, and Further Notice of Proposed Rulemaking, FCC 24-75 (rel. July 22, 2024) (2024 IPCS Order).
The Act amended the Communications Act of 1934, as amended, (Communications Act) to require that the Commission “establish a compensation plan to ensure that all [IPCS] providers are fairly compensated and all rates and charges are just and reasonable for completed” IPCS communications. 47 U.S.C. § 276(b)(1)(A). The Martha Wright-Reed Act also amended the Communications Act to include video calling among the types of IPCS communications. See Martha Wright-Reed Act §§ 2(a)(2), (b) ; 47 U.S.C. §§ 153(1)(E); 276(d).
Consistent with this Congressional mandate, in the 2024 IPCS Order, the Commission reduced existing per-minute rate caps for all incarcerated people’s audio communication services, and established, for the first time, interim per-minute rate caps for incarcerated people’s video communications services. See, e.g., 2024 IPCS Order at 60-61, para.119.
As of November 19, 2024, providers that choose to offer video IPCS must offer such video IPCS at per-minute rates. 47 CFR § 64.6010(a). See also Wireline Competition Bureau Announces Effective Dates of 2024 Incarcerated People’s Communications Services Order and Comment Dates for 2024 Incarcerated People’s Communications Services Further Notice of Proposed Rulemaking, Public Notice, DA 24-969, at 1 (WCB Sept. 20, 2024). Providers are also permitted to offer video IPCS under Alternate Pricing plans but must first offer a per minute pricing plan before an Alternate Pricing Plan is permitted. 2024 IPCS Order at 229-46, paras. 427-64.
As of that date, providers also must refrain from imposing per-call, per-connection, or per-communication charges on consumers for any IPCS communication, including video IPCS. 47 CFR § 64.6080. “Per-call, per-connection, or per-communication charge” is defined as “a one-time fee charged to a Consumer of IPCS at call or communication initiation.” 47 CFR § 64.6000.
3. On December 6, 2024, Securus filed a petition seeking a time limited waiver of the per minute pricing rules as applied to video IPCS up to and including September 1, 2025. Securus Waiver Petition at 2. No party has filed an opposition to, or comments on, Securus’s Waiver Petition. 47 CFR § 1.45. We acknowledge that Securus filed its waiver petition after the Commission’s rules adopted in the 2024 IPCS Order went into effect on November 19, 2024. We nevertheless find it in the public interest to grant the waiver request retroactive to November 19, 2024 as set forth herein.
Securus offers video IPCS in hundreds of facilities using “one of three different platforms—its legacy video platform, its NextGen platform that is being deployed, and the video platform used by its affiliate JPay.” Lust Declaration at 1, para. 3; Securus Waiver Petition at 2-3.
According to Securus, “[e]ach of these platforms has its own separate billing system, and each of these platforms is capable of billing users of video IPCS only on a per-session basis.” Lust Declaration at 1, para. 3; Securus Waiver Petition at 1.
4. Securus offers three principal reasons for why good cause exists to grant the waiver. First, Securus notes that it “has repeatedly communicated the issues it would face in complying with 47 C.F.R. § 64.6080 as applied to video calling services, including well before the compliance deadline.” Securus Waiver Petition at 2.
Securus points to its July 15, 2024 ex parte filed prior to Commission’s adoption of the 2024 IPCS Order, in which it explained that it “currently charges video calls on flat-rate per session basis” and that it “will need to completely overall [sic] its video billing system to shift to per minute billing.” Letter from Michal H. Pryor, Brownstein Hyatt Farber Schreck, LLC, Counsel for Securus Technologies, LLC, to Marlene H. Dortch, Secretary, FCC, WC Docket Nos. 23-62 and 12-375, at 27 (filed July 15, 2024) (Securus July 15, 2024 Ex Parte); Securus Waiver Petition at 2-3 (discussing the July 15, 2024 ex parte).
Then, Securus notes that it made clear in a petition for stay pending judicial review, that “it would be unable to meet the 60-day compliance deadline for per-minute billing as the requirement applied to video IPCS.” Securus Waiver Petition at 3. See also Securus Technologies, LLC, Petition for Stay Pending Judicial Review, WC Docket Nos. 23-62 and 12-375 (filed Sept. 26, 2024); Declaration of Alex Dougherty In Support of Securus Technologies, LLC’s Motion for Stay Pending Appeal, WC Docket Nos. 23-62 and 12-375 (filed Sept. 26, 2024).
5. Second, Securus explains that it “began diligently pursuing its efforts to migrate its video calling services to platforms capable of per-minute billing as soon as practicable.” Securus Waiver Petition at 4.
Within “mere days after the Commission released the Order—and well before Federal Register publication—Securus started the process of migrating its video IPCS offerings to per-minute billing.” Securus Waiver Petition at 4; Lust Declaration at 2, para. 5 (noting that Securus began its efforts to migrate its video IPCS to per-minute billing on July 30, 2024).
After beginning its migration efforts, Securus “discovered that migrating all three of its video platforms to per-minute billing would be cost-prohibitive” and that such a migration would not be completed until late 2025. Lust Declaration at 2, para. 6.
6. Given these implementation difficulties, Securus concluded that “the most efficient method of migration involves developing a new IPCS video platform which can bill on a per-minute basis.” Securus Waiver Petition at 4; Lust Declaration at 2, para. 7.
Securus estimates that development of its new video IPCS platform will cost less and could be completed sooner. Lust Declaration at 2, para. 7.
While Securus has already started the engineering work to develop its new video IPCS billing platform, Securus explains that “substantial engineering work remains.” Securus Waiver Petition at 5; Lust Declaration at 2, para. 9 (providing examples of the engineering work that remains to be done). In addition to the engineering work, “Securus must renegotiate a host of contracts” as “many of Securus’ contracts contain terms tying customers to a single video IPCS platform (Securus’ legacy video, NextGen, or JPay) and to billing on a per-session basis.” Securus Waiver Petition at 5-6; Lust Declaration at 3, para. 11.
7. Third, Securus argues that a denial of its request for waiver will be harmful to the public. See Securus Waiver Petition at 6.
Since Securus does not currently have a video IPCS billing platform that can bill on a per-minute basis, “Securus will either have to stop offering this service to incarcerated persons altogether, or it must offer the service without charge (and, therefore, at a loss).” Securus Waiver Petition at 6. According to Securus, either course of action “would likely expose Securus to claims that it is in breach of contract.” Securus Waiver Petition at 6.
And the loss of video IPCS “would harm incarcerated persons and their family and friends.” Securus Waiver Petition at 6.
Securus explains that in the absence of a waiver, it began offering video IPCS for free at all facilities in which it provides video IPCS but a few prisons and jails directed Securus “to turn off its video IPCS altogether, rather than permitting Securus to offer that service for free.” Lust Declaration at 3, para. 12.
III. DISCUSSION
8. We find good cause to waive the Commission’s per-minute pricing rules for Securus as they apply to video IPCS up to September 1, 2025. This waiver applies only to Securus. It does not apply to any other IPCS provider or any IPCS provider that may be served by Securus or its affiliates.
Additionally, we do not interpret Securus’s waiver petition as a request to offer an alternate pricing plan for video IPCS and therefore expressly do not consider the per-session pricing arrangements Securus will offer under this limited waiver as subject to section 64.6140 of the Commission’s rules applicable to alternate pricing plans. 47 CFR § 64.6140.
The Commission may waive its rules “on its own motion or on petition” for good cause shown. 47 CFR § 1.3. The Commission may exercise its discretion to waive a rule where the particular facts make strict compliance inconsistent with the public interest. Northeast Cellular Tel. Co. v. FCC, 894 F.2d 1164, 1166 (D.C. Cir. 1990) (Northeast Cellular).
In addition, the Commission may take into account considerations of hardship, equity, or more effective implementation of overall policy on an individual basis. WAIT Radio v. FCC, 418 F.2d 1154, 1159 (D.C. Cir. 1969); Northeast Cellular, 897 F.2d at 1166.
Waiver of the Commission’s rules is appropriate if both (i) special circumstances warrant a deviation from the general rule and (ii) such deviation will serve the public interest. Northeast Cellular, 897 F.2d at 1166.
9. First, we find that Securus has demonstrated that its waiver request presents special circumstances that warrant a deviation from those rules. As Securus explains, none of its three existing video IPCS platforms are capable of billing on a per-minute basis. See, e.g., Securus Waiver Petition at 3.
And while Securus explains that it has begun to develop a new video IPCS billing platform with such capabilities, it claims that substantial engineering work remains. Securus Waiver Petition at 6.
Beyond these technical challenges, Securus also explains that it must “renegotiate a host of customer contracts to migrate its customers” to the new billing platform. Securus Waiver Petition at 6.
Because Securus is “contractually obligated to provide video IPCS” in certain facilities, it “cannot simply stop providing the service due to an inability to bill on a per-minute basis without breaching its contractual obligations.” Securus Waiver Petition at 1.
Thus, absent a waiver, “Securus either will find itself facing breach of contract claims if it stops providing the service, or it will have to offer video IPCS for free . . . and incarcerated persons in the facilities it serves will be at risk of losing a valuable communications option.” Securus Waiver Petition at 1.
We find that these circumstances constitute special circumstances meeting the first prong of our waiver standard. We grant this waiver until September 1, 2025, given Securus’s expected completion timeline for the new per-minute pricing platform. We find it reasonable to expect that migration to such platform can be accomplished within this timeframe based on the representations made in Securus’s Petition. The Commission has previously imposed as short as 90-day deadlines for the implementation of per-minute rate caps in this proceeding. See, e.g., Rates for Inmate Calling Services, WC Docket No. 12-375, Report and Order and Further Notice of Proposed Rulemaking, 28 FCC Rcd 14107, 14147, para. 72 (2013) (requiring per-minute pricing for the first time based on the Commission’s initial interim rate caps); Rates for Interstate Inmate Calling Services, WC Docket No. 12-375, Third Report and Order, Order on Reconsideration, and Fifth Further Notice of Proposed Rulemaking, 36 FCC Rcd 9519, 9623-24, paras. 230-31 (2021) (requiring per-minute pricing based on the Commission’s subsequent interim rate caps).
10. Second, a waiver of the per-minute pricing rules as described herein will serve the public interest. The availability of IPCS—including video IPCS—brings many “wide-ranging and well-documented” benefits to incarcerated people and their loved ones. See, e.g., 2024 IPCS Order at 18-19, para. 29.
Reduction or elimination of service thus deprives incarcerated people and their loved ones of those benefits. Indeed, as Securus argues, “the loss of video calling services . . . would harm incarcerated persons and their family and friends.” Securus Waiver Petition at 6.
Securus demonstrates that not all correctional facilities will necessarily continue to allow access to video IPCS absent a waiver, given that some correctional facilities have already directed Securus to turn off its video IPCS rather than allowing Securus to offer the service for free. Lust Declaration at 3, para. 12.
Although we continue to find that, given the benefits that allowing access to IPCS offers “for communities and correctional institutions alike,” it is “highly unlikely” that access will be curtailed to any significant degree as a result of the Commission’s reforms, 2024 IPCS Order at 167, para. 312. we find good cause, based on Securus’s particular showing here, to grant Securus’s “limited and temporary” waiver request to ensure that Securus can offer video IPCS at all the facilities it serves, on a per-session basis as necessary, while it completes development of its new video IPCS platform. Securus Waiver Petition at 2.
This is particularly important during this holiday season when incarcerated people and their families and loved ones may rely more heavily on video IPCS than at other times of the year. Thus, we conclude that the second prong of our waiver standard has been satisfied and that a limited one-time waiver of the Commission’s per-minute pricing rules as applied to video IPCS is appropriate under the circumstances presented here.
11. We do, however, condition our grant of Securus’s waiver request. The IPCS rules adopted in the 2024 IPCS Order ensure that the rates and charges for IPCS, including video IPCS, are just and reasonable, as directed by the Martha Wright-Reed Act. Martha Wright-Reed Act § 2(a); 47 U.S.C. § 276(b)(1)(A).
Consistent with the Commission’s implementation of the Martha Wright-Reed Act and in light of the public interest in ensuring rate stability for IPCS consumers served by Securus during the duration of the waiver we grant today, we require, as a condition of grant of this waiver, that the rates Securus charges for its per session video IPCS during the time the waiver is in effect, do not exceed Securus’s rates in effect as of the date of this Order.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED, pursuant to the authority contained in sections 1, 2, 4(i)-(j), 201(b), 218, 220, 225, 255, 276, 403, and 716 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 152, 154(i)-(j), 201(b), 218, 220, 225, 255, 276, 403, and 617, sections 0.91, 0.291, and 1.3 of the Commission’s rules, 47 CFR §§ 0.91, 0.291, and 1.3, and the Martha Wright-Reed Just and Reasonable Communications Act of 2022, Pub. L. No. 117-338, 136 Stat 6156 (2022), that this Order in WC Docket Nos. 23-62 and 12-375 IS ADOPTED and that sections 64.6010(a) and 64.6080 of the Commission’s rules, 47 CFR §§ 64.6010(a), 64.6080, ARE WAIVED subject to the condition imposed and to the limited extent specified herein until September 1, 2025.
13. IT IS FURTHER ORDERED, that the Petition for Waiver to Extend the Compliance Date for 47 CFR § 64.6080 as Applied to Video Calling Services filed by Securus on December 6, 2024 IS GRANTED IN PART as described herein.
14. IT IS FURTHER ORDERED, that pursuant to section 1.102(b)(1) of the Commission’s rules, 47 CFR § 1.102(b)(1), this Order SHALL BE EFFECTIVE upon release.
FEDERAL COMMUNICATIONS COMMISSION
Trent B. Harkrader
Chief
Wireline Competition Bureau