Re: Rates for Inmate Calling Services, WC Docket No. 12-375

Chairman Thomas Wheeler
Commissioner Mignon Clyburn
Federal Communications Commission
445 12th Street, SW
Washington, DC 20554

Re:  Rates for Inmate Calling Services, WC Docket No. 12-375

Dear Chairman Wheeler and Commissioner Clyburn:             

We represent a diverse coalition of civil rights and public interest organizations that have participated in the Federal Communications Commission’s multi-year, long-overdue effort to cap predatory rates for communications services used in prisons, jails, and immigration detention centers across the country.  Thanks to your leadership, these practices are finally being addressed, with new rules about to take effect that cap both local and long distance telephone rates between inmates and their friends, family, counsel, and clergy.

In the most recent effort, the Commission is now taking on the most important remaining issues impeding communication in incarcerating institutions.  As is evident in most of the examples below, communications is a tool that is often essential to vindicate other civil and human rights. Without information about what is occurring to people in prison, jail, or detention centers, their friends and family members cannot safeguard their rights, such as a right to physical safety or just adjudication.  While exorbitant costs are a matter of economic justice, the disparate impact of these costs on the segments of our society critically concerned with those rights and often least able to address them is a matter of fundamental social justice that is ripe for continued Commission action.

We therefore encourage the Commission to exert its authority to safeguard consumers both inside and outside prisons by addressing the following issues put forward in the most recent NPRM: 1) advanced communications, including video visitation; 2) international calling rates; 3) the communications rights of deaf, hard of hearing, and disabled inmates; 4) ensuring the limits on ancillary fees are effective for all communications; and 5) regular data collection in the prison communications industry. 

Address pricing abuses in advanced communications and video visitation.  While video visitation could be an excellent way to augment connections between inmates and families, in some cases video visitation has replaced in-person visitation.^[1] As noted in the record by HRDC and others, both the Department of Justice and the American Bar Association oppose the replacement of in-person visits with video visitation.  The Department of Justice’s National Institute of Corrections’ December 2014 report states that “Video visiting cannot replicate in-person visiting,” and notes that the relative benefits of video visits as a replacement for in-person visits is unknown.^[2] The Commission asked about rates, but as with phone rates, these data are difficult to assemble based on public information.  Martha Wright et al. collected much of this information and highlighted a wide range of rates, such as Securus charge of “$5.00 for a 20-minute remote session for friends and family located in Boone County, Illinois,” but a charge of “$20 for that same length of time in Adams County, Illinois.”^[3] While these per-minute rates may seem comparatively low in a proceeding in which per-minute phone rates routinely shocked the conscience, and with the $6 per-minute rates paid by deaf inmates as described below, this is comparable to a service that is widely available for free for all other people through products like Skype or FaceTime.  As noted by Martha Wright et al. and others, the FCC has ample jurisdiction to address this issue.^[4]

Similarly, written electronic communication tools also deserves attention. As Prison Policy Institute has explained, electronic mail in prisons, jails and other incarcerating institutions bears little resemblance to commercial e-mail. ^[5]  Electronic inmate communication typically incurs per-message charges and character limits between 1,500 and 6000 characters; some systems accept inbound-only communications.  Furthermore, the messaging systems rely on proprietary software and often make it difficult for users outside of prison (let alone inside prison) to save and track messages, making critical record-keeping difficult.  While email in prison typically costs 50 cents per email, in some cases, it is as much as $1.25, with attachments or photos costing more, and with ancillary fees that are just as shocking as the fees previously associated with prison phone calls. For example:

InmateCanteen.com (operated by Turnkey Corrections) requires advance deposits, which are subject to a flat $8.95 “convenience fee.” After a user makes a deposit, her available balance is subject to a $1 per-month “maintenance fee.” Securus charges a $1.95 fee for a deposit of $5 (with larger deposits subject to higher fees).^[6]

The transition to video visitation and email-type communications could have a disparate impact on communities of color and low-income communities, which have lower access rates to broadband Internet, a problem with which the Commission is very familiar.^[7] 

Further, as explained by Martha Wright, et al., the prison services industry is consolidating. The same companies that offer phone service are moving into new sectors, such as video, email, and even possibly financial services.^[8]  Therefore, it is extremely likely that as the Commission addresses abuses in some product lines, such as phone calls, other products will be used to replace lost revenue using similar, predatory techniques.

Cap international calling rates.  As New Jersey Advocates for Immigrant Detainees, NYU Immigrant Rights Clinic, LatinoJustice PRLDEF (LatinoJustice), and the American Immigration Lawyers Association (AILA) explained in their comments, Commission action on the last major category of high-priced phone calls is urgently needed. The abuses are appalling.  As these organizations note, for international calling, as is the case with local and long-distance calling, the same call can incur dramatically different pricing.  One facility identified in their comments charges $45 for a 15-minute international call, twenty times the cost of the same call from other facilities,^[9] and thirteen hundred times the hourly wage for an immigrant detainee working in detention.^[10] Reasonably priced calls are critical for individuals held in immigrant detention, as “[t]here is no right to government-paid or appointed counsel in immigration proceedings, and pro se immigrant detainees heavily rely on phone communication with family, friends, and experts to gather evidence and testimony.”^[11]  U.S. Immigration Customs and Enforcement noted in a FCC workshop that it has a policy that “all detention facilities provide reasonable and equitable access for reasonably priced telephone services.”  The FCC should exercise its authority to be sure that all U.S. residents receive access to “just and reasonable”^[12] telecommunications, and adopt the 16-cent per minute cap proposed by New Jersey Advocates, NYU Immigrant Rights Clinic, LatinoJustice and AILA.^[13]

Address the communications rights of deaf, hard of hearing, and disabled inmates.  The Commission has continued to receive comments and analysis about the severe impact on deaf and disabled inmates, and there is strong support for action, even among industry members.^[14]  One of the most alarming elements of the record is HEARD’s analysis demonstrating that such inmates are often the target of sexual and other abuse because “they have very little recourse with respect to filing written grievances and obtaining outside support and advocacy.”^[15] HEARD produced jaw-dropping examples of TTY to TTY intrastate calls in 2015 that totaled $720 for 120 minutes and $385 for 65 minutes,^[16] or approximately $6 per minute. As HEARD points out, many American Sign Language users speak ASL as their first language and use written English as a second language.  HEARD also notes that in many cases, though VRS could be available to prisons, jails, and immigrant detention centers free of cost, these technologies are still not being used.^[17] Given the state of information and significant need, we suggest that the Commission convene a new workshop focused only on the needs of deaf and disabled inmates, to further explore the various technologies, cost structures, use of Commission resources to aid in the submission of complaints at the FCC, and barriers that are preventing simple solutions in the case of urgent need.

Ensure the limits on ancillary fees are effective for all communications. As Prison Policy Institute (PPI) has discovered, the previous limitations adopted by the Commission have not been adequate to eliminate a second form of kickback scheme between prison phone companies and third-party financial institutions like WesternUnion and MoneyGram. Currently, PPI has documented how these third-party institutions share extremely high transaction fees with prison phone companies like Securus.  As PPI explains, a customer using WesternUnion to transmit money to Securus might pay WesternUnion an $11.95 transaction fee to submit $50 for calls, which WesternUnion shares with Securus.^[18]  Similarly, PPI explains how prison phone vendors use third-party contracts to charge unacceptably high fees for single-call products.  In that case, “an allegedly ‘third party’ company charges the consumer an unreasonable fee set by the ICS provider and then passes the unreasonable profits on to the ICS provider.”^[19]  In one price structure, for example, “the call is billed as two separate charges: a ‘transaction fee’ of $13.39 and a ‘call fee’ of $1.80, but the third-party vendor is in some cases owned, and typically controlled, by the prison phone company.^[20]  The Commission should ensure these abuses are ended.

Regular data collection in the prison communications industry is essential.  Finally, we support, as do many other commenters, regular data collection from the prison phone industry.  Without data, the Commission cannot adequately monitor an industry that still is not subject to competition.  Perhaps once competition is introduced, which would be ideal, regular data reporting will be less necessary.  Until that time, we endorse the proposed annual filing requirement and a 2017 data submission, as articulated by Martha Wright, et al.

In conclusion, we commend the Commission for the improvements to date in costs for phone calls.  At the same time it is important to point out, as did the American Council of Chief Defenders, that “even under the new regulation a 15-minute call will cost more than the Supplemental Nutrition Assistance Program (SNAP) benefit provides on average per person/per meal ($1.41).”^[21]  The incarcerated are among the lowest-income people in the United States.^[22]  Given that reality, the additional possible harm to families and inmates that can accrue though the use of other technologies, high international rates, unjust costs for disability communications services, and ancillary fees should be stopped.  In addition, regular data monitoring and collection is essential.  Thank you for your consideration of these views.

Sincerely,

The Leadership Conference on Civil and Human Rights