40340 Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Rules and Regulations 

email address: residuemethods@

epa.gov. 

B. International Residue Limits 

In making its tolerance decisions, EPA 

seeks to harmonize U.S. tolerances with 

international standards whenever 

possible, consistent with U.S. food 

safety standards and agricultural 

practices. EPA considers the 

international maximum residue limits 

(MRLs) established by the Codex 

Alimentarius Commission (Codex), as 

required by FFDCA section 408(b)(4). 

The Codex Alimentarius is a joint 

United Nations Food and Agriculture 

Organization/World Health 

Organization food standards program, 

and it is recognized as an international 

food safety standards-setting 

organization in trade agreements to 

which the United States is a party. EPA 

may establish a tolerance that is 

different from a Codex MRL; however, 

FFDCA section 408(b)(4) requires that 

EPA explain the reasons for departing 

from the Codex level. 

The Codex has not established a MRL 

for fludioxonil; however, Canada’s Pest 

Management Regulatory Agency 

(PMRA) has a default MRL of 0.1 ppm 

on banana. EPA is establishing a 

tolerance level for bananas at 3 ppm. 

C. Revisions to Petitioned-For 

Tolerances 

The petitioned-for tolerance level of 

2.0 ppm in bananas has been modified 

to 3 ppm based on crop field trial data 

and the OECD tolerance calculation 

procedure. 

V. Conclusion 

Therefore, a tolerance is established 

for residues of fludioxonil, 4-(2,2- 

difluoro-1,3-benzodioxol-4-yl)-1Hpyrrole-3-carbonitrile, in or on banana 

at 3 ppm. 

VI. Statutory and Executive Order 

Reviews 

This action establishes a tolerance 

under FFDCA section 408(d) in 

response to a petition submitted to the 

Agency. The Office of Management and 

Budget (OMB) has exempted these types 

of actions from review under Executive 

Order 12866, entitled ‘‘Regulatory 

Planning and Review’’ (58 FR 51735, 

October 4, 1993). Because this action 

has been exempted from review under 

Executive Order 12866, this action is 

not subject to Executive Order 13211, 

entitled ‘‘Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use’’ (66 

FR 28355, May 22, 2001) or Executive 

Order 13045, entitled ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997). This action does not 

contain any information collections 

subject to OMB approval under the 

Paperwork Reduction Act (PRA) (44 

U.S.C. 3501 et seq.), nor does it require 

any special considerations under 

Executive Order 12898, entitled 

‘‘Federal Actions to Address 

Environmental Justice in Minority 

Populations and Low-Income 

Populations’’ (59 FR 7629, February 16, 

1994). 

Since tolerances and exemptions that 

are established on the basis of a petition 

under FFDCA section 408(d), such as 

the tolerance in this final rule, do not 

require the issuance of a proposed rule, 

the requirements of the Regulatory 

Flexibility Act (RFA) (5 U.S.C. 601 et 

seq.), do not apply. 

This action directly regulates growers, 

food processors, food handlers, and food 

retailers, not States or Tribes, nor does 

this action alter the relationships or 

distribution of power and 

responsibilities established by Congress 

in the preemption provisions of FFDCA 

section 408(n)(4). As such, the Agency 

has determined that this action will not 

have a substantial direct effect on States 

or Tribal Governments, on the 

relationship between the National 

Government and the States or Tribal 

Governments, or on the distribution of 

power and responsibilities among the 

various levels of government or between 

the Federal Government and Indian 

Tribes. Thus, the Agency has 

determined that Executive Order 13132, 

entitled ‘‘Federalism’’ (64 FR 43255, 

August 10, 1999) and Executive Order 

13175, entitled ‘‘Consultation and 

Coordination with Indian Tribal 

Governments’’ (65 FR 67249, November 

9, 2000) do not apply to this action. In 

addition, this action does not impose 

any enforceable duty or contain any 

unfunded mandate as described under 

Title II of the Unfunded Mandates 

Reform Act (UMRA) (2 U.S.C. 1501 et 

seq.). 

This action does not involve any 

technical standards that would require 

Agency consideration of voluntary 

consensus standards pursuant to section 

12(d) of the National Technology 

Transfer and Advancement Act 

(NTTAA) (15 U.S.C. 272 note). 

VII. Congressional Review Act 

Pursuant to the Congressional Review 

Act (5 U.S.C. 801 et seq.), EPA will 

submit a report containing this rule and 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to 

publication of the rule in the Federal 

Register. This action is not a ‘‘major 

rule’’ as defined by 5 U.S.C. 804(2). 

List of Subjects in 40 CFR Part 180 

Environmental protection, 

Administrative practice and procedure, 

Agricultural commodities, Pesticides 

and pests, Reporting and recordkeeping 

requirements. 

Dated: July 15, 2021. 

Marietta Echeverria, 

Acting Director, Registration Division, Office 

of Pesticide Programs. 

Therefore, for the reasons stated in the 

preamble, EPA is amending 40 CFR 

chapter I as follows: 

PART 180—TOLERANCES AND 

EXEMPTIONS FOR PESTICIDE 

CHEMICAL RESIDUES IN FOOD 

■ 1. The authority citation for part 180 

continues to read as follows: 

Authority: 21 U.S.C. 321(q), 346a and 371. 

■ 2. In § 180.516, amend table 1 to 

paragraph (a)(1) by adding in 

alphabetical order the entry ‘‘Banana’’ 

and footnote 1 to read as follows: 

§ 180.516 Fludioxonil; tolerances for 

residues. 

(a) * * * 

(1) * * * 

TABLE 1 TO PARAGRAPH (a)(1) 

Commodity Parts per 

million 

*****

Banana1 ...................................... 3 

*****

1There are no U.S. registrations as of July 

28, 2021. 

* * * * * 

[FR Doc. 2021–16091 Filed 7–27–21; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 64 

[WC Docket No. 12–375, FCC 21–60; FRS 

35682] 

Rates for Interstate Inmate Calling 

Services 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule; denial of 

reconsideration. 


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Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Rules and Regulations 40341 

SUMMARY: In this Order on 

Reconsideration, the Federal 

Communications Commission 

(Commission) denies a petition for 

reconsideration filed by Global Tel*Link 

Corp. (GTL) seeking reconsideration of 

the 2020 ICS Order on Remand, released 

on August 7, 2020. The Commission 

reiterates that the jurisdictional nature 

of a telephone call from a prison or jail 

depends, for purposes of charging 

consumers, on the physical location of 

the originating and terminating 

endpoints of the call. To the extent the 

endpoints of any particular call from a 

prison or jail could be either intrastate 

or interstate and such endpoints are not 

known or easily knowable, consistent 

with Commission precedent, rates or 

charges for such calls may not exceed 

any applicable federally prescribed rates 

or charges. 

DATES: Effective July 28, 2021. 

ADDRESSES: Federal Communications 

Commission, 45 L Street NE, 

Washington, DC 20554. 

FOR FURTHER INFORMATION CONTACT: 

Minsoo Kim, Pricing Policy Division of 

the Wireline Competition Bureau, at 

(202) 418–1739 or via email at 

Minsoo.Kim@fcc.gov. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Order on 

Reconsideration, FCC 21–60, released 

on May 24, 2021. This summary is 

based on the public redacted version of 

the document, the full text of which can 

be obtained from the following internet 

address: https://docs.fcc.gov/public/ 

attachments/FCC-21-60A1.pdf. 

I. Introduction 

1. Unlike virtually everyone else in 

the United States, incarcerated people 

have no choice in their telephone 

service provider. Instead, their only 

option typically is to use a service 

provider chosen by the correctional 

facility, and once chosen, that service 

provider typically operates on a 

monopoly basis. Egregiously high rates 

and charges and associated 

unreasonable practices for the most 

basic and essential communications 

capability—telephone service—impedes 

incarcerated peoples’ ability to stay 

connected with family and loved ones, 

clergy, and counsel, and financially 

burdens incarcerated people and their 

loved ones. Never have such 

connections been as vital as they are 

now, as many correctional facilities 

have eliminated in-person visitation in 

response to the COVID–19 pandemic. 

2. The Commission adopts an Order 

on Reconsideration denying GTL’s 

petition for reconsideration of the 2020 

ICS Order on Remand, published at 85 

FR 67450 (Oct. 23, 2020), and reiterates 

that the jurisdictional nature of a 

telephone call for purposes of charging 

consumers depends on the physical 

location of the originating and 

terminating endpoints of the call. To the 

extent the endpoints of any particular 

call could be either intrastate or 

interstate and such endpoints are not 

known or easily knowable, consistent 

with the Commission’s precedent, rates 

or charges for such calls may not exceed 

any applicable federally prescribed rates 

or charges. 

3. The Commission expects today’s 

actions to have immediate meaningful 

and positive impacts on the ability of 

incarcerated people and their loved 

ones to satisfy the Commission’s 

universal, basic need to communicate. 

Although the Commission uses various 

terminology throughout this item to 

refer to the intended beneficiaries of the 

Commission’s actions herein, unless 

context specifically indicates otherwise, 

these beneficiaries are broadly defined 

as the people placing and receiving 

inmate calling services (ICS) calls, 

whether they are incarcerated people, 

members of their family, or other loved 

ones and friends. The Commission also 

may refer to them, generally, as 

consumers. 

II. Background 

4. Access to affordable 

communications services is critical for 

everyone in the United States, including 

incarcerated members of our society. 

Studies have long shown that 

incarcerated people who have regular 

contact with family members are more 

likely to succeed after release and have 

lower recidivism rates. Because 

correctional facilities generally grant 

exclusive rights to service providers, 

incarcerated people must purchase 

service from ‘‘locational monopolies’’ 

and subsequently face rates far higher 

than those charged to other Americans. 

A. Statutory Background 

5. The Communications Act of 1934, 

as amended (Communications Act or 

Act) divides regulatory authority over 

interstate, intrastate, and international 

communications services between the 

Commission and the states. Section 2(a) 

of the Act empowers the Commission to 

regulate ‘‘interstate and foreign 

communication by wire or radio.’’ This 

regulatory authority includes ensuring 

that ‘‘[a]ll charges, practices, 

classifications, and regulations for and 

in connection with’’ interstate or 

international communications services 

are ‘‘just and reasonable’’ in accordance 

with section 201(b) of the Act. Section 

201(b) also provides that ‘‘[t]he 

Commission may prescribe such rules 

and regulations as may be necessary in 

the public interest to carry out’’ these 

provisions. 

6. Section 2(b) of the Act preserves 

states’ jurisdiction over ‘‘charges, 

classifications, practices, services, 

facilities, or regulations for or in 

connection with intrastate 

communication service.’’ The 

Commission is thus ‘‘generally 

forbidden from entering the field of 

intrastate communication service, 

which remains the province of the 

states.’’ Stated differently, section 2(b) 

‘‘erects a presumption against the 

Commission’s assertion of regulatory 

authority over intrastate 

communications.’’ 

7. Section 276 of the Act directs the 

Commission to prescribe regulations 

that ensure that payphone service 

providers, including inmate calling 

services providers, ‘‘are fairly 

compensated for each and every 

completed intrastate and interstate call 

using their payphone.’’ The statute 

explicitly exempts telecommunications 

relay service calls for hearing disabled 

individuals from the requirement that 

providers must be compensated for 

‘‘each and every’’ completed call. 

Although the Telecommunications Act 

of 1996 (1996 Act) amended the Act and 

‘‘chang[ed] the FCC’s authority with 

respect to some intrastate activities,’’ 

with respect to section 276, the U.S. 

Court of Appeals for the District of 

Columbia Circuit has held that ‘‘the 

strictures of [section 2(b)] remain in 

force.’’ Accordingly, that court 

concluded that section 276 does not 

authorize the Commission to determine 

‘‘just and reasonable’’ rates for intrastate 

calls, and that the Commission’s 

authority under that provision to ensure 

that providers ‘‘are fairly compensated’’ 

both for intrastate and interstate calls 

does not extend to establishing rate caps 

on intrastate services. Judge Pillard 

dissented from this view, finding 

permissible the Commission’s contrary 

interpretation of the meaning of ‘‘fairly 

compensated’’ in section 276. 

B. History of Commission Proceedings 

Prior to 2020 

8. In 2003, Martha Wright and her 

fellow petitioners, current and former 

incarcerated people and their relatives 

and legal counsel (Wright Petitioners), 

filed a petition seeking a rulemaking to 

address ‘‘excessive’’ inmate calling 

services rates. The petition sought to 

prohibit exclusive inmate calling 

services contracts and collect-call-only 

restrictions in correctional facilities. In 

2007, the Wright Petitioners filed an 

alternative petition for rulemaking in 


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which they emphasized the urgency of 

the need for Commission action due to 

‘‘exorbitant’’ inmate calling services 

rates. The Wright Petitioners proposed 

benchmark rates for interstate long 

distance inmate calling services calls 

and reiterated their request that 

providers offer debit calling as an 

alternative option to collect calling. The 

Commission sought and received 

comment on both petitions. 

9. In 2012, the Commission 

commenced an inmate calling services 

rulemaking proceeding by releasing the 

2012 ICS Notice seeking comment on, 

among other matters, the proposals in 

the Wright Petitioners’ petitions and 

whether to establish rate caps for 

interstate inmate calling services calls. 

10. In the 2013 ICS Order, in light of 

record evidence that rates for calling 

services used by incarcerated people 

greatly exceeded the reasonable costs of 

providing those services, the 

Commission adopted interim interstate 

rate caps of $0.21 per minute for debit 

and prepaid calls and $0.25 per minute 

for collect calls. These interim interstate 

rate caps were first adopted in 2013, 

were readopted in 2015, and remain in 

effect as a result of the vacatur, by the 

D.C. Circuit, of the permanent rate caps 

adopted in the 2015 ICS Order. Under 

the Commission’s rules, ‘‘Debit Calling’’ 

means ‘‘a presubscription or comparable 

service which allows an Inmate, or 

someone acting on an Inmate’s behalf, to 

fund an account set up [through] a 

Provider that can be used to pay for 

Inmate Calling Services calls originated 

by the Inmate.’’ ‘‘Prepaid Calling’’ 

means ‘‘a presubscription or comparable 

service in which a Consumer, other than 

an Inmate, funds an account set up 

[through] a Provider of Inmate Calling 

Services. Funds from the account can 

then be used to pay for Inmate Calling 

Services, including calls that originate 

with an Inmate.’’ ‘‘Collect Calling’’ 

means ‘‘an arrangement whereby the 

called party takes affirmative action 

clearly indicating that it will pay the 

charges associated with a call 

originating from an Inmate Telephone.’’ 

In the First Mandatory Data Collection, 

the Commission required all inmate 

calling services providers to submit data 

on their underlying costs so that the 

agency could develop permanent rate 

caps. In the 2014 ICS Notice, the 

Commission sought comment on 

reforming charges for services ancillary 

to the provision of inmate calling 

services and on establishing rate caps 

for both interstate and intrastate calls. 

Ancillary service charges are fees that 

providers assess on calling services used 

by incarcerated people that are not 

included in the per-minute rates 

assessed for individual calls. 

11. The Commission adopted a 

comprehensive framework for interstate 

and intrastate inmate calling services in 

the 2015 ICS Order, including limits on 

ancillary service charges and permanent 

rate caps for interstate and intrastate 

inmate calling services calls in light of 

‘‘egregiously high’’ rates for inmate 

calling services calls. Because of 

continued growth in the number and 

dollar amount of ancillary service 

charges that inflated the effective price 

paid for inmate calling services, the 

Commission limited permissible 

ancillary service charges to only five 

types and capped the charges for each: 

(1) Fees for Single-Call and Related 

Services—billing arrangements whereby 

an incarcerated person’s collect calls are 

billed through a third party on a per-call 

basis, where the called party does not 

have an account with the inmate calling 

services provider or does not want to 

establish an account; (2) Automated 

Payment Fees—credit card payment, 

debit card payment, and bill processing 

fees, including fees for payments made 

by interactive voice response, web, or 

kiosk; (3) Third-Party Financial 

Transaction Fees—the exact fees, with 

no markup, that providers of calling 

services used by incarcerated people are 

charged by third parties to transfer 

money or process financial transactions 

to facilitate a consumer’s ability to make 

account payments via a third party; (4) 

Live Agent Fees—fees associated with 

the optional use of a live operator to 

complete inmate calling services 

transactions; and (5) Paper Bill/ 

Statement Fees—fees associated with 

providing customers of inmate calling 

services an optional paper billing 

statement. The Commission relied on 

sections 201(b) and 276 of the Act to 

adopt rate caps for both interstate and 

intrastate inmate calling services. The 

Commission relied on sections 201(b) 

and 276 of the Act to adopt rate caps for 

both interstate and intrastate inmate 

calling services. The Commission set 

tiered rate caps of $0.11 per minute for 

prisons; $0.14 per minute for jails with 

average daily populations of 1,000 or 

more; $0.16 per minute for jails with 

average daily populations of 350 to 999; 

and $0.22 per minute for jails having 

average daily populations of less than 

350. The Commission calculated these 

rate caps using industry-wide average 

costs based on data from the First 

Mandatory Data Collection and stated 

that this approach would allow 

providers to ‘‘recover average costs at 

each and every tier.’’ The Commission 

did not include site commission 

payments in its permanent rate caps, 

finding these payments were not costs 

reasonably related to the provision of 

inmate calling services. The 

Commission also readopted the interim 

interstate rate caps it had adopted in 

2013, and extended them to intrastate 

calls, pending the effectiveness of the 

new rate caps, and sought comment on 

whether and how to reform rates for 

international inmate calling services 

calls. At the same time, the Commission 

adopted a Second Mandatory Data 

Collection to identify trends in the 

market and form the basis for further 

reform as well as an annual filing 

obligation requiring providers to report 

information on their current operations, 

including their interstate, intrastate, and 

international rates as well as their 

ancillary service charges. 

12. In the 2016 ICS Reconsideration 

Order, the Commission reconsidered its 

decision to entirely exclude site 

commission payments from its 2015 

permanent rate caps. The Commission 

increased those permanent rate caps to 

account for claims that certain 

correctional facility costs reflected in 

site commission payments are directly 

and reasonably related to the provision 

of inmate calling services. The 

Commission set the revised rate caps at 

$0.13 per minute for prisons; $0.19 per 

minute for jails with average daily 

populations of 1,000 or more; $0.21 per 

minute for jails with average daily 

populations of 350 to 999; and $0.31 per 

minute for jails with average daily 

populations of less than 350. 

C. Judicial Actions 

13. In January 2014, in response to 

providers’ petitions for review of the 

2013 ICS Order, the D.C. Circuit stayed 

the application of certain portions of the 

2013 ICS Order but allowed the 

Commission’s interim rate caps to 

remain in effect. Later that year, the 

court held the petitions for review in 

abeyance while the Commission 

proceeded to set permanent rates. In 

March 2016, in response to providers’ 

petitions for review of the 2015 ICS 

Order, the D.C. Circuit stayed the 

application of the 2015 ICS Order’s 

permanent rate caps and ancillary 

service charge caps for Single Call 

Services while the appeal was pending. 

Single-Call Services mean ‘‘billing 

arrangements whereby an Inmate’s 

collect calls are billed through a third 

party on a per-call basis, where the 

called party does not have an account 

with the Provider of Inmate Calling 

Services or does not want to establish an 

account.’’ Later that month, the court 

stayed the application of the 

Commission’s interim rate caps to 


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Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Rules and Regulations 40343 

intrastate inmate calling services. In 

November 2016, the D.C. Circuit also 

stayed the 2016 ICS Reconsideration 

Order, pending the outcome of the 

challenge to the 2015 ICS Order. 

14. In 2017, in GTL v. FCC, the D.C. 

Circuit vacated the permanent rate caps 

adopted in the 2015 ICS Order. First, the 

panel majority held that the 

Commission lacked the statutory 

authority to cap intrastate calling 

services rates. The court explained that 

the Commission’s authority over 

intrastate calls is, except as otherwise 

provided by Congress, limited by 

section 2(b) of the Act and nothing in 

section 276 of the Act overcomes this 

limitation. In particular, section 276 

‘‘merely directs the Commission to 

‘ensure that all providers [of calling 

services to incarcerated people] are 

fairly compensated’ for their inter- and 

intrastate calls,’’ and it ‘‘is not a ‘general 

grant of jurisdiction’ over intrastate 

ratemaking.’’ The court noted that it 

‘‘need not decide the precise parameters 

of the Commission’s authority under 

§ 276.’’ 

15. Second, the D.C. Circuit 

concluded that the ‘‘Commission’s 

categorical exclusion of site 

commissions from the calculus used to 

set [inmate calling services] rate caps 

defie[d] reasoned decision making 

because site commissions obviously are 

costs of doing business incurred by 

[inmate calling services] providers.’’ 

The court noted that some site 

commissions were ‘‘mandated by state 

statute,’’ while others were ‘‘required by 

state correctional institutions’’ and were 

thus also a ‘‘condition of doing 

business.’’ The court directed the 

Commission to ‘‘assess on remand 

which portions of site commissions 

might be directly related to the 

provision of [inmate calling services] 

and therefore legitimate, and which are 

not.’’ The court did not reach the 

providers’ remaining arguments ‘‘that 

the exclusion of site commissions 

denies [them] fair compensation under 

[section] 276 and violates the Takings 

Clause of the Constitution because it 

forces providers to provide services 

below cost.’’ Instead, the court stated 

that the Commission should address 

these issues on remand when revisiting 

the categorical exclusion of site 

commissions. Judge Pillard dissented 

from this view, noting that site 

commissions are not legitimate simply 

because a state demands them. 

16. Third, the D.C. Circuit held that 

the Commission’s use of industry-wide 

averages in setting rate caps was 

arbitrary and capricious because it 

lacked justification in the record and 

was not supported by reasoned decision 

making. Judge Pillard also dissented on 

this point, noting that the Commission 

has ‘‘wide discretion’’ under section 201 

of the Act to decide ‘‘which costs to take 

into account and to use industry-wide 

averages that do not necessarily 

compensate ‘each and every’ call.’’ More 

specifically, the court found the 

Commission’s use of a weighted average 

per-minute cost to be ‘‘patently 

unreasonable’’ given that such an 

approach made calls with above-average 

costs unprofitable and thus did ‘‘not 

fulfill the mandate of § 276 that ‘each 

and every’ ’’ call be fairly compensated. 

Additionally, the court found that the 

2015 ICS Order ‘‘advance[d] an 

efficiency argument—that the larger 

providers can become profitable under 

the rate caps if they operate more 

efficiently—based on data from the two 

smallest firms,’’ which ‘‘represent[ed] 

less than one percent of the industry,’’ 

and that the Order did not account for 

conflicting record data. The court 

therefore vacated this portion of the 

2015 ICS Order. 

17. Finally, the court remanded the 

ancillary service charge caps. The D.C. 

Circuit held that ‘‘the Order’s 

imposition of ancillary fee caps in 

connection with interstate calls is 

justified’’ given the Commission’s 

‘‘plenary authority to regulate interstate 

rates under § 201(b), including 

‘practices . . . for and in connection 

with’ interstate calls.’’ The court held 

that the Commission ‘‘had no authority 

to impose ancillary fee caps with 

respect to intrastate calls.’’ Because the 

court could not ‘‘discern from the record 

whether ancillary fees can be segregated 

between interstate and intrastate calls,’’ 

it remanded the issue so the 

Commission could determine whether it 

could segregate ancillary fee caps on 

interstate calls (which are permissible) 

and on intrastate calls (which are 

impermissible). The court also vacated 

the video visitation annual reporting 

requirements adopted in the 2015 ICS 

Order. 

18. In December 2017, after it issued 

the GTL v. FCC opinion, the D.C. Circuit 

in Securus v. FCC ordered the 2016 ICS 

Reconsideration Order ‘‘summarily 

vacated insofar as it purports to set rate 

caps on inmate calling service’’ because 

the revised rate caps in that 2016 Order 

were ‘‘premised on the same legal 

framework and mathematical 

methodology’’ rejected by the court in 

GTL v. FCC. The court remanded ‘‘the 

remaining provisions’’ of that Order to 

the Commission ‘‘for further 

consideration . . . in light of the 

disposition of this case and other related 

cases.’’ As a result of the D.C. Circuit’s 

decisions in GTL and Securus, the 

interim rate caps that the Commission 

adopted in 2013 ($0.21 per minute for 

debit/prepaid calls and $0.25 per 

minute for collect calls) remain in effect 

for interstate inmate calling services 

calls. 

D. 2020 Rates and Charges Reform 

Efforts 

19. 2020 ICS Order on Remand and 

Notice. In February 2020, the Wireline 

Competition Bureau (Bureau or WCB) 

issued a public notice seeking to refresh 

the record on ancillary service charges 

in light of the D.C. Circuit’s remand in 

GTL v. FCC. This Public Notice was 

published in the Federal Register. In the 

Ancillary Services Refresh Public 

Notice, the Bureau sought comment on 

‘‘whether each permitted [inmate calling 

services] ancillary service charge may be 

segregated between interstate and 

intrastate calls and, if so, how.’’ The 

Bureau also sought comment on any 

steps the Commission should take to 

ensure, consistent with the D.C. 

Circuit’s opinion, that providers of 

interstate inmate calling services do not 

circumvent or frustrate the 

Commission’s ancillary service charge 

rules. The Bureau also defined 

jurisdictionally mixed services as 

‘‘ ‘[s]ervices that are capable of 

communications both between intrastate 

end points and between interstate end 

points’ ’’ and sought comment on, 

among other issues, how the 

Commission should proceed if any 

permitted ancillary service is 

‘‘jurisdictionally mixed’’ and cannot be 

segregated between interstate and 

intrastate calls. 

20. In August 2020, the Commission 

adopted the 2020 ICS Order on Remand 

and 2020 ICS Notice. The Commission 

responded to the court’s remands and 

took action to comprehensively reform 

inmate calling services rates and 

charges. First, the Commission 

addressed the D.C. Circuit’s directive 

that the Commission consider whether 

ancillary service charges—separate fees 

that are not included in the per-minute 

rates assessed for individual inmate 

calling services calls—can be segregated 

into interstate and intrastate 

components for the purpose of 

excluding the intrastate components 

from the reach of the Commission’s 

rules. The Commission found that 

ancillary service charges generally are 

jurisdictionally mixed and cannot be 

practicably segregated between the 

interstate and intrastate jurisdictions 

except in the limited number of cases 

where, at the time a charge is imposed 

and the consumer accepts the charge, 

the call to which the service is ancillary 

is clearly an intrastate call. As a result, 


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40344 Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Rules and Regulations 

the Commission concluded that inmate 

calling services providers are generally 

prohibited from imposing any ancillary 

service charges other than those 

permitted by the Commission’s rules, 

and providers are generally prohibited 

from imposing charges in excess of the 

Commission’s applicable ancillary 

service fee caps. 

21. Second, the Commission proposed 

rate reform of the inmate calling 

services within its jurisdiction. As a 

result of the D.C. Circuit’s decisions, the 

interim interstate rate caps of $0.21 per 

minute for debit and prepaid calls and 

$0.25 per minute for collect calls that 

the Commission adopted in 2013 remain 

in effect today. Commission staff 

performed extensive analyses of the data 

it collected in the Second Mandatory 

Data Collection as well as the data in the 

April 1, 2020, annual reports. In the 

2015 ICS Order, the Commission 

directed that the Second Mandatory 

Data Collection be conducted ‘‘two 

years from publication of Office of 

Management and Budget (OMB) 

approval of the information collection.’’ 

The Commission received OMB 

approval in January 2017, and Federal 

Register publication occurred on March 

1, 2017. Accordingly, on March 1, 2019, 

inmate calling services providers 

submitted their responses to the Second 

Mandatory Data Collection. WCB and 

the Office of Economics and Analytics 

(OEA) undertook a comprehensive 

analysis of the Second Mandatory Data 

Collection responses, and conducted 

multiple follow-up discussions with 

providers to supplement and clarify 

their responses, in order to conduct the 

data analysis upon which the proposals 

in the August 2020 ICS Notice are 

based. Based on that analysis, the 

Commission proposed to lower the 

interstate rate caps to $0.14 per minute 

for debit, prepaid, and collect calls from 

prisons and $0.16 per minute for debit, 

prepaid, and collect calls from jails. In 

so doing, the Commission used a 

methodology that addresses the flaws 

underlying the Commission’s 2015 and 

2016 rate caps (which used industrywide averages to set rate caps) and that 

is consistent with the mandate in 

section 276 of the Act that inmate 

calling services providers be fairly 

compensated for each and every 

completed interstate call. The 

Commission’s methodology included a 

proposed 10% reduction in GTL’s costs 

to account, in part, for seemingly 

substantially overstated costs. The 

Commission also proposed to adopt a 

waiver process that would permit 

providers to seek waivers of the 

proposed rate caps on a facility-byfacility or contract basis if the rate caps 

would prevent a provider from 

recovering the costs of providing 

interstate inmate calling services at a 

facility or facilities covered by a 

contract. The 2020 ICS Notice also 

proposed ‘‘to adopt a rate cap formula 

for international inmate calling services 

calls that permits a provider to charge 

a rate up to the sum of the inmate 

calling services provider’s per-minute 

interstate rate cap for that correctional 

facility plus the amount that the 

provider must pay its underlying 

international service provider for that 

call on a per-minute basis (without a 

markup).’’ The Commission explained 

that this cap ‘‘would enable inmate 

calling services providers to account for 

widely varying costs,’’ be consistent 

with the ‘‘just and reasonable’ standard 

in section 201(b) of the Act, and 

comport with the ‘‘fair compensation’’ 

provision of section 276 of the Act. 

22. In response to the 2020 ICS 

Notice, the Commission received over 

90 comments and reply comments and 

9 economic studies. Filers included 

providers of calling services to 

incarcerated people, public interest 

groups and advocates for the 

incarcerated, telecommunications 

companies, organizations representing 

individuals who are deaf or hard of 

hearing, and providers of 

telecommunications relay service. 

23. Intrastate Rate Reform Efforts. By 

April 1 of each year, inmate calling 

services providers file annual reports 

with the Commission that include rates, 

ancillary service charges, and site 

commissions. In an effort to compare 

interstate inmate calling services rate 

levels with intrastate rate levels, 

Commission staff analyzed the intrastate 

rate data submitted as part of the 

providers’ April 1, 2020, annual reports. 

Commission staff’s review revealed that 

intrastate rates for debit or prepaid calls 

exceed interstate rates in 45 states, with 

33 states allowing rates that are at least 

double the Commission’s interstate cap 

and 27 states allowing ‘‘first-minute’’ 

charges that can be more than 25 times 

that of the first minute of an interstate 

call. For example, one provider reported 

a first-minute intrastate rate of $5.34 

and additional per-minute intrastate 

rates of $1.39 while reporting the perminute interstate rate of $0.21 for the 

same correctional facility. Similarly, 

another provider reported a first-minute 

intrastate rate of $6.50 and an additional 

per-minute intrastate rate of $1.25 while 

reporting the per-minute interstate rate 

of $0.25 for the same correctional 

facility. Further, Commission staff 

identified instances in which a 15- 

minute intrastate debit or prepaid call 

costs as much as $24.80—almost seven 

times more than the maximum $3.15 

that an interstate call of the same 

duration would cost. 

24. In light of these data, in 

September 2020, former Chairman Pai 

and Brandon Presley, then president of 

the National Association of Regulatory 

Utility Commissioners (NARUC), jointly 

sent a letter to the co-chairs of the 

National Governors Association urging 

state governments to take action to 

reduce intrastate rates and related fees. 

At least one state has enacted a law to 

reduce intrastate inmate calling services 

rates and fees, at least one state 

commenced a regulatory proceeding 

aimed at reducing intrastate inmate 

calling services rates and fees, and 

several states are considering 

legislation. 

III. Order On Reconsideration 

25. The Commission denies the GTL 

Petition in full on the merits and, 

independently, dismisses that petition 

as procedurally defective, insofar as it 

relies on arguments the Commission 

already considered and rejected in the 

underlying order. The Commission 

considered and rejected GTL’s 

arguments regarding so-called 

Commission ‘‘precedent’’ purporting to 

establish a general policy of reliance on 

NPA–NXX as a proxy for jurisdiction 

and whether the Commission’s 

statement required prior notice and an 

opportunity to comment. GTL seeks 

reconsideration of a single sentence 

from the 2020 ICS Order on Remand, 

reiterating that ‘‘the jurisdictional 

nature of a call depends on the physical 

location of the endpoints of the call and 

not on whether the area code or NXX 

prefix of the telephone number . . . 

associated with the account, are 

associated with a particular state.’’ GTL 

claims that this sentence (1) ignores 

telecommunications carriers’ historical 

reliance on NPA–NXX codes to classify 

calls as interstate or intrastate; (2) 

unfairly singles out providers of calling 

services for incarcerated people; (3) 

presents implementation issues; (4) 

potentially compromises state programs 

funded by assessments on intrastate 

revenues; and (5) promulgates a new 

rule without notice and an opportunity 

to comment. The Commission finds 

each of these claims to be without merit 

and affirm the Commission’s continued 

use of the traditional end-to-end 

jurisdictional analysis relied upon in 

the 2020 ICS Order on Remand. 

E. Background 

26. Last year, the Commission 

responded to the D.C. Circuit’s directive 

that it consider whether ancillary 


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service charges can be segregated into 

interstate and intrastate components to 

exclude the intrastate components from 

the reach of the Commission’s rules. 

The Bureau issued the Ancillary 

Services Refresh Public Notice, 

published at 85 FR 9444 (Feb. 19, 2020), 

seeking to refresh the record in light of 

the D.C. Circuit’s remand. Based on the 

record developed in response to that 

public notice, the Commission found 

that ‘‘ancillary service charges generally 

cannot be practically segregated 

between the interstate and intrastate 

jurisdiction except in the limited 

number of cases where, at the time a 

charge is imposed and the consumer 

accepts the charge, the call to which the 

service is ancillary is a clearly 

intrastate-only call.’’ Thus, the 

Commission concluded that providers 

are generally prohibited from imposing 

ancillary service charges, other than 

those explicitly permitted by the 

Commission’s rules, and are also 

generally prohibited from imposing 

ancillary service charges in excess of the 

permitted ancillary service fee caps in 

the Commission’s rules. 

27. In the 2020 ICS Order on Remand, 

the Commission addressed record 

debate about the jurisdictional 

classification methodology for certain 

inmate calling services calls and the 

ancillary services provided in 

connection with those calls by 

reminding providers that ‘‘the 

jurisdictional nature of a call depends 

on the physical locations of the 

endpoints of the call,’’ rather than on 

the area codes or NXX prefixes of the 

telephone numbers used to make and 

receive the call. GTL and Securus 

objected to this approach, asserting that 

relying on a call’s endpoints was 

inconsistent with prior Commission 

decisions and with providers’ practice 

of using NPA–NXX codes as proxies for 

jurisdiction. GTL and Securus raised 

these objections in ex parte filings 

during the public circulation period of 

the 2020 ICS Order on Remand but 

before the Commission adopted that 

Order on August 6, 2020. GTL and 

Securus also claimed that the 

Commission’s clarification regarding 

how carriers are to determine the 

jurisdictional nature of a call required 

prior notice and an opportunity to 

comment. In addition, NCIC questioned 

‘‘the FCC’s determination that [inmate 

calling services] providers will be able 

to determine the location of the 

terminating point of an [inmate calling 

services] wireless call—and thus 

determine whether the call is intrastate 

or interstate in nature.’’ 

28. In response to these objections, 

the Commission explained that although 

it has allowed the use of proxies to 

determine the jurisdictional nature of 

certain calls, it has done so only in 

specific contexts ‘‘typically related to 

carrier-to-carrier matters or payment of 

fees owed’’ and that it ‘‘never adopted 

a general policy allowing the broad use 

of such proxies.’’ The Commission 

distinguished the so-called ‘‘precedent’’ 

cited by GTL and Securus, explaining 

that none of those decisions established 

actual Commission policy or practice 

regarding the use of jurisdictional 

proxies and that the examples provided 

‘‘relate specifically to carrier-to-carrier 

arrangements involving intercarrier 

compensation or applicable federal fees 

due between carriers and the 

Commission, not to using a proxy for 

charging a customer a higher or different 

rate than it would otherwise be subject 

to based on whether the customer’s call 

is interstate or intrastate.’’ The 

Commission, therefore, rejected GTL’s 

and Securus’s argument that application 

of the end-to-end analysis required prior 

notice and an opportunity to comment, 

explaining that it was merely clarifying 

‘‘the long-established standard that 

inmate calling services providers must 

apply in classifying calls for purposes of 

charging customers the appropriate rates 

and charges.’’ The Commission further 

explained that the Bureau’s public 

notice seeking to refresh the record on 

ancillary service charges in light of the 

D.C. Circuit’s remand provided ‘‘notice 

of, and a full opportunity to comment 

on, the jurisdictional status of inmate 

calling services calls’’ because the 

public notice sought comment on how 

to proceed if ancillary services were 

‘‘jurisdictionally mixed’’ and defined 

jurisdictionally mixed services as those 

that are ‘‘capable of communications 

both between intrastate end points and 

between interstate end points.’’ 

29. In November 2020, GTL filed a 

petition seeking reconsideration of the 

application of the end-to-end 

jurisdictional analysis in the 2020 ICS 

Order on Remand. The Bureau released 

a Public Notice announcing the filing of 

GTL’s Petition and establishing 

deadlines for oppositions and replies to 

the Petition. The Bureau received 

comments from Pay Tel and replies 

from NCIC and GTL. 

F. Discussion 

30. Standard of Review. Any 

interested party may file a petition for 

reconsideration of a final action in a 

rulemaking proceeding. Reconsideration 

‘‘may be appropriate when the 

petitioner demonstrates that the original 

order contains a material error or 

omission, or raises additional facts that 

were not known or did not exist until 

after the petitioner’s last opportunity to 

present such matters.’’ Petitions for 

reconsideration that do not warrant 

consideration by the Commission 

include those that: ‘‘[f]ail to identify any 

material error, omission, or reason 

warranting reconsideration; [r]ely on 

facts or arguments which have not been 

previously presented to the Commission 

. . . ; [r]ely on arguments that have been 

fully considered and rejected by the 

Commission within the same 

proceeding;’’ or ‘‘[r]elate to matters 

outside the scope of the order for which 

reconsideration is sought.’’ The 

Commission may consider facts or 

arguments not previously presented if: 

(1) They ‘‘relate to events which have 

occurred or circumstances which have 

changed since the last opportunity to 

present such matters to the 

Commission;’’ (2) they were ‘‘unknown 

to petitioner until after [their] last 

opportunity to present them to the 

Commission, and [the petitioner] could 

not through the exercise of ordinary 

diligence have learned of the facts or 

arguments in question prior to such 

opportunity;’’ or (3) ‘‘[t]he Commission 

determines that consideration of the 

facts or arguments relied on is required 

in the public interest.’’ 

1. GTL’s Substantive Arguments Against 

the End-to-End Analysis Do Not 

Warrant Reconsideration 

31. GTL’s Petition provides no new 

substantive facts or arguments that 

justify reconsideration of the 

Commission’s application of the end-toend jurisdictional analysis to calling 

services for incarcerated people. 

Although GTL cites various documents 

it claims establish a general Commission 

policy on the use of jurisdictional 

proxies for classifying interstate and 

intrastate calls, none of the cited 

documents establish such a policy, 

especially in the provision of inmate 

calling services. The Commission is also 

unpersuaded by GTL’s arguments 

regarding the possible discriminatory 

treatment of providers of these calling 

services, its reliance on third parties to 

make jurisdictional determinations, or 

its unsubstantiated claims about the 

effects the Commission’s jurisdictional 

analysis may have on state programs. 

32. GTL first argues that the end-toend analysis ignores what it claims is 

the industry custom and practice of 

using NPA–NXX codes to determine 

whether a call is interstate or intrastate. 

GTL asserts that the ‘‘Commission’s 

prior statements have recognized that 

using NPA–NXX is an appropriate 

industry standard for determining 

whether a call is interstate or 

intrastate.’’ In this regard, GTL 


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emphasizes the 2003 Starpower 

Damages Order. For its part, NCIC 

argues that the Commission’s 

‘‘precedent’’ has been ‘‘correctly cited 

by GTL,’’ and that the Commission 

should ‘‘continue to follow that 

precedent’’ in the context of calling 

services for incarcerated people. 

33. The Commission disagrees. The 

Commission reaffirms the Commission’s 

prior conclusion that not one of the 

decisions cited in GTL’s Petition 

adopted a general policy allowing broad 

use of jurisdictional proxies, such as 

NPA–NXX codes. Those decisions 

primarily concern the use of 

jurisdictional proxies to determine the 

appropriate rating between and among 

various types of service providers 

routing calls originating from one NPA– 

NXX code to a terminating NPA–NXX 

code and vice versa. None of them allow 

for the use of jurisdictional proxies in 

the context of inmate calling services for 

which consumers may be charged 

different rates based on whether a call 

is classified as interstate or intrastate. 

Instead, the decisions GTL cites merely 

reflect that the Commission ‘‘has 

allowed carriers to use proxies for 

determining the jurisdictional nature of 

calls in specific contexts, typically 

related to carrier-to-carrier matters or 

payment of fees owed.’’ 

34. At bottom, GTL requests that the 

Commission engraft into its inmate 

calling services rules a jurisdictional 

proxy—relying on NPA–NXX codes for 

all telephone calls from incarcerated 

people to a called party regardless of the 

called parties’ service provider of 

choice—that the Commission has never 

suggested might be used in determining 

the jurisdictional classification of an 

inmate calling services call. The 

Commission thus is not persuaded that 

GTL’s approach reflects a reasonable 

interpretation of the Commission’s 

existing rules. 

35. GTL seizes on certain language in 

the Starpower Damages Order that, GTL 

claims, establishes a ‘‘historical’’ or 

‘‘consistent’’ use of NPA–NXX codes. 

Contrary to GTL’s assertions, however, 

the Starpower decision did not 

announce a general policy permitting 

the use of jurisdictional proxies. Rather, 

Starpower was narrowly concerned with 

an intercarrier compensation dispute, 

the resolution of which hinged on the 

treatment of traffic under a Verizon 

tariff. In the liability phase of the 

proceeding, Starpower obtained an 

order from the Commission obligating 

Verizon to pay reciprocal compensation 

under an interconnection agreement 

‘‘for whatever calls Verizon South bills 

to its own customers as local calls under 

the Tariff, regardless of whether a call 

is jurisdictionally interstate.’’ In the 

damages phase, Verizon argued that, 

under its tariff definition, the physical 

location of the called parties, and not 

the telephone numbers, determined 

whether service was ‘‘local.’’ But the 

Commission concluded that Verizon 

rated and billed ISP-bound traffic under 

its tariff by looking to the telephone 

numbers of the parties to a call and not 

the parties’ physical locations. The 

Commission held that since Verizon 

treated ISP-bound calls as ‘‘local under 

the Tariff,’’ Verizon was obligated to pay 

reciprocal compensation under the 

interconnection agreement. Thus, 

although Starpower contains passing 

references to the use of NPA–NXX to 

determine the jurisdictional nature of 

certain traffic, the decision ultimately 

turned on the Commission’s 

interpretation of Verizon’s tariff and 

Verizon’s own practices in applying that 

tariff. Accordingly, Starpower does not 

establish any Commission or industrywide policy on the use of jurisdictional 

proxies. The fact that Starpower 

involved internet service providerbound traffic—i.e., traffic to another 

type of service provider, which at the 

time was a separate unsettled 

jurisdictional issue, rather than an end 

user telephone subscriber—alone, 

makes this case entirely inapposite. 

36. In any event, it is simply not 

reasonable or reliable now, nor has it 

been for many years, to assume that a 

called party is physically located in the 

geographic area (rate center) of the 

switch to which the party’s NPA–NXX 

code is native. Before Congress adopted 

the 1996 Act, when incumbent LECs 

controlled 99% of the local voice 

marketplace, one could reasonably 

assume that a called party was 

physically located in the geographic 

area associated with a particular NPA– 

NXX, as NPA–NXX codes were 

associated only with a particular 

incumbent’s rate center. Since that time, 

however, number porting between and 

among competing wireline LECs, 

wireless carriers, and fixed and nomadic 

VoIP providers has rendered NPA–NXX 

codes an all-too-frequently unreliable 

means to determine whether a called 

party is physically located within a 

particular state when it receives and 

answers a given call. 

37. In the 1996 Act, Congress 

included the requirement that each LEC 

‘‘provide, to the extent technically 

feasible, number portability in 

accordance with requirements 

prescribed by the Commission.’’ This 

definition now appears in section 3(37) 

of the Act. The number portability rules 

subsequently adopted by the 

Commission, as modified over time, 

limit number porting between wireline 

incumbents and wireline competitors to 

ports within the same rate center. With 

respect to wireline-to-wireless porting, 

the Commission requires wireline 

carriers to port to requesting wireless 

carriers ‘‘where the requesting wireless 

carrier’s ‘coverage area’ overlaps the 

geographic location in which the 

customer’s wireline number is 

provisioned, provided that the portingin carrier maintains the number’s [NPA– 

NXX] original rate center designation 

following the port.’’ In other words, 

when the wireline number is ported to 

the wireless carrier’s customer, the 

original rate center designation is 

maintained for routing and rating 

purposes by other service providers. A 

wireless carrier may only port a number 

to a wireline carrier if the number is 

associated with the rate center of the 

wireline carrier where the customer is 

located. Nomadic VoIP ‘‘is usually a 

VoIP phone installed in a portable 

computer which can be taken with the 

subscriber’’ so that ‘‘[c]alls can be made 

from anywhere in the world.’’ By 

comparison, fixed VoIP is not movable. 

‘‘The [fixed] service is provided by a 

cable company, for example, where the 

telephone does not leave the residence.’’ 

The Commission began its work 

implementing the 1996 Act’s number 

portability requirement with its 1996 

First Number Portability Order, in 

which it adopted an initial set of rules 

governing wireline-to-wireline, 

wireless-to-wireless, and wireline-towireless number portability obligations. 

It required that LECs in the 100 largest 

Metropolitan Statistical Areas (MSAs) 

begin implementing a long-term number 

portability methodology on a phased 

deployment schedule, and that CMRS 

providers be able to port numbers by the 

wireline carriers’ deadline to complete 

number portability implementation and 

to support network-wide roaming 

thereafter. The Commission also 

established LEC number portability 

implementation obligations outside of 

the 100 largest MSAs. Subsequently, in 

2007, the Commission extended local 

number portability obligations to 

interconnected VoIP providers, both 

fixed and nomadic. In 2015, the 

Commission opened direct access to 

numbering resources to interconnected 

VoIP providers. 

38. Today, consumers increasingly 

rely on nomadic VoIP and mobile voice 

services for telephone service. Nomadic 

interconnected VoIP services are 

provided as over-the-top applications 

and are not associated with any specific 

geographic location. ‘‘In this way, 

nomadic interconnected VoIP service is 


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similar to mobile service, but distinct 

from fixed telephony service.’’ ‘‘Overthe-top’’ VoIP providers are VoIP 

providers that are not facilities-based. 

The consumer of an over-the-top VoIP 

service ‘‘uses an independent data 

service over a broadband connection.’’ 

The Commission’s December 2019 FCC 

Form 477 data reflected 12.9 million 

over-the-top VoIP subscriptions in the 

United States at that time. Subscribers 

to these services can readily move to 

other rate centers throughout the 

country while retaining their telephone 

numbers. And nearly half of all assigned 

telephone numbers are associated with 

wireless phones, which is unsurprising 

given that the majority of households in 

the United States no longer subscribe to 

a landline service. The combination of 

the Commission’s number portability 

orders and the significant technological 

changes to the communications 

marketplace means that NPA–NXX 

codes reflected in telephone numbers 

are often subject to movement across 

state lines, on a permanent, nomadic, or 

mobile basis, making them unreliable as 

a geographic indicator of endpoints for 

a given call. As the foregoing analysis 

suggests, only where the calling party 

(here, the incarcerated person) and the 

called party each have wireline 

telephone numbers, can an inmate 

calling services provider reasonably and 

reliably determine the jurisdictional 

nature of a call between those parties 

based on the NPA–NXX codes of the 

originating and terminating telephone 

numbers. That is the case because the 

Commission’s rules require the NPA– 

NXX of a wireline telephone subscriber 

to necessarily physically remain within 

the particular rate center from which 

each wireline telephone number 

originated. Unlike for wireless voice 

service and nomadic VoIP service, the 

Commission’s number porting rules do 

not permit telephone numbers of 

wireline subscribers to port across rate 

center boundaries. 

39. GTL next complains that the 

Commission’s confirmation of the endto-end analysis inappropriately ‘‘singles 

out [inmate calling services] providers,’’ 

and that the Commission ‘‘cannot target 

particular classes of 

telecommunications service providers 

in its rulemaking when the legal basis 

for it (and the criticisms that undergird 

it) are of universal applicability.’’ This 

complaint is completely without merit. 

The Commission has not singled out 

inmate calling services providers for 

disparate treatment. The end-to-end 

analysis is, and remains, the generally 

applicable, default standard for all 

telecommunications carriers—not just 

inmate calling services providers—for 

determining the jurisdictional 

classification of a telephone call. In 

addition, inmate calling services 

providers are unlike other 

telecommunications carriers. Calling 

service providers have a captive 

consumer base at each correctional 

facility they serve for which they rarely, 

if ever, offer all-distance calling plans 

with uniform rates and charges for 

intrastate and interstate calls as do most, 

if not all, other telecommunications 

services providers. Indeed, inmate 

calling services providers typically have 

a myriad of different rates and charges 

applicable to different jurisdictional call 

types (i.e., intraLATA intrastate, 

interLATA intrastate, intraLATA 

interstate, and interLATA interstate). 

And while providers have not explained 

in detail what their resale arrangements 

with underlying telecommunications 

carriers entail, it is the Commission’s 

understanding that providers typically 

pay a flat rate for all minutes of use 

(except for international calling) 

regardless of the jurisdictional nature of 

the call. Calling service providers 

continue to charge incarcerated people 

(or their families) different rates and 

charges purportedly based on 

differences in costs to serve these 

different call types, even though those 

rates are based on fictional 

determinations that have nothing to do 

with actual geographic endpoints, 

except in the case of wireline-towireline calls. 

40. As explained above, the generally 

accepted method of determining the 

jurisdictional nature of any given call is 

by an end-to-end analysis. Thus, 

contrary to the providers’ claims, 

jurisdictional proxies are the exception, 

not the rule. It is only ‘‘[w]here the 

Commission has found it difficult to 

apply an end-to-end approach for 

jurisdictional purposes, [that] it has 

proposed or adopted proxy or allocation 

mechanisms to approximate the end-toend result.’’ The Commission 

subsequently adopted permissible 

proxies for determining what portion of 

such jurisdictionally indeterminate 

VoIP services to attribute to the 

interstate jurisdiction for Universal 

Service Fund (USF) payment purposes, 

but such proxies did not pertain to 

classifying the underlying calls as either 

interstate or intrastate for purposes of 

billing consumers different rates for 

telephone calls. In the Vonage Order, for 

example, the Commission expressly 

declined to adopt the use of proxies for 

determining whether a call was 

jurisdictionally intrastate or interstate or 

to address the conflict between federal 

and state regulatory regimes. Indeed, 

GTL itself recognized the general 

applicability of the end-to-end analysis 

in its comments on the Ancillary 

Services Refresh Public Notice, 

explaining that ‘‘[t]he jurisdictional 

nature of calls themselves is easily 

classified as either interstate or 

intrastate based on the call’s points of 

origination and termination. This 

accords with the Commission’s 

traditional end-to-end analysis for 

determining jurisdictional boundaries 

‘beginning with the end point at the 

inception of a communication to the 

end point at its completion.’ ’’ GTL fails 

to explain how the application of the 

Commission’s long-established 

approach for determining the 

appropriate jurisdiction of a call 

unfairly singles out providers of calling 

services for incarcerated people given 

that, by GTL’s own admission, the 

Commission generally applies this 

‘‘traditional’’ analysis to all 

telecommunications providers. 

41. Because an NPA–NXX code 

frequently fails to provide any 

indication of the actual physical 

location of a called party (unless it is 

known that the called party is a wireline 

telephone subscriber), it generally 

cannot be relied upon to determine the 

jurisdictional nature of a call. As the 

Commission stated in the 2020 ICS 

Order on Remand, to do so would 

undercut interstate callers’ federal 

protection from unjust and 

unreasonable interstate charges and 

practices. 

42. GTL also alleges, through reliance 

on decades-old discussions of rating 

based on NPA–NXX and industry 

guides, that there are technical barriers 

that prevent providers of calling 

services for incarcerated people from 

applying the traditional end-to-end 

analysis. These allegations arise from 

the fact that providers rely on third 

parties to classify the jurisdiction of 

calls. As GTL explains it, calls from 

correctional facilities, whether to 

wireline, wireless, or VoIP numbers, 

‘‘are handed off to unaffiliated thirdparty telecommunications service 

providers that route them across the 

public switched telephone network to 

their appropriate termination point, 

based on the called number’s entry in 

the Local Exchange Routing Guide.’’ 

The Local Exchange Routing Guide 

(LERG) is ‘‘an industry guide generally 

used by carriers in their network 

planning and engineering and 

numbering administration. It contains 

information regarding all North 

American central offices and end 

offices.’’ GTL adds that ‘‘[inmate calling 

services] providers assess charges on 


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inmate calls by purchasing access to 

third-party databases that classify them 

as intrastate, interstate, or international’’ 

and that these databases do not provide 

the ‘‘actual geographical location 

associated with a particular device or 

service.’’ Relatedly, Securus explains 

that these third parties use ‘‘telephone 

numbers or, since the advent of local 

number portability, the Local Routing 

Number . . . as a proxy for . . . 

jurisdiction,’’ and lack ‘‘the information 

needed to apply the end-to-end 

analysis.’’ The Local Routing Number is 

a ‘‘telephone number assigned in the 

local number portability database for the 

purposes of routing a call to a telephone 

number that has been ported. When a 

call is made to a number that has been 

ported, the routing path for the call is 

established based on the L[ocal] 

R[outing] N[umber] rather than on the 

dialed number.’’ GTL concludes that 

‘‘[g]iven indicia that classification 

determinations have, for decades, been 

under the control of entities over which 

many providers exercise no authority, 

critical logistical and financial questions 

present themselves, such as the costs 

attendant upon [inmate calling services] 

providers should they be required to 

design, deploy, and implement an 

alternative call classification system.’’ 

43. The Commission finds these 

arguments unpersuasive. The 

Commission’s rules specify that 

providers of inmate calling services are 

currently prohibited from charging more 

than $0.21 per minute for interstate 

Debit Calling, Prepaid Calling, or 

Prepaid Collect Calling and prior to 

today’s accompanying Report and Order 

more than $0.25 per minute for 

interstate Collect Calling. The current 

rule language tracks the language 

adopted in 2013 but adds the term 

‘‘interstate.’’ The term ‘‘interstate’’ was 

added to section 64.6030 of the 

Commission’s rules as a non-substantive 

change to reflect a D.C. Circuit decision 

that the Commission’s regulation of 

inmate calling services rates could 

extend no further than the extent of its 

authority over interstate (and 

international) calls. The fact that the 

addition of ‘‘interstate’’ was a nonsubstantive change to reflect a court 

decision limiting the Commission’s 

inmate calling services rate regulations 

to the limit of the Commission’s 

authority further reinforces the 

reasonableness of interpreting 

‘‘interstate’’ consistent with the 

Commission’s historical jurisdictional 

approach. The Commission’s 

interpretation of the term ‘‘interstate’’ in 

its rule accords not only with the use of 

that terminology in the Communications 

Act, but also with the Commission’s 

traditional approach to defining 

jurisdiction. It is the provider’s 

responsibility to ‘‘appropriately 

comply[] with this most basic regulatory 

obligation of telecommunications 

service providers with respect to their 

customers—determining the proper 

jurisdiction of a call when charging its 

customers the correct and lawful rates 

for those calls using the end-to-end 

analysis.’’ Providers did not express any 

concerns about their ability to 

determine the jurisdiction of any given 

call when the Commission’s adopted 

‘‘interim rate caps . . . for interstate 

[inmate calling services]’’ in 2013. Nor 

did they express such concerns in the 

following years, as those interim rate 

caps continued to apply. Indeed, despite 

GTL’s claims here, it and other 

providers use the Commission’s 

historical approach when defining the 

terms ‘‘interstate’’ and ‘‘intrastate’’ in at 

least some of their tariffs and price lists. 

It is unclear why GTL, or any provider, 

would base its rates on the geographic 

locations of the parties to a call if the 

service provider could not, in fact, 

determine where the parties are located 

at the time of the call. The record also 

provides no indication that the third 

parties upon which GTL and others 

claim they rely for determining the 

jurisdiction of their calls could not 

accurately determine whether a 

consumer is making calls between 

NPA–NXX codes assigned to wireline, 

wireless, or nomadic VoIP numbers to 

determine whether those calls are 

subject to the Commission’s interstate 

rate caps without relying on another 

methodology to determine the actual 

endpoints of the call. 

44. Further, many of the guides and 

brochures to which GTL cites in this 

regard relate predominantly to call 

routing rather than rating. For example, 

GTL cites to the iconectiv brochure 

‘‘Route It Right Every Time with LERG 

OnLine.’’ That brochure contains 

precisely two references to rating, 

neither of which relate to the billing of 

end-user customers. GTL also points to 

an iconectiv Catalog of Products and 

Services, but that document is similarly 

unhelpful for GTL. Finally, the 

iconectiv catalog to which GTL cites 

notes that the Telecom Routing 

Administration’s products ‘‘are a 

mainstay in supporting the various 

offerings of service providers . . . and, 

bottom line, in ensuring calls placed by 

their customers and through their 

network complete without any 

problems.’’ In other words, the Telecom 

Routing Administration provides data 

that supports the routing of calls. 

Nowhere in that catalog does it state 

that providers should rely solely on 

NPA–NXX codes for rating calls to end 

users. The Commission also disagrees 

with GTL’s characterization of the Local 

Exchange Routing Guide as requiring 

the use of NPA–NXXs for determining 

the jurisdictional nature of a call. Once 

again, GTL conflates the relationship of 

an NPA–NXX code to that code’s 

original rate center designation, 

reflected in the Local Exchange Routing 

Guide for routing purposes, with using 

the same rate center information to 

determine whether the terminating call 

to that NPA–NXX code is 

jurisdictionally intrastate or interstate. 

The original rate center designation of 

an NPA–NXX number has no bearing on 

where calls to that number actually 

terminate when the called party is a 

customer of a wireless or nomadic VoIP 

provider, at a minimum. But even if it 

did, that would have no bearing on 

inmate calling services providers’ 

obligations to charge incarcerated 

people and those whom they call lawful 

rates. 

45. To the extent that the technical 

issues raised by GTL make it 

impracticable or impossible to 

determine whether a call is interstate or 

intrastate based on the geographical 

endpoints of the call, the Commission 

does not require providers of calling 

services for incarcerated people to 

redesign or deploy other call 

classification systems. Instead, the 

Commission reaffirms that providers 

must charge a rate at or below the 

applicable interstate cap for that call. 

Pay Tel complains that today’s Order 

‘‘effectively classif[ies] all [inmate 

calling services] calls as jurisdictionally 

‘interstate.’’’ Pay Tel asserts that, as a 

consequence, consumers will face 

significant rate increases due to 

assessment of federal Universal Service 

Fund charges on all calls, in addition to 

a host of other concomitant 

consequences. The Commission finds 

such concerns misplaced. Under the 

Commission’s end-to-end analysis, 

charges for a call that is jurisdictionally 

indeterminant may not exceed the 

applicable interim interstate rate cap, 

but where a state has a lower rate cap 

in place for intrastate calls, charges for 

a call of indeterminate nature must 

comply with the lower state rate cap. 

The Commission also disagrees that 

there would necessarily be a significant 

impact on Universal Service Fund 

assessments as Pay Tel and Securus 

allege. First, the Commission does not 

reclassify any calls as interstate calls; 

and second providers may continue to 

use whatever proxy or good faith 


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determination of interstate revenue for 

purposes of universal service 

contributions that they have used in the 

past for this traffic. The Commission’s 

actions today go only to the question of 

the appropriate jurisdictional treatment 

for purposes of determining the rates 

providers may charge for telephone calls 

to consumers. The Commission’s 

actions neither limit the ability of 

providers to avail themselves of 

applicable proxies or safe harbors used 

for purposes of Universal Service Fund 

reporting nor suggest that providers 

have been incorrectly complying with 

the Commission’s universal service 

contribution rules. Finally, the 

Commission takes this opportunity to 

remind providers that they are 

permitted but not required to pass 

through universal service charges to 

their end users. As the Commission 

explained in the 2020 ICS Order on 

Remand, ‘‘where the Commission has 

jurisdiction under section 201(b) of the 

Act to regulate rates, charges, and 

practices of interstate communications 

services, the impossibility exception 

extends that authority to the intrastate 

portion of jurisdictionally mixed 

services ‘where it is impossible or 

impractical to separate the service’s 

intrastate from interstate components’ 

and state regulation of the intrastate 

component would interfere with valid 

federal rules applicable to the interstate 

component.’’ There is no dispute that 

the Commission has jurisdiction over 

providers’ interstate rates, and GTL does 

not dispute the Commission’s authority 

to regulate jurisdictionally 

indeterminate services. Accordingly, to 

the extent that GTL and other providers 

find it impossible or impracticable to 

determine the actual endpoints, hence 

the actual jurisdictional nature of a call, 

they must treat that call as 

jurisdictionally indeterminate and must 

charge a rate at or below the applicable 

interstate cap. 

46. The Commission rejects GTL’s 

argument that the Commission’s 

application of the end-to-end analysis 

violates the jurisdictional limitation in 

section 221(b) of the Act. That section 

has been narrowly interpreted to 

‘‘enable state commissions to regulate 

local exchange service in metropolitan 

areas . . . which extend across state 

boundaries.’’ Section 221(b), which 

refers to ‘‘telephone exchange service’’ 

says nothing about payphone service, 

which is separately defined in section 

276 of the Act. ‘‘Telephone exchange 

service’’ is broadly defined as ‘‘service 

within a telephone exchange’’ or 

‘‘comparable service provided through a 

system of switches, transmission 

equipment, or other facilities (or 

combination thereof) by which a 

subscriber can originate and terminate a 

telecommunications service.’’ Indeed, 

the statute recognizes and treats 

payphone service separately from 

exchange service in section 276(a), 

which prevents Bell operating companyowned payphones from receiving 

subsidies ‘‘from . . . telephone 

exchange service operations.’’ The 

Commission has previously recognized 

this distinction, explaining that 

although states traditionally regulated 

payphones, including by setting local 

rates, that role was ‘‘in the context of 

LECs providing local payphone service 

as part of their regulated service.’’ By 

disallowing LEC payphones from 

receiving subsidies from their basic 

exchange service, the Commission 

emphasized that section 276 ‘‘greatly 

changes the way in which states set 

local coin rates.’’ In sum, the Act treats 

the exchange service in section 221(b) 

separate from payphone service in 

section 276, and the courts have 

narrowly interpreted section 221(b) to 

apply only to a state’s ability to regulate 

local exchange service. The Commission 

is therefore unpersuaded by GTL’s 

argument that the Commission violated 

section 221(b) or acted in a manner 

precluded by the implementation of that 

provision by reiterating that providers of 

calling services for incarcerated people 

must charge their end users for 

interstate and intrastate calls based on 

the physical endpoints of the call. 

47. The Commission is also 

unpersuaded by GTL’s claim that the 

Commission’s jurisdictional analysis 

might have some ‘‘potential impact’’ on 

state communications programs that 

depend on assessments of intrastate 

revenues or that the Commission is 

somehow limiting the ability of state 

commissions to use NPA–NXX as a 

jurisdictional proxy. GTL provides no 

evidence that applying an end-to-end 

analysis for purposes of complying with 

the federal interstate rate cap for inmate 

calling services charges would either 

interfere with state authority to use 

NPA–NXX as a proxy for determining 

which calls are within their jurisdiction 

or would somehow result in the 

‘‘reclassification of all 

telecommunications traffic that relies on 

NPA–NXX . . . as interstate.’’ The 

Commission does not disturb state and 

local laws or regulations that use NPA– 

NXX or other proxies to determine, for 

example, the application of state fees 

and taxes. The end-to-end jurisdictional 

analysis that the Commission reaffirms 

today only affects what calling 

providers may charge incarcerated 

people and their loved ones for 

jurisdictionally indeterminant 

telephone calls, and as the Commission 

has indicated above, continued 

compliance with applicable state and 

local laws that are not in conflict with 

federal law remain unaffected. 

2. GTL’s Procedural Arguments Do Not 

Warrant Reconsideration 

48. The Commission rejects GTL’s 

claim that the Commission needed to 

provide additional notice and an 

additional opportunity for comment 

before it clarified in the 2020 ICS Order 

on Remand that providers must use the 

geographical endpoints of a call rather 

than the area code or NXX prefix of the 

call’s recipient to determine whether the 

call is interstate or intrastate. The 

Commission rejects this claim on 

procedural grounds insofar as the 

Commission considered and responded 

to these arguments in the 2020 ICS 

Order on Remand, 35 FCC Rcd at 8502– 

04, paras. 52–54. The Commission also 

rejects it on substantive grounds as 

discussed herein. GTL mischaracterizes 

the Commission’s clarification as a 

‘‘new and unprecedented [r]ule’’ and a 

‘‘serious departure from prior practice.’’ 

On the contrary, after identifying 

confusion and debate in the record, the 

Commission ‘‘remind[ed]’’ and 

‘‘clarifie[d]’’ for providers the end-toend analysis it ‘‘has traditionally used to 

determine whether a call is within its 

interstate jurisdiction’’ to ensure that 

providers of calling services for 

incarcerated people do not ‘‘circumvent 

or frustrate [the Commission’s] ancillary 

service charge rules.’’ Providers of 

calling services for incarcerated people 

have been on notice since the 

Commission adopted interstate rate caps 

in 2013 that they could not charge more 

than the capped amounts for interstate 

calls. By interpreting the rate cap rule as 

requiring that inmate calling services 

calls be classified based on their 

endpoints, the Commission applied the 

ordinary meaning of the term 

‘‘interstate’’ as that term is defined in 

the Communications Act. The 

Communications Act defines ‘‘interstate 

communication’’ or ‘‘interstate 

transmission’’ as [C]ommunication or 

transmission (A) from any State, 

Territory, or possession of the United 

States (other than the Canal Zone), or 

the District of Columbia, to any other 

State, Territory, or possession of the 

United States (other than the Canal 

Zone), or the District of Columbia, (B) 

from or to the United States to or from 

the Canal Zone, insofar as such 

communication or transmission takes 

place within the United States, or (C) 

between points within the United States 


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but through a foreign country; but shall 

not, with respect to the provisions of 

subchapter II of this chapter (other than 

second 223 of this title), include wire or 

radio communication between points in 

the same State, Territory, or possession 

of the United States, or the District of 

Columbia, through any place outside 

thereof, if such communication is 

regulated by a State commission. There 

has been no new legislative rule that 

would have required notice and an 

opportunity to comment. The 

Commission’s reminder clearly served 

the purpose of an interpretive rule. The 

Administrative Procedure Act (APA) 

exempts interpretive rules from the 

procedural requirements of notice and 

comment rulemaking. An interpretive 

rule is a clarification or explanation of 

existing laws or regulations rather than 

a substantive modification in or 

adoption of new regulations. 

49. In essence, GTL contends that 

‘‘interstate’’ as used in the 

Commission’s inmate calling services 

rules had a different meaning than 

‘‘interstate’’ as used in the 

Communications Act and therefore that 

it could classify as intrastate a call that 

originates in one state and terminates in 

another state based solely on NPA–NXX 

codes. GTL’s claim is unavailing and 

has no bearing on the question of 

whether the Commission was required 

to provide additional notice and an 

additional opportunity to comment 

prior to clarifying that ‘‘interstate’’ as 

used in the inmate calling services rules 

continues to have the same meaning as 

‘‘interstate’’ as used in the 

Communications Act and historical 

Commission usage of the term. 

50. In any event, the Ancillary 

Services Refresh Public Notice fully 

apprised all interested parties that the 

Commission would be considering how 

it should proceed in the event an 

ancillary service could not ‘‘be 

segregated between interstate and 

intrastate calls.’’ That public notice also 

invited comment on what additional 

steps the Commission should take to 

ensure that providers of interstate 

inmate calling services do not 

circumvent or frustrate the 

Commission’s ancillary service charge 

rules. GTL claims that the Ancillary 

Services Refresh Public Notice was 

insufficient to inform stakeholders that 

the Commission might reexamine ‘‘the 

methodology used to determine whether 

a call or charge is interstate or 

intrastate.’’ But the Public Notice made 

clear that the Commission would be 

considering when an ancillary service is 

interstate, which necessarily involves a 

determination whether the calls in 

connection with that service are 

interstate. For this reason, the 

Commission also rejects Pay Tel’s 

assertion that the Ancillary Services 

Refresh Public Notice did not 

contemplate an evaluation of the 

jurisdictional classification of inmate 

calling services calls. And, when the 

record revealed that certain providers 

were using NPA–NXX codes, rather 

than endpoints, to classify calls as 

interstate or intrastate, the Commission 

properly clarified, consistent with the 

text of the Act and long-standing 

precedent, that using the geographic 

endpoints was the proper method to 

determine call jurisdiction. Thus, the 

Commission’s clarification that 

providers must use an end-to-end 

analysis in classifying calls as interstate 

or intrastate was, at the very least, a 

logical outgrowth of the Ancillary 

Services Refresh Public Notice. Indeed, 

absent such clarification, the 

Commission could not have responded 

fully to the D.C. Circuit’s directive to 

ascertain on remand whether ancillary 

service charges could be segregated 

between interstate and intrastate 

components. 

51. For the reasons stated herein, the 

Commission denies GTL’s petition on 

the merits and dismiss it as 

procedurally defective. 

IV. Severability 

52. All of the rules and policies that 

are adopted in the Commission’s Third 

Report and Order and this Order on 

Reconsideration are designed to ensure 

that rates for inmate calling services are 

just and reasonable while also fulfilling 

the Commission’s obligations under 

sections 201(b) and 276 of the Act. Each 

of the separate reforms the Commission 

undertakes here serves a particular 

function toward these goals. Therefore, 

it is the Commission’s intent that each 

of the rules and policies adopted herein 

shall be severable. If any of the rules or 

policies is declared invalid or 

unenforceable for any reason, the 

remaining rules shall remain in full 

force and effect. 

V. Procedural Matters 

53. People with Disabilities. The 

Commission asks 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. 

54. Congressional Review Act. The 

Commission will not send a copy of this 

Order on Reconsideration to Congress 

and the Government Accountability 

Office pursuant to the Congressional 

Review Act (CRA), see 5 U.S.C. 

801(a)(1)(A), because it does not adopt 

any rule as defined in the CRA, 5 U.S.C. 

804(3). 

55. Supplemental Final Regulatory 

Flexibility Act Analysis. As required by 

the Regulatory Flexibility Act of 1980, 

as amended (RFA), the Commission has 

prepared a Supplemental Final 

Regulatory Flexibility Analysis (FRFA) 

relating to the Order on 

Reconsideration. The FRFA is set forth 

below. 

56. Final Paperwork Reduction Act 

Analysis. The Order on Reconsideration 

does not contain new or modified 

information collection requirements 

subject to the Paperwork Reduction Act 

of 1995, Public Law 104–13. Therefore, 

it does not contain any new or modified 

information collection burdens for small 

business concerns with fewer than 25 

employees, pursuant to the Small 

Business Paperwork Relief Act of 2002, 

Public Law 107–198, see 44 U.S.C. 

3506(c)(4). 

VI. Supplemental Final Regulatory 

Flexibility Analysis 

A. Need for, and Objectives of, the 

Order on Reconsideration 

57. As required by the Regulatory 

Flexibility Act of 1980, as amended 

(RFA), an Initial Regulatory Flexibility 

Analysis (IRFA) was incorporated in the 

Second Further Notice of Proposed 

Rulemaking in the Commission’s Inmate 

Calling Services proceeding. The 

Commission sought written public 

comment on the proposals in that 

Notice, including comment on the IRFA. 

The Commission did not receive 

comments directed toward the IRFA. 

Thereafter, the Commission issued a 

Final Regulatory Flexibility Analysis 

(FRFA) conforming to the RFA. This 

Supplemental FRFA supplements that 

FRFA to reflect the actions taken in the 

Order on Reconsideration and conforms 

to the RFA. 

58. The Order on Reconsideration 

denies a Petition for Reconsideration of 

the 2020 ICS Order on Remand and 

reiterates that the jurisdictional nature 

of an inmate calling services telephone 

call depends on the physical location of 

the originating and terminating 

endpoints of the call. 

B. Summary of Significant Issues Raised 

by Public Comments in Response to the 

IRFA 

59. The Commission did not receive 

comments specifically addressing the 

rules and policies proposed in the IRFA. 


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C. Response to Comments by the Chief 

Counsel for Advocacy of the Small 

Business Administration 

60. The Chief Counsel did not file any 

comments in response to the proposed 

rules in this proceeding. 

D. Description and Estimate of the 

Number of Small Entities to Which 

Rules Will Apply 

61. 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 rules adopted herein. The RFA 

generally defines the term ‘‘small 

entity’’ as having the same meaning as 

the terms ‘‘small business,’’ ‘‘small 

organization,’’ and ‘‘small governmental 

jurisdiction.’’ In addition, the term 

‘‘small business’’ has the same meaning 

as the term ‘‘small business concern’’ 

under the Small Business Act. 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.’’ A ‘‘small business 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 Small Business 

Administration (SBA). 

62. Small Businesses. Nationwide, 

there are a total of approximately 27.9 

million small businesses, according to 

the SBA. 

63. Wired Telecommunications 

Carriers. The U.S. Census Bureau 

defines this industry as ‘‘establishments 

primarily engaged in operating and/or 

providing access to transmission 

facilities and infrastructure that they 

own and/or lease for the transmission of 

voice, data, text, sound, and video using 

wired communications networks. 

Transmission facilities may be based on 

a single technology or a combination of 

technologies. Establishments in this 

industry use the wired 

telecommunications network facilities 

that they operate to provide a variety of 

services, such as wired telephony 

services, including VoIP services, wired 

(cable) audio and video programming 

distribution, and wired broadband 

internet services. By exception, 

establishments providing satellite 

television distribution services using 

facilities and infrastructure that they 

operate are included in this industry.’’ 

The SBA has developed a small 

business size standard for Wired 

Telecommunications Carriers, which 

consists of all such companies having 

1,500 or fewer employees. U.S. Census 

Bureau data for 2012 show that there 

were 3,117 firms that operated that year. 

Of this total, 3,083 operated with fewer 

than 1,000 employees. The available 

U.S. Census Bureau data does not 

provide a more precise estimate of the 

number of firms that meet the SBA size 

standard. Thus, under this size 

standard, the majority of firms in this 

industry can be considered small. 

64. Local Exchange Carriers (LECs). 

Neither the Commission nor the SBA 

has developed a size standard for small 

businesses specifically applicable to 

local exchange services. The closest 

applicable NAICS Code category is 

Wired Telecommunications Carriers. 

Under the applicable SBA size standard, 

such a business is small if it has 1,500 

or fewer employees. U.S. Census Bureau 

data for 2012 show that there were 3,117 

firms that operated for the entire year. 

Of that total, 3,083 operated with fewer 

than 1,000 employees. Thus under this 

category and the associated size 

standard, the Commission estimates that 

the majority of local exchange carriers 

are small entities. 

65. Incumbent Local Exchange 

Carriers (incumbent LECs). Neither the 

Commission nor the SBA has developed 

a small business size standard 

specifically for incumbent local 

exchange services. The closest 

applicable NAICS Code category is 

Wired Telecommunications Carriers. 

Under the applicable SBA size standard, 

such a business is small if it has 1,500 

or fewer employees. U.S. Census Bureau 

data for 2012 indicate that 3,117 firms 

operated the entire year. Of this total, 

3,083 operated with fewer than 1,000 

employees. The available U.S. Census 

Bureau data does not provide a more 

precise estimate of the number of firms 

that meet the SBA size standard. 

Consequently, the Commission 

estimates that most providers of 

incumbent local exchange service are 

small businesses that may be affected by 

its actions. According to Commission 

data, one thousand three hundred and 

seven (1,307) Incumbent Local 

Exchange Carriers reported that they 

were incumbent local exchange service 

providers. Of this total, an estimated 

1,006 have 1,500 or fewer employees. 

Thus, using the SBA’s size standard the 

majority of incumbent LECs can be 

considered small entities. 

66. The Commission has included 

small incumbent LECs in this present 

RFA analysis. As noted above, a ‘‘small 

business’’ under the RFA is one that, 

inter alia, meets the pertinent small 

business size standard (e.g., a telephone 

communications business having 1,500 

or fewer employees), and ‘‘is not 

dominant in its field of operation.’’ The 

SBA’s Office of Advocacy contends that, 

for RFA purposes, small incumbent 

LECs are not dominant in their field of 

operation because any such dominance 

is not ‘‘national’’ in scope. The Small 

Business Act contains a definition of 

‘‘small business concern,’’ which the 

RFA incorporates into its own definition 

of ‘‘small business.’’ See 15 U.S.C. 

632(a); see also 5 U.S.C. 601(2). SBA 

regulations interpret ‘‘small business 

concern’’ to include the concept of 

dominance on a national basis. See 13 

CFR 121.102(b). The Commission has 

therefore included small incumbent 

LECs in this RFA analysis, although it 

emphasizes that this RFA action has no 

effect on Commission analyses and 

determinations in other, non-RFA 

contexts. 

67. Competitive Local Exchange 

Carriers (Competitive LECs), 

Competitive Access Providers (CAPs), 

Shared-Tenant Service Providers, and 

Other Local Service Providers. Neither 

the Commission nor the SBA has 

developed a small business size 

standard specifically for these service 

providers. The appropriate NAICS Code 

category is Wired Telecommunications 

Carriers and under that size standard, 

such a business is small if it has 1,500 

or fewer employees. U.S. Census Bureau 

data for 2012 indicate that 3,117 firms 

operated during that year. Of that 

number, 3,083 operated with fewer than 

1,000 employees. The available U.S. 

Census Bureau data does not provide a 

more precise estimate of the number of 

firms that meet the SBA size standard. 

Based on these data, the Commission 

concludes that the majority of 

Competitive LECS, CAPs, SharedTenant Service Providers, and Other 

Local Service Providers, are small 

entities. According to Commission data, 

1,442 carriers reported that they were 

engaged in the provision of either 

competitive local exchange services or 

competitive access provider services. Of 

these 1,442 carriers, an estimated 1,256 

have 1,500 or fewer employees. In 

addition, 17 carriers have reported that 

they are Shared-Tenant Service 

Providers, and all 17 are estimated to 

have 1,500 or fewer employees. Also, 72 

carriers have reported that they are 

Other Local Service Providers. Of this 

total, 70 have 1,500 or fewer employees. 

Consequently, based on internally 

researched FCC data, the Commission 

estimates that most providers of 

competitive local exchange service, 


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competitive access providers, SharedTenant Service Providers, and Other 

Local Service Providers are small 

entities. The Commission has included 

small incumbent LECs in this present 

RFA analysis. As noted above, a ‘‘small 

business’’ under the RFA is one that, 

inter alia, meets the pertinent small 

business size standard (e.g., a telephone 

communications business having 1,500 

or fewer employees), and ‘‘is not 

dominant in its field of operation.’’ The 

SBA’s Office of Advocacy contends that, 

for RFA purposes, small incumbent 

LECs are not dominant in their field of 

operation because any such dominance 

is not ‘‘national’’ in scope. The 

Commission has therefore included 

small incumbent LECs in this RFA 

analysis, although it emphasizes that 

this RFA action has no effect on 

Commission analyses and 

determinations in other, non-RFA 

contexts. 

68. Interexchange Carriers (IXCs). 

Neither the Commission nor the SBA 

has developed a small business size 

standard specifically for Interexchange 

Carriers. The closest applicable NAICS 

Code category is Wired 

Telecommunications Carriers. The 

applicable size standard under SBA 

rules is that such a business is small if 

it has 1,500 or fewer employees. U.S. 

Census Bureau data for 2012 indicate 

that 3,117 firms operated for the entire 

year. Of that number, 3,083 operated 

with fewer than 1,000 employees. The 

available U.S. Census Bureau data does 

not provide a more precise estimate of 

the number of firms that meet the SBA 

size standard. According to internally 

developed Commission data, 359 

companies reported that their primary 

telecommunications service activity was 

the provision of interexchange services. 

Of this total, an estimated 317 have 

1,500 or fewer employees. 

Consequently, the Commission 

estimates that the majority of 

interexchange service providers are 

small entities. 

69. Local Resellers. The SBA has 

developed a small business size 

standard for the category of 

Telecommunications Resellers. Under 

that size standard, such a business is 

small if it has 1,500 or fewer employees. 

According to Commission data, 213 

carriers have reported that they are 

engaged in the provision of local resale 

services. Of these, an estimated 211 

have 1,500 or fewer employees and two 

have more than 1,500 employees. 

Consequently, the Commission 

estimates that the majority of local 

resellers are small entities that may be 

affected by the Commission’s action. 

70. Toll Resellers. The SBA has 

developed a small business size 

standard for the category of 

Telecommunications Resellers. Under 

that size standard, such a business is 

small if it has 1,500 or fewer employees. 

According to Commission data, 881 

carriers have reported that they are 

engaged in the provision of toll resale 

services. Of these, an estimated 857 

have 1,500 or fewer employees and 24 

have more than 1,500 employees. 

Consequently, the Commission 

estimates that the majority of toll 

resellers are small entities that may be 

affected by the Commission’s action. 

71. Other Toll Carriers. Neither the 

Commission nor the SBA has developed 

a size standard for small businesses 

specifically applicable to Other Toll 

Carriers. This category includes toll 

carriers that do not fall within the 

categories of interexchange carriers, 

operator service providers, prepaid 

calling card providers, satellite service 

carriers, or toll resellers. The closest 

applicable size standard under SBA 

rules is for Wired Telecommunications 

Carriers. Under that size standard, such 

a business is small if it has 1,500 or 

fewer employees. According to 

Commission data, 284 companies 

reported that their primary 

telecommunications service activity was 

the provision of other toll carriage. Of 

these, an estimated 279 have 1,500 or 

fewer employees and five have more 

than 1,500 employees. Consequently, 

the Commission estimates that most 

Other Toll Carriers are small entities 

that may be affected by the 

Commission’s action. 

72. Payphone Service Providers 

(PSPs). Neither the Commission nor the 

SBA has developed a small business 

size standard specifically for payphone 

services providers, a group that includes 

inmate calling services providers. The 

appropriate size standard under SBA 

rules is for the category Wired 

Telecommunications Carriers. Under 

that size standard, such a business is 

small if it has 1,500 or fewer employees. 

According to Commission data, 535 

carriers have reported that they are 

engaged in the provision of payphone 

services. Of these, an estimated 531 

have 1,500 or fewer employees and four 

have more than 1,5000 employees. 

Consequently, the Commission 

estimates that the majority of payphone 

service providers are small entities that 

may be affected by the Commission’s 

action. 

73. TRS Providers. TRS can be 

included within the broad economic 

category of All Other 

Telecommunications. Ten providers 

currently receive compensation from the 

TRS Fund for providing at least one 

form of TRS: ASL Services Holdings, 

LLC (GlobalVRS); Clarity Products, LLC 

(Clarity); ClearCaptions, LLC 

(ClearCaptions); Convo 

Communications, LLC (Convo); 

Hamilton Relay, Inc. (Hamilton); 

MachineGenius, Inc. (MachineGenius); 

MEZMO Corp. (InnoCaption); Sorenson 

Communications, Inc. (Sorenson); 

Sprint Corporation (Sprint); and ZP 

Better Together, LLC (ZP Better 

Together). 

74. All Other Telecommunications. 

The ‘‘All Other Telecommunications’’ 

category is comprised of establishments 

primarily engaged in providing 

specialized telecommunications 

services, such as satellite tracking, 

communications telemetry, and radar 

station operation. This industry also 

includes establishments primarily 

engaged in providing satellite terminal 

stations and associated facilities 

connected with one or more terrestrial 

systems and capable of transmitting 

telecommunications to, and receiving 

telecommunications from, satellite 

systems. Establishments providing 

internet services or voice over internet 

protocol (VoIP) services via clientsupplied telecommunications 

connections are also included in this 

industry. The SBA has developed a 

small business size standard for All 

Other Telecommunications, which 

consists of all such firms with annual 

receipts of $35 million or less. For this 

category, U.S. Census Bureau data for 

2012 show that there were 1,442 firms 

that operated for the entire year. Of 

those firms, a total of 1,400 had annual 

receipts less than $25 million and 15 

firms had annual receipts of $25 million 

to $49,999,999. Thus, the Commission 

estimates that the majority of ‘‘All Other 

Telecommunications’’ firms potentially 

affected by its action can be considered 

small. Under this category and the 

associated small business size standard, 

a majority of the ten TRS providers can 

be considered small. 

E. Description of Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements for Small Entities 

75. The Order on Reconsideration 

confirms that providers must properly 

identify the physical location of the 

originating and terminating endpoints of 

the call in order to determine the 

jurisdictional nature of the call. To the 

extent those services are interstate, 

international, or jurisdictionally mixed, 

the provider must comply with interim 

interstate and international inmate 

calling services caps or limits adopted 

by the Commission. 


khammond on DSKJM1Z7X2PROD with RULES
Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Rules and Regulations 40353 

F. Steps Taken To Minimize the 

Significant Economic Impact on Small 

Entities, and Significant Alternatives 

Considered 

76. The RFA requires an agency to 

describe any significant, specifically 

small business, 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.’’ 

77. The Commission’s rate caps 

differentiate between prisons, larger 

jails, and jails with average daily 

populations below 1,000 to account for 

differences in costs incurred by 

providers servicing these different 

facility types. The Commission adopts 

new interim interstate provider-related 

rate caps for prisons and larger jails and 

for collect calls from jails with average 

daily populations below 1,000. The 

Commission believes these actions 

properly recognize that, in comparison 

to prisons and larger jails, jails with 

average daily populations below 1,000 

may be relatively high-cost facilities for 

providers to serve. The Commission also 

adopts rate caps for international calls 

originating from facilities of any size. 

78. The Commission adopts new 

interim interstate facility-related rate 

components for prisons and larger jails 

to allow providers to recover portions of 

site commission payments estimated to 

be directly related to the provision of 

inmate calling services and to separately 

list these charges on consumers’ bills. 

Providers must determine whether a site 

commission payment is either (1) 

mandated pursuant to state statute, or 

law or regulation and adopted pursuant 

to state administrative procedure 

statutes where there is notice and an 

opportunity for public comment that 

operates independently of the 

contracting process between 

correctional institutions and providers 

(Legally Mandated facility rate 

component), or (2) results from 

contractual obligations reflecting 

negotiations between providers and 

correctional facilities arising from the 

bidding and subsequent contracting 

process (the Contractually Prescribed 

facility rate component). For Legally 

Mandated site commission payments, 

providers may pass these payments 

through to consumers without any 

markup, as an additional component of 

the new interim interstate per-minute 

rate cap. For Contractually Prescribed 

site commission payments, providers 

may recover an amount up to $0.02 per 

minute to account for these costs. To 

promote increased transparency, the 

Third Report and Order requires 

providers to clearly label a Legally 

Mandated or Contractually Prescribed 

facility rate component, as applicable, 

in the rates and charges portion of a 

consumer’s bill, including disclosing 

the source of such provider’s obligation 

to pay that facility-related rate 

component. 

79. The Commission recognizes that it 

cannot foreclose the possibility that in 

certain limited instances, the interim 

rate caps may not be sufficient for 

certain providers to recover their costs 

of providing interstate and international 

inmate calling services. To minimize the 

burden on providers, the Commission 

adopts a waiver process that allows 

providers to seek relief from its rules at 

the facility or contract level if they can 

demonstrate that they are unable to 

recover their legitimate inmate calling 

services-related costs at that facility or 

for that contract. The Commission will 

review submitted waivers and 

potentially raise each applicable rate 

cap to a level that enables the provider 

to recover the costs of providing inmate 

calling services at that facility. This 

waiver opportunity should benefit any 

inmate calling services providers that 

may be small businesses and that are 

unable to recover their interstate and 

international costs under the new 

interim rate caps. 

G. Report to Congress 

80. The Commission will send a copy 

of the Third Report and Order and 

Order on Reconsideration, including 

this Supplemental FRFA, in a report to 

be sent to Congress pursuant to the 

Small Business Regulatory Enforcement 

Fairness Act of 1996. In addition, the 

Commission will send a copy of the 

Order on Reconsideration, including 

this Supplemental FRFA, to the Chief 

Counsel for Advocacy of the Small 

Business Administration. A copy of the 

Order on Reconsideration, and 

Supplemental FRFA (or summaries 

thereof) will also be published in the 

Federal Register. 

VII. Ordering Clauses 

81. Accordingly, it is ordered that, 

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, this Order on Reconsideration is 

adopted. 

82. It is further ordered that, 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, the Petition for Reconsideration, 

filed November 23, 2020, by Global 

Tel*Link Corp. is denied in full and 

dismissed in part as described herein. 

83. It is further ordered that the 

Commission’s Consumer and 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

this Order on Reconsideration, 

including the Supplemental Final 

Regulatory Flexibility Analyses, to the 

Chief Counsel for Advocacy of the Small 

Business Administration. 

Federal Communications Commission. 

Marlene Dortch, 

Secretary. 

[FR Doc. 2021–14729 Filed 7–27–21; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 210723–0150] 

RIN 0648–BK24 

Magnuson-Stevens Fishery 

Conservation and Management Act 

Provisions; Fisheries of the 

Northeastern United States; Northeast 

Multispecies Fishery; Framework 

Adjustment 61 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: This action approves and 

implements Framework Adjustment 61 

to the Northeast Multispecies Fishery 

Management Plan. This rule revises the 

status determination criteria for Georges 

Bank and Southern New England-Mid 

Atlantic winter flounder, implements a 

revised rebuilding plan for white hake, 

sets or adjusts catch limits for 17 of the 

20 multispecies (groundfish) stocks, and 

implements a universal exemption for 

sectors to target Acadian redfish. This 

action is necessary to respond to 

updated scientific information and to 


khammond on DSKJM1Z7X2PROD with RULES