Michael S. Hamden
Attorney, Counselor at Law
& Corrections Consultant
1612 Homestead Road
Chapel Hill, NC 27516
(919) 605 – 2622
Michael.Hamden@yahoo.com
28 October 2008
Marlene H. Dortch, Secretary
Federal Communications Commission
445 12th Street, SW – TW – A325
Washington, DC 20554

Re: Ex Parte Presentation (via Electronic Filing)
CC Docket No. 96-128; DA 03-4027

Dear Ms. Dortch:

Respectfully submitted herewith, please find an Ex Parte Presentation which briefly recaps
the history of this proceeding, the scope of the problem which is central to the dispute, the positions
of the parties, the inability of state utilities commissions to address abuses of national scope, the
plenary jurisdiction and authority of the Federal Communications Commission over this matter, and
a proposal for a comprehensive resolution of this intractable challenge.
To more fully outline this proposal, one might observe that information presently before the
Commission suggests that it may be possible to reconcile the positions of Petitioners and at least
seven of the eight prison phone service providers with regard to rates for prison telephone calls.
This result can be accomplished should the FCC: (1) establish a comprehensive, fair rate
(derived from the lower rates outlined in the report, “Inmate Calling Services - Interstate Call Cost
Study”) for (2) all intra-state and inter-state (3) prisoner collect, pre-paid, and debit telephone calls
that (4) covers legitimate costs, (5) provides a reasonable rate of return to prison phone providers,
(6) eliminates “commissions,” (7) forecloses alternative means to unjustifiably inflate the cost of
prisoner phone calls, and (8) defers to state public utilities commissions to address requested cost
adjustments. In this way, prison phone providers will receive fair and reasonable rates on the widest
possible range of prisoner-initiated telephone calls, while consumers are treated fairly rather than
being exploited, as they are under the existing hodge-podge of various and inconsistent regulations.

Marlene H. Dortch, Secretary
28 October 2008
Page 2

I submit this Presentation in accordance with Section 1.1206 of the Commission’s Rules for
inclusion in the record of this proceeding. Thank you for your attention to this matter. Please let me
know if you have any questions, or if I can otherwise be of service. With all best wishes in the
meantime, I am,
Sincerely yours,

Michael S. Hamden

Courtesy Copies Via Email To:
Amy Bender
amy.bender@fcc.gov

Pamela Arluk
pamela.arluk@fcc.gov

Penny Nance
penny.nance@fcc.gov

Randy Clark
randy.clark@fcc.gov

Scott Bergmann
scott.bergmann@fcc.gov

Lynne Engledow
lynne.engledow@fcc.gov

Scott Duetchman
scott.duetchman@fcc.gov

Doug Galbi
douglas.galbi@fcc.gov

John Hunter
john.hunter@fcc.gov

Marcus Maher
marcus.maher@fcc.gov
Darryl Cooper
darryl.cooper@fcc.gov

Chris Moore
chris.moore@fcc.gov
Dana Shaffer
dana.shaffer@fcc.gov
Albert Lewis
albert.lewis@fcc.gov

DECLARATION OF MICHAEL S. HAMDEN
I declare under penalty of perjury that the information contained in the following Ex Parte
Presentation is true, accurate, and complete to the best of my knowledge and belief formed after
reasonable inquiry.
This 29th day of October 2008.

_________________________
Michael S. Hamden
NC Bar # 12752
1612 Homestead Road
Chapel Hill, NC 27516
(919) 605 – 2622
M2007Hamden@cs.com
www.HamdenConsulting.com

Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554

In the Matter of

)
)
Implementation of the Pay Telephone
)
Reclassification and Compensation
)
Provisions of the Telecommunications
)
Act of 1996
)
)
Petition for Rulemaking or, in the
)
Alternative, Petition to Address Referral )
Issues In Pending Rulemaking
)

CC Docket No. 96-128

DA 03-4027

WRITTEN EX PARTE PRESENTATION OF MICHAEL S. HAMDEN ON
ALTERNATIVE RULEMAKING PROPOSAL REGARDING INMATE CALLING SERVICES

Michael S. Hamden
NC State Bar #12752
1612 Homestead Road
Chapel Hill, NC 27516
(919) 605 - 2622
Michael.Hamden@HamdenConsulting.com

Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554

In the Matter of

)
)
Implementation of the Pay Telephone
)
Reclassification and Compensation
)
Provisions of the Telecommunications
)
Act of 1996
)
)
Petition for Rulemaking or, in the
)
Alternative, Petition to Address Referral )
Issues In Pending Rulemaking
)

CC Docket No. 96-128

DA 03-4027

TABLE OF CONTENTS
WRITTEN EX PARTE PRESENTATION OF MICHAEL S. HAMDEN ON
ALTERNATIVE RULEMAKING PROPOSAL REGARDING INMATE CALLING SERVICES
I.

Summary of A Proposed Resolution of This Proceeding ………………………p.1

II.

Brief Recapitulation of the History of this Proceeding …………………………p.2

III.

A Growing Problem: …………………………….………………………………..p.3
A. Florida
B. Washington …..……………………………………………………………p.4
C. Maine
D. Alabama ….…………………………..…………………………………….p.5
E. New Mexico (1.)
(2.) …………………………………………………..…….....p.6
F. North Carolina ……………………………………………………...……..p.7
G. Other States
State Utilities Commissions are Unable to Regulate A Nationwide Industry
A. The Wood Report ………………………………………………….……p.8
B. A COMPARISON OF
WRIGHT ALTERNATIVE PETITION PROPOSED RATES WITH
PRISONER PHONE INDUSTRY COST STUDY RATES ……………….…….p.9
General Conclusion ……………………………………………………………...p.11
Jurisdiction ……………………………………………………….………………p.12
Proposal for Comprehensive Resolution of This Proceeding …………………p.13
A. A comprehensive approach is required.
B. Commissions must be eliminated.
C. The FCC must close potential loopholes. ………………………………p.14
D. Prison phone providers must continue to be viable businesses. ...……p.15

IV.

V.
VI.
VII.

CC Docket No. 96-128
Ex Parte – Table of Contents
VII. Proposal (continued)
E. The Commission should require debit calling and other calling options
consistent with sound correctional practices and security concerns,
including pre-paid, debit, and collect calls. ………………..…………..p.15
F. Other affected interests, though their concerns be genuine, are not
relevant to this proceeding. ……………………………………………..p.16
G. Revenue derived from prison telephone contracts is generated from the
imposition of a hidden and unjust tax upon vulnerable people to benefit
the public and should be disallowed as a matter of principle.
H. Revenue derived from prison telephone contracts by correctional
facilities and agencies are generated from the imposition of a hidden and
unjust tax upon vulnerable people to benefit the public and should be
disallowed as a matter of principle. ……………………………..…...…p.17
I. Telephone privileges for prisoners are premised upon sound correctional
policies regarding security and are permitted only to the extent that such
concerns are met. ..………………………………………….……..…….p.18
J. Fraud can best be reduced, and security can best be enhanced by
adopting a comprehensive approach to rate-setting in the prison phone
context. ……...……………………………………………………………p.20
ULTIMATE CONCLUSION & PROPOSED RESOLUTION ……………..…………………p.21
ATTACHMENTS
1.
2.
3.
4.
5.
6.

AMERICAN BAR ASSOCIATION POLICY REGARDING PRISONER ACCESS TO
TELEPHONES
AMERICAN CORRECTIONAL ASSOCIATION POLICY REGARDING OFFENDER/JUVENILE
ACCESS TO TELEPHONES
AMERICAN CORRECTIONAL ASSOCIATION STANDARD & COMMENT REGARDING
OFFENDER/JUVENILE ACCESS TO TELEPHONES
ASSOCIATION OF STATE CORRECTIONAL ADMINISTRATORS RESOLUTION REGARDING
TELECOMMUNICATIONS ACCESS FOR INMATES
NATIONAL ASSOCIATION OF SHERIFFS’ RESOLUTION REGARDING PRISONER
TELEPHONES
NATIONAL ASSOCIATION OF STATE UTILITY CONSUMER ADVOCATES RESOLUTION
2006-02, “FAIR RATES FOR CALLS FROM INMATES OF CORRECTIONAL INSTITUTIONS”

Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554

In the Matter of

)
)
Implementation of the Pay Telephone
)
Reclassification and Compensation
)
Provisions of the Telecommunications
)
Act of 1996
)
)
Petition for Rulemaking or, in the
)
Alternative, Petition to Address Referral )
Issues In Pending Rulemaking
)

CC Docket No. 96-128

DA 03-4027

WRITTEN EX PARTE PRESENTATION OF MICHAEL S. HAMDEN ON
ALTERNATIVE RULEMAKING PROPOSAL REGARDING INMATE CALLING SERVICES
Having previously appeared in this proceeding on behalf of North Carolina
Prisoner Legal Services, a nonprofit inmate advocacy group, the undersigned submits
these comments as a private practitioner with more than 23 years of experience
representing prisoners in a variety of matters, including issues pertaining to prison pay
telephones.
I. Summary of A Proposed Resolution of This Proceeding
In light of information presently before the Federal Communications Commission
(FCC), it seems possible to reconcile the positions of Petitioners and at least seven of the
eight prison phone service providers with regard to rates for prison telephone calls. Thus,
the FCC should: (1) establish a comprehensive, fair rate (derived from the lower rates
outlined in the report, “Inmate Calling Services - Interstate Call Cost Study”) for (2) all
intra-state and inter-state (3) prisoner collect, pre-paid, and debit telephone calls that (4)
covers legitimate costs, (5) provides a reasonable rate of return to prison phone providers,
(6) eliminates “commissions,” (7) forecloses alternative means to unjustifiably inflate the

cost of prisoner phone calls, and (8) defers to state public service commissions to address
requested cost adjustments – all toward the end of providing fair and reasonable rates on
the widest possible range of prisoner-initiated telephone calls.
II. Brief Recapitulation of the History of This Proceeding
In 2000, Martha Wright and others filed suit in the Federal District Court for the
District of Columbia raising claims that rates on long-distance calls that originated from
three privately operated correctional facilities violated sections of the Constitution; the
Telecommunications Act, 47 U.S.C. § 151, et seq; and the Sherman Anti-Trust Act, 15
U.S.C. § 1, et seq., among other laws.

The District Court found that the Federal

Communications Commission (FCC) had the requisite expertise to address these claims;
that, indeed, the Commission was then grappling with related issues [Implementation of
the

Pay

Telephone

Reclassification

and

Compensation

Provisions

of

the

Telecommunications Act of 1996, CC Docket No. 96-128 (DA 93-4027)]; and that the
matter would be referred to the FCC under the “primary jurisdiction” doctrine. Wright, et
al. v. Corrections Corp., et al., 1:00-cv-00293-GK (Memorandum & Order filed 22
August 2001, DC Cir.)
In November 2003, Martha Wright and other petitioners filed their first petition
for rulemaking in the FCC to seek relief from anticompetitive practices concerning
collect calls placed by people incarcerated in private prisons. The petition asked the
Commission to: (i) “prohibit exclusive inmate calling service agreements and collect callonly restrictions at privately-administered prisons and require such facilities to permit
multiple long distance carriers to interconnect with prison telephone systems,” and (ii)

“require inmate service providers to offer debit card or debit account service as an
alternative to collect calling services.” 1 The Commission has not ruled on that petition.
On 1 March 2007, Martha Wright and other petitioners filed an alternative
proposal, in which they renewed their request for the Commission to provide relief from
the “exorbitant rates,” per-call charges, and poor service associated with long-distance
calls from private prisons. 2 Petitioners requested that, if the Commission did not grant
their earlier request for relief, then the Commission should, alternatively, provide relief
from the costs of long-distance collect calls from prisoners by: (i) establishing benchmark
rates for those calls (at a maximum of $0.20 per minute for debit calling and $0.25 per
minute for collect calling, with no per-call charge, and with higher benchmarks for
providers offering prisoners a specified minimum amount of calling services free of
charge), and (ii) requiring prison telephone service providers to allow debit calling from
prison. 3
Since March 2007, many comments have been filed, along with studies and the
affidavits of industry experts. It is one of those studies that is central to this comment,
and which may provide grounds for a comprehensive resolution of excessive rates for
phone calls of all relevant types originating in every correctional facility.
III. A Growing Problem
A. Florida
Over the last decade, the states have been confronted by these issues with
increasing frequency. For example, presently pending in Florida is an investigation of a
prison phone provider believed to have prematurely disconnected calls that were
1
2
3

Wright Petition at 3-4.
Alternative Wright Petition at 8.
Alternative Wright Petition at 2.

purportedly but inaccurately detected as 3-way calls, costing consumers an estimated
$6.3 million over a four-year period. This abusive practice is alleged to have occurred in
at least one Florida correctional facility, the Miami-Dade County Detention Center. In
addition to restitution with interest, public staff has recommended a fine in excess of
$1.25 million.

“Compliance investigation of TCG Public Communications, Inc.”

(Docket No. 060614-TC).
B. Washington
In a recent Washington State investigation, telephone service provider AT&T
overcharged families $67,295 for more than 29,000 calls placed from only two
correctional facilities over a four month period in 2005. AT&T agreed to reimburse the
families and friends of Washington prisoners in a settlement agreed on 13 December
2007. AT&T will also pay $302,705 in fines levied by the Washington Utilities and
Transportation Commission. (Docket No. UT-060962).
C. Maine
Maine saw the vast profits that prison phone services generate and set up its own
operation. The Department charges 30¢ per minute, an amount it admitted is far in
excess of actual costs.

On 23 June 2008, the Maine Public Utilities Commission

determined that is has jurisdiction over the Maine Department of Corrections telephone
system and planned to open rate proceedings. The decision was made official on 1
August 2008 and is presently on appeal to the State Supreme Court. Maine v. Pierce, et
al., ME S.Ct. Docket No. 2007-467 (20 August 2008)(Utilities Commission Docket No.
PUC-08-456).

D. Alabama
In Docket No. 30632, the Alabama Public Service Commission conducted a
general proceeding to determine the applicability to inmate phone service providers of the
state’s Communications Reform Act of 2005. Title 37, Code of Alabama, Chapter 2A, §
37-2A-1, et seq. Three service providers claimed the act applied and that they were free
to charge what they chose for prisoner calls. One provider acceded to the position of
Public Staff that the prison phone providers are subject to regulation.
Ultimately, the Commission concluded that it retains jurisdiction over inmate
phone service providers who are subject to all previously issued Orders and Rules. Order
of 10 March 2008 (Docket No. 30632).
On 10 June 2008 the Alabama Public Service Commission issued an Order in
Docket No. 15957 seeking comments on the Public Staff’s proposed rule revisions and
rates for Inmate Phone Service (“IPS”). The proposed rates for collect calls are: $2.25
(“set-up” charge) + 50¢ per minute for local calls and $2.25 + 30¢ per minute for toll
calls. Obviously, these rates seem far in excess of actual costs and a reasonable rate of
return.
E.1. New Mexico
There are also two related proceedings in New Mexico. On 25 July 2007, the
New Mexico Public Staff petitioned the Commission to make an inquiry into the rates
charged by prison phone providers in the state. The Commission issued a Notice of
Inquiry on 31 July 2007 in Case No. 07-00316-UT.
On May 13, 2008, the Commission consolidated two previous protests of
proposed tariff changes (T-Netix Telecommunications Services, Inc., Case No. 08-

00142-UT, and Case No. 08-00143-UT – Evercom Systems, Inc.) with Case No. 0700316-UT described above. This inquiry will now include a review of prison phone
provider costs for all rates, including any fees charged to open accounts or to make
payments.
Actually, three kinds of non-tariffed fees are at issue –service fees (charged to
customers setting up an account for the first time), “recharge fees” (billed when a
customer reopens an account), and processing fees – imposed either by a service provider
or a third party business – for processing a customer’s payment.
On 3 July 2008, an Order issued in Case No. 07-00316-UT (Document #1048477)
that required the inmate phone service providers to: 1) file all cost information related to
all of their existing or proposed rates, charges, or fees; 2) participate in a status
conference at the Commission’s offices to discuss the cost data and scheduling matters;
and 3) that allowed the Evercom and T-Netix processing fees to go into effect, subject to
refund.
E.2. New Mexico
On 6 December 2007, the Commission issued an Order to Show Cause against
Public Communications Services, Inc. (PSC), Case No. 07-00442-UT, regarding
untariffed fees charged “each time the customer sets up or recharges a prepaid service
account.” These charges were not disclosed to or approved by the PSC.
Again, three kinds of non-tariffed fees are at issue – “recharge fees” (billed when
a customer reopens an account), service fees (charged to customers setting up an account
for the first time), and processing fees – imposed either by a service provider or a third
party business – for processing a customer’s payment.

In a 13 May 2008 order, the Commission expanded the investigation to include all
prison phone providers operating in New Mexico. This is an enforcement proceeding to
“investigate any instance where any ICS provider imposed a charge that is not tariffed.”
F. North Carolina
A result much more favorable to the prison telephone industry was achieved
when, on 1 May 2008, the North Carolina Utilities Commission ruled in favor of
providers of prisoner telephone services, allowing the companies to charge higher
telephone rates to the friends and families of prisoners for local collect calls. Initially,
petitioners sought waiver of a rule which limited the rates. The petition was supported by
the Public Utilities Commission Staff with a recommendation that instead of waiver, the
rule should be modified pending publication and an opportunity for public comment.
Unsuccessfully challenging the waiver request, the increased rates, and the proposed rule
as revised by Public Staff, was North Carolina Prisoner Legal Services, a nonprofit
organization that provides legal advice and assistance to prisoners.
As in other cases, higher rates for prisoner-initiated telephone calls in North
Carolina are driven by “commissions” paid to correctional facilities or agencies in
exchange for the right to provide exclusive telephone services, thus creating a monopoly.
This practice conveys an appearance of impropriety and will bring the corrections
profession into disrepute as the matter gains greater notoriety.
G. Other States
Meanwhile, other states have made serious efforts to put a stop to the abuses. For
instance, Missouri, New York, and Michigan have significantly reduced prison telephone
rates and commissions. And in one state, Nebraska, correctional officials have simply

refused to accept any commission, preferring instead to choose prison phone services on
the basis of quality of service, responsiveness, and other such ordinary consumer
concerns. Thus, it is clear that prison telephone services can be provided without the
payment of any commissions, exaggerated protestations regarding compromises to
security and diminished access to prisoner phones notwithstanding.
IV. State Utilities Commissions are Unable to Regulate A Nationwide Industry
This patchwork of widely varying regulatory approaches and outcomes
demonstrate that a national framework is sorely needed. Lacking authority to act beyond
its borders, state utilities commissions are simply unable to reign-in the abuses of a
nationwide prison telephone industry. These state utilities commissions would greatly
benefit from oversight of the industry by, and guidance from the Federal
Communications Commission. 4
A. The Wood Report Cost Data Illustrate the Magnitude of the Problem
And Support Expansion of the Petitioners’ Request
A report was prepared using the FCC’s “marginal location analysis,” which is
designed to “cover costs and provide a reasonable return at a break-even location with no
commission.” Don J. Wood, “Inmate Calling Services – Interstate Call Cost Study”
(filed 15 August 2008)(hereafter, Wood Report). A 2002 ruling of the FCC prohibited
4

In 2006, the National of State Utility Consumer Advocates (NACUSA) adopted the following resolution:

[R]esolved that NASUCA urges states, the Federal Communications Commission and the U.S. Congress
under their proper jurisdictions to take action to reform inmate telephone rates by:
1.
Ensuring that the price of calls from inmates are just and reasonable, and
2.
Discouraging or reducing “commissions” paid by telephone companies to
correctional institutions, and
3.
Encouraging the use of prepaid debit accounts for inmates whereby inmates or
their called parties may buy low-cost minutes, and
4.
Continuing to allow collect calls from inmates but at rates that are just and
reasonable . . ..
The National of State Utility Consumer Advocates Resolution 2006 – 2.

the use of commissions as an element of costs. Order on Remand & Notice of Proposed
Rulemaking, FCC 02-39, ¶ 15, p. 8, and ¶ 38, p. 15 (CC Docket No. 96-128, 21 February
2002). Rather, commissions are negotiable allocations of profits between the correctional
facility (or “site locations”) and the prison phone service provider. Id. See also, Second
Report & Order, FCC 97-371 (CC Docket No. 96-128, 9 October 1999); and Third
Report & Order, FCC 99-7, ¶ 156 (CC Docket No. 96-128, 4 February 1999).
B. A COMPARISON OF
WRIGHT ALTERNATIVE PETITION PROPOSED RATES WITH
PRISONER PHONE INDUSTRY COST STUDY RATES
The “benchmark rates” proposed by the Wright Alternative Petition (20¢/minute
for debit-card calls and 25¢/minute for collect calls, with no per call/fixed cost charge)
are listed first in each category of the following chart.
The Wood Report “Cost Study Rates,” filed on behalf of certain members of the
prison phone service industry on 15 August 2008, appear as the second listing under each
category below.
In the chart that follows, costs for calls of various durations are compared using
the Wright “benchmark” proposal and the Wood Report prison phone service provider
cost determination.

Chart A 5
Per
Minute

10 Minutes

15 Minutes

20
Minutes

$.25

$2.50

$3.75

$5.00 6

$.07 =

$3.19

$3.54

$3.89 7

$.20

$2.00

$3.00

$4.00

$.06 =

$2.16

$2.46

$2.76

Inter-State Call

Inter-State Collect Call Rates
Per
Surcharge Minute
10 Minutes

15 Minutes

20
Minutes

Evercom Systems
Inc. 4/1/08 Tariff 8

$3.95

$17.30

$21.75

Type of Call

Fixed
Cost

Wright Collect Rate
PPS Collect Call

$2.49 +

Wright Debit Rate
PPS Debit Call

$1.56 +

OTHER RELEVANT DATA
Chart B1
Current Prison Phone Service Rates

$.89

$12.85

Chart B2
Current Prison Phone Service Tariffed Rates
50 State Average Intra-lata Collect Call Rates
10 Minutes 15 Minutes
Intra-lata call: Long distance calls inside
the state, near the local calling area

5

$5.42

$6.71

20 Minutes
$8.00

The Wright Petitioners’ proposed rates of $.20/minute for debit and $.25/minute for collect calls are
based on the comparative costs of 20 minute collect calls in particular prisons and prison systems. Wright
Alternative Rulemaking Proposal, pp. 20 – 22 (“composite” collect rates). None the less, costs for 10, 15,
and 20 minute calls have been calculated using the Wright Petitioners’ proposed rates. Beginning with
calls of about 14 minutes, the Wright Petitioners’ proposed rates begin to exceed those proposed in the
Wood Study.
6
See fn. 5, supra.
7
It should be noted that the figures that appear in the PPS rates represent the lower of two cost calculations
made by Mr. Don Wood, an industry expert retained by seven of the eight prison phone service providers
involved in the Wright Proceeding.
8
The inter-state rates charged by Evercom Systems, Inc., are believed to be representative of the rates
charged by the Prison Phone Service Industry.

Chart B3
Current Prison Phone Service Tariffed Rates
50 State Average Inter-lata Collect Call Rates
10 Minutes 15 Minutes
Inter-lata call: Long distance calls inside
the state, further from the local calling area

$8.64

$11.14

20 Minutes
$13.68

Chart B4
Current Prison Phone Service Tariffed Rates
50 State Average Local Collect Call Rates Intra-State
10 Minutes 15 Minutes 20 Minutes
$2.92

Local call

V.

$3.01

$3.10

General Conclusion

The rates shown above are well below the current long distance rates that are
being charged for prisoner phone calls in every state in the nation. In other words, seven
prison phone service providers have submitted documentation to the FCC that they can
provide services at lower costs than they are charging at present, and for calls of about 14
minutes or more in duration, at lower rates than the Wright Petitioners have demanded.
To put it differently, the Wood Study demonstrates that rates very near those
proposed by the Wright Petitioners provide fair compensation while allowing prison
phone service providers to recoup “set-up” costs, eliminate commissions and
substantially reduce over-all expenses to the people bearing the cost of prisoner-initiated
phone calls. (In some situations, the Wood Report figures result in slightly higher rates;
in other cases, the rates would be lower. Calls of about 14 minutes or more would be less
costly under the rates proposed in the Wood Report.)
In short, it seems there is some common ground upon which it may be possible

to forge a comprehensive resolution of this intractable injustice which may meet with
the satisfaction of many of the interested parties.
VI. Jurisdiction
It is clear that the FCC has plenary authority and the jurisdiction to impose
regulations that address the interests of all the parties to this dispute in a way that serves
the public interest. Section 276 of the 1996 Telecom Act requires the FCC “to ensure
that all payphone service providers (including inmate phone service providers) are fairly
compensated for each and every completed intrastate and interstate call . . ..” The scope
of the Commission’s authority should be broadly construed. 47 U.S.C. § 151. See also,
e.g., 47 U.S.C. § 154(i)(Commission authorized to issue such orders, promulgate such
regulations, and take such actions as necessary to effectuate purposes of Act). Accord, 47
U.S.C. § 303(r); 47 U.S.C. § 201(b)(regulation in public interest). See also, e.g., In the
Matter of Promotion of Competitive Networks in Local Telecommunications Markets,
Report and Order, FCC 08-87, ¶ 15 & n.48 (Mar. 21, 2008)(authority to regulate
contractual arrangements between common carriers and other entities not ordinarily
subject to FCC regulation); Cable & Wireless P.L.C. v. FCC, 166 F.3d 1224 (D.C. Cir.
1999)(Commission’s authority not limited by “extra-jurisdictional” effects of an
otherwise proper exercise of regulatory authority); and FCC v. Midwest Video Corp., 440
U.S. 689, 706 (1979)(regulation to achieve purpose of the Act is within the power of the
Commission).

VII.

Proposal for Comprehensive Resolution of This Proceeding

The FCC must establish a comprehensive, fair rate for all intra-state and interstate prisoner telephone calls that allows the broadest possible range of calling options,
covers legitimate costs, provides a reasonable rate of return to prison phone providers, .
eliminates “commissions,” forecloses alternative means to unjustifiably inflate the cost of
prisoner phone calls, and defers to state public service commissions to address requested
cost adjustments – all toward the end of providing fair and reasonable rates on the widest
possible range of prisoner-initiated telephone calls
A.

A comprehensive approach is required.
As the Commission previously intimated, the “benchmark” must be

comprehensive - “[T]he record in this proceeding strongly suggests that any solution to
the problem of high rates for inmates must embrace the states.” Order on Remand at ¶
29. To achieve workable benchmark rates that are “fair and reasonable,” and which fairly
compensate the prison service provider for “each and every call” the benchmark must
apply (with such adjustments as may be necessary and appropriate) to both interstate and
intrastate calls. New technologies and practices (e.g., “arbitraging”) render any formulae
to address one, but not the other, untenable from the outset.
B.

“Commissions” must be eliminated.
Commissions are not a part of legitimate costs but rather a profit sharing

arrangement agreed by the prison phone service provider and the facility or system
through contract. It is commissions that lay at the heart of upwardly spiraling costs for
prisoner-initiated phone calls because, in order to compete successfully, a provider must
offer higher commissions that its competitors. Thus, if Company A is awarded the

contract on a promise to pay X% of profit in commissions, bidding on the next contract
will require Company B to offer X + Y% of profit in order to entice the facility or system
to award the contract to Company B. While this practice may encourage the various
prison phone providers to keep costs to a minimum so savings can be diverted to
commissions, none of these savings are passed on to consumers. The effect is to set in
place a system that ensures that no calls can be connected for “fair and reasonable costs
to the consumers.” Instead of weighing the relative merits of a contract proposal on the
basis of quality of services offered and the responsiveness of a prison phone company to
customers, the decision almost always turns on the potential revenue a contract may
generate.
Under the existing regime, the only other conceivable basis for competition is
security and other features offered by the various competitors, which may be understood
as a component of “quality of services.”
C.

The FCC must close potential loopholes.
In eliminating commissions, the FCC must close the door to mechanisms that

would allow prison phone service providers to inflate service fees that unfairly and
unjustifiably increase the price of prisoner phone calls.
Examples of workarounds that can perpetuate the already excessive cost of
prisoner-initiated phone calls include practices of prison phone service providers and
“billing companies,” often wholly owned subsidiaries of the prison phone providers or
their corporate parent. These companies may charge a fee for a customer to establish a
pre-paid account; charge again to process a customer’s payment, and confiscate sums left
in an account which has been inactive for a period of time. These “tack-on” charges

dramatically increase the cost of communicating with incarcerated loved ones, but they
do not appear as a part of the cost of the call reflected on a telephone bill. Such charges
should be prohibited. Any fees charged by third parties (such as Western Union and
other payment processors) must be passed through to families at cost with no mark-up or
profit for prison phone service providers.
As noted earlier, some of these abuses are being investigated in New Mexico, but
the practices almost certainly exist in all 50 states. And this is yet another example of the
need for comprehensive, national regulation by the FCC.
D.

Prison phone providers must continue to be viable businesses.
The FCC must exercise its authority to establish a fair rate to ensure the financial

viability of prisoner pay phone providers. It is clear that there can be no telephone
service for prisoners and their families if there are no businesses that provide such
services. Businesses operate to generate profit, and viability in this context means that in
exchange for the provision of valuable telephone services, we should expect a responsible
business to generate a reasonable profit. The Wood Report sets forth specific information
and rates which ensure such an outcome.
E.

The Commission should require debit calling and other calling options
including pre-paid, debit, and collect calls, consistent with sound correctional
practices and security concerns.
Correctional facilities of all kinds must first protect the safety of the community,

those who work in the facility, and those who are held in custody. So, with legitimate
security concerns in mind, every facility should provide the broadest possible range of
calling options, both to encourage downward pressure on rates, and to encourage

incarcerated people to maintain contact with loved ones and their communities. (The
Wood Report also analyzed the cost of debit calls.)
F. The FCC should defer to state public utilities commissions to address all
requested cost adjustments.
Once a fair rate is established, the FCC should defer to state utilities commissions
to address a purported need for cost increases that arise from the provision of service in a
particular state.
As cost structures may vary in some limited circumstances, prisoner telephone
service providers should be afforded the opportunity to petition a particular state public
utilities commission to request a rate adjustment.
In such a case, any deviation from the FCC-established rate would have to be
justified with complete, specific cost information that supports the request. For instance,
if costs are higher in a particular state, the service provider would have a mechanism to
seek an appropriate rate-adjustment from the state utilities commission so telephone
services will be available to prisoners.

Consumers, their representatives, prisoner

advocates, and other interested parties would have an opportunity to assess and oppose
the proposed rate deviation.

If the supporting documentation were deficient or

unpersuasive, the utilities commission can be expected to deny the requested rate.
G.

Other affected interests, though their concerns be genuine, are not relevant
to this proceeding.
This proposal has addressed the interests of consumers who wish to communicate

with incarcerated loved ones, the prison phone service providers that make those
communications possible, and the impact of this approach on state utilities commissions.
The concerns of one important group remain and will be addressed here.

Correctional professionals and others have long encouraged reasonable rates and
the broadest possible range of calling options (in light of legitimate security concerns) for
prisoner telephone services. 9 Yet, some of these organizations have filed comments in
opposition to the Wright benchmarks and the elimination of commissions without
commenting on the Wood Report or its implications. Should the Wright benchmarks be
adopted, these comments assert two general concerns: the loss of revenue to the facilities
will negatively impact programs and services; and security will be compromised.
Presumably, these concerns would not be ameliorated by adoption of the Wood Report or
this proposal. These objections will be addressed in the following paragraphs.
H.

Revenue derived from prison telephone contracts by correctional facilities
and agencies are generated from the imposition of a hidden and unjust tax
upon vulnerable people to benefit the public and should be disallowed as a
matter of principle.
It is not clear what percentage of revenue derived from prison phone contracts is

dedicated to prison programs and services. Some anecdotal estimates put the number at
well below 30%. Ordinarily, the revenue generated from such contracts is deposited into
the coffers of the governing body to be used for the benefit of the public, generally.
Recall that the state of Maine has implemented its own prison telephone service, charging
rates two or three times above actual cost in order to generate revenue.
But even those correctional facilities and systems that use the proceeds of prison
telephone contracts in whole or in part to benefit prisoners do so at the expense of the
prisoners’ families. Moreover, as prisoners are in custody of the government for the
9

See, e.g., American Correctional Association Public Correctional Policy on Inmate/Juvenile Offender
Access to Telephone (24 January 2001); American Correctional Association Standard Governing
Correctional Telephone Services (August 2002); National Sheriffs’ Association Resolution, final ¶ (14 June
1995); American Bar Association Policy Regarding Prison and Jail Inmate Telephone Services (August
2005); and the National Association of State Utility Consumer Advocates Resolution 2006-02, “Fair Rates
for Calls from Inmates of Correctional Institutions.”

supposed good of society, the cost of their care should be borne by the public. See, e.g.,
Spicer v. Williamson, 191 N.C. 487, 490, 132 S.E. 291, 293 (1926)(“[I]t is but just that
the public be required to care for the prisoner, who cannot by reason of the deprivation of
his liberty, care for himself.”) Thus, to seek to recover fees for the administration of
services and programs, including the maintenance and operation of a prison telephone
system, is to impose an unjust tax upon people who are often themselves impoverished
and who have little political influence, the families of prisoners.
Furthermore, it is unseemly and of dubious ethical propriety for the custodians of
a literally captive group to prey upon emotional connections with loved ones – husbands
and wives, or parents and children – merely to generate profit. Such a practice is certain
to bring the profession into disrepute and erode the public’s largely justifiable confidence
in the honorable people who commit themselves to public service as correctional officers
and officials.
So, to the extent that comparatively few facilities may lose some revenue derived
in an unscrupulous way simply is not a legitimate concern for the Commission in these
proceedings.
I.

Telephone privileges for prisoners are premised upon sound correctional
policies regarding security and are permitted only to the extent that such
concerns are met.
The second general category of concern from correctional professionals rests on

security concerns, some of which deserve consideration. But let’s first clear out the
underbrush of thorny arguments that obscure serious concerns.
The idea that the abrogation of commissions would have an adverse effect on the
development of security devices and measures simply misperceives the components of

legitimate cost and the fundamentals of competition among prison phone service
providers. Research and development are legitimate costs of a great many industries, and
telecommunications is no exception. For correctional professionals, safety and security
are primary concerns. Because security concerns must be satisfied as a prerequisite to the
operation of a correctional telephone system, it is, and will continue to be a priority of
every service provider to address those concerns. After all, one cannot even begin to vie
for business if the system offered is unsecure or fails to meet the stated needs of
correctional professionals.
Indeed, competition to develop ever more effective and efficient security
measures will provide an important basis for competition among providers (rather than
how much money the provider can offer through commissions).
Neither is the elimination of commissions likely to have any appreciable impact
upon the number of phones available at any correctional facility.

There are two

important reasons that is so: (1) telephones are used as a control mechanism to reward
good behavior and to discourage rule violations; and (2) correctional professionals have
long recognized that the maintenance of family ties significantly increases the chance of a
prisoner to successfully transition back into the community. 10
Finally, we come to a very real security concern, sometimes referred to as
“arbitrage.”

10

See, e.g., U.S. Department of Justice, Office of the Inspector General, Criminal Calls: A Review of the
Bureau of Prisons’ Management of Inmate Telephone Privileges, Ch. II, n.6 (Aug. 1999), available at
http://www.usdoj.gov/oig/special/9908/callsp2.htm (last accessed 30 January 2005)(“telephone usage and
other contacts with family contribute to inmate morale, better staff-inmate interactions, and more
connection to the community, which in turn has made them less likely to return to prison….”) and State of
Louisiana Department of Public Safety and Corrections, Time in Prison: The Adult Institutions, p. 5 (2004).

J.
Fraud can best be reduced, and security can best be enhanced by adopting a
comprehensive approach to rate-setting in the prison phone context.
Should the FCC chose to dispose of the Wright proceedings on narrow grounds,
rates will have been set for inter-state, long-distance calls that originate from only three
privately operated prison facilities. In that event, consumers could easily circumvent the
higher inter-state rates and nothing will have been accomplished to resolve these
problems in a definitive way, despite more than a decade of deliberation.
This practice of “arbitraging” is already developing as a consequence of
ridiculously high prison phone rates. As understood by the undersigned, one purchases a
wireless phone at the local Wal-Mart, for instance. Such a phone costs about $18.00.
Calling cards can then be purchased with minutes that cost as little as 10¢ each. To “setup” the account, one simply provides the zip code for the locale where one’s incarcerated
loved one is held. Subsequent calls are billed as local. Obviously, this practice could be
arranged in whatever manner is most advantageous to the consumer. 11 See, Ex Parte
Letter Filing of 24 August 2007, Alliance for Telecommunications Industry Solutions
(“ATIS”), Telecommunications Fraud Prevention Committee.
This practice creates two problems that are immediately apparent.

First,

correctional authorities have no means by which to track such a call to prevent fraud,
threats, the conduct of illegal businesses, or other such activity. Second, prison phone
service providers are not fairly compensated for the call; indeed, they may receive no
compensation whatever if a billing arrangement has not been agreed with the out-of-state
carrier.

11

This information is widely disseminated on the internet and is readily accessible on prison “talk boards,”
list serves, and the like.

This legitimate and very real concern can be remedied only through a
comprehensive approach to rate-setting for prisoner-initiated calls of all types (including
interstate and intrastate) and from all kinds of correctional facilities (either privately or
governmentally operated), including county jails and state prisons.

And, short of

removing all phones from the premises of correctional facilities, only in this way can the
legitimate concerns of correctional professionals be addressed.

ULTIMATE CONCLUSION
& PROPOSED RESOLUTION
For over 20 years, the prison phone service industry has been permitted to exploit
the friends and families of prisoners shamelessly, despite the best regulatory efforts of
state utilities commissions and notwithstanding reasoned, incremental efforts by the FCC.
These regulatory measures have proven to be ineffectual in curbing the abuses of an
industry driven by a desire for windfall profits that has been prodded by the need to offer
ever higher commissions.
Perennially underfunded correctional operations have impelled correctional
professionals to seek ways to fulfill their legal and constitutional obligations. Thus have
they been drawn into a Faustian bargain in which their integrity and professionalism is
brought into question by a growing dependence on profits generated by prison telephone
services.

The cost of these services have unjustly fallen upon the shoulders of a

vulnerable and politically powerless group who too often are given no choice but to pay
extortionate phone rates or forego conversations with loved ones who are incarcerated.
The time for remedial action is long overdue.
Commission should immediately act to:

The Federal Communication

(1) Establish a single fair rate for all intra-state and inter-state prisoner phone calls by
eliminating commissions while allowing legitimate costs and providing a reasonable
rate of return for service providers, irrespective of the location where the call
originates (whether in a private or governmentally operated prison or jail).
(2) Foreclose all opportunities to circumvent the established fair rate by prohibiting
additional fees charged by prison phone service providers or their subsidiaries and
ensuring that third party payment fees are passed through to families at cost with no
mark-up or profit for prison phone service providers.
(3) Require calling options, including pre-paid, debit, and collect calls consistent with
sound correctional practices and security concerns; and
(4) Defer to state utilities commissions to address a purported need for cost increases that
arise from the provision of service in a particular state.

Respectfully submitted this 29th day of October, 2008.

____________________________________
Michael S. Hamden
NC State Bar #12752
1612 Homestead Road
Chapel Hill, NC 27516
(919) 605 - 2622
Michael.Hamden@HamdenConsulting.com

ATTACHMENT 1.
AMERICAN BAR ASSOCIATION
CRIMINAL JUSTICE SECTION
REPORT TO THE HOUSE OF DELEGATES
RECOMMENDATION
ADOPTED AS OFFICIAL ABA POLICY AUGUST 2005
1
2
3
4
5

RESOLVED, That the American Bar Association encourages federal, state, territorial and local
governments, consistent with sound correctional management, law enforcement and national
security principles, to afford prison and jail inmates reasonable opportunity to maintain
telephonic communication with the free community, and to offer telephone services in the
correctional setting with an appropriate range of options at the lowest possible rates.

1

REPORT
Telecommunications services are integral to human interaction in today’s society.
Accessing these services is especially important to people who are incarcerated, separated from
family, friends and legal counsel by the fact of incarceration. Telephone access is particularly
important for the significant percentage of the incarcerated population with limited literacy
skills. 1
Leaders in the corrections profession have long recognized the importance of extending
telephone privileges to people in their custody as a means of fostering and strengthening ties
with their families and their communities. 2 Telephone access can be a critical component of a
prisoner’s successful transition to a productive, law-abiding life after leaving prison. 3 It can also
contribute to safer prisons by reducing the number of disciplinary incidents. 4 At the same time,
we recognize that the desire to provide robust communications services to prisoners remains in
tension with legitimate penological constraints of the correctional setting. 5
Although recognizing the importance of providing expansive telephone privileges, many
correctional systems engage in practices that make it difficult, if not impossible, for incarcerated
people to use the telephone. First, many correctional facilities only permit prisoners to make
1

Approximately 40% of the national prison population is functionally illiterate. The Center on Crime,
Communities & Culture, Education as Crime Prevention: Providing Education to Prisoners, Research Brief:
Occasional Paper Series 2 (Sept. 1997).
2

See, e.g., the October 1996 Resolution on Excessive Phone Tarriffs adopted by the American Correctional
Association (ACA); ACA’s Public Correctional Policy on Inmate/Juvenile Offender Access to Telephone (adopted
24 January 2001); and ACA’s related standards (Standards for Adult Correctional Institutions (3rd ed.); Standards
for Adult Local Detention Facilities (3rd ed.); Standards for Adult Community Residential Facilities (4th ed.);
Standards for Adult Correctional Boot Camp Programs (1st ed.); Standards for Juvenile Community Residential
Facilities (3rd ed.); Standards for Juvenile Detention Facilities (3rd ed.); Standards for Juvenile Correctional Boot
Camp Programs (1st ed.); Standards for Juvenile Training Schools (3rd ed.); Standards for Small Juvenile Detention
Facilities (1st ed.); and Small Jail Facilities (1st ed.)). See also, the National Sheriffs’ Association Resolution of 14
June 1995; and USDOJ-BOP, Program Statement 5264.06, Telephone Regulations for Inmates (Jan. 31, 2002).
3

See, e.g., U.S. Department of Justice, Office of the Inspector General, Criminal Calls: A Review of the
Bureau of Prisons’ Management of Inmate Telephone Privileges, Ch. II, n.6 (Aug. 1999), available at
http://www.usdoj.gov/oig/special/9908/callsp2.htm (last accessed 30 January 2005)(“telephone usage and other
contacts with family contribute to inmate morale, better staff-inmate interactions, and more connection to the
community, which in turn has made them less likely to return to prison….”) and State of Louisiana Department of
Public Safety and Corrections, Time in Prison: The Adult Institutions, p. 5 (2004).

4

Bureau of Prisons Program Statement 5264.07, “Telephone Regulations for Inmates,” codified at 28 C.F.R
§ 540.100 (“Telephone privileges are a supplemental means of maintaining community and family ties that will
contribute to an inmate’s personal development. . . . Contact with the public is a valuable tool in the overall
correctional process.”); State of Louisiana Department of Public Safety and Corrections, Time in Prison: The Adult
Institutions, p. 5 (2004), available at http://www.corrections.state.la.us/Whats%20NEw/PDFs/TimeInPrison.pdf.

5

The “correctional setting” refers to facilities where people are detained or incarcerated, irrespective of their
actual status as pretrial, civilly committed, adjudicated, or sentenced. Thus, the Recommendation encompasses jails
and other detention facilities, prisons, training schools, residential facilities, and correctional facilities of all types.

2

collect calls. Second, charges for prisoner-initiated telephone calls are high as compared to rates
offered in the residential and business markets and, in some cases, excessive. 6 In some
jurisdictions, escalating prices appear to be driven by “commissions” paid by service providers to
correctional facilities for exclusive contracts, which hover in the 30% to 40% range, and can be
as high as 65%, of all revenue generated. Third, many correctional systems require telephone
service providers to block calls from prisoners to certain prohibited phone numbers for reasons
of public safety and crime prevention. Some institutions, however, impose call-blocking
requirements for inappropriate reasons, including a local carrier’s failure to enter into a billing
agreement with the provider, or because the number called is a cell phone or is a remote call
forwarding number. In the case of calls placed to cell phones, many telephone service
subscribers are opting for cellular service instead of the more conventional land-line connection.
Remote call forwarding is a technology that has been employed by some telephone service
providers to compete for business by re-directing calls to customers at costs lower than would
otherwise apply. In an age of increasing mobility, it will often be possible to reconcile legitimate
security concerns with new technologies. Fourth, many prison systems and jails place
unreasonable limits on the number of calls a prisoner is allowed to make or receive, or the
aggregate amount of time a prisoner can spend on the telephone during a prescribed period. 7
Finally, correctional institutions monitor and record inmate telephone calls routinely, but policies
that permit monitoring client-attorney communications in the correctional setting or that
unreasonably limit the availability of permissible unmonitored calls threaten fundamental rights
regarding the effective assistance of counsel and access to the courts. 8 Such policies are
presumptively unconstitutional. 9

6

“[C]orrectional agencies should discourage profiteering on tarriffs placed on phone calls which are far in
excess of the actual cost of the call, and which could discourage or hinder family or community contacts.” ACA’s
October 1996 Resolution on Excessive Phone Tarriffs.
7

In Texas prisons, inmate access to telephones is quite limited. “Offenders who demonstrate good behavior
can earn one 5-minute collect phone call every 90 days. . . .” Texas Department of Criminal Justice, Correctional
Institutions Divisions, Frequently Asked Questions (http://www.tdcj.state.tx.us/faq/faq-cid htm#telephone)(last
accessed 16 January 2005).
By comparison, the Federal Bureau of Prisons (BOP) policy is generous. BOP Program Statement 5264.07
entitled, “Telephone Regulations for Inmates,” which was codified at 28 C.F.R § 540.100 et seq., states that inmates
are generally permitted privileges to contact up to a maximum of 30 individuals on an approved telephone list for up
to 300 minutes per month. P.S. 5264.07, §§ 10.a. (30 numbers), and 10.d.(1)(300 minutes). Although advocating
that then-unlimited telephone access be restricted, the Office of the Inspector General found the 300-minute
limitation to be “arbitrary.” Criminal Calls, supra n. 3, Ch. VIII, § I. ¶ 1. (Aug. 1999), available at:
http://www.usdoj.gov/oig/special/9908/callsp7.htm#Punishments (last accessed 30 January 2005). Indeed, for
several consecutive years, the BOP has permitted inmates 400 minutes of telephone access during the months of
November and December.
8

The U.S. Attorney General signed a directive on 31 October 2001 authorizing correctional officials to
monitor inmate-client/attorney communications under certain circumstances. AG Order No. 2529-2001, 66 FR
55062. That directive was subsequently codified at 28 C.F.R. 501.3 (31 Oct. 2001).

9

See infra, n. 14.

3

As the billed parties for inmate collect calls, the family and friends of incarcerated people
regularly shoulder the high cost of prison telephone services. A call recipient is often confronted
with a choice of paying exorbitant rates for a collect call from a jail or prison, or refusing it.
Many families cannot afford the inflated rates. 10 One damaging result is that children are
frequently unable to maintain contact with parents who are confined. Arbitrarily blocked calls
only exacerbate the situation.
Individually and collectively, the foregoing practices also make it more difficult for
incarcerated people to communicate with their lawyers. Telephone calls are an efficient means
for attorneys to communicate with incarcerated clients, particularly when literacy or Englishspeaking skills are a factor. It is regularly less burdensome for an attorney to speak with a client
over the telephone than to travel to the facility and conduct a meeting or personal interview. The
high cost of prisoner phone calls makes it difficult or impossible for many prisoners’ lawyers to
accept their calls. The vast majority of incarcerated people are represented by public defenders
or court-appointed attorneys who operate with extremely limited budgets. 11 This has serious
implications given the constitutional protections surrounding a prisoner’s ability to communicate
with counsel. 12 When attorneys are able to accept prisoner calls, the high cost of the calls cuts
into the attorneys’ budgets, making it difficult for them to afford other items necessary to their
clients’ defense.
Correctional administrators struggle with the perennial problem of stretching limited
financial resources to meet institutional needs. The lure of telecommunications contracts that
promise a return of as much as 65% of all revenue can appear irresistible in the absence of
alternative sources of revenue. But entering into such an arrangement creates an ethical
quagmire of both real and perceived conflicts which compromise both the professional integrity
of correctional officials and the public’s perception. Given the penological and societal benefits
that occur when incarcerated people are able to maintain contact with the outside world, the
monetary advantages are not worth the human costs. 13
10

See, e.g., In the Matter of: Implementation of Pay Telephone Reclassification and Compensation Provisions
of the Telecommunications Act of 1996, Comments of the Ad Hoc Coalition for the Right to Communicate Regarding
Petition for Rulemaking or, in the Alternative, Petition to Address Referral Issues in Pending Rulemaking, and
accompanying declarations, FCC Docket No. 96-128 (filed 10 March 2004).
11

According to the U.S. Department of Justice, 82% of felony defendants in state cases in the 75 largest
counties in the country in 1996, and 66% of felony defendants in federal cases in 1998 were represented by courtappointed attorneys. Department of Justice, Bureau of Justice Statistics, Defense Counsel in Criminal Cases, Nov.
2000. Both public defenders and other court-appointed counsel are paid by the same governments (state and federal)
whose monies are used to fund the correctional systems from which inmate telephone calls originate. Given the
current fiscal crisis in governments at all levels, exorbitant rates for inmate-generated telephone calls seem
particularly pernicious.
12

Compare Alabama v. Shelton, 535 U.S. 654 (2002) and Gideon v. Wainwright, 372 U.S. 335 (1963)
(indigent’s constitutional right to counsel in criminal cases) with Lewis v. Casey, 518 U.S. 343 (1996) and Bounds v.
Smith, 430 U.S. 817 (1977)(prisoners’ right of access to the courts with regard to certain civil and post-conviction
matters).
13

The Nebraska Department of Correctional Services does not accept commissions on inmate telephone
charges. Instead, rates are set by the Nebraska Public Service Commission. Nebraska Department of Correctional
Services, Frequently Asked Questions, available at:
4

Although some courts have recognized the constitutional problems inherent in
correctional policies that make it impossible for prisoners to contact lawyers and others, 14 neither
the courts 15 nor regulatory agencies 16 have yet required correctional authorities to abandon solesource contracts and open the prison environment to competition that could result in a broader
range of calling options at the lowest possible rates.
The resolution encourages federal, state, territorial and local governments to ensure that
incarcerated people are afforded a reasonable opportunity to maintain telephonic communication
with family and friends in the free community, consistent with the imperatives of correctional
management. While the resolution does not go further to specify particular measures
correctional authorities must take to ensure the “reasonable opportunity” that is urged, there are a
number of basic steps that have been identified as deserving of serious consideration. First,
http://www.corrections.state.ne.us/frequent_questions/telephone-index html (last accessed 30 January 2005).
14

Courts have long recognized that the ability to communicate privately with an attorney by telephone is
essential to the exercise of the constitutional rights to counsel and to access to the courts. Murphy v. Waller, 51
F.3d 714, 718 & n.7 (7th Cir. 1995)(“Restrictions on a detainee’s telephone privileges that prevented him from
contacting his attorney violate the Sixth Amendment right to counsel. . . . In certain limited circumstances,
unreasonable restrictions on a detainee’s access to a telephone may also violate the Fourteenth Amendment.”);
Tucker v. Randall, 948 F.2d 388, 390-91 (7th Cir. 1991)(denying a pre-trial detainee telephone access to his lawyer
for four days would implicate the Sixth Amendment); Johnson-El v. Schoemehl, 878 F.2d 1043, 1051 (8th
Cir.1989)(holding that inmates’ challenge to restrictions on the number and time of telephone calls stated a claim for
violation of their rights to counsel); Miller v. Carlson, 401 F. Supp. 835 (M.D. Fla. 1975), aff’d & modified on other
grounds, 563 F.2d 741 (5th Cir. 1977)(granting a permanent injunction precluding the monitoring and denial of
inmates’ telephone calls to their attorneys). See also Dana Beyerle, Making Telephone Calls From Jail Can Be
Costly, Times Montgomery Bureau (Sept. 22, 2002)(Etowah, Alabama county jail under court order to provide
phones to people incarcerated in the jail based in part on complaints they could not talk to lawyers). They have
accordingly held that, when prisons’ collect call-only policies interfere with the ability of incarcerated people to
communicate with their lawyers, they may violate these rights. See, e.g., In re Ron Grimes, 208 Cal. App. 3d 1175,
1178 (1989)(holding that switch by Humboldt County (California) Jail from coin operated to collect-only calls
violated the constitutional rights of people incarcerated there because the public defender’s office, other county
departments, and some private attorneys did not accept collect calls).
15

See, e.g., Arsberry v. Illinois, 244 F.3d 558 (7th Cir. 2000). Illinois granted one phone company the
exclusive right to provide telephone services to inmates in return for 50 percent of the revenues generated. Prisoners
and members of their families challenged the practice as a violation of their free speech rights, as a discriminatory
denial of equal protection of the laws, and as a violation of federal anti-trust laws. In the Arsberry case, the United
States Court of Appeals for the Seventh Circuit concluded that the practice did not violate the constitution or any
federal law. See, also, Daleure v. Kentucky, 119 F. Supp. 2d 683 (W.D. Kentucky 2000)(The court found
defendants’ actions did not violate the Constitution); Miranda v. Michigan, 141 F. Supp. 2d 747 (E.D. Mich.
2001)(Plaintiff’s Federal Telecommunications Act claims fell within the primary jurisdiction of the Federal
Communications Commission and were dismissed).
16

See, e.g., In the Matter of Wright Petition for Rulemaking or, in the Alternative, Petition to Address
Referral Issues in Pending Rulemaking, CC Docket 96-128 (Federal Communications Commission)(decision
pending); In re: Petition of Outside Connection, Inc., DA 03-874 (Federal Communications Commission);
Voluntary Remand of Inmate Telephone Services Issues. CC Docket No. 96-128 (Federal Communications
Commission); and North Carolina Utilities Commission, Docket No. P-100, Sub 84; Docket No. P-55, Sub 1005;
and Docket No. P-100, Sub 126, These cases were matters in which prisoner advocates filed briefs, appeared at oral
argument, and engaged in discussions with commission personnel, all without success.

5

correctional authorities should encourage service providers to offer the broadest possible range
of calling options that is consistent with sound correctional practices. Toll-free calling, debit
calling, and collect calling are options that offer different advantages at varying costs. To the
extent that existing technology does not permit full access to toll-free numbers for security
reasons, correctional authorities should work proactively with telephone service providers to
develop and refine technology that extends security features to toll-free calls. Although
correctional authorities must be mindful of security concerns when determining what calling
options to offer, some telecommunications experts and numerous correctional systems have
found that alternatives to collect call-only policies – such as the debit-calling option presently in
place in a significant number of facilities – can satisfy legitimate security concerns. 17
Second, telephone services in the correctional setting should be offered at the lowest
possible rates. A wide range of calling options and fair competition in the marketplace will help
control excessive costs. Non-exclusive contracts, contracts with multiple vendors, the provision
of debit cards through multiple vendors, and unrestricted vendor access to correctional telephone
networks are all measures that promote fair competition which will lead to reasonably priced
telephone services for prisoners and their families. Greater oversight of the terms and conditions
– particularly the site commissions – of service contracts will enable service providers to lower
their cost of service and pass those savings on to consumers.
Third, telephone service contracts should expressly forbid call-blocking for any reason
other than legitimate security concerns, requests initiated by the customer, or failure to pay
legitimately invoiced charges.
Finally, if correctional authorities conclude that limits must be placed on the number of
calls a prisoner makes, or on the aggregate amount of telephone time allotted a prisoner in a
given period, those limits should be as flexible and generous as possible in light of the many
benefits of maintaining ties between incarcerated people, their families, and their communities.

Respectfully submitted,
Catherine Anderson
Chair, Criminal Justice Section
August 2005

17

See In the Matter of Wright Petition for Rulemaking or, in the Alternative, Petition to Address Referral
Issues in Pending Rulemaking, FCC Docket 96-128, Affidavit of Douglas Dawson. The federal Bureau of Prisons
permits prisoners to place calls using debit cards, demonstrating that collect call-only policies are not necessary to
maintain prison security. See U.S. Department of Justice, Federal Bureau of Prisons, Memorandum For All
Institution Controllers All Trust Fund Supervisors, from Michael A. Atwood, Chief, Trust Fund Branch, Trust Fund
Message Number 18-02 (Feb. 8, 2002) at 2.
6

Attachment 2.
Public Correctional Policy on Inmate/Juvenile Offender Access to Telephone
Policy Statement
Recognizing that there is no constitutional right for inmate/juvenile offenders to have access to
telephones, nonetheless consistent with the requirements of sound correctional management,
inmates/juvenile offenders should have access to a range of reasonably priced
telecommunications services. Correctional agencies should ensure that:
A. Contracts involving telecommunications services for inmates/juvenile offenders
comply with all applicable state and federal regulations;
B. Contracts are based on rates and surcharges that are commensurate with those
charged to the general public for like services. Any deviation from ordinary consumer rates
should reflect actual costs associated with the provision of services in a correctional setting; and
C. Contracts for inmate/juvenile offender telecommunications services provide the
broadest range of calling options determined to be consistent with the requirements of sound
correctional management.

This Public Correctional Policy was unanimously ratified by the American Correctional
Association Delegate Assembly of the Winter Conference in Nashville, Tenn., January 24, 2001.

ATTACHMENT 3.
ACA Standard Governing Correctional Telephone Services
Written policy, procedure and practice ensure that inmates/juvenile offenders have access
to reasonably priced telephone services. Correctional agencies should ensure that:
A. Contracts involving telephone services for inmates/juvenile offenders comply with all
applicable state and federal regulations;
B. Contracts are based on rates and surcharges that are commensurate with those
charged to the general public for like services. Any deviation from ordinary consumer rates
should reflect actual costs associated with the provision of services in a correctional setting; and
C. Contracts for inmate/juvenile offender telephone services provide the broadest range
of calling options determined by the agency administrator to be consistent with the requirements
of sound correctional management.
COMMENT
When procuring and renewing telephone services, correctional officials should inquire into the
reasons for proposed deviations from standard charges and seek the best possible rates for the broadest
possible range of calling options determined to be consistent with sound correctional management.

[This standard was adopted in August 2002 and incorporated into the following ACA Manuals:
Standards for Adult Correctional Institutions, third edition; Standards for Adult Local
Detention Facilities, third edition; Standards for Adult Community Residential Facilities,
fourth edition; Standards for Adult Correctional Boot Camp Programs, first edition;
Standards for Juvenile Community Residential Facilities, third edition; Standards for
Juvenile Detention Facilities, third edition; Standards for Juvenile Correctional Boot Camp
Programs, first edition; Standards for Juvenile Training Schools, third edition; Standards
for Small Juvenile Detention Facilities, first edition; and Small Jail Facilities, first edition.]

Association of State Correctional Administrators Resolutions
Resolution #14 - Telecommunications Access for Inmates
Whereas, consistent with the requirements of sound correctional management,
adult/juvenile offenders should have access to a range of reasonably priced
telecommunications services; and,
Whereas, there is no constitutional right for adult/juvenile offenders to have access to
telephones;
Therefore be it resolved that Correctional agencies should ensure that:
Contracts involving telecommunications services for adult/juvenile offenders
comply with all applicable state and federal regulations; and that
Contracts are based on rates and surcharges that are commensurate with those
charged to the general public for like services. Any deviation from ordinary
consumer rates should reflect actual costs associated with the provision of services
in a correctional setting; and that
Contracts for adult/juvenile offender telecommunications services provide the
broadest range of calling options determined to be consistent with the requirements
of sound correctional management.
Adopted by the Association of State Correctional Administrators – May 25, 2007.
George M. Camp, Co-Executive Director
Camille G. Camp, Co-Executive Director

Page 16

The National Association of State Utility Consumer Advocate
Resolution 2006-02
FAIR RATES FOR CALLS FROM INMATES OF CORRECTIONAL
INSTITUTIONS
Whereas, the prices for telephone calls from inmates of correctional institutions to their
families, friends, and professionals who serve them, are often unreasonably high and
unaffordable; and
Whereas, the prices for telephone calls from inmates of correctional institutions often
recover the costs of investments, expenses or programs that are unrelated to the cost of
telecommunications, and
Whereas, the high cost of calls from inmates often recover revenues paid by
telecommunications carriers to states or their correctional departments in the form of
“commissions”; and
Whereas, it is widely accepted that a correctional institution inmate’s telephone
communication with family, friends, and professionals can be an important factor in
his/her chances of rehabilitation; and
Whereas, it is widely accepted that telephone calls by inmates are being substantially
repressed or entirely forgone as a direct result of the prices of such calls; and
Whereas, because most inmate calling arrangements require calls to be made as collect
calls, which are paid by the family and friends of the inmate, thus burdening those
persons who are not incarcerated; and
Whereas, the price of intraLATA and interLATA toll calls has dropped dramatically over
the last decade for all segments of that market except for inmates of correctional
institutions; and
Whereas, the problem is national in scope, but also implicates intrastate issues;
Whereas, some state public utility commissions may lack jurisdiction under state law
over telephone rates set by correctional institutions or their contracting parties;
Wherefore, it is resolved that NASUCA urges states, the Federal Communications
Commission and the U.S. Congress under their proper jurisdictions to take action to
reform inmate telephone rates by:
1. Ensuring that the price of calls from inmates are just and reasonable, and
2. Discouraging or reducing “commissions” paid by telephone companies to
correctional institutions, and

3. Encouraging the use of prepaid debit accounts for inmates whereby inmates or
their called parties may buy low-cost minutes, and
4. Continuing to allow collect calls from inmates but at rates that are just and
reasonable; and
BE IT FURTHER RESOLVED, that NASUCA authorizes the Telecommunications
Committee and Consumer Protection Committee, with the consent of the Executive
Committee, to develop specific positions and to take appropriate actions consistent with
the terms of this resolution. Those committees shall notify the membership of any action
taken pursuant to this resolution.
Endorsed by the Telecommunications Committee
Approved by NASUCA:
Place: Miami Beach, Florida
Date: