Human Rights Defense Center
DEDICATED TO PROTECTING HUMAN RIGHTS

June 19, 2017

The Honorable Ajit Pai, Chairman
Federal Communications Commission
445 12th St. S.W.
Washington, D.C. 20554
Re:

Comment on Report and Order and Further Notice
of Proposed Rulemaking, GN Docket 13-111

Dear Chairman Pai:
The Human Rights Defense Center (HRDC), which publishes Prison Legal News, respectfully
submits this Comment for GN Docket No. 13-111 in response to the Further Notice of Proposed
Rulemaking: Promoting Technological Solutions to Combat Contraband Wireless Device Use in
Correctional Facilities, issued by the Federal Communications Commission (FCC or the
Commission).1
HRDC supports the legitimate efforts of correctional agencies to promote public safety, and we
are aware of an isolated number of incidents where cell phones utilized by prisoners have
resulted in injuries or death, including the attempted murder of Captain Robert Johnson. We
cannot, however, support initiatives that are implemented due to the corruption and wrongful
acts of correctional employees who are allowed to willfully create those potentially dangerous
situations when prisoners’ families are expected to pay for the “solution” through higher phone
rates or fees for using the prison phone system. This is especially true when little effort has been
made to curtail corruption and misconduct by detention facility staff, who are the primary
purveyors of contraband cell phones.
The Perceived Problem
Detention facilities and the FCC have identified cell phones as a danger to society because
crimes can be committed using wireless devices. Certainly, some tragic incidents have been
documented that were facilitated with contraband cell phones. The reality, however, is that

1

FCC Report and Order and Further Notice of Proposed Rulemaking, GN Docket No. 13-111, adopted March 23, 2017.

P.O. Box 1151
Lake Worth, FL 33460
Phone: 561-360-2523 Fax: 866-735-7136
pwright@prisonlegalnews.org

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prisoners with the intent to harm others are going to do so whether they have access to cell
phones or not. For example, a special review of the Bureau of Prisons (BOP) conducted by the
Office of the Inspector General found “a significant number of federal inmates use prison
telephones [i.e., the BOP’s own phone system] to commit serious crimes while incarcerated –
including murder, drug trafficking, and fraud.” 2 Further, prisoners can order “hits,” arrange drug
deals or make escape plans by sending letters through the U.S. mail, since outgoing letters are
typically not read or inspected by staff in most state prison systems.
The Real Problem
The government and for-profit companies that offer services to detect or disable wireless devices
are attempting to resolve the contraband cell phone problem by penalizing prisoners and creating
products designed to generate profit instead of dealing with the real problem – the failure of
corrections officials to effectively deal with employees who smuggle cell phones into prisons
and jails.
On this Docket, the CTIA recommends “criminalizing under state law the possession of an
unauthorized phone in a correctional facility,” 3 but does not mention investigating, much less
prosecuting, the source of such unauthorized cell phones. In a Comment filed by the Arizona
Department of Corrections (AZ DOC), that agency notes they have dealt with this issue in part
by making possession of contraband wireless devices a Class 5 felony, 4 though they do not focus
on how the devices were smuggled into state prisons. And while combating contraband cell
phone use in detention facilities may have “clear public safety implications,” as stated in a
Comment filed by the Florida Department of Corrections, HRDC disagrees that this problem is
“within the authority of the Commission to regulate.” 5
Even more disturbing than the lack of focus on the underlying problem – staff who smuggle cell
phones to prisoners – the Association of State Correctional Administrators (ASCA) blames the
FCC for allowing “this threat to public safety to grow, as potential solutions have languished for
want of FCC action, for well over a decade.” 6 As the Commission is aware, the implementation
of video calling services in prisons and jails has increased dramatically over the past few years.
The Prison Policy Initiative reported in March 2015 that more than 500 facilities in 43 states and
the District of Columbia were experimenting with video calling, 7 and that number has grown
since then. With the elimination of in-person visits in 74% of jails that implement video calling
(Id.), it stands to reason that if visitors are a primary source of contraband cell phones, then the
opportunity to smuggle such devices into detention facilities should be going down. Yet the
ASCA further attempts to deflect blame by telling the FCC that “your regulated carriers have
proven largely disinterested in solving this critical public safety problem.” 8

2

https://oig.justice.gov/special/9908/exec.htm at page 1.
CTIA Ex Parte Letters, GN Docket No. 13-111, filed March 2, 2017.
4
Arizona Department of Corrections Comment, GN Docket No. 13-111, filed April 18, 2017.
5
Florida Department of Corrections Comment, GN Docket No. 13-111, filed May 3, 2017.
6
The Association of State Correctional Administrators Comment, GN Docket No. 13-111, filed May 30, 2017.
7
https://www.prisonlegalnews.org/news/2015/mar/5/screening-out-family-time-profit-video-visitation-industryprisons-and-jails
8
The Association of State Correctional Administrators Comment, GN Docket No. 13-111, filed May 30, 2017.
3

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While there may be an increase in disciplinary actions taken against correctional employees who
smuggle cell phones to prisoners, published reports of staff members being prosecuted are not
equal to the scope of the problem as described by the Commission and corrections officials, and
more research must be done to establish the extent of smuggling by correctional staff and how it
contributes to the problem of contraband cell phones.
Consider that prison and jail employees have 24/7 access to detention facilities, and in some
cases are not subject to metal detector or pat-down searches when they report to work. Staff are
also familiar with security protocols and are thus better informed with respect to circumventing
those protocols. Visitors to detention facilities, on the other hand, have limited times when they
can visit, are subject to pat-down searches and metal detectors, and are closely watched by staff
during visitation. Thus, it is apparent that prison and jail employees have greater access and
opportunity to smuggle cell phones, and are incentivized with sizeable bribes.
In fact, three major incidents involving smuggling by staff members were reported last month
alone: an Indiana prison guard was accused of smuggling 100 cell phones (Attachment 1); a
corrections officer in Montgomery County, Ohio was convicted of smuggling cell phones, with
the judge saying “a message needs to be sent” to law enforcement (Attachment 2); and five
Alabama prison guards were arrested in a corruption probe that included smuggling drugs and
cell phones to prisoners (Attachment 3).
As an example of what can happen when the issue of staff corruption is addressed, according to
Christopher Acosta, spokesman for the California Department of Corrections and Rehabilitation
(CDCR), who was quoted in a 2011 article published by California Watch, cell phones aren’t
much of a concern at Pelican Bay, the state’s highest security lockup. “We haven’t had a big
problem with the phones like other institutions have, he said.” (Attachment 4). Fewer than 12
cell phones were confiscated in the five-year period between 2006 and 2011. Id. The location of
the prison and the volume of visitors may play a role, but it is more likely that “a series of court
rulings that forced Pelican Bay to clean up all aspects of its operations, including security and
staff disciplinary rules,” contributed to the lack of contraband cell phones – including random
staff searches conducted at the facility. Id.
The Proposed Solution
Another article published by California Watch described both the risks and potential problems
associated with managed access systems (Attachment 5), as reported in a study by the nonpartisan California Council on Science and Technology. 9 The study recommends “having private
carriers identify and disable illicit phones and establishing airport-style screening systems” in
detention facilities. Id. The union that represents state prison guards responded, saying contract
negotiations to add to the “walk time” it takes correctional officers to get to their work stations
could “cost the state millions,” and CDCR spokeswoman Dana Simas remarked that “proposals
requiring staff to submit to airport-style security screenings were ‘shortsighted’ and failed to
attack the root of the problem.” Id.

9

https://www.documentcloud.org/documents/355647-2012cell.html

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HRDC disagrees, and we are not alone in our concerns. As noted by the California Office of the
Inspector General in a Special Report regarding contraband cell phones in state prisons, released
in May 2009:
According to the Department, inmates are paying those involved in smuggling
cell phones into California prisons between $500 and $1,000 per phone. There
are currently no criminal consequences for the introduction or possession of cell
phones in prison, making this activity merely an administrative violation.
Furthermore, current security entrance procedures provide ample opportunities
for staff and visitors to bring contraband into prison facilities without fear of
discovery. Therefore, the introduction of cell phones into state prisons is a low
risk, high reward endeavor. (Attachment 6 at 1).
And while two of the nine recommendations made in the report call for cell phone detection
solutions and jamming devices, the majority of the recommendations are directed at employees,
including legislative changes to make the introduction of cell phones in all detention facilities a
criminal offence (in addition to possession), airport-style security screenings, restriction of the
size of carrying cases brought into secure areas of prisons and a requirement that staff place all
personal items in see-through plastic containers. 10
It is worth mentioning that prison and jail employees apparently do not believe that cell phones
jeopardize their safety, or they would not smuggle them in for prisoners – even for large bribes.
Comparatively, we do not see regular news reports about guards smuggling guns to prisoners,
unlike cell phones. The Los Angeles Times reported in 2011 that a state investigation revealed a
guard had made $150,000 in one year smuggling cell phones to prisoners, and another had 50
phones in his car in a prison parking lot, labeled with the names of convicts. (Attachment 7).
Even the FBI has provided prisoner informants with cell phones, indicating such devices are not
inherently dangerous. A March 2017 article detailing the conviction of former Los Angeles
County Sheriff Lee Baca for “obstructing an FBI investigation into corrupt and violent guards
who took bribes to smuggle contraband into the jails he ran and savagely beat inmates” stated the
federal probe began in 2011 “when Baca’s jail guards discovered an inmate with a contraband
cellphone was acting as an FBI mole to record jail beatings and report what he witnessed.” In
another case in Mississippi, a prison official at the Adams County Correctional Center reportedly
allowed a prisoner informant to keep a cell phone so he could relay information to security staff.
If contraband cell phones create such a public safety risk, why have the FBI and prison officials
allowed prisoner informants to keep and use them? (Attachment 8).
This nation’s detention facilities are charged with ensuring public safety, and if they fail to
perform that critical function, the Commission, wireless carriers, prisoners and their families
are not responsible for picking up their slack. For this reason, HRDC does not believe the

10

Note that in 2011, California enacted a law that criminalizes the smuggling of cell phones to prisoners. The law
provides that “a person who possesses with the intent to deliver, or delivers [to prisoners] any cellular telephone or
other wireless communication device or any component thereof ...” is subject to a misdemeanor charge punishable
by a six-month jail sentence or a $5,000 fine, or both. See: www.prisonlegalnews.org/news/2012/jan/15/californiacriminalizes-cell-phone-smuggling-seeks-technology-to-block-cell-phone-calls-from-prisons.

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Commission should proceed with this Proposed Rulemaking, but if it elects to do so, any order
that allows contraband wireless devices to be disabled in detention facilities through managed
access systems or other means should 1) only allow that practice in facilities that allow contact
visits (where an opportunity exists for visitors to smuggle contraband cell phones); 2) only allow
that practice in facilities that have taken necessary steps to prevent smuggling by staff, including
hard screening through metal detectors, which has proven effective in New Jersey (Attachment
9); 3) only allow that practice in facilities that prosecute staff members who smuggle contraband
to prisoners; and 4) ensure that prisoners and their families are not required to pay the costs for
managed access systems through non-transparent contract bundling with other services offered
by the same Inmate Calling Service (ICS) provider, such as phone calls, video calling, money
transfer services, etc. that effectively hide the true costs of cell phone interdiction.
Any system that disables wireless devices should be funded through legislatively-appropriated
funds or existing correctional agency budgets. Prisoners’ families should not be required to pay
for the corruption and misconduct of prison and jail staff, and the failure of corrections officials
to hold them accountable through disciplinary actions and criminal prosecutions.
It should be noted that Global Tel*Link (GTL), the largest prison telecom provider in the U.S.,
does not attempt to hide the source of funding for its managed access system in California; the
company pays for all equipment, installation and operating costs for providing managed access
in state prisons. As a result, corrections officials describe the deal as “’risk-free’ for taxpayers,”
while “company officials expect to offset those costs through increased demand for the pay
phones.” 11 Increased diligence and transparency will be required on all fronts to ensure that the
cost of prison phone calls does not increase to offset the cost of managed access systems by ICS
providers. Many managed access systems are brought to us by the same companies that have
price-gouged prisoners and their families for decades – we cannot trust them to be fair, just and
reasonable in any dealings with detention facilities where prisoners and their families pay the
actual costs. Indeed, GTL and other telecom companies do not invest millions of dollars in cell
phone interdiction systems at their own expense without expecting to recoup their investment,
and historically such costs have been paid by prisoners’ family members.
In a March 21, 2017 press release, Securus Technologies envisions a future where prisoners are
“able to use our device OR THEIR DEVICE to communicate with approved individuals ... over a
centralized platform with a low per minute rate….” (Attachment 10, emphasis in original).
Apparently, cell phones behind bars are fine if an ICS provider is able to make a profit. And we
should not forget that one of the major reasons for the increase in the number of contraband cell
phones was exorbitant ICS rates that went unregulated for decades – prisoners primarily used
cell phones so they could afford to stay in touch with their families. The New York Department
of Corrections and Community Supervision (NY DOCCS) noted in its July 2013 filing on FCC
Docket WC 12-375, with respect to the outcome of eliminating kickback commissions paid to
the agency and a subsequent reduction in ICS rates, that “The Department believes that a lower
calling rate has also contributed to a lower rate of illicit cell phone use by inmates in New York.
In 2012, the Department confiscated less than 100 cell phones, compared to over ten thousand
annual seizures in comparably-sized correctional systems.” (Attachment 11). In short, contraband cell phone usage is directly tied to high ICS phone rates.

11

See Attachment 5.

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Conclusion
HRDC is not opposed to the implementation of security measures in detention facilities that
promote public safety; however, without dealing with the crux of the contraband cell phone
problem – corrupt correctional employees – the FCC’s initiative to promote technological
solutions to combat contraband wireless devices will not be successful. The Commission is
attempting to regulate a natural result that stems from the long-standing practice of failing to
prevent prison and jail staff from padding their wallets by selling contraband cell phones to
prisoners. A technological solution will not be effective until the supply chain is cut off.
Detention facilities should be able to stop contraband smuggling by their own employees, and
the proposed solution described above will insure that prisoners, their family members and other
taxpayers do not pay the price for the failure of correctional authorities to police and discipline
corrupt staff members. We respectfully request that the Commission not undertake any action
that promotes managed access systems which could result in increased costs to prisoners and
their families through higher ICS phone rates, video calling rates or other services as a way to
offset the cost of managed access systems. Contraband cell phones can be largely eliminated
through efforts to address smuggling by staff, including increased security screenings, routine
discipline and prosecution of employees who smuggle cell phones, as well as affordable ICS
rates that reduce the demand for contraband wireless devices.
Thank you for your time and attention to this important matter.
Sincerely,

Paul Wright
Executive Director, HRDC
Attachments

/s/
Prison Policy Initiative
www.prisonpolicy.org

/s/
Center for Media Justice
www.mediajustice.org

/s/
Southern Center for Human Rights
www.schr.org

/s/
Illinois Campaign for Prison Phone Justice,
a project of the Urbana-Champaign Independent Media Center
https://nationinside.org/campaign/illinois-for-prison-phonejustice/

/s/
Southern Poverty Law Center
www.splcenter.org

/s/
International CURE
Washington DC
www.curenational.org

/s/
Uptown People’s Law Center
www.uplcchicago.org

/s/
National Center for Lesbian Rights
www.NCLRights.org

/s/
Working Narratives
www.workingnarratives.org

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Attachment 11