20070220final_order_no_30249.pdf

Office of the Secretary
Service Date
February 20, 2007
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE PETITION
SEEKING RELIEF FROM RULE 309 OF
THE COMMISSION'S OPERATOR
SERVICES AND PAY TELEPHONE RULES,
IDAP A 31.51.01.309 ORDER NO. 30249
CASE NO. GNR- T -93-
In this case ten inmates of the Idaho State Correctional Institution (ISCI) filed a
Petition requesting that the Commission issue an Order allowing inmates to select a long-
distance carrier of their choice when making long-distance collect calls. Traditionally,
correctional facilities and other institutions of confinementl contract with a single long-distance
carrier or operator service provider (OSP) for inmates to make collect calls and block inmate
callers from accessing other long-distance carriers. In other words, an inmate must use the long-
distance carrier selected by the ISCI instead of a long-distance carrier of the inmate s choosing.
The petitioners desired the ability to choose their own long-distance carriers in the "inmate
telephone environments.The petitioners advanced a number of legal arguments why the
practice of restricting their access to other long-distance carriers should be disallowed.
addition, the petitioners alleged that the calling rates for making long-distance collect calls are
excessive and unreasonable.
In response to the Petition, the Commission initiated an inquiry seeking comments
and information generally related to the practice of blocking access to other long-distance (i.
toll) carriers from inmate pay telephones. The Commission s inquiry also examined Operator
Services and Pay Telephone Rule 309 (IDAPA 31.51.01.309) which permits, but does not
require, the blocking of access to other toll carriers on inmate pay telephones. The Commission
also conducted two public workshops in Pocatello and Boise. Written comments were filed by
AT&T Inmate Communication Corporation Peoples Telephone Company,MCI
Telecommunications Corp., Qwest's predecessor U S WEST , the Petitioners, the Staff and two
prisoners in the Canyon County Jail.
1 "Institutions of confmement" are defined as prisons, jails, mental health or rehabilitation facilities that house
inmates or other individuals whose liberties are legally restricted by judgment or order of a court or who are
confined under arrest, involuntary commitment or other legal process, and who are physically restrained from
leaving the premises. Pay Telephone Rule 300., IDAP A 31.51.01.300.01.
ORDER NO. 30249
After reviewing the record in this case the Commission, on its own motion, has
decided to administratively close this proceeding. As set out in greater detail below, state and
federal laws restrict the ability of the Commission to grant the relief requested by the petitioners.
BACKGROUND
A. The Petition
In May 1993, the inmates filed their Petition alleging that they were "not permitted to
access other operator service providers" or other toll carriers when making collect calls from
institutions of confinement. Petition at 4. The practice of prohibiting callers from accessing
other operator service providers or toll carriers is commonly referred to as "blocking." The
Petition did not specifically mention the Commission s Pay Telephone Rule 309. This rule
permits telephone companies serving institutions of confinement to block access to other
telecommunications services including:Toll free numbers (e., 800); information service
numbers (e., 900 or 976); 911; directory assistance; access to other toll carriers; and incoming
calls. IDAPA 31.51.01.309. The Petition asserts that this blocking practice violates federal and
state law.
The Petition sets out three primary legal arguments why the Commission should
prohibit blocking. First, the petitioners claim that such blocking practices violate provisions of
the federal Telephone Operator Consumer Services Improvement Act of 1990, 47 U.C. ~
202(a) et seq. Second, they allege that the commissions paid by the selected toll carrier to the
ISCI are discriminatory under Idaho Code ~ 61-313. Third, the petitioners maintain that the
rates for collect calling from institutions of confinement are unreasonably high and in violation
of both the federal and state telecommunication laws
In their supporting brief, the petitioners acknowledge that there are "valid
considerations for (authorizing) different measures" for inmate-only pay phones than for other
pay phones made available to the general public. The Petition recognizes that some controls
over the use of telecommunication devices in correctional institutes are needed "to prevent fraud
and . . . control incoming calls.Brief at 1. However, the petitioners claim that there are
software programs and equipment that would provide automated collect calling via a number of
different toll carriers. According to the petitioners, such equipment and software would allow
2 The petitioners also allege that blocking violates federal and state antitrust laws.
Petition at 3. See infra note 5.
ORDER NO. 30249
inmates, and ultimately the party receiving (and paying for) the inmate collect call, to choose
from a number of toll carriers. Id. at 2-
B. State and Federal Jurisdiction
At the outset, it is important to recognize the interplay between state and federal
jurisdiction. The federal Communications Act of 1934 (codified at 47 U.C. ~ 151 et seq.
recognizes "a system of dual state and federal regulations over telephone service.Louisiana
PSC v. Federal Communications Commission 476 U.S. 355, 106 S.Ct. 1890 (1986). The
Communications Act granted the Federal Communications Commission (FCC) the authority to
regulate "interstate and foreign commerce in wire and radio communication" and expressly
denied the FCC jurisdiction over "intrastate communication service.Id. 476 U.S. at 360, 106
Ct. at 1894 citing 47 US.C. ~~ 151 and 152(b). Intrastate telephone services (including local
service and in-state long-distance service) were regulated by the states. States, including Idaho
typically granted exclusive franchises to local exchange carriers. For example, Idaho law
provided that no telephone corporation shall provide services to customers located within another
telephone corporation s certificated service area. Idaho Code ~ 62-615(1) (repealed) 1997 Sess.
Laws ch. 192 , ~ 5.
The federal Telecommunications Act of 1996 ("1996 Act"fundamentally
restructured local telephone markets. AT&T Corp. v. Iowa Utilities Board 525 U.S. 366, 119
Ct. 721 (1999); Order No. 27100. In particular, Section 253(a) of the 1996 Act provides that
no state may prohibit the ability of "any entity to provide any interstate or intrastate
telecommunications service." 47 US.c. ~ 253(a). Thus, Congress sought to foster competition
in all telephone markets, including the local service market. In response to the 1996 Act, our
Legislature amended various provisions of the Idaho Telecommunications Act.Order No.
27100; 1997 Sess. Laws ch. 192. In summary, federal law and the FCC regulate interstate
services and the rates for those services. Intrastate services are subject to both federal and state
laws.
DISCUSSION AND FINDINGS
A. State Law
In 1988 the Idaho Legislature enacted the Telecommunications Act codified at Idaho
Code ~~ 61-622A and 62-601 et seq. The purposes of the 1988 Telecommunications Act are to
maintain high-quality universal telecommunications services at just and reasonable rates and "
ORDER NO. 30249
encourage innovation within the industry by a balanced program of regulation and competition.
Idaho Code ~ 62-602(1). Pursuant to the Act, a local exchange carrier (LEC) such as Qwest is
given a choice. It can offer all of its local telecommunications services at rates set by the
Commission pursuant to its traditional rate setting authority contained in Idaho Code, Title 61 , or
the LEC may elect to have its non-basic local services3 subject to the provisions of the 1988
Telecommunications Act and be free from the Title 61 ratesetting authority of the Commission.
Idaho Code ~ 62-605(2).
Two telecommunications companIes elected to move their servIces to Title 62
regulation. In 1988 AT&T was the only intrastate toll carrier to hold a Certificate of Public
Convenience and Necessity. In July 1988 , AT&T filed its notice removing its services to Title
62. Notice of Election, Case No. ATT-88-1. All other intrastate toll carriers which did not
hold a Certificate of Public Convenience and Necessity were automatically subject to the
provisions of Title 62. Idaho Code ~ 62-604(1). In March 1989, Qwest's predecessor elected to
remove its non-basic local services from the Commission s Title 61 ratesetting authority. Order
No. 22416.
Returning to the Petition, we find that since at least 1989, the Commission has had no
authority to set the rates for collect toll calls in Idaho pursuant to the 1988 Telecommunications
Act Idaho Code ~~ 61-604(1), (2) and 62-605(2). Thus, the Commission cannot remedy the
allegations of excessive rates for inmate collect toll calls.
B. Federal Law
The issue of allowing inmates to select a toll carrier of their choice is addressed in
Section 226 of the federal Telephone Operator Customer Services Improvement Act of 1990
(TOCSIA). TOCSIA generally requires that every telephone "aggregator" (e., pay telephone
provider) allow customers using their pay telephones to access toll carriers of their choice.
However, Section 226(a) defines an aggregator pay telephone as a telephone "available to the
public or transient users of its premises." 47 US.C. ~ 226(a). The FCC has issued regulations
that define the term "aggregator" as not applying to inmate-only pay telephones in correctional
institutions. 47 c.F .R. ~ 64. 708(b). As the FCC elaborated in 1996
, "
neither TOCSIA nor our
3 "Basic local exchange service" is defined as the provision of local service to all residential customers and to small
business customers with five or fewer telephone lines. Idaho Code ~ 62-603(1) and (11).
4 The Commission s ratesetting authority over local service rates has been further restricted by 2005 amendments to
Idaho Code ~ 62-605(1), (5).
ORDER NO. 30249
rules require telephones for use only by prison inmates to be unblocked." Thus, inmates in
institutions of confinement are generally unable to select the collect toll carrier of their choice.
In the Matter of Billed Party Preference for InterLATA 0+ Calls 11 F.R. 7274, ~ 48 (1993);
13 F.c.c.R. 6122, ~~ 56-58 (1998); In the Matter of Policies and Rules Concerning Operator
Service Providers 6 F.c.R. 2744, ~ 15 (1991); FCC Consumer Facts Inmate Telephone
Service, available at: www.fcc.gov/cgb/consumerfacts/inmate.html.
The U.S. District Court for Idaho has also reached the same conclusion. In 1997, in
Goodrick v. GTE Telephone Company, (unreported) (Case No. CV96-0328-EJL at pp. 10-11)
(July 1 , 1997) the Court found that inmate-only pay telephones are excluded from the TOCSIA
requirements that users of pay telephones be able to access a carrier of their choice.
In 1996 Congress significantly changed the 1934 Communications Act when it
enacted the federal Telecommunications Act of 1996. Among other things, Section 276 of the
1996 Act permits all pay telephone providers to pay the premise owner a fee or commission
based on the cost of the pay telephone and the amount of local and long-distance usage. 47
C. ~ 276(b)(1)(D), (E). After enactment of the 1996 Act, the FCC deregulated the pay
telephone industry both on an interstate and intrastate basis.Heber et at.Federal
Telecommunications Law (2d Ed. 1999) ~ 8.4.4 at p. 689. Based upon the Idaho
Telecommunications Act and 47 U.C. ~ 276(c), the Commission s jurisdiction over pay
telephone service is typically limited to consumer protection issues such as pay telephone
labeling and notice of charges. Thus, the Commission has no authority over the rate of
commissions made to the ISCI facility.
Over the years the FCC has initiated several dockets to examine the issues of inmate
payphone rates and blocking. In the Matter of Implementation of the Pay Telephone
Reclassification and Compensation Provisions of the Telecommunications Act of 1996, Order on
Remand and Notice of Proposed Rulemaking, CC Docket No. 96-128 ~ 3 (Feb. 21 , 2002). A
subsequent petition for rulemaking filed by Martha Wright was merged with the 96-128 docket.
Petition for Rulemaking, DA 03-4027 (Dec. 31 , 2003). The FCC "is currently examining long-
distance telephone service rates imposed on inmates and their families in ongoing proceeding
regarding the provision of inmate payphone service." The FCC has yet to issue a final decision
5 The Court also found that the inmate plaintiff did not possess antitrust standing to bring an antitrust claim.
Goodrick (unreported at pp. 8-10).
ORDER NO. 30249
in the 96-128 docket. Rather than having our case remain open pending the FCC's decision , we
believe it is reasonable to administratively close this case.
In summary, the Commission does not have the jurisdiction to set the rates for
interstate calls, and no longer sets the rates for intrastate collect toll calls.6 Moreover, the
Department of Correction is free to select and negotiate commissions with any payphone
provider and/or long-distance carrier of its choice. Finally, TOCSIA does not require that inmate
payphones be unblocked. Consequently, we are unable to grant the relief requested by the
petitioners and administratively close this proceeding.
ORDER
IT IS HEREBY ORDERED that this proceeding be administratively closed.
THIS IS A FINAL ORDER. Any person interested in this Order (or in issues finally
decided by this Order) or in interlocutory Orders previously issued in this Case No. GNR-93-
12 may petition for reconsideration within twenty-one (21) days of the service date of this Order
with regard to any matter decided in this Order or in interlocutory Orders previously issued in
this case. Within seven (7) days after any person has petitioned for reconsideration, any other
person may cross-petition for reconsideration. See Idaho Code ~ 61-626.
6 The Department's current inmate telephone service provider does offer three different rate schedules: (1) debit
calls - set up by purchasing time through the inmate commissary provider; (2) prepaid calls - set up by family and
friends through the telephone service provider; and (3) collect calls - where charges are assessed to the called party.
Idaho Department of Correction Inmate Phone Service, available at: corrections.state.id.us/our facilities/inmate
phones.htm
ORDER NO. 30249
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this ;1..()fJ..
day of February 2007.
iJ~
MARSHA H. SMITH, COMMISSIONER
ATTEST:
~D~
Co mission Secretary
bls/O:GNR-93-12 dh
ORDER NO. 30249