On September 8, 2022 the Federal Communications Commission (“FCC” or “Commission”) released a report and order and further notice of proposed rulemaking adopting sweeping changes to its regulations governing access to telecommunications relay services (TRS) for incarcerated individuals with hearing and speech disabilities. The new rules require inmate calling service (ICS) providers to offer all federally compensable forms of TRS, including video relay service (VRS), Internet Protocol Relay Service (IP Relay), and Internet Protocol Captioned Telephone Service (IP CTS) (collectively, Internet-based telecommunications relay services (“iTRS”)), to eligible inmates in most correctional centers, and, with a narrow exception for the voice component of IP CTS, prohibit ICS providers from charging inmates for these services. They also establish special carceral TRS user registration requirements for IP CTS providers to address the unique challenges associated with accessing these services in correctional environments and clarify how certain mandatory TRS minimum service standards apply in carceral settings.
While many of the new rules adopted in the Order apply directly to ICS providers only, they nonetheless give certified iTRS providers serving correctional facilities a powerful weapon to convince their ICS networking partners not only to install and integrate iTRS technology into correctional phone systems, but also to help finance the acquisition, deployment, and ongoing maintenance of such hardware and software. ICS providers should expect iTRS providers to use this “weapon,” because neither the purchase price, nor the costs of installing, configuring, or maintaining end-user TRS equipment is compensable from the federal TRS Fund.
New TRS Requirements for Inmate Calling Service Providers
Duty to Offer CTS and iTRS
Since 2015, ICS providers have been required to ensure the availability of TTY and speech-to-speech (STS) relay services to inmates with qualifying disabilities. The Order extends this obligation to Captioned Telephone Service (CTS)[1] and all three federally compensable forms of iTRS: VRS, IP Relay, and IP CTS. ICS providers must make these additional forms of TRS available to inmates by January 1, 2024. There are, however, several exceptions to this obligation.
Duty to Facilitate Direct Video Communication by Inmates with Communication Disabilities
The new rules also obligate ICS providers to make point-to-point video calls available to inmates with disabilities whenever they are not exempt from offering all forms of TRS. Specifically, ICS providers must provide access to the direct, point-to-point video communication services provided by VRS providers. A point-to-point video call allows two or more users to communicate face-to-face using ASL without assistance from a third-party intermediary.
Restrictions on TRS-Related Charges
In 2013, the Commission prohibited ICS providers from charging inmates more for a TRS call than for an equivalent voice call. Two years later, the FCC prohibited ICS providers from levying or collecting any charge at all for a TRS call placed by an incarcerated individual using a text telephone (TTY) device. And now, the FCC prohibits ICS providers from imposing any charges for all TRS calls — regardless of the form of TRS used — with one narrow exception discussed below. Charges for direct ASL video calls are likewise prohibited.
The new rules permit TRS providers to charge inmates for the voice component of a CTS or IP CTS call only. Thus, for example, if an ICS provider charges hearing inmates $0.03 per minute for a voice call, the provider may also charge up to $0.03 for equivalent CTS or IP CTS calls made from the same facilities. However, the provider may not charge hard-of-hearing inmates extra to offset the costs of providing IP CTS.
Reporting Requirements
Lastly, the Order extends ICS Annual Reporting obligations to all forms for TRS, as well as all direct ASL video calls.
Changes/Clarifications for TRS Providers
Carceral TRS User Registration
The Order adopts a number of amendments to the Commission’s iTRS user registration rules to facilitate registration of eligible inmates. Most notably, inmates may now register for VRS individually, or under enterprise registrations.
Enterprise registration is not yet available for any other form of TRS, but the FNPRM seeks comment on expanding it to IP CTS. The FCC specifically asks stakeholders to address the following questions:
- Do the modifications made in the Order to the Commission’s registration requirements sufficiently address any registration-related barriers to the use of IP CTS in carceral environments?
- Are there significant difficulties with individual registration that an enterprise registration option could overcome?
- If needed, how could an enterprise registration option be crafted to protect against waste, fraud, and abuse?
- What are the costs and benefits of allowing enterprise registration for IP CTS in the incarceration context?
Other Rule Changes Clarifying Obligations of Carceral TRS Providers
The Commission modified several other rules to clarify the scope of specific TRS obligations in the carceral context:
- Confidentiality– The Commission clarified that the prohibition against recording or retaining TRS call content does not apply to ICS providers or correctional institutions. Thus, prisons, jails, and ICS providers remain free to record or monitor TRS conversations in the same way they record or monitor ordinary voice calls to and from incarcerated users without communication disabilities.
- Types of Calls– Carceral TRS providers are required to make available to inmates only those calling features that are available to inmates without communication disabilities at the same facility. For example, since correctional facilities do not offer 9-1-1 calls, TRS providers serving those facilities need not offer emergency calling to inmates with hearing or speech disabilities either.
Next Steps
In the FNPRM, the FCC seeks comment on additional reforms to the ICS TRS regulatory landscape. The Commission is specifically considering, among other issues, the viability of an enterprise form of IP CTS registration in the carceral space as an alternative to individual user registration and expanding the new ICS provider TRS obligations to prisons and jails in small jurisdictions.
The deadline to file public comments pursuant to the FNPRM is 30 days after date of the publication in the Federal register. The reply comments are due 60 days after date of publication in the Federal Register.
The CommLaw Group Can Help!
The CommLaw Group stands by ready to help with every aspect of TRS regulatory compliance. We can assist with preparing, reviewing, and/or filing public comments on the proposed further reforms to the FCC’s carceral TRS rules. We are also happy to answer any questions and work with your company to ensure a smooth path to compliance with the new TRS inmate calling rules, and to prepare annual reports and other TRS compliance filings mandated by the FCC.
If you have any questions, concerns, or need legal guidance on your company’s TRS obligations, please contact Michal J. Nowicki, Esq., at (703) 714-1311 or mjn@commlawgroup.com. Mr. Nowicki routinely counsels TRS providers on their regulatory obligations and understands the unique challenges of offering relay services in secure environments as a result of serving as an outside regulatory compliance counsel to an IP CTS provider seeking FCC certification to provide the service to hard-of-hearing inmates.
[1] CTS is identical to IP CTS, except that a CTS call uses the PSTN to deliver captions instead of the Internet.
