What should be included in the price of a prison call?

The FCC needs to juggle a number of factors including correctional facility size and security concerns as it decides just how much a phone call from prison can cost.

Why it matters: It's expensive for families of incarcerated people to stay connected with their loved ones, and the Martha Wright-Reed Act gives the agency the authority to ensure providers charge "just and reasonable rates" for calls.

Cost factors up for debate include:

1. Safety and security: The Martha Wright-Reed Act instructs the FCC to "consider" costs associated with safety and security measures necessary to provide calls.

• Securus, the second largest prison and jail phone provider in the country, said there's "crystal clear" precedent "that the costs of safety and security measures such as recording, monitoring, biometrics and related services are inherent in the provision of communications services to the incarcerated."
• Some advocacy groups, such as Worth Rises, argue that the law just means the agency should study the costs, but isn't required to factor them in.
• Worth Rises says most safety and security measures aren't directly related to providing call service and surveillance measures are distinct and not required at all by the law.

2. Commissions: The comments period for this rulemaking gives groups an opportunity to help the FCC determine whether the cap should incorporate the money prisons get from the phone company that services the incarcerated people in their facility.

• ViaPath, the largest prison and jail phone provider in the country and formerly known as GTL, says the Martha Wright-Reed Act "does not disturb" an earlier determination by the D.C. Circuit that commissions should be considered in a cap.
• The practice is seen by some activists as inappropriate kickbacks that shouldn't be factored into the price of a call, while companies and some facilities view it as a cost of doing business, like paying a tax.
• The government can't stop a phone company from treating commissions as a profit-sharing agreement with the facility, but embedding it in the rate as a legitimate cost of doing business doesn't reflect the true nature of the payment, said Cheryl Leanza, a media policy consultant for nonprofits.

3. Size: Facilities with small daily populations have been treated as more expensive to serve because the overhead cost of running the facility is distributed among fewer people.

• ViaPath says the average daily populations tracked by facilities continues to be the best approach to determine how size should impact cost.

• Leanza, speaking for the United Church of Christ's media advocacy arm that she is advising, said advocates are very skeptical that facility size makes any meaningful difference given that the products — call and video service — are digital and offered nationally.
• The FCC in its 2021 interim rates made a daily population distinction between large and small facilities and that's likely to carry over, said the Brattle Group's Coleman Bazelon.
• Stephen Raher, an attorney at Leonard Law Group, said the biggest cost difference is between jails — where people are constantly coming and going — and prisons, with more stable populations.
• "The churn of people through jails means more work to set up and deactivate phone accounts as people come and go. There is conflicting evidence, however, about whether the costs of maintaining these accounts falls on phone providers, facilities or a combination of the two."