FCC to Court: IPCS Order Argued Last Month Is No Longer Relevant
The FCC on Thursday advised the 1st U.S. Circuit Court of Appeals, which heard oral argument last month on a challenge to the 2024 incarcerated people's communications services (IPCS) order, that the rules have changed. FCC commissioners significantly revised calling rates in an order approved 2-1 at the October open meeting (see 2510280045). The agency also released the final version of the order Thursday with some changes from the draft that was previously circulated by Chairman Brendan Carr, mostly benefiting IPCS providers.
Sign up for a free preview to unlock the rest of this article
If your job depends on informed compliance, you need International Trade Today. Delivered every business day and available any time online, only International Trade Today helps you stay current on the increasingly complex international trade regulatory environment.
The 2025 order “superseded significant portions of the order under review (2024 Order) and, once effective, will moot the corresponding issues in this case,” said the FCC's letter to the court (case 24-8028). The rate caps adopted in 2024 are being replaced “with revised, interim rate caps. In deriving these new caps, [the 2025 order] excluded unbilled minutes of use, departing from the methodology used in the 2024 Order … which used billed and unbilled minutes.”
The FCC also altered its approach to accounting for the seven reported categories of safety and security costs, the letter said, noting that the 2025 version doesn’t exclude any of those costs, while the 2024 order excluded five categories. The revised rules allow a “uniform additive” of up to 2 cents per minute “above the revised caps to account for costs that correctional facilities incur to allow access to IPCS.”
The revised interim rate caps were slightly higher in the final version of the IPCS order than in the draft. Across several categories, the cap increased by 1 cent per minute over what was proposed. For example, for medium jails, the per-minute effective rate cap was 11 cents in the draft but 12 cents in the final version. That’s a win for IPCS providers and will mean higher calling rates. Video rates are also higher across the board in the final order compared with the draft.
In another change, the final version added clarifying sentences on the reasons for changing the rates. The revised rates “will ensure a stable regulatory framework that continues to foster increased communication for incarcerated people while the Commission adopts permanent rate caps and rate additives based on additional data and stakeholder input.”
As proposed by IPCS provider Securus, the order also provides a mechanism for rates to be adjusted based on inflation. Rather than using the telecommunications producer price index to adjust rates, as Securus proposed, the FCC agreed to use an index based on the GDP. Using a broader index “would arguably be more applicable to the relatively diverse mix of costs IPCS providers typically incur.” The order now clarifies that the Wireline Bureau and Office of Economics and Analytics are charged with collecting data that the agency will need to set permanent rates.
In addition, the final further NPRM includes new questions prompted by Securus. The notice seeks comment on the provider's proposal that the FCC “use simple averages instead of minute-weighted averages to set its rate caps.” It also asks for comment on Securus’ claim “that using simple, facility-based averages to set rate caps would ‘lead to a higher rate cap and more providers being able to recover their actual costs.’”
Other additions include questions on how the rules should apply to correctional facilities that pay for IPCS and offer calling free of charge and on a United Church of Christ recommendation that IPCS providers that incorporate any facility-added charge going to the prison itself “must document those costs before such a payment could be imposed on or charged to the paying customer.”