§ 20.23 - xxx

§ 20.23 Contraband wireless devices in correctional facilities.

Cross Reference

Link to an amendment published at 86 FR 44638, Aug. 13, 2021.

(a) Good faith negotiations. CMRS licensees must negotiate in good faith with entities seeking to deploy a Contraband Interdiction System (CIS) in a correctional facility. Upon receipt of a good faith request by an entity seeking to deploy a CIS in a correctional facility, a CMRS licensee must negotiate toward a lease agreement. If, after a 45 day period, there is no agreement, CIS providers seeking Special Temporary Authority (STA) to operate in the absence of CMRS licensee consent may file a request for STA with the Wireless Telecommunications Bureau (WTB), accompanied by evidence demonstrating its good faith, and the unreasonableness of the CMRS licensee's actions, in negotiating an agreement. The request must be served on the CMRS licensee no later than the filing of the STA request, and the CMRS licensee may file a response with WTB, with a copy served on the CIS provider at that time, within 10 days of the filing of the STA request. If WTB determines that the CIS provider has negotiated in good faith, yet the CMRS licensee has not negotiated in good faith, WTB may issue STA to the entity seeking to deploy the CIS, notwithstanding lack of accompanying CMRS licensee consent.

(b) [Reserved]

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Contraband Interdiction System (CIS) authorization process. The provisions in this section apply to any person seeking certification of a CIS authorized for use in the submission of qualifying disabling requests, whether operating a system that requires a license and is regulated as CMRS or private mobile radio service (PMRS), or operating a passive system that does not require a license. The Wireless Telecommunications Bureau (Bureau) will establish, via public notice, the form and procedure for: CIS operators to file CIS certification applications, self-certifications, and periodic re-certification; CIS operators to serve on wireless providers notice of testing and copies of self-certification; and wireless providers to file objections to self-certifications, including required service on CIS operators and DCFOs.

(1) Application requirements. To obtain CIS certification, an applicant must submit an application to the Bureau for review and approval that:

(i) Demonstrates that all radio transmitters used as part of the CIS have appropriate equipment authorizations pursuant to Commission rules in part 2 of this chapter;

(ii) Demonstrates that the CIS is designed and will be configured to locate devices solely within a correctional facility;

(iii) Describes the methodology to be used in analyzing data collected by the CIS and demonstrates that such methodology is adequately robust to ensure that the particular wireless device is in fact located within a correctional facility and includes specific data analysis benchmarks designed to ensure successful detection, such as rate of detection of contraband versus non-contraband devices and relevant sample size (e.g. number of devices observed and length of observation period);

(iv) Demonstrates that the CIS will secure and protect all information or data collected as part of its intended use;

(v) Demonstrates that the CIS will not interfere with emergency 911 calls;

(vi) Describes whether the CIS requires a spectrum or network access agreement (e.g., a spectrum leasing arrangement or roaming agreement) to be authorized to operate; and

(vii) Includes a proposed test plan for subsequent site-based testing of each CIS, that must include detailed descriptions and technical specifications to facilitate Commission review of whether the system satisfies its legal requirements and technically functions as anticipated.

(2) Marketing and sales. CIS that are certified for use in qualifying requests for disabling of contraband devices may be marketed or sold only to correctional facilities or entities that will provide contraband interdiction services to such facilities.

(3) Site-based testing and self-certification requirements -

(i) Site-based testing. A CIS operator seeking to use the CIS to submit qualifying requests for disabling must test a certified CIS at each location where it intends to operate. Thereafter, the CIS operator must file with the Bureau a self-certification that complies with paragraph (b)(3)(ii) of this section, confirming that the testing at that specific correctional facility is complete and successful. The CIS operator must serve notice of the testing on all relevant wireless providers prior to testing and provide such wireless providers a reasonable opportunity to participate in the tests. Relevant wireless providers include any wireless provider holding a spectrum license that:

(A) Authorizes operation on the frequencies on which the CIS seeks to detect contraband use; and

(B) Authorizes service in the geographic area (e.g., census tract, county, Partial Economic Area (PEA), Economic Area (EA), Cellular Market Area (CMA), Regional Economic Area Grouping (REAG)) within which the correctional facility is located.

(ii) Self-certification. Following the testing, and to be eligible for use in conjunction with qualifying requests for disabling, a CIS operator must file a self-certification with the Bureau that:

(A) Identifies the correctional facility where it seeks to deploy;

(B) Attests that applicable Federal or state criminal statutes prohibit the possession or operation of contraband devices within the correctional facility (and includes the applicable Federal or state criminal statutory provision);

(C) Describes the results of on-site tests of the certified CIS conducted at the correctional facility;

(D) Attests that the on-site testing was performed consistent with the approved test plans for the certified CIS and that the CIS deployment minimizes the risk of disabling a non-contraband device;

(E) Identifies whether any relevant wireless providers participated in the testing, and provides proof that the relevant wireless providers were given notice regarding the testing and a reasonable opportunity to participate;

(F) Includes proof of any spectrum and/or network access agreement (e.g., a spectrum leasing arrangement and/or roaming agreement) required to be authorized to operate and/or for the system to function effectively;

(G) Includes proof that the self-certification was served via electronic means on all relevant wireless providers; and

(H) Includes an attestation from the DCFO verifying that all information contained in the self-certification is true and accurate.

(I) The self-certification must be filed in accordance with part 1, subpart F, of this chapter.

(4) Submitting objections. Wireless providers may submit objections to the Bureau within five business days from the certification filing date. Any such objections must be served on the DCFO and the CIS operator.

(5) Recertification. At least every three years after the initial self-certification, CIS operators seeking to maintain the ability to submit qualifying requests through a DCFO for contraband device disabling must retest their systems and recertify them for continued CIS accuracy. Recertifications must comply with the same rules and filing instructions that apply to the initial self-certification.

(6) Suspension of CIS eligibility. The Bureau may suspend CIS certification generally or at a particular facility if subsequent credible information calls into question a system's reliability.

(7) Records maintenance. To ensure the integrity and proper operation of CISs, a CIS operator must retain records of all information supporting each request for disabling and the basis for disabling each device, including copies of all documents submitted in the qualifying request, for at least five years following the date of submission of the relevant disabling request. CIS operators of systems that have been tested and approved for use in qualifying requests must make available all records upon request from the Bureau.

(c) Disabling contraband wireless devices. A DCFO may request that a CMRS licensee disable a contraband wireless device that has been detected in a correctional facility by a CIS that has been certified in accordance with paragraph (b) of this section. Absent objections from a wireless provider, as described under paragraph (b)(4) of this section, the DCFO may submit a qualifying request to a wireless provider beginning on the sixth business day after the later of the self-certification filing or actual service, as described under paragraph (b)(3)(ii) of this section.

(1) DCFO list. The Commission will maintain a publicly available list of DCFOs that are authorized to transmit qualifying disabling requests. Authorized DCFOs that seek to be recognized on the Commission's DCFO list must send a letter to the Commission's Contraband Ombudsperson, signed by the relevant state attorney general or the relevant Bureau of Prisons Regional Director and providing:

(i) The individual's name;

(ii) The individual's official government position; and

(iii) A list of correctional facilities over which the individual has oversight and management authority.

(2) Qualifying request. A qualifying request must be made in writing, contain the certifications in paragraph (c)(2)(i) of this section and the device and correctional facility identifying information in paragraph (c)(2)(ii) of this section, and be signed by the appropriate DCFO. The DCFO must transmit a qualifying request to a CMRS licensee using a secure communication means that will provide certainty regarding the identity of both the sending and receiving parties. A CMRS licensee must adopt a method, or use an existing method, for receiving secured and verified qualifying requests.

(i) Certifications. A qualifying request must include the following certifications by the DCFO:

(A) A CIS that has been certified in accordance with paragraph (b) of this section was used to gather the contraband subscriber and device information populated in the qualifying request;

(B) The certified CIS was used to identify contraband wireless devices operating in a correctional facility where the CIS has been tested and self-certified for operational readiness and for use in qualifying requests, and the identification of contraband wireless devices occurred within 30 days immediately prior to the date of the qualifying request submission;

(C) The DCFO has reviewed the list of contraband wireless devices and attests that it is accurate; and

(D) It is a violation of applicable state or Federal criminal statutes to possess or operate a contraband device in the correctional facility.

(ii) Device and correctional facility identifying information. The qualifying request must identify the contraband wireless device to be disabled and the correctional facility by providing the following information:

(A) Identifiers sufficient to:

(1) Identify the applicable wireless service provider;

(2) Uniquely describe each of the contraband wireless devices in question at the subscription level; and

(3) Uniquely describe each of the contraband wireless devices in question at the device-level;

(B) Name of the correctional facility at which the contraband wireless device(s) were identified; and

(C) Street address of the correctional facility at which the contraband wireless device(s) were identified.

(3) Licensee actions upon receipt of a qualifying request. Upon receiving a request from a DCFO to disable a contraband wireless device, a licensee providing CMRS service must verify that the request contains the required information for a qualifying request, as defined in paragraph (c)(2) of this section.

(i) Disabling upon receipt of a qualifying request and timing. If the qualifying request contains the required information, and does not contain an error in the device identifying information preventing the licensee from being able to disable the device, a licensee must, within two business days of receipt of the qualifying request, disable the contraband wireless device from using the wireless provider's network at both the device and subscriber level and take reasonable and practical steps to prevent the contraband wireless device from being used on another wireless provider's network.

(ii) Rejection of a qualifying request and timing. A licensee may reject a qualifying request within two business days of receipt of a qualifying request if it does not include the information required for a qualifying request or, with respect to a relevant device, the request contains an error in the device-identifying information preventing the licensee from being able to disable the device.

(iii) Customer outreach. A licensee may immediately disable a contraband wireless device without any customer outreach, or a licensee may contact the customer of record through any available means to notify them that the device will be disabled, but any such notice does not modify the licensee's obligation to comply with paragraphs (c)(3)(i) and (ii) of this section.

(iv) Notification to the Designated Correctional Facility Official. Within two business days of receiving a qualifying request from a DCFO, a licensee must inform the DCFO whether the request has been granted or rejected.

(4) Reversals. A licensee may reverse a disabled wireless device if it determines that the wireless device was identified erroneously as contraband. The licensee must promptly inform the DCFO of the erroneously identified wireless device.

(i) DCFO involvement. Prior to reversing a disabling action, a wireless provider that determines that a device may have been erroneously identified as contraband may request that the DCFO review and confirm the information provided in a qualifying request pursuant to which the device was previously disabled. To trigger DCFO involvement, the wireless provider must provide the DCFO with:

(A) The date of the qualifying request;

(B) The identifying information provided for the device; and

(C) Any evidence supporting the wireless provider's belief that the device was erroneously identified.

(ii) DCFO response. Upon receipt of a request from a wireless provider, the DCFO should review the qualifying request and determine whether the device in question was erroneously identified and either confirm the validity of the identifying information contained in the qualifying request or acknowledge the error and direct the carrier to restore service to the device.

(iii) Restoration of service. In the event the DCFO directs the wireless provider to reverse the disabling, the wireless provider must, within two business days, restore service to the device and reverse any actions taken to prevent the device from accessing other wireless provider networks.

(iv) Wireless provider action in absence of timely DCFO response. In the event the DCFO does not respond to a request from a wireless provider for review of a qualifying request within two business days, the wireless provider may proceed with reversing the disabling action.

(v) Notice of reversals. The DCFO must provide notice to the Contraband Ombudsperson of the number of erroneously disabled devices on a quarterly basis at the end of any quarter during which a device disabling was reversed.

(d) Notification to Managed Access System (MAS) operators of wireless provider technical changes -

(1) Notification requirements. CMRS licensees leasing spectrum to MAS operators must provide 90 days' advance notice to MAS operators of the following network changes occurring within 15 miles of the correctional facility, unless parties modify notification arrangements through mutual agreement:

(i) Adding a new frequency band to service offerings;

(ii) Deploying a new air interface technology or changing an existing air interface technology; and/or

(iii) Adding, relocating, or removing a site.

(2) Good faith negotiations. CMRS licensee lessors and MAS operator lessees must negotiate in good faith to reach an agreement for notification for other types of network adjustments not covered by the notice requirement set forth in paragraph (d)(1) of this section and for the parties' treatment of confidential information contained in notifications required pursuant to this section and/or negotiated between the parties.

(3) Emergency network changes exception. CMRS licensees leasing spectrum to managed access systems (MAS) operators are not required to provide 90 days' advance notice to MAS operators of network technical changes occurring within 15 miles of the correctional facility that are required due to emergency and disaster preparedness. CMRS licensees must provide notice of these technical changes immediately after the exigency.

[82 FR 22761, May 18, 2017, as amended at 86 FR 44638, Aug. 13, 2021]