Velazquez et al v. Securus Technologies, Inc.

MOTION to Dismiss for Failure to State a Claim , MOTION to Dismiss for Lack of Jurisdiction , MOTION to Dismiss Case

W.D. Ark.March 6, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ARKANSAS PATRICK ANTOON, JR., SHALIN MILLER, and SHARON VELAZQUEZ, individually and on behalf of all others similarly situated, Plaintiffs, v. SECURUS TECHNOLOGIES, INC., Defendant. Civil Action No. 17-5008 Honorable Timothy L. Brooks SECURUS TECHNOLOGIES, INC. MOTION TO DISMISS AND MOTION TO STRIKE CLASS ALLEGATIONS Securus Technologies, Inc. (“Securus”), through counsel and pursuant to Fed. R. Civ. P. 12 and Local Rule 7.2, files this motion to dismiss and motion to strike class allegations. In support of this Motion, Securus states the following: 1. Plaintiff Antoon alleges that he “has been and is being forced to pay Securus unjust, unreasonable, unfair [sic] amounts for intrastate phone calls within Arkansas[.]” Am. Compl. ¶ 3 (ECF No. 23). He lodges two claims: Unjust Enrichment; and violation of the Arkansas Deceptive Trade Practices Act, Ark. Code Ann. § 4-88-101, et seq. (“Arkansas DTPA”); both are putative class action claims. Antoon is presently incarcerated in a facility operated by the Arkansas Department of Corrections (“Arkansas DOC”). Am. Compl. ¶ 3. Antoon’s claims should be dismissed on several grounds: a. The Arkansas Public Service Commission has exclusive jurisdiction to hear complaints regarding telephone rates. E.g., Centerpoint Energy, Inc. v. Miller Case 5:17-cv-05008-TLB Document 30 Filed 03/06/17 Page 1 of 7 PageID #: 105 2 Cty. Circuit Court, Second Div., 258 S.W.3d 336, 345 (2007); Ark. Code Ann. § 23-4-201(a)(1). b. Securus, as contractor to the Arkansas DOC, has derivative sovereign immunity from suits challenging its performance of duties under that contract. E.g., Smith v. Rogers Grp., Inc., 72 S.W.3d 450, 455 (2002). c. The rates Antoon paid are contained in public rate lists in compliance with Arkansas PSC regulations, and thus are immune from liability. Jacobs v. Global Tel*Link Corp., No. 15-cv-5136-TLB, 2016 WL 5953128, at *4 (W.D. Ark. May 17, 2016) (citing H.J. Inc. v. Nw. Bell Tel. Co., 954 F.2d 485, 488 (8th Cir. 1992)). d. Antoon fails to state a claim under Section 107(a)(10) of the Arkansas DTPA. E.g., Lawson v. Whitey’s Frame Shop, 697 A.2d 1137, 1140 (Conn. 1997) (applying Arkansas law); Chirikos v. Yellow Cab Co., 410 N.E. 2d 61, 68 (Ill. App. Ct. 1980) (applying Arkansas law). e. Antoon fails to state a claim for unjust enrichment, because Securus made full “payment of commissions” to the Arkansas DOC (Am. Compl. ¶ 3) and retained no benefit of the funds collected for site commissions. In addition, Antoon cannot establish any predicate unjust act or practice. E.g., Independence County v. Pfizer, Inc., 534 F. Supp. 2d 882, 891 (E.D. Ark. 2008). 2. Plaintiff Miller alleges that she “was forced to pay Securus unjust, unreasonable, unfair, and deceptive amounts for intrastate phone calls within Georgia.” Am. Compl ¶ 5. She lodges two claims: Unjust Enrichment; and violation of the Georgia Fair Business Case 5:17-cv-05008-TLB Document 30 Filed 03/06/17 Page 2 of 7 PageID #: 106 3 Practice Act, O.C.G.A. § 10-1-390, et seq. (“Georgia FBPA”); both are putative class action claims. Miller’s claims should be dismissed on several grounds: a. The Court lacks personal jurisdiction over Securus for Miller’s claims. E.g., Wells Dairy, Inc. v. Food Movers Int’l, 607 F.3d 515, 518 (8th Cir. 2010); Merryman v. JPMorgan Chase Bank, N.A., No. 5:15-CV-5100, 2015 WL 7308666, at *3-4 (W.D. Ark. Nov. 19, 2015). The Class Action Fairness Act, 28 U.S.C. § 1332(d) (“CAFA”), does not establish personal jurisdiction over defendants. E.g., AM Trust v. UBS AG, 78 F. Supp. 3d 977, 986 (N.D. Cal. 2015). b. This Court is an improper venue for Miller’s claims which regard only intrastate service in Georgia. E.g., Sioux Transp., Inc. v. XPO Logistics, Inc., No. 5:15-CV- 05265, 2015 WL 9412930, at *3 (W.D. Ark. Dec. 22, 2015); Merryman, 2015 WL 7308666, at *4. CAFA does not excuse plaintiffs from satisfying venue requirements. Abrams Shell v. Shell Oil Co., 165 F. Supp. 2d 1096, 1107 n.5 (C.D. Cal. 2001). c. Miller’s claims are barred by the filed rate doctrine, because Securus’s intrastate calling rates, along with associated regulatory fees and taxes, are in tariffs filed at the Georgia Public Service Commission (“Georgia PSC”). E.g., Jacobs v. Global Tel*Link Corp., No. 15-cv-5136-TLB, 2016 WL 5953128, at *4 (W.D. Ark. May 17, 2016) (citing H.J. Inc. v. Nw. Bell Tel. Co., 954 F.2d 485, 488 (8th Cir. 1992)); Carr v. S. Co., 263 Ga. 771, 771, 438 S.E.2d 357, 358 (Ga. 1994). In addition, the rates are compliant with rate caps adopted by the Georgia PSC. d. Securus’s rates are immune from Georgia FBPA liability, because they are regulated by the Georgia PSC. Ga. Code Ann. § 10-1-396(1); see also Fortson v. Case 5:17-cv-05008-TLB Document 30 Filed 03/06/17 Page 3 of 7 PageID #: 107 4 Best Rate Funding, Corp., No. 1:13-CV-4102-CC, 2014 WL 11456286, at *5 (N.D. Ga. Sept. 2, 2014), aff’d, 602 F. App’x 479 (11th Cir. 2015). 3. Plaintiff Velazquez alleges that she “was forced to pay Securus unjust, unreasonable, unfair and/or deceptive amounts for intrastate phone calls within Illinois[.]” Am. Compl. ¶ 4. She lodges two claims: Unjust Enrichment; and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1, et seq. (“Illinois CFA”); both are putative class action claims. Velazquez’s claims should be dismissed on several grounds: a. The Court lacks personal jurisdiction over Securus for Velazquez’s claims. E.g., Sioux Transp., 2015 WL 9412930, at *3; Merryman, 2015 WL 7308666, at *4. CAFA does not establish personal jurisdiction over defendants. E.g., AM Trust v. UBS AG, 78 F. Supp. 3d 977, 986 (N.D. Cal. 2015). b. This Court is an improper venue for Miller’s claims which regard only intrastate service in Illinois. E.g., Sioux Transp., 2015 WL 9412930, at *3; Merryman, 2015 WL 7308666, at *4. CAFA does not excuse plaintiffs from satisfying venue requirements. Abrams Shell v. Shell Oil Co., 165 F. Supp. 2d 1096, 1107 n.5 (C.D. Cal. 2001). c. Ms. Miller has sued the wrong company for much of her claims. Securus did not begin to serve the facility from which Ms. Velazquez received calls until March 2013, and thus she can claim no injury from Securus for the period 2005 (see Am. Compl. ¶ 4) to March 2013. Wallace v. ConAgra Foods, Inc., 747 F.3d 1025, 1030 (8th Cir. 2014)). Her lack of standing as to Securus for that period deprives Case 5:17-cv-05008-TLB Document 30 Filed 03/06/17 Page 4 of 7 PageID #: 108 5 the Court of jurisdiction, warranting dismissal. Brittany O v. Bentonville Sch. Dist., No. 5:15-cv-5020, 2016 WL 1064637, at *3 (W.D. Ark. Mar. 15, 2016). d. Securus is a regulated common carrier under the jurisdiction of the Illinois Commerce Commission, and thus its calling rates, and associated fees and taxes, are immune from IL CFA liability. 815 Ill. Comp. Stat. Ann. 505/10b(1); Cont’l Mobile Tel. Co. v. Chicago SMSA Ltd. P’ship, 587 N.E.2d 1169, 1174 (1992). e. Securus’s performance of a public contract with the Illinois DOC cannot serve as the predicate for an IL CFA claim. E.g., Chirikos v. Yellow Cab Co., 410 N.E.2d 61, 68 (1980). f. Velazquez fails to plead her IL CFA claim with the necessary particularity under Fed. R. Civ. P. 9(b). E.g., Pirelli Armstrong Tire Corp. Retiree Med. Benefits Trust v. Walgreen Co., 631 F.3d 436, 446-47 (7th Cir. 2011). g. Velazquez fails to state a claim for unjust enrichment against Securus, because Securus made full “payment of commissions” to the Arkansas DOC (Am. Compl. ¶ 4) and retained no benefit of the funds collected for site commissions. In addition, Velazquez cannot establish any predicate unjust act or practice. E.g., Cleary v. Phillip Morris, Inc., 656 F.3d 511, 517 (7th Cir. 2011). h. The ICC has exclusive jurisdiction to hear complaints regarding telephone rates. E.g., Sheffler v. Commonwealth Edison Co., 2011 IL 110166, ¶ 42, 955 N.E.2d 1110, 1123 (Ill. 2011). 4. The Court should strike several class allegations pursuant to Fed. R. Civ. P. 12(e). This case regards only intrastate calls paid for by persons residing in the same state as the originating jail. Am. Compl. ¶¶ 3, 4, 5. Securus has not provided service in Delaware, Case 5:17-cv-05008-TLB Document 30 Filed 03/06/17 Page 5 of 7 PageID #: 109 6 Hawaii, or Vermont, and thus those states must be struck from the allegations of the “Arkansas Statutory Class” and the “Multistate UE Class II”. Id. ¶¶ 26(a)(2), (b)(2). 5. The Court should strike the “Georgia Statutory Class” that purports to lodge the Georgia FBPA claim, Am. Compl. ¶ 26(c), in its entirety, because the Georgia FBPA precludes class actions. Ga. Code Ann. § 10-1-399(a); Honig v. Comcast of Georgia I, LLC, 537 F. Supp. 2d 1277, 1289 (N.D. Ga. 2008). WHEREFORE, for these reasons and those set forth in the accompanying Memorandum, Securus Technologies, Inc. moves to dismiss all claims of the Plaintiffs. A Proposed Order accompanies this Motion. Dated: March 6, 2017 Respectfully submitted, SECURUS TECHNOLOGIES, INC. Woody Bassett [Ark. Supreme Court ID 77006] James M. Graves [Ark. Supreme Court ID 95172] Bassett Law Firm LLP 221 North College Avenue P.O. Box 3618 Fayetteville, AR 72702 Tel. 479.521.9996 Fax 479.521.9600 WBassett@bassettlawfirm.com JGraves@bassettlawfirm.com By: /s/Stephanie A. Joyce Stephanie A. Joyce * Joshua A. Fowkes * Arent Fox LLP 1717 K Street, N.W. Washington, D.C. 20006 Tel. 202.857.6081 Fax 202.857.6395 Stephanie.Joyce@arentfox.com Joshua.Fowkes@arentfox.com * Admitted Pro Hac Vice Case 5:17-cv-05008-TLB Document 30 Filed 03/06/17 Page 6 of 7 PageID #: 110 CERTIFICATE OF SERVICE The undersigned hereby certifies that copies of the foregoing Securus Technologies, Inc. Motion to Dismiss and Motion to Strike Class Allegations were served upon all counsel of record via electronic mail through the Court’s ECF System this 6th day of March 2017. /s/Stephanie A. Joyce Stephanie A. Joyce Case 5:17-cv-05008-TLB Document 30 Filed 03/06/17 Page 7 of 7 PageID #: 111 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ARKANSAS PATRTICK ANTOON, JR., SHALIN MILLER, and SHARON VELAZQUEZ, individually and on behalf of all others similarly situated, Plaintiff, v. SECURUS TECHNOLOGIES, INC., Defendant. Civil Action No. 17-5008 Honorable Timothy L. Brooks SECURUS TECHNOLOGIES, INC. MEMORANDUM IN SUPPORT OF MOTION TO DISMISS AND MOTION TO STRIKE CLASS ALLEGATIONS Stephanie A. Joyce * Joshua A. Fowkes * Arent Fox LLP 1717 K Street, N.W. Washington, D.C. 20006 Tel. 202.857.6081 Fax 202.857.6395 Stephanie.Joyce@arentfox.com Joshua.Fowkes@arentfox.com * Admitted Pro Hac Vice Woody Bassett [AR Bar No. 77006] James M. Graves [AR Bar No. 95172] Bassett Law Firm LLP 221 North College Avenue P.O. Box 3618 Fayetteville, AR 72702 Tel. 479.521.9996 Fax 479.521.9600 WBassett@bassettlawfirm.com JGraves@bassettlawfirm.com Dated: March 6, 2017 Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 1 of 45 PageID #: 112 i TABLE OF CONTENTS Page SUMMARY .................................................................................................................................... 1 RELEVANT FACTUAL BACKGROUND ................................................................................... 3 LEGAL STANDARD ..................................................................................................................... 3 ARGUMENT .................................................................................................................................. 4 I. THE CLAIMS OF PLAINTIFF ANTOON SHOULD BE DISMISSED .......................... 4 A. The Court Lacks Subject Matter Jurisdiction Over Antoon’s Claims .................... 4 1. If Antoon Had a Cognizable Claim as to Intrastate Phone Rates, the APSC Is the Exclusive Forum to Adjudicate that Claim. ..................... 4 2. Securus’s Performance of Its Contract with the Arkansas Department of Corrections Affords It Derivative Sovereign Immunity. ........................ 6 B. The Filed Rate Doctrine Bars Antoon’s Claims ..................................................... 7 C. Antoon Fails to State a Claim Under the Arkansas DTPA ................................... 10 1. Securus’s Phone Rates Fall Within the Arkansas DTPA Safe Harbor. .... 10 2. Antoon Failed to Plead His Claim with the Particularity that Fed. R. Civ. P. 9(b) Requires. ................................................................... 12 3. Even Under the More Relaxed Standard of Fed. R. Civ. P. 8(a), Antoon Fails to State a DTPA Claim. ....................................................... 13 II. THE CLAIMS OF PLAINTIFF MILLER SHOULD BE DISMISSED .......................... 15 A. The Court Lacks Personal Jurisdiction Over Securus as to Miller’s Claims Which Regard Only Intrastate Service in Georgia ............................................... 15 1. Securus Is Not Subject to General Jurisdiction in this State. .................... 16 2. Securus Is Not Subject to Specific Personal Jurisdiction for Miller’s Claims. ........................................................................................ 17 B. This Court Is an Improper Venue for Claims Arising out of Intrastate Calls in Georgia.............................................................................................................. 18 C. CAFA Does Not Obviate Personal Jurisdiction or Venue Analysis ..................... 19 Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 2 of 45 PageID #: 113 ii D. The Joinder Rule Does Not Excuse Miller from the Venue Statute or from Establishing Jurisdiction Over Securus ................................................................ 20 E. The Filed Rate Doctrine Bars Miller’s Claims ..................................................... 21 F. Miller Fails to State a Claim Under the Georgia FBPA, Because Securus’s Rates Fall Within the Safe Harbor ....................................................... 23 III. THE CLAIMS OF PLAINTIFF VELAZQUEZ SHOULD BE DISMISSED ................. 25 A. The Court Has No Personal Jurisdiction Over Securus as to Velazquez’s Claims .............................................................................................. 25 B. This Court Is an Improper Venue for Claims Arising out of Intrastate Calls in Illinois ............................................................................................................... 26 C. Velazquez Purports to Sue Securus for Rates Paid Years Before it Began Serving the Illinois DOC ........................................................................... 26 D. Velazquez Fails to State a Claim for Which Relief May Be Granted .................. 27 1. Securus’s Phone Rates Fall within the Illinois CFA Safe Harbor. ........... 27 2. Velazquez Does Not Have a Viable Claim Under the Illinois CFA. ........ 29 3. Velazquez Does Not Plead Her Illinois CFA Claim with Particularity. ... 32 4. Even if Velazquez Had a Cognizable Claim as to Intrastate Phone Rates, the ICC Is the Exclusive Forum to Adjudicate that Claim. ........... 33 IV. ALL PLAINTIFFS FAIL TO STATE A CLAIM FOR UNJUST ENRICHMENT, BECAUSE THEY ADMIT THAT SECURUS PAID OUT ALL SITE COMMISSIONS TO GOVERNMENT AGENCIES AND THUS RETAINED NO BENEFIT ................. 35 A. No Plaintiff Conferred a “Benefit” on Securus that it Retained ........................... 35 B. No Plaintiff Can Establish that Securus’s Alleged Conduct Is Unjust or Unlawful. .............................................................................................. 38 V. THE COURT SHOULD STRIKE SEVERAL CLASS ACTION ALLEGATIONS ....... 39 A. The Court Should Strike the Class Allegations of Persons Who Paid for Intrastate Calls While in Delaware, Hawaii, and Vermont ............................. 39 B. The Court Should Strike the Georgia Statutory Class, Because the Statute Does Not Permit Class Actions............................................................................. 40 CONCLUSION ............................................................................................................................. 40 Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 3 of 45 PageID #: 114 1 Securus Technologies, Inc. (“Securus”), through counsel and pursuant to Fed. R. Civ. P. 7 and 12(b)(6) and Local Rule 7.2, files this Memorandum in support of its Motion to Dismiss and Motion to Strike Class Allegations. This motion regards all three Plaintiffs: Patrick Antoon, Jr. (“Antoon”); Shalin Miller (“Miler”), and Sharon Velazquez (“Velazquez”) (collectively, the “Plaintiffs”). Plaintiffs challenge the rates they have paid for intrastate Inmate Communications Service (“ICS”) in Arkansas, Georgia, and Illinois, respectively. All of their claims should be dismissed. SUMMARY Only one Plaintiff survived the changes that resulted in the First Amended Class Action Compliant (ECF No. 23) (“Am. Compl.”),1 but still this case should be dismissed in its entirety. As to Plaintiff Antoon’s claims, the Court lacks subject matter jurisdiction. Antoon’s claims regard telephone rates which must, under Arkansas law, must be brought to the Arkansas Public Service Commission (“Arkansas PSC”). Even if the Court had jurisdiction over Antoon’s claims, it must dismiss them pursuant to its jurisprudence under the filed rate doctrine - Securus is a common carrier regulated by the Arkansas PSC whose rates are publicly posted in accordance with PSC rules. For this same reason, Securus’s rates are within the “safe harbor” of the Arkansas Deceptive Trade Practices Act, Ark. Code Ann. § 4-88-101, et seq. (“Arkansas DTPA”) and thus are immune from liability. His Arkansas DTPA claim also lacks the particularity required by Fed. R. Civ. P. 9(b) and fails to satisfy the elements of a DTPA claim. Finally, Antoon fails to state a claim for unjust enrichment, because he admits that Securus did not retain the site commission monies that it is required to pay under the Arkansas DOC contract. Plaintiff Miller is attempting to bring into this Court claims that regard intrastate 1 The initial complaint was filed by Eugene Brown and Sharon Velazquez on January 10, 2017 (ECF No. 1). Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 4 of 45 PageID #: 115 2 telephone service in Georgia, which have nothing to do with Securus’s actions in the State of Arkansas, and as such she fails to establish personal jurisdiction over Securus and to satisfy the venue requirements of 28 U.S.C. § 1391(b). In addition, Securus’s rates are contained in tariffs that have been filed at the Georgia Public Service Commission (“Georgia PSC”) and are in compliance with maximum, intrastate rate caps that the Georgia PSC has adopted. The filed rate doctrine therefore bars both of Miller’s claims. And as is the case regarding Plaintiff Antoon, Securus’s compliance with the tariffing and rate requirements of the Georgia PSC places its rates within the “safe harbor” afforded to regulated entities by the express language of the Georgia Fair Business Practice Act, O.C.G.A. § 10-1-390, et seq. (“Georgia FBPA”). Her claim for unjust enrichment fails for the same reason that Plaintiff Antoon’s claim fails. Plaintiff Velazquez also cannot establish personal jurisdiction over Securus or satisfy the venue requirements of 28 U.S.C. § 1391(b). Her claims regard only intrastate telephone service in Illinois, and cannot find any basis in Securus’s actions here in Arkansas or in this District. In addition, her claim purports to reach back to “approximately mid-2005” (Am. Compl. ¶ 4), despite the fact that Securus did not serve the Illinois Department of Corrections until late in 2012. For that portion of her claim that could be brought as to Securus, Plaintiff Velazquez runs afoul of the “safe harbor” provision of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1, et seq. (“Illinois CFA”), because Securus is a common carrier that holds a Certificate of Service Authority from the Illinois Commerce Commission (“ICC”). And the logical outgrowth of the Illinois CFA safe harbor is that the ICC is the exclusive forum in which a consumer can seek relief regarding telecommunications rates. Velazquez also fails to allege - nor could she allege - any deceptive act and has failed to plead her claim with the required particularity. Finally, her unjust enrichment claim fails for the same reasons that her Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 5 of 45 PageID #: 116 3 fellow plaintiffs are unable to lodge that claim. RELEVANT FACTUAL BACKGROUND Plaintiff Antoon alleges that he “has been and is being forced to pay Securus unjust, unreasonable, unfair [sic] amounts for intrastate phone calls within Arkansas[.]” Am. Compl. ¶ 3. He lodges two claims on behalf of himself and putative classes: Unjust Enrichment(id. ¶¶ 37- 41); and violation of the Arkansas DTPA (id. ¶¶ 56-60). Plaintiff Miller alleges that she “was forced to pay Securus unjust, unreasonable, unfair, and deceptive amounts for intrastate phone calls within Georgia.” Am. Compl ¶ 5. She lodges two claims on behalf of her herself and putative classes: Unjust Enrichment (id. ¶¶ 50-54); and violation of the Georgia FBPA (id. ¶ 78-88). Plaintiff Velazquez alleges that she “was forced to pay Securus unjust, unreasonable, unfair and/or deceptive amounts for intrastate phone calls within Illinois[.]” Am. Compl. ¶ 4. She lodges two claims on behalf of herself and putative classes: Unjust Enrichment (id. ¶¶ 43- 48); and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1, et seq. (“Illinois CFA”) (id. ¶¶ 62-75). LEGAL STANDARD “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Magee v. Trustees of Hamline Univ., 747 F.3d 532, 535 (8th Cir. 2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Iqbal, 556 U.S. at 678). A claim that simply states “labels or conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Id. (quoting Iqbal, 556 U.S. at 678). In evaluating a Rule 12(b)(6) motion, the court “[d]etermin[es] whether a Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 6 of 45 PageID #: 117 4 complaint crosses over the plausibility threshold” based on the court’s “judicial experience and common sense.” Id. (quoting Iqbal, 556 U.S. at 679). The Court may strike class allegations when it is apparent on the face of the complaint that a Plaintiff cannot pursue a claim on behalf of a class. See Fed. R. Civ. P. 12(f); Fed. R. Civ. P. 23(c)(1)(A), (d)(1)(D); see also In re St. Jude Med. Inc. Silzone Heart Valves Products Liab. Litig., MDL No. 01-1396-JRT-FLN, 2009 WL 1789376, at *2 (D. Minn. June 23, 2009) (“Where a plaintiff’s class allegations are insufficient to satisfy the requirements for certification, the Court has authority to strike those allegations under Rule 23(d)(1)(D).”). “Similarly, a court may strike class allegations when they involve ‘a largely legal determination, and no proffered or potential factual development offers any hope of altering that conclusion.’” Knowles v. Standard Fire Ins. Co., 4:11-04044, 2013 WL 6497097, at *2 (W.D. Ark. Dec. 11, 2013) (quoting Pilgrim v. Universal Health Card, LLC, 660 F.3d 943, 949 (6th Cir. 2011)). ARGUMENT I. THE CLAIMS OF PLAINTIFF ANTOON SHOULD BE DISMISSED A. The Court Lacks Subject Matter Jurisdiction Over Antoon’s Claims 1. If Antoon Had a Cognizable Claim as to Intrastate Phone Rates, the APSC Is the Exclusive Forum to Adjudicate that Claim. Whatever complaint Plaintiff Antoon has regarding intrastate phone rates, the PSC is the exclusive forum to adjudicate that claim. The PSC has sole and exclusive, primary jurisdiction over disputes between customers and public utility companies. Centerpoint Energy, Inc. v. Miller Cty. Circuit Court, Second Div., 258 S.W. 3d 336, 345 (Ark. 2007) (granting in part and denying in part writ) (concluding that file-rate doctrine barred plaintiff’s claims).2 The Arkansas “General Assembly has endowed the APSC with sole and exclusive ratemaking authority … to 2 The APSC’s sole and exclusive primary jurisdiction reaches unregulated public utilities if their actions affect rates charged by public utilities. Centerpoint Energy, 258 S.W. 3d at 345. Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 7 of 45 PageID #: 118 5 determine the rates to be charged for each kind of product or service to be furnished or rendered by electric, gas, telephone, or sewer public utilities in Arkansas.” Id. at 341 ((citing Ark. Code Ann. § 23-4-201(a)(1)). The term “rate” includes [E]very compensation, charge, fare, toll, rental, and classification, or any of them, demanded, observed, charged, or collected by any public utility for any service, products, or commodity offered by it as a public utility to the public and means and includes any rules, regulations, practices, or contracts affecting any compensation, charge, fare, toll, rental, or classification. Id. (quoting Ark. Code Ann. § 23-1-101(10)). While the Arkansas PSC cannot hear claims invoking private rights, to determine whether a complaint invokes private rights and therefore lies outside of the PSC’s purview, the Court must look beneath the claims’ labels and “inquire into the true nature of the complaint,” id., because “the mere labeling of a claim as a tort claim does not automatically deprive the [A]PSC of authority to hear the complaint,” Austin v. Centerpoint Energy Arkla, 226 S.W.3d 814, 819 (Ark. 2006) (affirming dismissal under filed rate doctrine). Thus, when a plaintiff essentially alleges that a utility has overcharged him - no matter how the plaintiff labels his claims in his complaint - the APSC has exclusive jurisdiction to decide the dispute. Centerpoint Energy, 226 S.W. 3d at 819 (Arkansas PSC had sole and exclusive jurisdiction over class claims alleging fraud, unjust enrichment, and civil conspiracy); Austin, 365 Ark. at, 146 (determining that APSC had sole and exclusive jurisdiction over claims alleging replevin, tort, and civil rights violations); see Capps v. Carroll Elec. Co-op. Corp., 378 S.W.3d 148, 151 (Ark. 2011) (determining that APSC had sole and exclusive jurisdiction over claims seeking the refund of capital credits even though they were couched “as some sort of private right found in the common law of contracts, torts, or property”). Put another way, when a claim “impermissibly encroaches on the exclusive authority of the [A]PSC to fix rates,” its label is immaterial. Cullum v. Seagull Mid-South, Inc., 907 S.W. 2d 741, 744 (Ark. 1995) Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 8 of 45 PageID #: 119 6 (determining that APSC had sole and exclusive jurisdiction over class tort claims). Here, while Antoon purports to bring claims under the Arkansas DTPA and for unjust enrichment, his claims, and those of the purported class he seeks to represent, derive from a single nucleus - that he allegedly paid too much to make intrastate calls. Am. Compl. ¶¶ 1, 3, 23, 26(a)(1)-(2), 60. Despite their wrapping, these claims are “precisely the kind of dispute that should be decided by the APSC.” Centerpoint Energy, 258 S.W. 3d at 345. For this additional reason, the Court should dismiss Antoon’s claims. 2. Securus’s Performance of Its Contract with the Arkansas Department of Corrections Affords It Derivative Sovereign Immunity. Securus is immune for its actions under its contract with the Arkansas DOC. Under the Arkansas Constitution, the State and its agencies, including the DOC, are immune from suit. DuBois v. Hobbs, No. CV-13-1007, 2014 WL 2464052, at *1 (Ark. May 29, 2014) (dismissing suit against Director of DOC based on sovereign immunity) (citing Ark. Const. art. 5, § 20). Contractors performing in accordance with the terms of a government contract acquire that immunity, Smith v. Rogers Grp., Inc., 72 S.W. 3d 450, 455 (Ark. 2002) (“The doctrine of acquired immunity provides that a contractor who performs in accordance with the terms of its contract with a governmental agency and under the direct supervision of the governmental agency is not liable for damages resulting from that performance.”) (affirming summary judgment on basis of acquired immunity), which is jurisdictional, DuBois, 2014 WL 2464052, at *1. And, provided that the contractor’s work was neither willfully nor negligently tortious, the immunity remains. Smith, 72 S.W. 3d at 456.3 3 Independent contractors acquire the state’s immunity. Lopez v. Mendez, 432 F.3d 829, 833 (8th Cir. 2005) (“The state’s sovereign immunity does not extend to independent contractors engaging in work for the state. However, the acquired-immunity doctrine creates an exception to this rule. The exception provides that a contractor who performs its work according to the terms of its contract with a governmental agency, and under the governmental agency’s direct Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 9 of 45 PageID #: 120 7 Here, Securus performed under the contract as agreed with the ADOC. It includes intrastate call rates for each facility in which Antoon was incarcerated as well as specifications for computer hardware and software, technical service support, and systems monitoring. Among Securus’s many obligations is the requirement that it pay the Arkansas DOC a site commissions. Because the service that Plaintiff Antoon received was chosen, defined, and supervised by the Arkansas, which enjoys sovereign immunity, Securus is likewise immune from claims arising from its service at Arkansas DOC facilities. Plaintiff Antoon’s claims against Securus therefore should be dismissed.4 B. The Filed Rate Doctrine Bars Antoon’s Claims The filed rate doctrine bars Miller’s claims. The doctrine “bars courts from adjudicating the reasonableness of a rate that has already been approved - or in some circumstances even merely noticed - by an agency with regulatory authority over the challenged rate.” Jacobs v. Global Tel*Link Corp., No. 5:15-cv-5136-TLB, 2016 WL 5953128, at *4 (W.D. Ark. May 17, 2016) (citing H.J. Inc. v. Nw. Bell Tel. Co., 954 F.2d 485, 488 (8th Cir. 1992)). The doctrine’s purposes are “to: (1) preserve the regulating agency’s authority to determine the reasonableness of rates; and (2) insure that the regulated entities charge only those rates that the agency has approved or been made aware of as the law may require.” Id. (quoting H.J. Inc., 954 F.2d at 488). The doctrine applies whether the rate in question is approved by a federal or state agency. Id. ((quoting H.J. Inc., 954 F.2d at 494); see also Firstcom, Inc. v. Qwest Corp., 555 F.3d 669, 679 (8th Cir. 2009) (“[T]he filed rate doctrine applies to rates filed with state agencies.”) supervision, is not liable for damages resulting from its performance.”) (citations omitted) (concluding that contractor did not perform according to contract specification). 4 Antoon is not without recourse: the “State Claims Commission exists to provide relief in the event of a claim against the state and its agencies.” Fuqua v. Flowers, 341 Ark. 901, 908, 20 S.W.3d 388, 392 (2000) (citations omitted). Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 10 of 45 PageID #: 121 8 (affirming dismissal of claims under filed rate doctrine). Under the filed rate doctrine, courts cannot award any relief that would alter the filed tariff. See Firstcom, 555 F.3d at 680-81. And it bars claims for unjust enrichment. Sancom, Inc. v. Qwest Commc’ns Corp., 643 F. Supp. 2d 1117, 1125-27 (D.S.D. 2009) (dismissing unjust enrichment and deceptive practices claims under filed rate doctrine), recon. granted in part, No. Civ. 07-4147-KES, 2010 WL 96005 (D.S.D. Mar. 12, 2010). Indeed, a court may not even examine the extent of agency oversight of a rate because doing so would undermine the agency’s exclusive authority. Jacobs, 2016 WL 5953128, at *5. Challenges to regulated activities must take place at the agency with appropriate jurisdiction and regulatory authority. See Sancom, 643 F. Supp. 2d at 1125. As this Court observed, since the July 1, 2013 amendments to the Arkansas Telecommunications Regulatory Reform Act (“Arkansas TRRA”), a regulated telecommunications carrier in Arkansas, such as an interexchange carrier, must file rate schedules with the Arkansas PSC or post those rates online. Jacobs, 2016 WL 5953128, at *4; id. at *5 (only basic local exchange carriers are exempt from Arkansas TRRA rate-approval process). Securus is registered at the Arkansas PSC as an Interexchange Carrier. Declaration of Curtis L. Hopfinger ¶ 4 (Mar. 6 2017). In compliance with this regulatory structure, Securus has posted on a “publicly accessible website its generally available prices and terms of service for telecommunications services.” Ark. Code Ann. § 23-17-411(f)(3); see also Hopfinger Decl. ¶ 4 (“The rates that Securus charges for intrastate calls in Arkansas are posted on the Securus website at http:www.securustechnologies.com/tariffs.”). This posting satisfies Arkansas regulatory requirements. Ark. Code Ann. § 23-17-411(f)(3); see Jacobs, 2016 WL 5953128, at Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 11 of 45 PageID #: 122 9 *4 (noting that subsection (f)(3) permits interexchange carriers to opt out of rate-filing requirement by posting rates online).5 In Arkansas, the term “rates” covers not just calling rates but also includes what Plaintiffs call “ancillary charges” (Am. Compl. ¶ 19).6 As Arkansas defines them, “rates” include [E]very compensation, charge, fare, toll, rental, and classification, or any of them, demanded, observed, charged, or collected by any public utility for any service, products, or commodity offered by it as a public utility to the public and means and includes any rules, regulations, practices, or contracts affecting any compensation, charge, fare, toll, rental, or classification. Centerpoint Energy, 258 S.W. 3d at 341 (quoting Ark. Code Ann. § 23-1-101(10)). For the entirety of Antoon’s alleged period of incarceration, Securus’s prices and terms of service were posted in this manner. See Hopfinger Decl., Ex A (rates effective October 2, 2013 to May 26, 2015), Ex. B (Securus’s rates effective May 27 to December 15, 2015), Ex. C (Securus’s rates effective December 16, 2015 to the present). And the posted rates include fees such as a Wireless Administration Fee, a Return Check Charges, and a State Cost Recovery Fee. See Hopfinger Decl., Ex A at 7, 9-10, Ex. B at 7, 9-10, Ex. C at 7, 9-10. Because the filed rate doctrine prevents Antoon from recovering damages from Securus’s rates, see Jacobs, 2016 WL 5953128, at *5 (citing Cullum v. Seagull Mid-South, Inc., 907 S.W. 2d 741, 745 (Ark. 1995),7 5 The APSC is empowered to investigate whether a new rate is just and reasonable. Jacobs, 2016 WL 5953128, at *4. 6 Antoon sues over telecommunications services only, not financial transactions or other services. Am. Compl. ¶¶ 26(a)(1)-(2) (suing over monies paid to Securus for inmate calling services for intrastate calls). His claim therefore sues over regulated activities. See Jacobs, 2016 WL 5953128, at *6. Even if he sued over charges, Arkansas’s statute defines rate expansively to cover charges and fees charged by a public utility. Centerpoint Energy, 258 S.W. 3d at 341 (quoting Ark. Code Ann. § 23-1-101(10)). 7 “We hold that the circuit court lacked jurisdiction over the civil causes of action in tort which necessarily required an assessment of damages measured by what was the filed rate with the PSC and what the rate should have been.” Id. (affirming dismissal under filed rate doctrine). Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 12 of 45 PageID #: 123 10 this Court should dismiss both of his claims. C. Antoon Fails to State a Claim Under the Arkansas DTPA 1. Securus’s Phone Rates Fall Within the Arkansas DTPA Safe Harbor. Antoon alleges that Securus violated subsections (a)(8) and (a)(10) of the Arkansas DTPA. Am. Compl. ¶¶ 55-60. But he cannot state a claim under either subsection, because the Arkansas PSC regulates Securus’s rates - those rates fall under the “safe harbor” that the Arkansas DTPA created for regulated activities. Ark. Code Ann. § 4-88-101(3). The Arkansas DTPA does not apply to “[a]ctions or transactions permitted under laws administered by … [a] regulatory body or officer acting under statutory authority of [Arkansas] or the United States.” Id. It “exempts regulated conduct by regulated actors regardless of whether substantive state law explicitly authorizes or prohibits the precise conduct at issue.” Jacobs, 2016 WL 5953128, at *6 (quoting Center v. ConAgra Foods, Inc., No. 5:14-cv-5248, 2015 WL 4106473, at *5 (W.D. Ark. Jul. 6, 2015) (granting in part motion to dismiss). Thus “subsection 4-88-101(3) excludes any transaction that is governed by the laws administered by a regulatory authority, regardless of whether the transaction violates the relevant regulations.” RM Dean Farms v. Helena Chem. Co., 847 F. Supp. 2d 1125, 1126 (E.D. Ark. 2012) (granting partial summary judgment for defendant on DTPA claim). Otherwise, the Arkansas DTPA exceptions would be rendered meaningless. Id. at 1126-27 (citing Williams v. State Farm Mut. Auto. Ins. Co., No. 5:10CV00032, 2010 WL 2573196, at *4 (E.D. Ark. June 22, 2010) (granting motion to dismiss for failure to state a claim under DTPA).8 8 As Judge Holmes put it: No regulatory body permits deceptive and unconscionable trade practices such as those prohibited by the Arkansas Deceptive Trade Practices Act. See Ark. Code Ann. § 4-88-107. Because no regulatory body permits deceptive and unconscionable trade practices … no conduct that violated the Arkansas Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 13 of 45 PageID #: 124 11 As noted above, the Arkansas “General Assembly has endowed the APSC with sole and exclusive ratemaking authority … to determine the rates to be charged for each kind of product or service to be furnished or rendered by electric, gas, telephone, or sewer public utilities in Arkansas.” Centerpoint Energy, 258 S.W. 3d at 341 (citing Ark. Code Ann. § 23-4-201(a)(1)). The term “rate” includes [E]very compensation, charge, fare, toll, rental, and classification, or any of them, demanded, observed, charged, or collected by any public utility for any service, products, or commodity offered by it as a public utility to the public and means and includes any rules, regulations, practices, or contracts affecting any compensation, charge, fare, toll, rental, or classification. Id. (quoting Ark .Code Ann. § 231101(10)). As this Court has concluded, telecommunications services are regulated activities under ADTPA. Jacobs, 2016 WL 5953128, at *5-6. As explained above, in Arkansas, Securus is registered with the Arkansas PSC as an Interexchange Carrier. Hopfinger Decl. ¶ 4. As such, Securus posts on a “publicly accessible website its generally available prices and terms of service for telecommunications services.” Ark. Code Ann. § 23-17-411(f)(3). “The rates that Securus charges for intrastate calls in Arkansas are posted on the Securus website at http:www.securustechnologies.com/tariffs.” Hopfinger Decl. ¶ 4. This rate list satisfies APSC’s regulatory requirements, is subject to APSC approval, and becomes effective thirty days after posting. See Section I.B (describing the Arkansas rate-approval process). And Securus posted its prices and terms for or the entirety of Antoon’s alleged period of incarceration. See Hopfinger Decl., Exs. A-C. Securus is therefore a Deceptive Trade Practices Act would ever fall within the exception provided in section 4-88-101(3), which would mean that that provision is meaningless. In the context of this case, the only reasonable construction of section 4-88-101(3) is that, because the Plant Board permits Helena Chemical Company to sell rice seed, those sales are excluded from the Arkansas Deceptive Trade Practices Act. RM Dean Farms, 847 F. Supp. 2d at 1127. Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 14 of 45 PageID #: 125 12 regulated entity subject to Arkansas PSC’s exclusive oversight authority. See Jacobs, 2016 WL 5953128, at *6. For these reasons, Securus falls within Arkansas DTPA’s safe harbor whose rates and practices are regulated within the meaning of Ark. Code Ann. § 4-88-101(3). Plaintiff Antoon’s s Arkansas DTPA claim therefore should be dismissed. 2. Antoon Failed to Plead His Claim with the Particularity that Fed. R. Civ. P. 9(b) Requires. Antoon does not plead his Arkansas DTPA claim with particularity. Claims brought under the ADTPA must conform to the pleading requirements of Rule 9(b). Lavalla v. Caliber Home Loans, Inc., No. 4:13-0522-BSM, 2014 WL 297700, at *1-2 (E.D. Ark. Jan. 28, 2014) (applying Rule 9(b) and dismissing ADTPA claim); Erdman Co. v. Phoenix Land & Acquisition, LLC, No. 2:10-CV-2045, 2013 WL 3772675, at *2 (W.D. Ark. July 17, 2013) (same) (“Arkansas courts seem to apply the Rule 9(b) standard to ADTPA claims as well”); Jarrett v. Panasonic Corp. of N. Am., 8 F. Supp. 3d 1074, 1084 (E.D. Ark. 2013) (granting judgment on pleadings for Arkansas DTPA claim for failure to plead with particularity); Perez v. Volkswagen Grp. of Am., Inc., No. 2:12-02289, 2013 WL 1661434, at *8 (W.D. Ark. Apr. 17, 2013) (same); White v. Volkswagen Grp. of Am., Inc., No. 2:11-CV-02243, 2013 WL 685298, at *7 (W.D. Ark. Feb. 25, 2013) (same); Whatley v. Recontrust Co. NA, No. 3:10-CV-00242 JLH, 2010 WL 4916372, at *5-6 (E.D. Ark. Nov. 23, 2010) (applying Rule 9(b) to dismiss ADTPA claim); but see Jacobs, 2016 WL 5953128, at *7 (declining to apply Rule 9(b) to ADTPA claim brought under 107(a)(10)). To meet Rule 9(b)’s requirements, Plaintiff Antoon must identify the who, what, where, when, and how of his Arkansas DTPA claim. Perez, 2013 WL 1661434, at *8. “The pleading must discuss ‘the time, place, and contents of false representations, as well as the identity of the Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 15 of 45 PageID #: 126 13 person making the misrepresentation and what was obtained or given up thereby.’” Whatley, 2010 WL 4916372, at *6 (quoting Schaller Tel. Co. v. Golden Sky Sys., 298 F.3d 736, 746 (8th Cir. 2002)). Antoon’s allegations fall short of Rule 9(b)’s standard. Instead of identifying the who, what, where, when, and how of his claim, Antoon simply recites the provisions of 4-88-107(a)(8) and (a)(10). But pleadings containing labels and conclusions and a formulaic recitation of the elements of a claim cannot even meet the more liberal pleading standard of Rule 8(a). Perez, 2013 WL 1661434, at *3 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2009). Antoon provides no specifics of Securus’s allegedly deceptive behavior. Am. Compl. ¶¶ 55-60 (offering generic allegations). These types of rote statutory recitations certainly fail the more stringent requirements of Rule 9(b). White, 2013 WL 685298, at *7. For this independent reason, the Court should dismiss Plaintiff Antoon’s Arkansas DTPA claim. 3. Even Under the More Relaxed Standard of Fed. R. Civ. P. 8(a), Antoon Fails to State a DTPA Claim. Even under the more relaxed standard of Rule 8(a), Antoon fails to state a 4-88- 107(a)(10) claim. “The elements of … a cause of action under § 4-88-107(a)(10) are (1) a deceptive consumer-oriented act or practice which is misleading in a material respect, and (2) injury resulting from such act.” Stonebridge Collection, Inc. v. Carmichael, 791 F.3d 811, 822 (8th Cir. 2015) (alterations omitted) (citations omitted) (affirming dismissal of DTPA claim). The injury or damage must be actual. Yazdianpour v. Safeblood Techs., Inc., 779 F.3d 530, 538 (8th Cir. 2015) (affirming district court’s refusal to issue a diminution jury instruction). And when a government entity compels action, that action cannot constitute a deceptive trade practice. Lawson v. Whitey’s Frame Shop, 697 A.2d 1137, 1140 (Conn. 1997) (recognizing that good faith reliance upon contract with governmental entity cannot violate deceptive trade Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 16 of 45 PageID #: 127 14 practice act); Chirikos v. Yellow Cab Co., 410 N.E.2d 61, 68 (Ill. App. Ct. 1980) (consumers could not recover alleged overcharges from taxi companies due to city’s taxi ordinance); Johnson v. Marshall Field & Co., 291 N.E.2d 310, 315 (Ill. App. Ct. 1972) (holding required collection of tax was not deceptive trade practice). Because Securus performed according to its contract with the Arkansas DOC, it actions cannot establish an (a)(10) violation. In addition, Antoon does not and cannot plead a claim under Ark. Code Ann. § 4-88- 107(a)(8). That Arkansas DTPA subsection prohibits “[k]nowingly taking advantage of a consumer who is reasonably unable to protect his or her interest because of: (A) Physical infirmity; (B) Ignorance; (C) Illiteracy; (D) Inability to understand the language of the agreement; or (E) A similar factor.” Ark. Code Ann. § 4-88-107(a)(8). Here, Antoon alleges no physical infirmity, ignorance, illiteracy, or inability to understand the language of any agreement; thus his status as a prisoner can only fall under (a)(8)(E), but it does not. In re Bateman, 435 B.R. 600, 610 (Bankr. E.D. Ark. 2010) (denying relief under ADTPA for failing to prove any factor under (a)(8)). Under the plain language of the subsection, factor E must be similar to the other factors enumerated in (a)(8). Ark. Code Ann. § 4-88-107(a)(8)(E) (“A similar factor.”).9 Attempting to fit under the subsection, Antoon alleges that his incarceration renders him unable to protect his interestsm because he could choose only Securus for telecommunications services. Am. Compl. ¶ 58. But choice is not the gravamen of a (a)(8) claim, and incarceration does not fall within the ambit of the subsection, which covers a consumer’s physical or mental incapacity, not whether they are incarcerated. See Westphal v. 9 The canons of statutory interpretation noscitur a sociis and ejusdem generis would also suggest that factor E must be similar to factors A-D. See In re Eilbert, 162 F.3d 523, 527 (8th Cir. 1998) (applying “the interpretive canons noscitur a sociis (a term is known from its associates) and ejusdem generis (general words in an enumeration are construed as similar to more specific words in the enumeration) . . . ‘to avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words’”) (citations omitted). Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 17 of 45 PageID #: 128 15 Lase Med Inc., No. 4:09-cv-0099-JMM, 2011 WL 1374729, at *4 (E.D. Ark. Apr. 11, 2011). Persons falling under subsection (a)(8) suffer from a physical or mental incapacity of some kind - be they cancer stricken, ignorant to the world, or unable to read or write - or face an insurmountable language barrier. They are not characterized by location or ability to choose. Because inmates do not fall under any of subsection (a)(8)’s five factors, Antoon cannot state a claim under that section of the Arkansas DTPA, and the Court should dismiss the claim. II. THE CLAIMS OF PLAINTIFF MILLER SHOULD BE DISMISSED A. The Court Lacks Personal Jurisdiction Over Securus as to Miller’s Claims Which Regard Only Intrastate Service in Georgia The Court should dismiss the claims of Plaintiff Miller, because Securus is not subject to personal jurisdiction in this Court for those claims. Plaintiff bears the burden of establishing a factual basis for personal jurisdiction over Securus. Sioux Transp., Inc. v. XPO Logistics, Inc., No. 5:15-CV-05265, 2015 WL 9412930, at *2 (W.D. Ark. Dec. 22, 2015) (dismissing suit for lack of personal jurisdiction). That burden does not shift to the defendant. Valley View Agri, LLC v. Producers Coop. Oil Mill, No. 3:14CV00307 JLH, 2015 WL 6459981, at *3 (E.D. Ark. Oct. 26, 2015) (dismissing suit for lack of personal jurisdiction). To meet her burden, Miller “must state sufficient facts in the complaint to support a reasonable inference that the defendant can be subjected to jurisdiction within the state.” Wells Dairy, Inc. v. Food Movers Int’l, Inc., 607 F.3d 515, 518 (8th Cir. 2010) (citation omitted) (affirming finding of specific but not general personal jurisdiction over defendant). The Court should go beyond the pleadings and test Miller’s showing using affidavits and exhibits presented with the motions and opposition. Id. For a non-resident defendant, courts must conclude “that personal jurisdiction exists under the forum state’s long-arm statute and that the exercise of personal jurisdiction is consistent with due process.” Id. Personal jurisdiction “in a diversity case exists only to the Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 18 of 45 PageID #: 129 16 extent permitted by the long-arm statute of the forum state and by the Due Process Clause” of the Constitution. Valley View, 2015 WL 6459981, at *3. Here, the Arkansas long-arm statute authorizes the exercise of personal jurisdiction “to the maximum extent permitted by the due process of law clause of the Fourteenth Amendment of the United States Constitution.” Ark. Code Ann. § 16-4-101. Thus, the Court must determine “whether the exercise of personal jurisdiction over [Securus] is constitutionally permissible” under the Due Process Clause. Sioux Transp., 2015 WL 9412930, at *2. “The Due Process Clause permits the exercise of ‘general jurisdiction’ to hear ‘any and all claims against’ a defendant if its ‘affiliations with the State are so continuous and systematic as to render [it] essentially at home in the forum State.’ ‘Specific jurisdiction,’ by contrast, is proper when a defendant has certain contacts with the forum State and the cause of action arises out of those contacts.” Valley View, 2015 WL 6459981, at *3 (citations omitted). This Court has neither form jurisdiction over Securus. 1. Securus Is Not Subject to General Jurisdiction in this State. To be subject to general personal jurisdiction, a foreign corporation must have “‘affiliations with the State [that] are so continuous and systematic as to render them essentially at home in the forum State.’” Sioux Transp., 2015 WL 9412930, at *3 (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)). “‘The place of incorporation and principal place of business’ are the ‘paradigm bases for general jurisdiction’ over a corporation.” Id. (quoting Daimler AG v. Bauman, 134 S. Ct. 746, 760 (2014)). The Supreme Court in Daimler made it “clear that rarely, if ever, will a corporation be ‘at home’ in a state in which it is not incorporated or does not have its principal place of business.” Id. at *4. In fact, looking beyond these exemplar bases is not permitted. Merryman v. JPMorgan Chase Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 19 of 45 PageID #: 130 17 Bank, N.A., No. 5:15-cv-5100, 2015 WL 7308666, at *2 (W.D. Ark. Nov. 19, 2015) (citing Daimler, 134 S. Ct. at 760-61) (dismissing suit for lack of personal jurisdiction). Securus “is a privately held corporation headquartered in Dallas, Texas.” Am. Compl. ¶ 6. Although Securus performs ICS contracts in Arkansas, those contracts are insufficient to subject Securus to general personal jurisdiction. Merryman, 2015 WL 7308666, at *3. The Court therefore lacks general jurisdiction over Securus. 2. Securus Is Not Subject to Specific Personal Jurisdiction for Miller’s Claims. Specific personal jurisdiction permits jurisdiction “over causes of action arising from or related to a defendant’s actions within the forum state.” Id. at *4 (quoting Viasystems, Inc. v. EMB-Pabst St. Georgen GmbH & Co., KG, 646 F.3d 589, 593 (8th Cir. 2011)). In the Eighth Circuit, courts employ a five-factor test to determine whether personal jurisdiction exists, with the first three being especially important. Id. Those factors are: (1) the nature and quality of the defendant’s contacts with the forum state; (2) the quantity of those contacts; (3) the relation of those contacts with the cause of action; (4) the forum state’s interest in providing a forum for its residents; and (5) the convenience of the parties. Id. (citing Epps v. Stewart Info. Servs. Corp., 327 F.3d 642, 648 (8th Cir. 2003)). Specific jurisdiction requires that “the defendant’s suit-related conduct must create a substantial connection with the forum State.” Id. (quoting Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014)). Because “specific jurisdiction can only be found if the controversy is related to or arises out of the defendant’s contacts with the forum state,” the Court need not “belabor a factor- by-factor analysis” where those contacts are unrelated to the controversy. Id. (quoting Johnson v. Woodcock, 444 F.3d 953, 956 (8th Cir. 2006)). Here, Securus must have created the state Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 20 of 45 PageID #: 131 18 contacts from which Miller’s allegations arise. Id. (citing Walden, 134 S. Ct. at 1126). But Securus has no contacts with Arkansas with regard to Miller. Here, Plaintiff Miller’s allegations relate entirely to Georgia, not Arkansas. Plaintiff sues over calling rates and fees in connection with intrastate phone calls made entirely within Georgia. Am. Compl. ¶ 5. Her loved one and friend were incarcerated in the Gwinnett County Detention Center in Lawrenceville, Georgia, and the DeKalb County Detention Center in Decatur, Georgia. Id. And Miller paid “for intrastate phone calls within Georgia.” Id. Those calls and payments do not create cause-of-action contacts with Arkansas. In addition, Miller sues under Georgia law, id. ¶¶ 49-54, 77-88, for site commissions paid to Georgia County correctional facilities, id. ¶ 5. Miller’s allegations demonstrate Securus’s case-specific connections only to the State of Georgia. Forcing Securus to defend itself in this Court over acts and occurrences in Georgia would offend notions of fair play and substantial justice. Merryman, 2015 WL 7308666, at *2.10 It would offend Due Process. The lacks specific personal jurisdiction over Securus, and it need not address any of the remaining grounds presented herein.11 B. This Court Is an Improper Venue for Claims Arising out of Intrastate Calls in Georgia Venue in this Court is improper for Miller’s claims, so this action should be dismissed. Securus is not a resident of this District, and none of the acts alleged in this case occurred in the State of Arkansas. Miller seeks relief for intrastate calls that she received and paid for in 10 Securus is not alleged to have committed any tortious conduct vis-à-vis Miller in Arkansas, much less that such conduct was uniquely or expressly aimed at Arkansas such that Arkansas may “assert personal jurisdiction over” it. Merryman, 2015 WL 7308666, at *4. 11 E.g., New World Int’l, Inc. v. Ford Global Techs., LLC, No. 3:15-cv-01121-M, 2016 WL 1069675, at *7 (N.D. Tex. Mar. 16, 2016); BG Prods., Inc. v. Stinger Chemical, LLC, No. 6:15- cv-1209, 2015 WL 5029635, at *8 (D. Kan. Aug. 25, 2015). Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 21 of 45 PageID #: 132 19 Georgia. Nothing in her claims has anything to do with this District or this State. Miller alleges that venue in this Court is proper under 28 U.S.C. § 1391(b)(1) and (b)(2). Am. Compl. ¶ 10. Section 1391(b)(1) requires that Securus “reside” in this district: “For all venue purposes,” a corporation “shall be deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court’s personal jurisdiction with respect to the civil action in question … .” 28 U.S.C. § 1391(c)(2). But, as shown above, Securus is not subject to this District’s general jurisdiction. Securus is “headquartered in Dallas, Texas.” Am. Compl. ¶ 6. Nor is Securus subject to the Court’s specific jurisdiction, as shown above. None of Securus’s alleged “suit-related conduct” occurred in this District or in this State. For these reasons, Plaintiff Miller has chosen the wrong forum for her claims. C. CAFA Does Not Obviate Personal Jurisdiction or Venue Analysis Plaintiff Miller invokes the Class Action Fairness Act (“CAFA”) to establish subject matter jurisdiction over her claims. Am. Compl. ¶ 9 (citing 28 U.S.C. § 1332(d)(2)). CAFA does not change the law of personal jurisdiction or the venue requirements of 28 U.S.C. § 1391. CAFA provides for expanded federal subject matter jurisdiction by permitting multiple plaintiffs to combine claims with an aggregate cost in controversy over $5,000,000. 28 U.S.C. § 1332(d). “Congress expressly intended CAFA to expand federal diversity jurisdiction over class actions.” Lowery v. Alabama Power Co., 483 F.3d 1184, 1197 (11th Cir. 2007). CAFA, and class actions generally, do not, however, obviate the requirement that a district court have personal jurisdiction over a defendant and be the appropriate venue to hear the matter. AM Trust v. UBS AG, 78 F. Supp. 3d 977, 986 (N.D. Cal. 2015) (dismissing CAFA action for lack of specific jurisdiction); see Abrams Shell v. Shell Oil Co., 165 F. Supp. 2d 1096, 1107 n.5 (C.D. Cal. 2001) (transferring case for lack of proper venue). Nor could it. A statute cannot surmount constitutional protections of Due Process. Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 22 of 45 PageID #: 133 20 As shown above, specific jurisdiction can only arise from defendant’s suit-related conduct and then only from contacts that the defendant created; non-suit related activities and plaintiff’s conduct does not suffice. Advanced Tactical Ordinance Sys., LLC, v. Real Action Paintball, Inc., 751 F.3d 796, 801, 803-04 (7th Cir. 2014) (remanding for lack of personal jurisdiction). In purported class actions, Plaintiffs bear the burden to demonstrate specific personal jurisdiction. Senne v. Kansas City Royals Baseball Corp., 105 F. Supp. 3d 981, 1022 (N.D. Cal. 2015), recon. denied, No. 14-00608-JCS, 2016 WL 1623913 (N.D. Cal. Apr. 25, 2016) (granting in part motion to dismiss for lack of personal jurisdiction). And while “the claims of the unnamed class members are irrelevant to the specific jurisdiction analysis. It is settled that venue and personal jurisdiction requirements to suit ‘must be satisfied for each and every named plaintiff for the suit to go forward.’” AM Trust, 78 F. Supp. 3d at 986 (quoting Abrams Shell v. Shell Oil Co., 165 F. Supp. 2d 1096, 1107 n.5 (C.D. Cal. 2001). Personal jurisdiction must be established for each defendant as well. Abrams, 165 F. Supp. 2d at 1107 n.5 (transferring case for lack of proper venue). Plaintiff Miller’s inability to establish jurisdiction over Securus requires that her claims be dismissed. D. The Joinder Rule Does Not Excuse Miller from the Venue Statute or from Establishing Jurisdiction Over Securus Plaintiff Miller may believe that can invoke joinder pursuant to Fed. R. Civ. P. 20 and enjoy Plaintiff Antoon’s choice of venue. Because her claims arise from separate facts and rely on the law of Illinois, at best she can rely on permissive joinder. But joinder does not excuse improper venue or lack of personal jurisdiction. According to Moore’s Federal Practice, Permissive party joinder addresses only the procedural propriety of joining multiple plaintiffs or defendants. The Rules cannot affect the jurisdiction or venue of the federal courts. Although joinder is permitted when the requisites of permissive party joinder are satisfied, the court must nonetheless have personal jurisdiction Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 23 of 45 PageID #: 134 21 over each defendant, have subject matter jurisdiction over each claim, and must be a proper venue. 4 James Wm. Moore, ¶ 20.02[5]. These principles flow from Fed. R. Civ. P. 82, which provides that “[t]hese rules do not extend or limit the jurisdiction of the district courts or the venue of actions in those courts.” Miller’s improper choice of venue and inability to establish jurisdiction over Securus therefore cannot be cured by attempting permissive joinder. E. The Filed Rate Doctrine Bars Miller’s Claims The filed rate doctrine bars both of Miller’s claims. The doctrine “bars courts from adjudicating the reasonableness of a rate that has already been approved - or in some circumstances even merely noticed - by an agency with regulatory authority over the challenged rate.” Jacobs, 2016 WL 5953128, at *4 (citing H.J., 954 F.2d at 488). The doctrine’s purposes are “‘to: (1) preserve the regulating agency’s authority to determine the reasonableness of rates; and (2) insure that the regulated entities charge only those rates that the agency has approved or been made aware of as the law may require.’” Id. (quoting H.J., Inc., 954 F.2d at 488). The doctrine applies whether the rate in question is approved by a federal or state agency. Id.; see Firstcom, 555 F.3d at 679 (“[T]he filed rate doctrine applies to rates filed with state agencies.”). Under the doctrine, courts cannot award any relief that would alter the filed tariff, including damages or restitution. See Firstcom, 555 F.3d at 680-81. And it bars claims for unjust enrichment. Sancom, 643 F. Supp. 2d at 1125-27. Indeed, a court may not even examine the extent of agency oversight of a rate because doing so would undermine the agency’s exclusive authority. Jacobs, 2016 WL 5953128, at *5. And because the doctrine bars judicial inquiry, challenges to regulated activities must take place at the agency with appropriate jurisdiction and regulatory authority. See Sancom, 643 F. Supp. 2d at 1125. Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 24 of 45 PageID #: 135 22 The Georgia PSC has general supervisory power over telephone companies and the exclusive power to determine just and reasonable rates. Georgia Pub. Serv. Comm’n v. ALLTEL Georgia Commc’ns Corp., 489 S.E.2d 350, 352 (1997), aff’d, 505 S.E.2d 218 (Ga. 1998) (citing Ga. Code Ann. §§ 46-2-20(a), 46-2-23(a)). It also has general rule making authority to implement its powers and duties. Ga. Code Ann. § 46-2-30. As the Supreme Court of Georgia articulated the doctrine: A rate-payer has no legal right to a rate other than that established by the commission, or filed by a utility and accepted by the commission. This is so even where a regulated entity allegedly has defrauded an administrative agency to obtain approval of a filed rate, because a court’s damages award in a case brought on those grounds would have the effect of retroactively reducing the rate for electric power and would thus invade a legislative function. Accordingly, the rate-setting scheme in Georgia is incompatible with a rate-payer’s cause of action to recover damages measured by the difference between the filed rate and the rate that would have been charged absent some alleged wrongdoing and the trial court correctly dismissed the complaint. Carr v. S. Co., 438 S.E.2d 357, 358 (Ga. 1994) (affirming dismissal of fraudulent misrep- resentation claims) (citations, quotations, and alterations omitted). Securus is regulated as an “Institutional Telecommunication Service” provider by the Georgia PSC. Ga. Comp. R. & Regs. 515-12-1-.30(1)(b); see also Hopfinger Decl., Ex. G. As such, it “must file tariffs with the GPSC which set forth the services provided and the charges for those services” Ga. Comp. R. & Regs. 515-12-1-.30(1)(b).12 Securus has filed tariffs for its rates for several years, including for the period of Antoon’s incarceration. See Hopfinger Decl. at 5, Exs. D-F. The tariffed rates include calling rates and calling-associated fees; the tariffs even explain the procedure for disputing charges at the Georgia PSC. See Hopfinger Decl. ¶ 5 & Exs. D and E. Securus’s tariffed calling rates comport with the Georgia PSC order that capped 12 Securus is not a local exchange company capable of electing alternative forms of regulation under the Georgia Telecommunications & Competition Development Act of 1995. Ga. Code Ann. § 46-5-160 et seq. Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 25 of 45 PageID #: 136 23 inmate calling rates in 2009. See Hopfinger Decl., Ex G. Being filed with and capped by the GPSC and comply with its regulations, Securus’s rates are immune from attempts to seek refunds or damages in court. Miller’s claims are barred by the filed rate doctrine and should be dismissed. E.g., Jacobs, 2016 WL 5953128, at *4.13 F. Miller Fails to State a Claim Under the Georgia FBPA, Because Securus’s Rates Fall Within the Safe Harbor Securus’s rates fall within the safe harbor of the Georgia FPBA. A “private [Georgia] FBPA claim has three elements: a violation of the Act, causation, and injury.” Agnew v. Great Atl. & Pac. Tea Co., 502 S.E.2d 735, 736 (Ga. Ct. App. 1998) (affirming judgment finding no violation of the Georgia FBPA). For activity falling within the safe harbor, there can be no violation. Like the Arkansas DTPA, the Georgia FBPA does not apply to “[a]ctions or transactions specifically authorized under laws administered by or rules and regulations promulgated by any regulatory agency of this state or the United States.” Ga. Code Ann. § 10-1-396(1). The Georgia legislature “intended that the [FPBA] have a restricted application only to the unregulated consumer marketplace and that the FBPA not apply in regulated areas of activity, because regulatory agencies provide protection or the ability to protect against the known evils in the area of the agency’s expertise.” Fortson v. Best Rate Funding, Corp., No. 1:13-CV-4102- CC, 2014 WL 11456286, at *5 (N.D. Ga. Sept. 2, 2014), aff’d, 602 F. App’x 479 (11th Cir. 2015) (citation omitted) (dismissing FBPA claim with prejudice). Many courts have found that 13 Nor would Miller have standing to bring suit over allegedly high rates. Georgia Power Co. v. Allied Chem. Corp., 212 S.E.2d 628, 631 (1975) (dismissing utility customers claims for lower rates for lack of standing). Allegations that rates are too high are non-justiciable because ratemaking falls within the exclusive power of the legislature. Id. The exclusive remedy for high rates is at the GPSC or the ballot box. Id. at 631-32. Or later, appeal under the Georgia APA to a court. Campaign for a Prosperous Georgia v. Georgia Power Co., 329 S.E.2d 570, 575 (Ga. Ct. App.), aff’d, 336 S.E.2d 790 (Ga. 1985). Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 26 of 45 PageID #: 137 24 the Georgia FPBA does not apply to the servicing of residential mortgages and foreclosure sales because of state and federal regulation. See, e.g., Figueroa v. JP Morgan Chase Bank, N.A., No. 1:09-CV-1874-RWS, 2010 WL 4117032, at *5 (N.D. Ga. Oct. 7, 2010) (granting motion to dismiss GFPBA claim). And the Georgia Court of Appeals concluded that insurance rates, where the Insurance Department of the State of Georgia and the office of Insurance Commissioner have authority to over insurer transactions except as authorized by the insurance commissioner, the Georgia FBPA did not apply. Ferguson v. United Ins. Co. of Am., 293 S.E.2d 736, 737 (Ga. Ct. App. 1982) (affirming summary judgment). As explained above, the Georgia PSC regulates Securus’s intrastate services in Georgia. The PSC was created with general supervisory power over telephone companies and the exclusive power to determine just and reasonable rates. ALLTEL, 489 S.E. 2d at 352 (citing Ga. Code Ann. §§ 46-2-20(a), 46-2-23(a)). It has general rulemaking authority to implement its powers and duties, Ga. Code Ann. § 46-2-30, and, under that authority, requires Securus, as an institutional telecommunication service, to “file tariffs with the Commission which set forth the services provided and the charges for those services,” Ga. Comp. R. & Regs. 515-12-1- .30(1)(b), (5), regulating VOIP protocols too, id. at (19). Indeed, Securus cannot “bill for intrastate telecommunications services or solicit intrastate telecommunications services within [Georgia] without a certificate of authority from the Georgia Public Service Commission,” Ga. Code Ann. § 46-5-182, which, as recently as July 7, 2016, issued an order modifying rate and charge caps for institutional telecommunications services like Securus. See Hopfinger Decl., Ex G. Securus’s regulatory status thus places the rates Miller challenges within the safe harbor of the Georgia FBPA, and for this additional reason, her claim should be dismissed. Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 27 of 45 PageID #: 138 25 III. THE CLAIMS OF PLAINTIFF VELAZQUEZ SHOULD BE DISMISSED A. The Court Has No Personal Jurisdiction Over Securus as to Velazquez’s Claims The Court should dismiss the claims of Plaintiff Velazquez, because - as with Miller’s claims - it lacks personal jurisdiction over Securus. As explained in Section II.A. above, Velazquez bears the burden of establishing personal jurisdiction over Securus. Sioux Transp., 2015 WL 9412930, at *2. That burden does not shift to Securus. Valley View, 2015 WL 6459981, at *3. To meet her burden, Velazquez “must state sufficient facts in the complaint to support a reasonable inference that the defendant can be subjected to jurisdiction within the state.” Wells Dairy, 607 F.3d at 518. Like Plaintiff Miller, she fails to do so. Securus is not subject to general jurisdiction in this state. Sioux Transp., 2015 WL 9412930, at *3. Securus is “headquartered in Dallas.” Am. Compl. ¶ 6. As such, Velazquez can only attempt to establish specific jurisdiction over Securus, Merryman, 2015 WL 7308666, at *3, a result that is precluded by the fact that her claim regards intrastate calls from Illinois DOC facilities which she received while a resident of Illinois. Id. ¶ 4. Velazquez’s claims relate entirely to Illinois, not Arkansas. Velazquez sues over calling rates and fees in connection with intrastate phone calls made entirely within Illinois. Am. Compl. ¶ 4. Her family member was incarcerated at Pontiac Correctional Center in Pontiac, Illinois and Menard Correctional Center in Menard, Illinois. Id. And that family member made intrastate calls to Plaintiff. Id. In addition, Velazquez sues over site commissions paid to Illinois correctional facilities under a contract with the Illinois Department of Corrections. Am. Compl. ¶¶ 4. And Velazquez sues under Illinois state law. Am. Compl. ¶¶ 1, 42-48, 61-75. Nothing in her allegations connects Securus to Arkansas. Rather, her allegations demonstrate connections to only Illinois. As stated above, forcing Securus to defend itself in this Court over acts and Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 28 of 45 PageID #: 139 26 occurrences in Illinois would offend notions of fair play and substantial justice. Merryman, 2015 WL 7308666, at *2.14 The courts therefore lacks jurisdiction over Securus, and it need not address any of the remaining grounds presented herein.15 B. This Court Is an Improper Venue for Claims Arising out of Intrastate Calls in Illinois As with Plaintiff Miller, venue in this Court is improper for Velazquez’s claims. Securus is not a resident of this District, and none of the acts alleged in this case occurred in the State of Arkansas. Nothing in her claims has anything to do with this District or this State, and thus she cannot satisfy 28 U.S.C. § 1391(b). Like Plaintiff Miller, Velazquez invokes CAFA. Am. Compl. ¶ 9 (citing 28 U.S.C. § 1332(d)). But, as shown above, CAFA does create personal jurisdiction or proper venue where they otherwise do not exist. AM Trust, 78 F. Supp. 3d at 986; Abrams, 165 F. Supp. 2d at 1107 n.5 (transferring case for lack of proper venue). Nor does the joinder rule entitle Velazquez to sue Securus here. 4 James Wm. Moore, ¶ 20.02[5]. For this additional reason, the Court should dismiss the claims of Plaintiff Velazquez. C. Velazquez Purports to Sue Securus for Rates Paid Years Before it Began Serving the Illinois DOC Velazquez sues for “various periods of time between approximately mid-2005 through 2015.” Am. Compl. ¶ 4. This broad timespan includes eight years in which Securus did not provide service to the IL DOC. In fact, Securus did not begin serving the Pontiac Correctional Center, the first DOC from which Velazquez received calls, until approximately March 2013. 14 Securus is not alleged to have committed any tortious conduct in Arkansas vis-à-vis Velazquez, much less that its conduct was uniquely or expressly aimed at Arkansas such that Arkansas may “assert personal jurisdiction over” Securus. Merryman, 2015 WL 7308666, at *4. 15 E.g., New World Int’l, Inc. v. Ford Global Techs., LLC, No. 3:15-CV-01121-M, 2016 WL 1069675, at *7 (N.D. Tex. Mar. 16, 2016); BG Prods., Inc. v. Stinger Chemical, LLC, No. 6:15-CV-1209, 2015 WL 5029635, at *8 (D. Kan. Aug. 25, 2015). Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 29 of 45 PageID #: 140 27 Hopfinger Decl. ¶ 8. Velazquez is suing Securus over rates that she could not have paid, because Securus could not have served her. She therefore can state no claim for these eight years, because Securus simply could not have committed a deceptive practice or unjustly enriched itself during that period. Monga v. Quicken Loans, Inc., No. 13 C 3606, 2014 WL 1647183, at *4 (N.D. Ill. Apr. 24, 2014) (listing elements of Illinois FCA claim); HPI Health Care Servs., Inc. v. Mt. Vernon Hosp., Inc., 545 N.E.2d 672, 679 (Ill. 1989) (listing elements of unjust enrichment claim). Plaintiff Velazquez therefore lacks standing to bring either claim for allegations spanning 2005 to March 2013. To meet Article III standing, class members must have suffered a concrete, particularized, and actual or imminent injury. Wallace v. ConAgra Foods, Inc., 747 F.3d 1025, 1030 (8th Cir. 2014). Without an injury, the party lacks standing; without party standing, the Court lacks subject matter jurisdiction. Craig v. Twinings N. Am., Inc., No. 5:14-CV-05214, 2015 WL 505867, at *3 (W.D. Ark. Feb. 5, 2015) (Brooks, J.). Here, Velazquez suffered no injury traceable to Securus’s actions from 2005 to March 2013, so her claims for this time period should be dismissed. Brittany O v. Bentonville Sch. Dist., No. 5:15-CV-5020, 2016 WL 1064637, at *3 (W.D. Ark. Mar. 15, 2016) (Brooks, J.) (dismissing case for lack of standing) (quoting Wallace., 747 F.3d at 1033). D. Velazquez Fails to State a Claim for Which Relief May Be Granted 1. Securus’s Phone Rates Fall within the Illinois CFA Safe Harbor. Velazquez’s claim under the Illinois CFA fails, because the statute does not apply to “[a]ctions or transactions specifically authorized by laws administered by any regulatory body or officer acting under statutory authority of [Illinois] or the United States.” 815 Ill. Comp. Stat. Ann. 505/10b(1). To determine the application of the safe harbor, courts consider whether a Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 30 of 45 PageID #: 141 28 regulatory body or officer is operating under statutory authority and whether the action or transaction at issues is specifically authorized by the laws administered by the regulatory body. Cima v. Wellpoint Healthcare Networks, Inc., No. 05-CV-4127-JPG, 2006 WL 1914107, at *16 (S.D. Ill. July 11, 2006). Securus meets both tests. First, Securus, an interexchange carrier under Article XIII of the Public Utilities Act, 220 ILCS 5/13-205, the Universal Telephone Service Protection Law, 220 ILCS 5/13-100, is subject to regulation by the ICC. 83 Ill. Adm. Code 705, et seq. (ICC regulations governing telecommunications sector in Illinois). Securus holds a Certificate of Service Authority permitting it to provide inmate telecommunications services in Illinois. Hopfinger Decl. ¶ 7. These Certificates are necessary to provide telecommunications services in Illinois and are granted by the ICC. 220 Ill. Comp. Stat. Ann. 5/13-401(a). And the ICC has “rulemaking authority to make rules necessary to enforce” the Telecommunication Article of the Public Utilities Act, 220 Ill. Comp. Stat. Ann. 5/13-512. Thus the ICC permits and regulates Securus’s conduct in Illinois, and so the first prong of 10b(1) is met. Second, whether conduct is specifically authorized focuses on “the affirmative acts or expressions of authorization” from the regulatory body … . Such authorization may be either express or implied; it need not be pursuant to ‘formal agency rulemaking.’” Cima, 2006 WL 1914107, at *16 (citation omitted). As noted, Securus operates in Illinois under the Certificate of Service Authority provided to is by the ICC. 220 Ill. Comp. Stat. Ann. 5/13-401(a). To the extent Velazquez is attempting it, she cannot state a claim under section 2/DD of the Illinois CFA. That section provides a carve out from exemption for telecommunications service providers in two circumstances relevant for this matter. 815 Ill. Comp. Stat. Ann. 505/2DD. Specifically, violations of Sections 13-902 and 13-903 of the Public Utilities Act Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 31 of 45 PageID #: 142 29 constitute violations of the Illinois CFA. Id. These are slamming and cramming statutes. In re PlatinumTel Commc’ns, LLC, No. 09-0269, 2009 WL 5252596 (Ill. C.C., Nov. 24, 2009). Slamming involves switching telephone customers’ services without customers’ permission; cramming refers to charging a customer for services that were not ordered, authorized, or received. See Soreide, 418 F. App’x at 63 n.2 (describing both practices); Brittan Comms, 313 F.3d at 903 n.2 (describing both practices). But Plaintiff does not and cannot plead violations of either section. Section 13-902 (the slamming statute) applies to “changes to a customer’s local or interexchange telecommunications carrier,” which did not occur here. Beecham v. AT&T Commc’ns of Ill., Inc., No. 03-0421, 2003 WL 23330855 (Ill. C.C., Dec. 17, 2003) (finding no violation of 13-902) (citing 220 Ill. Comp. Stat. Ann. 5/13-902). And section 13-903 (the cramming statute) concerns the “[a]uthorization, verification or notification, and dispute resolution for covered product and service charges on the telephone bill,” none of which occurred or is alleged to have occurred here. 220 Ill. Comp. Stat. Ann. 5/13-903. Indeed, Plaintiff alleges nothing of the sort. Am. Compl. ¶¶ 61-75. Securus’s rates and practices are regulated and thus they fall under Illinois CFA’s exemption. Plaintiff Velazquez therefore cannot state a claim for relief under the Illinois CFA. 2. Velazquez Does Not Have a Viable Claim Under the Illinois CFA. “The Illinois Supreme Court has explained that the elements of a claim under the Act are: (1) a deceptive act or practice by the defendant; (2) the defendant’s intent that the plaintiff rely on the deception; and (3) the occurrence of the deception during a course of conduct involving trade or commerce.” Monga, 2014 WL 1647183, at *4 (alterations omitted) (citation omitted).16 The Illinois CFA defines a deceptive practice as: 16 An alternative formulation requires: “(1) a deceptive act or practice by the defendant, (2) the defendant’s intent that the plaintiff rely on the deception, (3) the occurrence of the deception Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 32 of 45 PageID #: 143 30 including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the “Uniform Deceptive Trade Practices Act”, approved August 5, 1965.” 815 Ill. Comp. Stat. Ann. 505/2. Section 2 of the Uniform Deceptive Trade Practices Act lists twelve types of deceptive trade practices all based upon creating confusion or misunderstanding. 815 Ill. Comp. Stat. Ann. 510/2(a)(1)-(12). Confronting this language, an Illinois Appellate Court concluded that “it is apparent from the statute the unfair or deceptive methods there involved are limited to matters such as misrepresentation, concealment, and suppression or omission.” Chirikos v. Yellow Cab Co., 410 N.E.2d 61, 68 (Ill. Ct. App. 1980). Velazquez here alleges no deceptive activity and thus fails to state a claim under the statute. In fact, the calling rates and associated fees that she paid are expressly chosen and set by the Illinois DOC. The Illinois DOC chose the rate plan that Securus may charge, and it prohibits Securus from charging non-mandatory, ancillary fees. See Hopfinger Decl. ¶ 9.17 Instead, Securus charges fees as required and limited by the ICC. See Hopfinger Decl. ¶ 10. Those are a Public Utility Commission Fee, a Universal Service Fund charge, a State Excise Tax, a State Infrastructure Maintenance Fee, and a Municipal Telecommunications Tax. Id. Thus, the rates Plaintiff Velazaquez is challenging are specifically authorized by the Illinois DOC, precluding in the course of conduct involving trade or commerce, and (4) actual damage to the plaintiff (5) proximately caused by the deception.” Neathery v. Rench, No. 09-631-JPG, 2010 WL 2803984, at *2 (S.D. Ill. July 15, 2010) (quoting Avery v. State Farm Mut. Auto. Ins. Co.. 835 N.E.2d 801, 850 (Ill. 2005)). 17 Velazquez has removed her allegation that she paid credit card fees to Securus. Compare Am. Compl. ¶ 4 with Compl. ¶ 4. Likewise, the classes that she purports to represent are not defined to include credit card fees or ancillary fees anymore. Compare Am. Compl. ¶ 26(b) with Compl. ¶ 25(b). Those amendments are appropriate, given that the Illinois DOC does not permit Securus to charge any discretionary fees. Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 33 of 45 PageID #: 144 31 her from seeking relief under the Illinois CFA. Cont’l Mobile Tel. Co. v. Chicago SMSA Ltd. P’ship, 587 N.E.2d 1169, 1174 (Ill. Ct. App. 1992) (citing 815 ILCS 505/10b(1) and dismissing CFA claim). Here, as in Chirikos, there is no allegation of misrepresentation, concealment, or omission. See Am. Compl. ¶¶ 61-75. Instead, Velazquez simply alleges that she was charged too much. Am. Compl. ¶ 66(a)-(c). Alleged utility overcharges, however, cannot serve as the basis for a claim under the Illinois CFA. Chirikos, 410 N.E.2d at 68. Moreover, Securus charged rates based upon its contract with the Illinois DOC, and thus for this additional reason committed no deceptive act. As explained in Chirikos, no CFA action can rest based on overcharges that result from government actions. Id. In addition, not only does fail to allege a deceptive act, Velazquez alleges no intent by Securus to deceive her. Under the Illinois CFA, failing to allege intent to deceive means failing to state a claim. Suburban 1, Inc. v. GHS Mortg., LLC, 833 N.E.2d 18, 22 (Ill. Ct. App. 2005). Because Velazquez does not plead a ‘deceptive’ practice, her only avenue for CFA relief is a claim for ‘unfair practices’. But she fails to state an action of unfair practices, too. The entirety of Velazquez’s relevant allegations are that Securus charged inflated rates. Am. Compl. ¶ 66(a)-(c). But allegedly inflated rates do not establish an unfairness claim. Crichton v. Golden Rule Ins. Co., 832 N.E.2d 843, 852 (Ill. Ct. App. 2005). Rather, “[t]he defendant’s conduct must violate public policy, be so oppressive that it leaves the consumer with little alternative except to submit to it, and injure the consumer.” Id. (citing Saunders v. Michigan Avenue National Bank, 662 N.E.2d 602 (Ill. Ct. App. 1996)). While “[a]ll three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 34 of 45 PageID #: 145 32 one of the criteria or because to a lesser extent it meets all three.” Robinson v. Toyota Motor Credit Corp., 775 N.E.2d 951, 961 (Ill. 2002) (citation omitted). Here, there can be no violation of public policy. The rates charged were chosen by the Illinois DOC and were posted online per ICC regulations, precluding a finding that they are unfair. E.g., Cima 2006 WL 1914107, at *16. If anything, Securus effectuated public policy in its role as the ICS provider for the Illinois DOC. For these additional reasons, Plaintiff Velazquez still fails to state a claim under the Illinois CFA. 3. Velazquez Does Not Plead Her Illinois CFA Claim with Particularity. Velazquez does not plead her Illinois CFA claim with particularity. Plaintiffs lodging Illinois CFA claims must meet Rule 9(b)’s particularity requirements. Pirelli Armstrong Tire Corp. Retiree Med. Benefits Trust v. Walgreen Co., 631 F.3d 436, 446-47 (7th Cir. 2011) (affirming dismissal for failure to plead an CFA claim under 9(b)). Complaints “premised upon a course of fraudulent conduct” implicate Rule 9(b)’s heightened pleading requirements. Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 737 (7th Cir. 2014) (affirming dismissal of ICFA claim under Rule 9(b)). “Put another way, when fraud is alleged in a complaint under the Act, the particularity requirement of Rule 9(b) must be met in the pleadings.” Neathery, 2010 WL 2803984, at *3 (dismissing complaint for failure to state an ICFA claim under Rule 9(b)). To satisfy Rule 9(b), Plaintiff must “state with particularity the circumstances constituting fraud,” Monga, 2014 WL 1647183, at *4, by pleading the “the who, what, when, where and how” of the fraud, Neathery, 2010 WL 2803984, at *2 (citation omitted). This rule “requires the plaintiff to conduct a precomplaint investigation in sufficient depth to assure that the charge of fraud is responsible and supported, rather than defamatory and extortionate.” Camasta, 761 F.3d at 738 (citation omitted). Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 35 of 45 PageID #: 146 33 Here, Plaintiff Velazquez alleges that Securus charged her unreasonable calling rates “to cover the payment of site commissions to correctional facilities in exchange for being awarded exclusive ICS provider contracts.” Am. Compl. ¶ 4. This allegation plainly sounds in fraud. As the Camasta court recognized, “[s]imply adding language of ‘unfairness’ instead of ‘misrepresentation’ does not alter the fact that [Plaintiff’s] allegations are entirely grounded in fraud under the ICFA.” Id. at 737. In Pirelli, the defendant concealed or misrepresented a form of drug, 631 F.3d at 447, while the Camasta defendant advertised numerous sales alleged to be unfair and/or fraudulent, 761 F.3d at 738-39. In H.C. Duke & Son, LLC v. Prism Mktg. Corp., No. 11-cv-4006-SLD-JAG, 2013 WL 5460209, at *3 (C.D. Ill. Sept. 30, 2013), the Court also applied the heighted requirements of Rule 9(b); it dismissed the Illinois CFA claim for failing to meet Rule 9(b)). Here, Plaintiff alleges that Securus charged “deceptive amounts” for ICS. Am. Compl. ¶ 4. Yet she provides no particularity of the alleged fraud, pleading in generalities only. For these reasons, her claim fails Rule 9(b)’s particularity requirements and should be dismissed. 4. Even if Velazquez Had a Cognizable Claim as to Intrastate Phone Rates, the ICC Is the Exclusive Forum to Adjudicate that Claim. The ICC is the exclusive body capable of adjudicating a claim regarding unreasonable telephone rates. In Illinois, claims for refunds from utilities, such as telecommunications carriers like Securus, fall within the exclusive jurisdiction of the ICC. Sheffler v. Commonwealth Edison Co., 955 N.E.2d 1110, 1123 (Ill. 2011). “[A] claim is for reparations when the essence of the claim is that a utility has charged too much for a service, while a claim is for civil damages when the essence of the complaint is that the utility has done something else to wrong the plaintiff.” Id. (citation omitted). In both of her claims, Plaintiff Velazquez is seeking refunds of some Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 36 of 45 PageID #: 147 34 portion of her ICS charges, and her suit must go before the ICC. Her allegations fall outside the jurisdiction of this Court and should be dismissed. In Sheffler, plaintiff’s claims were predicated upon inadequate service from the regulated utility, which directly implicated the utility’s service and infrastructure and therefore fell within the exclusive jurisdiction of the ICC. 955 N.E. 2d at 1124-25 50. There, the plaintiff pled negligence and compensatory damages, but artful pleading did not save the case from dismissal because the proper analysis for the court was “the nature of the relief sought rather than the basis for seeking relief.” Hawkins v. Commonwealth Edison Co., 28 N.E.3d 869, 873, appeal denied, 32 N.E.3d 673 (Ill. Ct. App. 2015) (quoting Sheffler, 955 N.E. 2d at 1124-25). In Hawkins, allegations that a utility failed to deploy smart meters by the Commission-selected date amounted to allegations seeking reparations because they involved the utility’s infrastructure and rates. Hawkins, 28 N.E. 3d at 874-75. The court found that suits claiming excessive or discriminatory rates or challenging the adequacy of utility service implicate reparations and therefore fall within the ICC’s sole jurisdiction. Id. (citing Sheffler, 955 N.E. 2d at 1125-26). In the Flournoy case, by contrast - the only case to determine the ICC’s jurisdiction vis- à-vis telecommunications carriers - the court concluded that the plaintiff stated a claim outside of the ICC’s jurisdiction, because he did “not contest the actual rates charged as surcharges and initial calling fees, or claim those rates are excessive.” Flournoy v. Ameritech, 814 N.E.2d 585, 588 (Ill. Ct. App. 2004). Instead, he claimed that the carrier wrongly collected charges for phone calls after prematurely terminating them, and sought civil damages unrelated to calling rates: “not that the utility has excessively charged, but rather that the utility has done something else to wrong the plaintiff.” Id. at 585. As the Hawkins court observed, Flournoy did not involve Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 37 of 45 PageID #: 148 35 “claims disputing the rates charged by the utilities or their infrastructure.” Hawkins, 28 N.E. 3d at 874. Here, Velazquez seeks reparations only. In seeking damages for inflated rates and fees and no more, Velazquez places her claim precisely within the ICC’s sole jurisdiction. For this additional reason, her claims should be dismissed. IV. ALL PLAINTIFFS FAIL TO STATE A CLAIM FOR UNJUST ENRICHMENT, BECAUSE THEY ADMIT THAT SECURUS PAID OUT ALL SITE COMMISSIONS TO GOVERNMENT AGENCIES AND THUS RETAINED NO BENEFIT Each Plaintiff admits that Securus paid out all site commission funds to the correctional authorities at issue, and thus they have no claim that Securus was “enriched”, unjustly or not, by those site commissions. In addition, no Plaintiff has established that Securus’s performance of a public contract can be deemed an unjust act such that any monies were wrongfully acquired in the first place. A. No Plaintiff Conferred a “Benefit” on Securus that it Retained Every Plaintiff admits that Securus paid the site commissions to the jails. Am. Compl. ¶¶ 3 (Antoon), 4 (Velazquez), 5 (Miller), 29(a) (alleging that Securus “inflate[s] [its] ICS rates to pay commissions to correctional facilities.”). But to state a claim for unjust enrichment, a plaintiff must allege that he conferred a benefit on the defendant and that the defendant retained that benefit. Friedman v. Farmer, 788 F.3d 862, 866 (8th Cir. 2015); Hoover v. United Components, Inc., No. 07-cv-00088, 2008 WL 2079190, at *3 (E.D. Ark. May 15, 2008). The Supreme Court of Illinois rejected an unjust enrichment claim on the ground that the defendant had not retained the overpayment at issue, but had paid it to the government. Hagerty v. Gen. Motors Corp., 319 N.E. 2d 5 (Ill. 1974). In Hagerty, plaintiff alleged that General Motors had mistakenly charged her a higher tax under one statute rather than a lesser tax under a Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 38 of 45 PageID #: 149 36 second statute and that General Motors had remitted her payment to the State. The court held that General Motors had not been unjustly enriched: “If GM erroneously paid a retailers’ occupation tax to the State on the same transaction in which it erroneously collected a [companion use tax of the same amount] from the plaintiff, it was not enriched at all, justly or unjustly. If there was unjust enrichment, it was the State that was enriched.” Id. at 9.18 An Illinois federal district court also reached this same result. In Wong v. Whole Foods Market, Inc., No. 15-cv-848, 2015 WL 10852508 (N.D. Ill. June 15, 2015), plaintiff alleged that Whole Foods had overcharged him sales tax on his purchases by taxing their gross amount, not their net amount discounted by Wong’s coupons. Id. at *1. The court dismissed his unjust enrichment claim, because he had never alleged “that Whole Foods retained any part of the overpaid sales tax … his unjust enrichment claim is deficient and must be dismissed.” Id. Likewise, courts hold that a defendant that did not retain the payment at issue, but instead transferred that payment to a third party, has not been unjustly enriched. In Hancock-Hazlett Gen. Constr. Co. v. Trane Co., 499 So. 2d 1385, 1386 (Ala. 1986), a general contractor overpaid the amount due to its subcontractor, and the subcontractor transferred all of that money to its supplier. Id. at 1386. The supplier realized that the payment exceeded what it was owed, so it transferred the excess to the subcontractor. Id. When the general contractor realized its overpayment, it sued the supplier. Id. The trial court had dismissed the general contractor’s 18 See also Telwell Inc. v. Grandbridge Real Estate Capital LLC, 143 A.3d 421, 428 (Pa. Super. Ct. 2016) (affirming summary judgment dismissal of unjust enrichment claim because defendant remitted benefit to another company); Gannon Int’l Ltd. v. Blocker, No. 4:10-cv-835, 2011 WL 34388886 at *4 (granting summary judgment on unjust enrichment claim because defendant did not retain benefit) (E.D. Mo. Aug. 5, 2011), aff’d, 684 F.3d 785 (8th Cir. 2012); Smith v. Sears, Roebuck & Co., 672 So. 2d 794, 797, 800 (Ala. Civ. App. 1995) (affirming summary judgment because defendant paid monetary benefit at issue to government); Epps Aircraft, Inc. v. Exxon Corp., 859 F. Supp. 533, 536 (M.D. Ala. 1993) (defendant collected and transferred funds to third party, so was not liable for unjust enrichment). Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 39 of 45 PageID #: 150 37 unjust enrichment claim. Id. at 1387. On review, the Supreme Court of Alabama noted that an unjust enrichment claim required a plaintiff to allege “that defendant holds money which … belongs to plaintiff or holds money which was improperly paid to defendant because of mistake or fraud.” Id. It emphasized that “plaintiff’s complaint affirmatively discloses that defendants do not hold any amount of money paid to them by mistake or otherwise. Quite the contrary, [defendant] retained only the sum of money actually owed to it … and returned the overpayment[.]” Id. As a result, the court ruled that the defendant supplier had not been “‘unjustly enriched,’ as a matter of law, by retaining any money; it does not have in its possession any money belonging to” the plaintiff general contractor. Id. To summarize: what matters for purposes of an unjust enrichment claim is that the defendant has a benefit that plaintiff gave to it. Here, Plaintiffs know and allege that Securus did not keep any site commission money. To the extent that Plaintiffs point to the exclusive contract as a “benefit”, their claims still fail - it was the State DOC or County Sheriff who decided that ICS must be provided by one carrier at a time,19 and thus it was the State DOC or the County Sheriff that gave Securus this purported “benefit”. Plaintiffs may not affirmatively have chosen 19 The Federal Communications Commission (“FCC”) has never displaced the exclusive- provider system for ICS due to the “exceptional set of circumstances” in which they are provided - namely, jails. Policies and Rules Concerning Operator Service Providers, CC Docket No. 90- 313, Report and Order, FCC 91-116, 6 FCC Rcd. 2744, 2752 ¶ 15 (1991) (emphasis supplied), aff’d, Amendment of Policies and Rules Concerning Operator Service Providers and Call Aggregators, CC Docket No. 94-158, Notice of Proposed Rulemaking and Notice of Inquiry, FCC 94-352, 10 FCC Rcd. 1533, 1535 ¶ 15 (1995). In 1998, the FCC held that it has generally been the practice of prison authorities at both the federal and state levels, including state political subdivisions, to grant an outbound calling monopoly to a single IXC serving the particular prison. This approach appears to recognize the special security requirements applicable to inmate calls. Billed Party Preference for InterLATA 0+ Calls, CC Docket No. 92-77, Second Report and Order and Order on Reconsideration, FCC 98-9, 13 FCC Rcd. 6122, 6156 ¶ 57 (1998). Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 40 of 45 PageID #: 151 38 to designate Securus as the collector and remitter of site commissions, but the standard of law to apply is whether Securus kept the funds; Plaintiffs all concede that Securus did not keep them. All of Plaintiffs’ claims for unjust enrichment therefore fail based on their own allegations, and they should be dismissed. B. No Plaintiff Can Establish that Securus’s Alleged Conduct Is Unjust or Unlawful Arkansas courts dismiss unjust enrichment claims where defendants have not violated the law or public policy. See, e.g., Independence County v. Pfizer, Inc., 534 F. Supp. 2d 882, 891 (E.D. Ark. 2008), aff’d sub nom. Ashley County v. Pfizer, Inc., 552 F.3d 659 (8th Cir. 2009). Here, because Antoon’s statutory claim fails due to the DTPA’s safe harbor and Securus’s status as a regulated common carrier, his unjust enrichment claim must be dismissed. Velazquez’s unjust enrichment claim likewise fails. “To state a cause of action based on a theory of unjust enrichment, a plaintiff must allege that the defendant has unjustly retained a benefit to the plaintiff’s detriment, and that defendant’s retention of the benefit violates the fundamental principles of justice, equity, and good conscience.” HPI, 545 N.E.2d at 679; see also Transamerica Comm. Fin. Corp. v. Stockholder Sys., Inc., No. 89-c-917, 1990 WL 186088 at *2 (C.D. Ill. Nov. 8, 1990). A defendant’s required collection of tax is not a deceptive trade practice. Johnson, 291 N.E.2d at 315 (holding required collection of tax was not deceptive trade practice); see also Gore v. Indiana Ins. Co., 876 N.E.2d 156, 162 (2007) (“A business may elect to increase its prices to offset a tax burden just as it could have done if faced with other types of additional costs. Whether to pass a tax on to the consumer or absorb the cost of a tax is purely a business decision.”) (quotation omitted); Mosiman v. BMW Fin. Servs. NA, Inc., 748 N.E.2d 313, 318 (2001) (“[T]here is nothing novel about the shifting of a tax burden to the consumer. Merchants have a contractual right to reimburse themselves for tax payments as a condition of Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 41 of 45 PageID #: 152 39 sale.”) (citation omitted). Here, the Securus contract with the IL DOC contains a state-imposed site commission that Securus remits to the government, and is likewise neither deceptive nor unlawful. Miller’s claim also lacks a predicate and should be dismissed as well. Unjust enrichment “is a condition that may be brought about by unlawful or improper conduct as defined by law … .” Saletech, LLC v. E. Balt, Inc., 20 N.E.3d 796, 808 (App. Ct. Ill. 1st Dist. 2014). “[I]f an unjust enrichment claim rests on the same improper conduct alleged in another claim, then the unjust enrichment claim will be tied to this related claim-and, of course, unjust enrichment will stand or fall with the related claim.” Cleary v. Phillip Morris, Inc., 656 F.3d 511, 517 (7th Cir. 2011) (citing Ass’n Benefit Servs. v. Caremark Rx, Inc., 493 F.3d 841, 855 (7th Cir. 2007)) (ruling that “where the plaintiff’s claim of unjust enrichment is predicated on the same allegations of fraudulent conduct that support an independent claim of fraud, resolution of the fraud claim against the plaintiff is dispositive of the unjust enrichment claim as well.”). Here, because Velazquez’s statutory claim must be dismissed, her unjust enrichment claim likewise must be dismissed. V. THE COURT SHOULD STRIKE SEVERAL CLASS ACTION ALLEGATIONS A. The Court Should Strike the Class Allegations of Persons Who Paid for Intrastate Calls While in Delaware, Hawaii, and Vermont The Court should strike the class allegations of persons who paid for inmate calling services for intrastate calls while in Delaware, Hawaii, and Vermont. Am. Compl. ¶¶ 26(a), 26(b). Securus does not serve a single jail in Delaware, Hawaii, or Vermont, and persons thus cannot make intrastate calls using Securus’s services in any of these states. Hopfinger Decl. ¶ 11. It is therefore impossible for a person in Delaware, Hawaii, or Vermont “to use inmate calling services provided by Securus … to make or receive one or more intrastate phone calls Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 42 of 45 PageID #: 153 40 from a correctional facility… .” Am. Compl. ¶ 26(a)(2), (b)(2) (emphasis added). These allegations on their face are baseless and cannot proceed, and the Court should strike them. E.g., Knowles, 2013 WL 6497097, at *2. B. The Court Should Strike the Georgia Statutory Class, Because the Statute Does Not Permit Class Actions The Court should strike the Georgia Statutory Class, which purports to bring a Georgia FBPA claim for all persons who paid for inmate calling services for and/or paid ancillary charges in connection with intrastate calls. Am. Compl. ¶ 26(c)(1). But the Georgia FBPA does not permit class actions. Aggrieved persons may bring an individual, private action under the Georgia FBPA. Ga. Code Ann. § 10-1-399(a). The statute precludes representative suits like class actions. Ga. Code Ann. § 10-1-399(a) (“Any person … may bring an action individually, but not in a representative capacity[.]”); Honig v. Comcast of Georgia I, LLC, 537 F. Supp. 2d 1277, 1289 (N.D. Ga. 2008) (“Court also finds it highly significant that by its very terms, the GFBPA prohibits consumer class actions.”) (granting motion to compel arbitration); In re New Motor Vehicles Canadian Exp. Antitrust Litig., 241 F.R.D. 77, 83 (D. Me. 2007), vacated in part, 522 F.3d 6 (1st Cir. 2008) (citing Ga. Code Ann. § 10-1-399(a) and concluding that Georgia does not permit class certification of GFBPA claims). The allegations of the Georgia Statutory Class therefore cannot proceed as a matter of law and should be stricken. Knowles, 2013 WL 6497097, at *2 CONCLUSION For the foregoing reasons, the Court should dismiss Plaintiffs’ First Amended Class Action Complaint. At a minimum, the Court should strike the class allegations regarding the states of Vermont, Delaware, and Hawaii, and the allegations of the Georgia Statutory Class. Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 43 of 45 PageID #: 154 41 Dated: March 6, 2017 Respectfully submitted, SECURUS TECHNOLOGIES, INC. By: /s/ Stephanie A. Joyce Stephanie A. Joyce * Joshua A. Fowkes * Arent Fox LLP 1717 K Street, N.W. Washington, D.C. 20006 Tel. 202.857.6081 Fax 202.857.6395 Stephanie.Joyce@arentfox.com Joshua.Fowkes@arentfox.com * Admitted Pro Hac Vice Woody Bassett [AR Bar No.77006] James M. Graves [AR Bar No. 95172] Bassett Law Firm LLP 221 North College Avenue P.O. Box 3618 Fayetteville, AR 72702 Tel. 479.521.9996 Fax 479.521.9600 WBassett@bassettlawfirm.com JGraves@bassettlawfirm.com Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 44 of 45 PageID #: 155 42 CERTIFICATE OF SERVICE I hereby certify that on the 6th day of March, 2017, I electronically filed the foregoing Memorandum in Support of Motion to Dismiss and Motion to Strike Class Allegations with the Clerk of the United States District Court for the Western District of Arkansas, using the CM/ECF system which sent notification of such filing to all CM/ECF participants of record. /s/ Stephanie A. Joyce Stephanie A. Joyce Case 5:17-cv-05008-TLB Document 30-1 Filed 03/06/17 Page 45 of 45 PageID #: 156 1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ARKANSAS PATRICK ANTOON, JR., SHALIN MILLER, and SHARON VELAZQUEZ, individually and on behalf of all others similarly situated, Plaintiffs, v. SECURUS TECHNOLOGIES, INC., Defendant. Civil Action No. 17-5008 Honorable Timothy L. Brooks DECLARATION OF CURTIS L. HOPFINGER I, Curtis L. Hopfinger, hereby affirm under penalty of perjury and pursuant to 18 U.S.C. § 1621, that: 1. My name is Curtis L. Hopfinger. I am Director - Regulatory and Government Affairs for Securus Technologies, Inc. (“Securus”). My business address is 14651 Dallas Parkway, Sixth Floor, Dallas TX 75254. 2. I have held this position since August 2005. I have worked in the telecommunications industry for over 40 years. I oversee Securus’s regulatory compliance throughout the United States. 3. I have personal knowledge of the facts stated herein and could testify to the same. I have read the First Amended Complaint in this case. 4. In the state of Arkansas, Securus is registered at the Arkansas Public Service Commission as an Interexchange Carrier. The rates that Securus charges for intrastate calls in Arkansas are posted on the Securus website at http://www.securustechnologies.com/tariffs. Attached hereto as Exhibit A is the list of rates that was effective October 2, 2013, through May 26, 2015. Exhibit B is the list of rates that was effective May 27, 2015, through December 15, 2015. Exhibit C is the list of rates that became effective December 16, 2015. 5. In the state of Georgia, Securus has had tariffs for intrastate service on file for several years. Attached hereto as Exhibits D, E, and F are the relevant pages of the tariffs that were in effect during the period in which Shalin Miller allegedly paid for Securus’s service. Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 1 of 86 PageID #: 157 2 6. Effective July 20, 2016, the Georgia Public Service Commission imposed maximum rate caps for inmate calls. Exhibit G. The caps are $0.18 per minute for local calls (up to a maximum of $2.70 per call) and $0.19 per minute for intrastate (in-state) long distance calls. As you see on Original Sheet No. 19.3 of Exhibit G, Securus’s tariffed rates comply with these maximum rate caps. 7. In the state of Illinois, Securus holds a Certificate of Service Authority for the provision of pay telephone service at public locations. This Certificate permits Securus to provide inmate telecommunications services in Illinois. 8. Securus did not serve the facilities operated by the Illinois Department of Corrections (“IL DOC”) until early 2013. The contract between Securus and the IL DOC was not signed by the Director of the Illinois Department of Central Management Services until 19, 2012. Securus commenced service at the 42 correctional facility locations operated by the IL DOC on a rolling basis. Service at the Pontiac Correctional Center began in approximately March 2013. 9. The IL DOC does not permit Securus to charge any discretionary fees to any consumer. A “discretionary fee” is one that Securus is not required by law to assess or impose. Securus therefore cannot charge, for example, a credit card processing fee to any person who wants to pay for inmate calls from the IL DOC. 10. The only non-calling charges that Securus may assess under the contract with the IL DOC are: a. Illinois Public Utility Commission Fee - This fee is imposed by the state regulatory agency to defray the cost of its operations. b. Illinois Universal Service Fund Charge - This charge goes to the state Universal Service Fund which subsidizes telecommunications services for low-income consumers and consumers who live in high-cost areas. c. Illinois State Excise Tax - This tax was enacted by the Illinois legislature. d. Illinois State Infrastructure Maintenance Fee - This fee is required by state law, and established a fund to partially replace the personal property tax that was abolished by the Illinois Constitution. (35 ILCS 635/1) e. Simplified Municipal Telecommunications Tax - This IL statute authorizes any municipality to impose fees and taxes on the privilege of originating or receiving telecommunications. (35 ILCS 636/5-5). 11. Securus has not provided telecommunications service in Hawaii, Delaware, or Vermont since at least the time I joined the company in August 2005. I affirm that the foregoing is true and correct to the best of my knowledge. Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 2 of 86 PageID #: 158 Dated: March 6,2017 4-r-,-*-^ a<- Cu*is L. Hopfinget' Director - Regulatory Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 3 of 86 PageID #: 159 EXHIBIT A Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 4 of 86 PageID #: 160 Securus Technologies, Inc. Original Sheet 1 Rate Schedule - Arkansas Effective: August 30, 2013 By: Curtis Hopfinger, Director - Regulatory & Government Affairs 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 RATE SCHEDULE FOR: SECURUS TECHNOLOGIES, INC. 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 (972) 277-0300 Applying to Intrastate Services Between Points In the State of Arkansas Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 5 of 86 PageID #: 161 Securus Technologies, Inc. Original Sheet 2 Rate Schedule - Arkansas Effective: August 30, 2013 By: Curtis Hopfinger, Director - Regulatory & Government Affairs 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 SERVICES AND RATE SCHEDULE General Service is offered to Inmates of Correctional Institutions in Arkansas. Securus Technologies, Inc.'s (“Securus”) service provides automated operator assisted calling for collect calls. Responsibility for payment of charges for calls must be accepted by the Called Party. At the discretion of the institution's administration, service may be limited or restricted for reasons of fraud prevention, security or control. Charges for calls on Securus’ service are computed and billed individually for each call placed through the Company. Rates vary by time of day and day of week. Charges also vary based on call duration. Calls are billed based on usage of Securus' service. No installation charges or fixed monthly recurring charges apply. Timing of Calls • Long distance usage charges are based on actual usage of Securus' network. Timing of a call begins when the Called Party accepts the charges for the call. • Chargeable time for a call ends upon disconnection by either party. • The minimum call duration and initial period for billing purposes is one minute. • Unless otherwise specified in this Rate Schedule, for billing purposes usage is measured and rounded to the next higher full minute. • No charges apply for incomplete calls or for calls to called parties who do not accept charges for the call (calls are terminated upon the Called Party's refusal to accept responsibility for charges.) Time of Day Rate Periods The appropriate rates apply for day, evening and night/weekend calls based on the following chart. TIMES MON TUES WED THURS FRI SAT SUN 8:00 AM to 4:59 PM Daytime Period 5:00 PM to 11:00 PM Evening Period 11:01 PM to 7:59 AM Night/Weekend Period Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 6 of 86 PageID #: 162 Securus Technologies, Inc. Original Sheet 3 Rate Schedule - Arkansas Effective: August 30, 2013 By: Curtis Hopfinger, Director - Regulatory & Government Affairs 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 SERVICES AND RATE SCHEDULE, CONTINUED Institutional Collect-Only Calling Service Institutional operator assisted service allows Inmates to place collect calls through an automated call processing system. The call processing system prompts the Inmate and the called party such that the call is completed without live operator assistance. Calls are placed on a collect-only basis to the called party. If a call is not accepted within five (5) seconds of the automated voice recording prompt, the automated recording is replayed a second time. If an acceptance digit is not received five (5) seconds after the second recording is completed, the call is terminated by Securus' system. A number of special blocking and screening capabilities are available with institutional operator services provided by Securus. These capabilities allow Institutions to control Inmate access to telecommunications services, reduce fraudulent use of the Company's services, and eliminate harassing calls to persons outside the Institution. For services provided to Inmates of Institutions, the following special conditions apply: • Calls to "900", "976" or other pay-per-call services are blocked by Securus. • At the request of the Institution, Securus may block Inmate access to toll-free numbers (e.g., 800, 888) and dialing sequences used to access other carriers or operator service providers (e.g., 950-XXXX, 10XXXX). • At the request of the Institution, Securus may block Inmate access to "911", "411", or local operators reached through "0-" dialing. • At the request of the Institution, Securus may block Inmate access to specific telephone numbers. • Availability of Securus' services may be restricted by the Institution to certain hours and/or days of the week. • At the request of the Institution, no notices or signage concerning the Company's services will be posted with its instruments. Information concerning Securus' services is provided to the administration of each Institution where the Company's services are offered. Inmates may obtain information regarding rates and charges by requesting such information from the Institution's administration. • At the request of the Institution, Securus may impose time limits on local and long distance calls placed using its services. • At the request of the Institution, equipment may be provided which permits monitoring of Inmate calls by legally authorized government officials. Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 7 of 86 PageID #: 163 Securus Technologies, Inc. Original Sheet 4 Rate Schedule - Arkansas Effective: August 30, 2013 By: Curtis Hopfinger, Director - Regulatory & Government Affairs 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 SERVICES AND RATE SCHEDULE, CONTINUED Rates Automated Basic Collect Call Service Rates Local Flat Rate: $3.95 (no per minute rate applies) IntraLATA Calls $0.69 per minute $3.95 per call surcharge InterLATA Calls $0.69 per minute $4.42 per call surcharge Standardized Intrastate Inmate Rates - the following standardized rate options are available to facilities. Surcharges and per minute rates apply regardless of time of day or type of call. Per Call Surcharge Per Minute Rate 1 $3.00 $0.50 2 $3.50 $0.40 3 $3.50 $0.50 4 $3.50 $0.55 5 $3.75 $0.55 6 $3.95 $0.8910 7 $3.00 $0.25 Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 8 of 86 PageID #: 164 Securus Technologies, Inc. Original Sheet 5 Rate Schedule - Arkansas Effective: August 30, 2013 By: Curtis Hopfinger, Director - Regulatory & Government Affairs 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 SERVICES AND RATE SCHEDULE, CONTINUED Prepaid Service Prepaid Calling Cards and Debit Accounts Where offered by the Confinement Facility, Inmates may either purchase a Prepaid Calling Card or set up a Prepaid Debit Account for calls made by the Inmate User or Authorized User. Prepaid Calling Cards and Debit Accounts provide an alternative method to make calls and are designed for those Inmates who prefer to prepay for their calls. Calls are made by dialing a special access dialing sequence that connects directly to the Company’s network at the Confinement Facility. A valid Authorization Code must be entered to access the account. The Company’s system automatically informs the Inmate User or Authorized User of the Prepaid Balance remaining on the Prepaid Calling Card or in the Prepaid Debit Account, and provides prompts to place the call by entering the destination telephone number with area code. Network usage is deducted from the Prepaid Balance on a real time basis as the call progresses. Applicable state taxes and fees are included in the rates and charges for the calls made. On Prepaid Calling Card and Prepaid Debit Account calls, when the Prepaid Balance is one minute prior to depletion, the Inmate User or Authorized User will be interrupted with such an announcement. Prepaid Calling Card and Debit Account services are available twenty-four (24) hours a day, seven (7) days per week to all terminating locations serviced. Access to such telephone services by an Inmate User may be subject to time-of-day an usage restrictions imposed by individual Confinement Facilities. No minimum service period applies. For debiting purposes, call timing is rounded up to the nearest one (1) minute increment. Usage charges are computed and rounded up to the nearest one (1) cent on a per call basis. Prepaid Balances are not charged for incomplete calls. Prepaid Calling Cards The Confinement Facilities that offer the option of Prepaid Calling Cards may purchase Prepaid Calling Cards directly from the Company. Inmates then purchase the Cards from authorized personnel at the Confinement Facilities. The Company does not engage in direct monetary transactions with the Inmate. The Inmate may purchase a Prepaid Calling Card in denominations determined by the Confinement Facility. Prepaid Calling Cards are offered only to Inmates at Confinement Facilities and not to the general public. Prepaid Calling Cards are valid for one hundred eighty (180) days from the date of first usage. Unused Prepaid Balances may be used by the Inmate User or Authorized User following release from the Confinement Facility only through the Company’s network by dialing a special toll free access number with automatically connects the call to the Company’s network. Unused Prepaid Balances are not refundable nor may Prepaid Calling Cards be replenished upon the depletion of the Prepaid Balance. Inmates may purchase additional cards, as permitted by their Confinement Facility. Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 9 of 86 PageID #: 165 Securus Technologies, Inc. Original Sheet 6 Rate Schedule - Arkansas Effective: August 30, 2013 By: Curtis Hopfinger, Director - Regulatory & Government Affairs 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 SERVICES AND RATE SCHEDULE, CONTINUED Prepaid Service, Continued Prepaid Calling Cards and Debit Accounts, Continued. Prepaid Debit Accounts For a Prepaid Debit Account, the Inmate may set up the account through the Confinement Facility administrators with an initial payment typically through the Inmate’s commissary account, in those Confinement Facilities where this service is available. Upon the depletion of the Prepaid Balance, the Prepaid Debit Account may be replenished by depositing funds into the Account via the Confinement Facility administrator. Prepaid Debit Accounts are considered dormant if there is no activity for one hundred eighty (180) days following the last call made. Inactive accounts will be removed from the Company’s system. In conjunction with their release from the Confinement Facility, the Inmate may request a refund from the Confinement Facility administrator. AdvanceConnect Accounts End Users who prefer to pay in advance for Collect Calls that originate from Confinement Facilities, or else if the End User’s local exchange carrier does not have a billing and collection agreement with the Company or its intermediary, may set up an AdvanceConnect Account with the Company with a minimum initial fifty dollar ($50) payment. The Account is set up with the initial payment and may be replenished by the End User. Applicable state taxes and fees are calculated and deducted from the balance at the conclusion of the call. When the balance in an AdvanceConnect Account reaches twenty dollars ($20) or below, the End User will receive an automated courtesy call from the Company notifying the End User with such an announcement. If the End User’s balance reaches zero prior to replenishment of the Account, the End User will be blocked from receiving further calls from any Confinement Facility served by the Company until the balance is replenished or an alternative billing arrangement is made. The End User may request a refund of the available balance in the AdvanceConnect Account either by written request to the Company or by contacting the Company at its toll free telephone number once the End User verifies certain account information. Any such unused balances will expire in one hundred eighty (180) days following the last call made, unless the balance is either fully depleted or a refund has been requested. Refunds are subject to a processing fee of up to $4.95 and no refunds will be issued for accounts reflecting a balance of $4.95 or less; this policy applies only to accounts established on or after November 1, 2008. No refunds of unused balances will be issued after the expiration date. AdvanceConnect Account service is available twenty-four (24) hours a day, seven (7) days a week to all terminating locations served. Access to such services by the Inmate User may be subject to time-of-day and usage restrictions imposed by individual Confinement Facilities. No minimum service period applies. For debiting purposes, call timing is rounded up to the nearest one (1) minute increment. Usage charges are computed and rounded up to the nearest one (1) cent on a per call basis. Balances are not charged for incomplete calls. Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 10 of 86 PageID #: 166 Securus Technologies, Inc. First Revised Sheet 7 Rate Schedule - Arkansas Cancels Original Sheet 7 Effective: October 3, 2013 By: Curtis Hopfinger, Director - Regulatory & Government Affairs 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 SERVICES AND RATE SCHEDULE, CONTINUED Prepaid Service, Continued Wireless Administration Fee - a monthly fee of up to $3.99 is applicable to any AdvanceConnect account with a wireless telephone number included as a number authorized to receive calls. This fee applies once per month, per account regardless of the number of wireless telephone numbers authorized. The fee amount will be deducted from the AdvanceConnect account balance on a monthly basis as long as a wireless number remains on the AdvanceConnect account. As of the initial effective date of this fee, existing AdvanceConnect accounts with existing authorized wireless numbers will be Grandfathered and the Wireless Administration Fee will not apply. If an existing AdvanceConnect account adds or changes a wireless number on the account, the Wireless Administration Fee will apply going forward. Inmate Debit Inmate Debit is a prepaid telephone account offering made available to Inmates by the Company when permitted by the Confinement Facility. Inmate Debit provides an alternative method for Inmates to prepay for and make calls. An Inmate Debit account associated with the Inmate’s Personal Identification Number (PIN) is automatically established by the Company. Inmates fund and replenish their Inmate Debit account through electing to transfer funds from either their facility’s inmate trust fund or commissary account to their Inmate Debit account. Inmate Debit accounts may also be funded by inmate friends and family members via the Company’s points-of-sale. Funds placed in this account become the property of the inmate. Inmate Debit calls are processed by dialing a special access dialing sequence that connects directly to the Company’s network at the Confinement Facility. Inmates must enter a valid Authorization Code to access their Inmate Debit account. The Company’s system automatically informs the Inmate of the prepaid balance remaining on the Inmate Debit account prior to each call, provides prompts to place the call by entering the destination telephone number, and informs the Inmate of the rates for the call being attempted. Call charges are deducted from the prepaid account balance on a real-time basis as the call progresses. Applicable state taxes and fees are in addition to the rates and charges for calling service. During an Inmate Debit call, when the prepaid account balance is one minute prior to depletion, the Inmate will be interrupted with such an announcement. Inmate Debit services are available twenty-four (24) hours a day, seven (7) days per week to all terminating locations serviced. Access to such telephone services by an Inmate may be subject to time-of-day and usage restrictions imposed by individual Confinement Facilities. No minimum service period applies. For debiting purposes, call timing is rounded up to the nearest one (1) minute increment. Usage charges are computed and rounded up to the nearest one (1) cent on a per call basis. Prepaid balances are not charged for incomplete calls. Refunds of unused Inmate Debit account balances are issued by the entity controlling the actual cash deposits, which is either the Company, the commissary, the Confinement Facility or its agent, depending on the specific arrangements, unless otherwise directed by state law. Depending on the entity issuing the refund, refund fees and/or minimum refund amounts may apply. The prepaid balance expires ninety (90) days from the date of the last call placed on the Inmate Debit account unless alternative arrangements are expressly requested by the Confinement Facility. No refunds of unused balances will be issued after the expiration date. (I) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 11 of 86 PageID #: 167 Securus Technologies, Inc. Original Sheet 8 Rate Schedule - Arkansas Effective: August 30, 2013 By: Curtis Hopfinger, Director - Regulatory & Government Affairs 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 SERVICES AND RATE SCHEDULE, CONTINUED Prepaid Service, Continued Prepaid Calling Cards and Debit Accounts Option 1 PER MINUTE USAGE CHARGE $0.50 An additional per call service charge of up to $3.00 may apply to all completed prepaid calling card IntraLATA and InterLATA telephone calls. Option 2 Rates and charges for prepaid calling services are provided at a ten percent discount off standard operator assisted collect call rates. Option 3 PER MINUTE USAGE CHARGE $0.60 PER MINUTE USAGE CHARGE $0.75 Option 4 Rates and charges for prepaid calling card services are provided at the standard contracted collect call rates applicable to the facility requesting prepaid services. Option 5 PER MINUTE USAGE CHARGE $0.60 PER CALL SURCHARGE $0.60 AdvanceConnect Accounts The rates for AdvanceConnect Accounts are the same as those for automated Collect Call service. Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 12 of 86 PageID #: 168 Securus Technologies, Inc. First Revised Sheet 9 Rate Schedule - Arkansas Cancels Original Sheet 9 Effective: October 2, 2013 By: Curtis Hopfinger, Director - Regulatory & Government Affairs 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 SERVICES AND RATE SCHEDULE, CONTINUED Miscellaneous Fees and Charges Voice Biometrics Voice Biometrics provides validation of inmate personal identification numbers (PINs) through voice verification technology for purposes of improved security and reduced potential of fraud and consumer harassment by inmates. Where installation of Voice Biometrics is requested by confinement facilities, a per call service charge of $0.25 applies in addition to all applicable message charges, operator assistance service charges and other miscellaneous service charges. Bill Statement Fee An undiscountable bill statement fee of $3.49 may be applied to an end user’s local exchange carrier bill in each month in which collect calls from confinement facilities are billed, regardless of the number of calls accepted. The bill statement fee is a monthly charge to recover some of the company’s expenses associated with calls from confinement facilities served by the company and that are billed through local exchange carriers. No fee will be assessed in any month if no collect calls are accepted. This fee will not be assessed on end users that prepay for their services or those that are directly billed by the company. Return Check Charge A return check charge of $25.00 will be assessed for checks returned for insufficient funds. Any applicable return check charges will be assessed according to the terms and conditions of the Company or its billing agent and pursuant to Arkansas law. Transaction Processing Fee A convenience fee of up to $9.95 is applicable to credit and debit card payments submitted to the Company via the Securus automated system or the Securus call center. A convenience fee of up to $7.95 is applicable to credit and debit card payments submitted to the Company via the Securus website. These fees do not apply to payments mailed to the company or submitted via a customer’s online banking service. Universal Connectivity Charges Except for Prepaid Card and Prepaid Debit Account calls, non-coin payphone service provided pursuant to this rate schedule is subject to an undiscountable Universal Connectivity Charge, which is a recurring monthly charge equal to a percentage of the total new intrastate charges, after applicable of all applicable discounts and credits, as determined by the APSC. (T)(I) (T) (T) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 13 of 86 PageID #: 169 Securus Technologies, Inc. Original Sheet 10 Rate Schedule - Arkansas Effective: August 30, 2013 By: Curtis Hopfinger, Director - Regulatory & Government Affairs 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 SERVICES AND RATE SCHEDULE, CONTINUED Miscellaneous Fees and Charges, Continued Location Validation Fee At facilities where applicable, a four percent (4%) per-call surcharge will be applied to the base rate of all call types. The base rate of a call is set forth above and does not include any applicable taxes that may apply to the call. The Location Validation Fee is applied to calls originating from facilities that have elected to utilize Securus’ Location Based Services technology and recovers the cost of verifying the geographic location of the called party for security purposes pursuant to Correctional Institution contracts. The Location Validation Fee will not be assessed on End Users who are billed for services through their LECs. State Cost Recovery Fee Securus reserves the right to impose a State Cost Recovery Fee of up to five percent (5%) administered as a per-call surcharge applied to the base rate of all intrastate calls originating from facilities in order to partially recover expenses incurred with regard to operating as a regulated entity within the state. The base rate of a call is set forth above and does not include any applicable taxes that may apply to the call. Costs include, but are not limited to, such items as expenses associated with billing, collecting and remitting state USF as applicable, complying with mandatory state filings and reporting obligations, state regulatory fees, expenses for state regulatory proceedings and compliance, portions of local and state property taxes associated with intrastate calling and other non-income-tax related tax costs associated with intrastate calling and compensating other carriers for terminating calls within the state using their facilities. The State Cost Recovery Fee will not be assessed on End Users who are billed for services through their LECs. Pay Telephone Use Charge An undiscountable per call charge of $0.60 is applicable to all intrastate, interstate and international calls that originate from any domestic pay telephone used to access the Company’s services. This surcharge, which is in addition to standard usage charges and any applicable service charges and surcharges associated with the Company’s services, applies for the use of the instrument used to access the Company’s service and is unrelated to the service accessed from the pay telephone. This charge does not apply to calls placed from pay telephones which the caller pays for the call by inserting coins during the progress of the call. Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 14 of 86 PageID #: 170 Securus Technologies, Inc. Original Sheet 11 Rate Schedule - Arkansas Effective: August 30, 2013 By: Curtis Hopfinger, Director - Regulatory & Government Affairs 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 SERVICES AND RATE SCHEDULE, CONTINUED Contract Services At the option of the Company, service may be offered on a contract basis to meet specialized requirements of the Customer not contemplated in this rate schedule. The terms of each contract shall be mutually agreed upon between the Customer and the Company and may include discounts off of rates contained herein, waiver of recurring or nonrecurring charges, charges for specially designed constructed services not contained in the Company’s general service offerings, or other customized features. The terms of the contract may be based partially or completely on the term and volume commitment, type of originating or terminating access, mixture of service or other distinguishing features. Service shall be available to all similarly situated Customers for a fixed contract Customer as specified in each individual contract. Contract Location 1 Non-Sent Paid Local Calls: Flat Rate - $4.00 Prepaid Calling Cards Local Calls: Flat Rate - $3.65 Contract Location 2 The following rates are applicable to Collect, AdvanceConnect, Prepaid Card and Inmate Debit calls at the contracting facility. Surcharges and per minute rates apply regardless of mileage or time of day. Call Type Surcharge Per Minute Rate Local $3.65 N/A IntraLATA $3.65 $0.1911 InterLATA $2.80 $0.4700 Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 15 of 86 PageID #: 171 EXHIBIT B Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 16 of 86 PageID #: 172 Securus Technologies, Inc. Original Sheet 1 Rate Schedule - Arkansas Effective: August 30, 2013 By: Curtis Hopfinger, Director - Regulatory & Government Affairs 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 RATE SCHEDULE FOR: SECURUS TECHNOLOGIES, INC. 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 (972) 277-0300 Applying to Intrastate Services Between Points In the State of Arkansas Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 17 of 86 PageID #: 173 Securus Technologies, Inc. Original Sheet 2 Rate Schedule - Arkansas Effective: August 30, 2013 By: Curtis Hopfinger, Director - Regulatory & Government Affairs 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 SERVICES AND RATE SCHEDULE General Service is offered to Inmates of Correctional Institutions in Arkansas. Securus Technologies, Inc.'s (“Securus”) service provides automated operator assisted calling for collect calls. Responsibility for payment of charges for calls must be accepted by the Called Party. At the discretion of the institution's administration, service may be limited or restricted for reasons of fraud prevention, security or control. Charges for calls on Securus’ service are computed and billed individually for each call placed through the Company. Rates vary by time of day and day of week. Charges also vary based on call duration. Calls are billed based on usage of Securus' service. No installation charges or fixed monthly recurring charges apply. Timing of Calls • Long distance usage charges are based on actual usage of Securus' network. Timing of a call begins when the Called Party accepts the charges for the call. • Chargeable time for a call ends upon disconnection by either party. • The minimum call duration and initial period for billing purposes is one minute. • Unless otherwise specified in this Rate Schedule, for billing purposes usage is measured and rounded to the next higher full minute. • No charges apply for incomplete calls or for calls to called parties who do not accept charges for the call (calls are terminated upon the Called Party's refusal to accept responsibility for charges.) Time of Day Rate Periods The appropriate rates apply for day, evening and night/weekend calls based on the following chart. TIMES MON TUES WED THURS FRI SAT SUN 8:00 AM to 4:59 PM Daytime Period 5:00 PM to 11:00 PM Evening Period 11:01 PM to 7:59 AM Night/Weekend Period Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 18 of 86 PageID #: 174 Securus Technologies, Inc. Original Sheet 3 Rate Schedule - Arkansas Effective: August 30, 2013 By: Curtis Hopfinger, Director - Regulatory & Government Affairs 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 SERVICES AND RATE SCHEDULE, CONTINUED Institutional Collect-Only Calling Service Institutional operator assisted service allows Inmates to place collect calls through an automated call processing system. The call processing system prompts the Inmate and the called party such that the call is completed without live operator assistance. Calls are placed on a collect-only basis to the called party. If a call is not accepted within five (5) seconds of the automated voice recording prompt, the automated recording is replayed a second time. If an acceptance digit is not received five (5) seconds after the second recording is completed, the call is terminated by Securus' system. A number of special blocking and screening capabilities are available with institutional operator services provided by Securus. These capabilities allow Institutions to control Inmate access to telecommunications services, reduce fraudulent use of the Company's services, and eliminate harassing calls to persons outside the Institution. For services provided to Inmates of Institutions, the following special conditions apply: • Calls to "900", "976" or other pay-per-call services are blocked by Securus. • At the request of the Institution, Securus may block Inmate access to toll-free numbers (e.g., 800, 888) and dialing sequences used to access other carriers or operator service providers (e.g., 950-XXXX, 10XXXX). • At the request of the Institution, Securus may block Inmate access to "911", "411", or local operators reached through "0-" dialing. • At the request of the Institution, Securus may block Inmate access to specific telephone numbers. • Availability of Securus' services may be restricted by the Institution to certain hours and/or days of the week. • At the request of the Institution, no notices or signage concerning the Company's services will be posted with its instruments. Information concerning Securus' services is provided to the administration of each Institution where the Company's services are offered. Inmates may obtain information regarding rates and charges by requesting such information from the Institution's administration. • At the request of the Institution, Securus may impose time limits on local and long distance calls placed using its services. • At the request of the Institution, equipment may be provided which permits monitoring of Inmate calls by legally authorized government officials. Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 19 of 86 PageID #: 175 Securus Technologies, Inc. Original Sheet 4 Rate Schedule - Arkansas Effective: August 30, 2013 By: Curtis Hopfinger, Director - Regulatory & Government Affairs 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 SERVICES AND RATE SCHEDULE, CONTINUED Rates Automated Basic Collect Call Service Rates Local Flat Rate: $3.95 (no per minute rate applies) IntraLATA Calls $0.69 per minute $3.95 per call surcharge InterLATA Calls $0.69 per minute $4.42 per call surcharge Standardized Intrastate Inmate Rates - the following standardized rate options are available to facilities. Surcharges and per minute rates apply regardless of time of day or type of call. Per Call Surcharge Per Minute Rate 1 $3.00 $0.50 2 $3.50 $0.40 3 $3.50 $0.50 4 $3.50 $0.55 5 $3.75 $0.55 6 $3.95 $0.8910 7 $3.00 $0.25 Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 20 of 86 PageID #: 176 Securus Technologies, Inc. Original Sheet 5 Rate Schedule - Arkansas Effective: August 30, 2013 By: Curtis Hopfinger, Director - Regulatory & Government Affairs 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 SERVICES AND RATE SCHEDULE, CONTINUED Prepaid Service Prepaid Calling Cards and Debit Accounts Where offered by the Confinement Facility, Inmates may either purchase a Prepaid Calling Card or set up a Prepaid Debit Account for calls made by the Inmate User or Authorized User. Prepaid Calling Cards and Debit Accounts provide an alternative method to make calls and are designed for those Inmates who prefer to prepay for their calls. Calls are made by dialing a special access dialing sequence that connects directly to the Company’s network at the Confinement Facility. A valid Authorization Code must be entered to access the account. The Company’s system automatically informs the Inmate User or Authorized User of the Prepaid Balance remaining on the Prepaid Calling Card or in the Prepaid Debit Account, and provides prompts to place the call by entering the destination telephone number with area code. Network usage is deducted from the Prepaid Balance on a real time basis as the call progresses. Applicable state taxes and fees are included in the rates and charges for the calls made. On Prepaid Calling Card and Prepaid Debit Account calls, when the Prepaid Balance is one minute prior to depletion, the Inmate User or Authorized User will be interrupted with such an announcement. Prepaid Calling Card and Debit Account services are available twenty-four (24) hours a day, seven (7) days per week to all terminating locations serviced. Access to such telephone services by an Inmate User may be subject to time-of-day an usage restrictions imposed by individual Confinement Facilities. No minimum service period applies. For debiting purposes, call timing is rounded up to the nearest one (1) minute increment. Usage charges are computed and rounded up to the nearest one (1) cent on a per call basis. Prepaid Balances are not charged for incomplete calls. Prepaid Calling Cards The Confinement Facilities that offer the option of Prepaid Calling Cards may purchase Prepaid Calling Cards directly from the Company. Inmates then purchase the Cards from authorized personnel at the Confinement Facilities. The Company does not engage in direct monetary transactions with the Inmate. The Inmate may purchase a Prepaid Calling Card in denominations determined by the Confinement Facility. Prepaid Calling Cards are offered only to Inmates at Confinement Facilities and not to the general public. Prepaid Calling Cards are valid for one hundred eighty (180) days from the date of first usage. Unused Prepaid Balances may be used by the Inmate User or Authorized User following release from the Confinement Facility only through the Company’s network by dialing a special toll free access number with automatically connects the call to the Company’s network. Unused Prepaid Balances are not refundable nor may Prepaid Calling Cards be replenished upon the depletion of the Prepaid Balance. Inmates may purchase additional cards, as permitted by their Confinement Facility. Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 21 of 86 PageID #: 177 Securus Technologies, Inc. Original Sheet 6 Rate Schedule - Arkansas Effective: August 30, 2013 By: Curtis Hopfinger, Director - Regulatory & Government Affairs 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 SERVICES AND RATE SCHEDULE, CONTINUED Prepaid Service, Continued Prepaid Calling Cards and Debit Accounts, Continued. Prepaid Debit Accounts For a Prepaid Debit Account, the Inmate may set up the account through the Confinement Facility administrators with an initial payment typically through the Inmate’s commissary account, in those Confinement Facilities where this service is available. Upon the depletion of the Prepaid Balance, the Prepaid Debit Account may be replenished by depositing funds into the Account via the Confinement Facility administrator. Prepaid Debit Accounts are considered dormant if there is no activity for one hundred eighty (180) days following the last call made. Inactive accounts will be removed from the Company’s system. In conjunction with their release from the Confinement Facility, the Inmate may request a refund from the Confinement Facility administrator. AdvanceConnect Accounts End Users who prefer to pay in advance for Collect Calls that originate from Confinement Facilities, or else if the End User’s local exchange carrier does not have a billing and collection agreement with the Company or its intermediary, may set up an AdvanceConnect Account with the Company with a minimum initial fifty dollar ($50) payment. The Account is set up with the initial payment and may be replenished by the End User. Applicable state taxes and fees are calculated and deducted from the balance at the conclusion of the call. When the balance in an AdvanceConnect Account reaches twenty dollars ($20) or below, the End User will receive an automated courtesy call from the Company notifying the End User with such an announcement. If the End User’s balance reaches zero prior to replenishment of the Account, the End User will be blocked from receiving further calls from any Confinement Facility served by the Company until the balance is replenished or an alternative billing arrangement is made. The End User may request a refund of the available balance in the AdvanceConnect Account either by written request to the Company or by contacting the Company at its toll free telephone number once the End User verifies certain account information. Any such unused balances will expire in one hundred eighty (180) days following the last call made, unless the balance is either fully depleted or a refund has been requested. Refunds are subject to a processing fee of up to $4.95 and no refunds will be issued for accounts reflecting a balance of $4.95 or less; this policy applies only to accounts established on or after November 1, 2008. No refunds of unused balances will be issued after the expiration date. AdvanceConnect Account service is available twenty-four (24) hours a day, seven (7) days a week to all terminating locations served. Access to such services by the Inmate User may be subject to time-of-day and usage restrictions imposed by individual Confinement Facilities. No minimum service period applies. For debiting purposes, call timing is rounded up to the nearest one (1) minute increment. Usage charges are computed and rounded up to the nearest one (1) cent on a per call basis. Balances are not charged for incomplete calls. Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 22 of 86 PageID #: 178 Securus Technologies, Inc. First Revised Sheet 7 Rate Schedule - Arkansas Cancels Original Sheet 7 Effective: October 3, 2013 By: Curtis Hopfinger, Director - Regulatory & Government Affairs 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 SERVICES AND RATE SCHEDULE, CONTINUED Prepaid Service, Continued Wireless Administration Fee - a monthly fee of up to $3.99 is applicable to any AdvanceConnect account with a wireless telephone number included as a number authorized to receive calls. This fee applies once per month, per account regardless of the number of wireless telephone numbers authorized. The fee amount will be deducted from the AdvanceConnect account balance on a monthly basis as long as a wireless number remains on the AdvanceConnect account. As of the initial effective date of this fee, existing AdvanceConnect accounts with existing authorized wireless numbers will be Grandfathered and the Wireless Administration Fee will not apply. If an existing AdvanceConnect account adds or changes a wireless number on the account, the Wireless Administration Fee will apply going forward. Inmate Debit Inmate Debit is a prepaid telephone account offering made available to Inmates by the Company when permitted by the Confinement Facility. Inmate Debit provides an alternative method for Inmates to prepay for and make calls. An Inmate Debit account associated with the Inmate’s Personal Identification Number (PIN) is automatically established by the Company. Inmates fund and replenish their Inmate Debit account through electing to transfer funds from either their facility’s inmate trust fund or commissary account to their Inmate Debit account. Inmate Debit accounts may also be funded by inmate friends and family members via the Company’s points-of-sale. Funds placed in this account become the property of the inmate. Inmate Debit calls are processed by dialing a special access dialing sequence that connects directly to the Company’s network at the Confinement Facility. Inmates must enter a valid Authorization Code to access their Inmate Debit account. The Company’s system automatically informs the Inmate of the prepaid balance remaining on the Inmate Debit account prior to each call, provides prompts to place the call by entering the destination telephone number, and informs the Inmate of the rates for the call being attempted. Call charges are deducted from the prepaid account balance on a real-time basis as the call progresses. Applicable state taxes and fees are in addition to the rates and charges for calling service. During an Inmate Debit call, when the prepaid account balance is one minute prior to depletion, the Inmate will be interrupted with such an announcement. Inmate Debit services are available twenty-four (24) hours a day, seven (7) days per week to all terminating locations serviced. Access to such telephone services by an Inmate may be subject to time-of-day and usage restrictions imposed by individual Confinement Facilities. No minimum service period applies. For debiting purposes, call timing is rounded up to the nearest one (1) minute increment. Usage charges are computed and rounded up to the nearest one (1) cent on a per call basis. Prepaid balances are not charged for incomplete calls. Refunds of unused Inmate Debit account balances are issued by the entity controlling the actual cash deposits, which is either the Company, the commissary, the Confinement Facility or its agent, depending on the specific arrangements, unless otherwise directed by state law. Depending on the entity issuing the refund, refund fees and/or minimum refund amounts may apply. The prepaid balance expires ninety (90) days from the date of the last call placed on the Inmate Debit account unless alternative arrangements are expressly requested by the Confinement Facility. No refunds of unused balances will be issued after the expiration date. (I) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 23 of 86 PageID #: 179 Securus Technologies, Inc. Original Sheet 8 Rate Schedule - Arkansas Effective: August 30, 2013 By: Curtis Hopfinger, Director - Regulatory & Government Affairs 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 SERVICES AND RATE SCHEDULE, CONTINUED Prepaid Service, Continued Prepaid Calling Cards and Debit Accounts Option 1 PER MINUTE USAGE CHARGE $0.50 An additional per call service charge of up to $3.00 may apply to all completed prepaid calling card IntraLATA and InterLATA telephone calls. Option 2 Rates and charges for prepaid calling services are provided at a ten percent discount off standard operator assisted collect call rates. Option 3 PER MINUTE USAGE CHARGE $0.60 PER MINUTE USAGE CHARGE $0.75 Option 4 Rates and charges for prepaid calling card services are provided at the standard contracted collect call rates applicable to the facility requesting prepaid services. Option 5 PER MINUTE USAGE CHARGE $0.60 PER CALL SURCHARGE $0.60 AdvanceConnect Accounts The rates for AdvanceConnect Accounts are the same as those for automated Collect Call service. Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 24 of 86 PageID #: 180 Securus Technologies, Inc. First Revised Sheet 9 Rate Schedule - Arkansas Cancels Original Sheet 9 Effective: October 2, 2013 By: Curtis Hopfinger, Director - Regulatory & Government Affairs 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 SERVICES AND RATE SCHEDULE, CONTINUED Miscellaneous Fees and Charges Voice Biometrics Voice Biometrics provides validation of inmate personal identification numbers (PINs) through voice verification technology for purposes of improved security and reduced potential of fraud and consumer harassment by inmates. Where installation of Voice Biometrics is requested by confinement facilities, a per call service charge of $0.25 applies in addition to all applicable message charges, operator assistance service charges and other miscellaneous service charges. Bill Statement Fee An undiscountable bill statement fee of $3.49 may be applied to an end user’s local exchange carrier bill in each month in which collect calls from confinement facilities are billed, regardless of the number of calls accepted. The bill statement fee is a monthly charge to recover some of the company’s expenses associated with calls from confinement facilities served by the company and that are billed through local exchange carriers. No fee will be assessed in any month if no collect calls are accepted. This fee will not be assessed on end users that prepay for their services or those that are directly billed by the company. Return Check Charge A return check charge of $25.00 will be assessed for checks returned for insufficient funds. Any applicable return check charges will be assessed according to the terms and conditions of the Company or its billing agent and pursuant to Arkansas law. Transaction Processing Fee A convenience fee of up to $9.95 is applicable to credit and debit card payments submitted to the Company via the Securus automated system or the Securus call center. A convenience fee of up to $7.95 is applicable to credit and debit card payments submitted to the Company via the Securus website. These fees do not apply to payments mailed to the company or submitted via a customer’s online banking service. Universal Connectivity Charges Except for Prepaid Card and Prepaid Debit Account calls, non-coin payphone service provided pursuant to this rate schedule is subject to an undiscountable Universal Connectivity Charge, which is a recurring monthly charge equal to a percentage of the total new intrastate charges, after applicable of all applicable discounts and credits, as determined by the APSC. (T)(I) (T) (T) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 25 of 86 PageID #: 181 Securus Technologies, Inc. Original Sheet 10 Rate Schedule - Arkansas Effective: August 30, 2013 By: Curtis Hopfinger, Director - Regulatory & Government Affairs 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 SERVICES AND RATE SCHEDULE, CONTINUED Miscellaneous Fees and Charges, Continued Location Validation Fee At facilities where applicable, a four percent (4%) per-call surcharge will be applied to the base rate of all call types. The base rate of a call is set forth above and does not include any applicable taxes that may apply to the call. The Location Validation Fee is applied to calls originating from facilities that have elected to utilize Securus’ Location Based Services technology and recovers the cost of verifying the geographic location of the called party for security purposes pursuant to Correctional Institution contracts. The Location Validation Fee will not be assessed on End Users who are billed for services through their LECs. State Cost Recovery Fee Securus reserves the right to impose a State Cost Recovery Fee of up to five percent (5%) administered as a per-call surcharge applied to the base rate of all intrastate calls originating from facilities in order to partially recover expenses incurred with regard to operating as a regulated entity within the state. The base rate of a call is set forth above and does not include any applicable taxes that may apply to the call. Costs include, but are not limited to, such items as expenses associated with billing, collecting and remitting state USF as applicable, complying with mandatory state filings and reporting obligations, state regulatory fees, expenses for state regulatory proceedings and compliance, portions of local and state property taxes associated with intrastate calling and other non-income-tax related tax costs associated with intrastate calling and compensating other carriers for terminating calls within the state using their facilities. The State Cost Recovery Fee will not be assessed on End Users who are billed for services through their LECs. Pay Telephone Use Charge An undiscountable per call charge of $0.60 is applicable to all intrastate, interstate and international calls that originate from any domestic pay telephone used to access the Company’s services. This surcharge, which is in addition to standard usage charges and any applicable service charges and surcharges associated with the Company’s services, applies for the use of the instrument used to access the Company’s service and is unrelated to the service accessed from the pay telephone. This charge does not apply to calls placed from pay telephones which the caller pays for the call by inserting coins during the progress of the call. Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 26 of 86 PageID #: 182 Securus Technologies, Inc. Original Sheet 11 Rate Schedule - Arkansas Effective: May 27, 2015 By: Curtis Hopfinger, Director - Regulatory & Government Affairs 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 SERVICES AND RATE SCHEDULE, CONTINUED Contract Services At the option of the Company, service may be offered on a contract basis to meet specialized requirements of the Customer not contemplated in this rate schedule. The terms of each contract shall be mutually agreed upon between the Customer and the Company and may include discounts off of rates contained herein, waiver of recurring or nonrecurring charges, charges for specially designed constructed services not contained in the Company’s general service offerings, or other customized features. The terms of the contract may be based partially or completely on the term and volume commitment, type of originating or terminating access, mixture of service or other distinguishing features. Service shall be available to all similarly situated Customers for a fixed contract Customer as specified in each individual contract. Contract Location 1 Non-Sent Paid Local Calls: Flat Rate - $4.00 Prepaid Calling Cards Local Calls: Flat Rate - $3.65 Contract Location 2 The following rates are applicable to Collect, AdvanceConnect, Prepaid Card and Inmate Debit calls at the contracting facility. Surcharges and per minute rates apply regardless of mileage or time of day. Call Type Surcharge Per Minute Rate Local $3.65 N/A IntraLATA $3.65 $0.1911 InterLATA $2.80 $0.4700 Contract Location 3 The following rates are applicable to Collect, AdvanceConnect, and Inmate Debit calls at the contracting facilities. Surcharges and per minute rates apply regardless of mileage or time of day. Call Type Surcharge Per Minute Rate Local $3.00 $0.12 IntraLATA $3.00 $0.12 InterLATA $3.00 $0.12 Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 27 of 86 PageID #: 183 EXHIBIT C Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 28 of 86 PageID #: 184 Securus Technologies, Inc. Original Sheet 1 Rate Schedule - Arkansas Effective: August 30, 2013 By: Curtis Hopfinger, Director - Regulatory & Government Affairs 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 RATE SCHEDULE FOR: SECURUS TECHNOLOGIES, INC. 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 (972) 277-0300 Applying to Intrastate Services Between Points In the State of Arkansas Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 29 of 86 PageID #: 185 Securus Technologies, Inc. Original Sheet 2 Rate Schedule - Arkansas Effective: August 30, 2013 By: Curtis Hopfinger, Director - Regulatory & Government Affairs 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 SERVICES AND RATE SCHEDULE General Service is offered to Inmates of Correctional Institutions in Arkansas. Securus Technologies, Inc.'s (“Securus”) service provides automated operator assisted calling for collect calls. Responsibility for payment of charges for calls must be accepted by the Called Party. At the discretion of the institution's administration, service may be limited or restricted for reasons of fraud prevention, security or control. Charges for calls on Securus’ service are computed and billed individually for each call placed through the Company. Rates vary by time of day and day of week. Charges also vary based on call duration. Calls are billed based on usage of Securus' service. No installation charges or fixed monthly recurring charges apply. Timing of Calls • Long distance usage charges are based on actual usage of Securus' network. Timing of a call begins when the Called Party accepts the charges for the call. • Chargeable time for a call ends upon disconnection by either party. • The minimum call duration and initial period for billing purposes is one minute. • Unless otherwise specified in this Rate Schedule, for billing purposes usage is measured and rounded to the next higher full minute. • No charges apply for incomplete calls or for calls to called parties who do not accept charges for the call (calls are terminated upon the Called Party's refusal to accept responsibility for charges.) Time of Day Rate Periods The appropriate rates apply for day, evening and night/weekend calls based on the following chart. TIMES MON TUES WED THURS FRI SAT SUN 8:00 AM to 4:59 PM Daytime Period 5:00 PM to 11:00 PM Evening Period 11:01 PM to 7:59 AM Night/Weekend Period Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 30 of 86 PageID #: 186 Securus Technologies, Inc. Original Sheet 3 Rate Schedule - Arkansas Effective: August 30, 2013 By: Curtis Hopfinger, Director - Regulatory & Government Affairs 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 SERVICES AND RATE SCHEDULE, CONTINUED Institutional Collect-Only Calling Service Institutional operator assisted service allows Inmates to place collect calls through an automated call processing system. The call processing system prompts the Inmate and the called party such that the call is completed without live operator assistance. Calls are placed on a collect-only basis to the called party. If a call is not accepted within five (5) seconds of the automated voice recording prompt, the automated recording is replayed a second time. If an acceptance digit is not received five (5) seconds after the second recording is completed, the call is terminated by Securus' system. A number of special blocking and screening capabilities are available with institutional operator services provided by Securus. These capabilities allow Institutions to control Inmate access to telecommunications services, reduce fraudulent use of the Company's services, and eliminate harassing calls to persons outside the Institution. For services provided to Inmates of Institutions, the following special conditions apply: • Calls to "900", "976" or other pay-per-call services are blocked by Securus. • At the request of the Institution, Securus may block Inmate access to toll-free numbers (e.g., 800, 888) and dialing sequences used to access other carriers or operator service providers (e.g., 950-XXXX, 10XXXX). • At the request of the Institution, Securus may block Inmate access to "911", "411", or local operators reached through "0-" dialing. • At the request of the Institution, Securus may block Inmate access to specific telephone numbers. • Availability of Securus' services may be restricted by the Institution to certain hours and/or days of the week. • At the request of the Institution, no notices or signage concerning the Company's services will be posted with its instruments. Information concerning Securus' services is provided to the administration of each Institution where the Company's services are offered. Inmates may obtain information regarding rates and charges by requesting such information from the Institution's administration. • At the request of the Institution, Securus may impose time limits on local and long distance calls placed using its services. • At the request of the Institution, equipment may be provided which permits monitoring of Inmate calls by legally authorized government officials. Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 31 of 86 PageID #: 187 Securus Technologies, Inc. Original Sheet 4 Rate Schedule - Arkansas Effective: August 30, 2013 By: Curtis Hopfinger, Director - Regulatory & Government Affairs 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 SERVICES AND RATE SCHEDULE, CONTINUED Rates Automated Basic Collect Call Service Rates Local Flat Rate: $3.95 (no per minute rate applies) IntraLATA Calls $0.69 per minute $3.95 per call surcharge InterLATA Calls $0.69 per minute $4.42 per call surcharge Standardized Intrastate Inmate Rates - the following standardized rate options are available to facilities. Surcharges and per minute rates apply regardless of time of day or type of call. Per Call Surcharge Per Minute Rate 1 $3.00 $0.50 2 $3.50 $0.40 3 $3.50 $0.50 4 $3.50 $0.55 5 $3.75 $0.55 6 $3.95 $0.8910 7 $3.00 $0.25 Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 32 of 86 PageID #: 188 Securus Technologies, Inc. Original Sheet 5 Rate Schedule - Arkansas Effective: August 30, 2013 By: Curtis Hopfinger, Director - Regulatory & Government Affairs 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 SERVICES AND RATE SCHEDULE, CONTINUED Prepaid Service Prepaid Calling Cards and Debit Accounts Where offered by the Confinement Facility, Inmates may either purchase a Prepaid Calling Card or set up a Prepaid Debit Account for calls made by the Inmate User or Authorized User. Prepaid Calling Cards and Debit Accounts provide an alternative method to make calls and are designed for those Inmates who prefer to prepay for their calls. Calls are made by dialing a special access dialing sequence that connects directly to the Company’s network at the Confinement Facility. A valid Authorization Code must be entered to access the account. The Company’s system automatically informs the Inmate User or Authorized User of the Prepaid Balance remaining on the Prepaid Calling Card or in the Prepaid Debit Account, and provides prompts to place the call by entering the destination telephone number with area code. Network usage is deducted from the Prepaid Balance on a real time basis as the call progresses. Applicable state taxes and fees are included in the rates and charges for the calls made. On Prepaid Calling Card and Prepaid Debit Account calls, when the Prepaid Balance is one minute prior to depletion, the Inmate User or Authorized User will be interrupted with such an announcement. Prepaid Calling Card and Debit Account services are available twenty-four (24) hours a day, seven (7) days per week to all terminating locations serviced. Access to such telephone services by an Inmate User may be subject to time-of-day an usage restrictions imposed by individual Confinement Facilities. No minimum service period applies. For debiting purposes, call timing is rounded up to the nearest one (1) minute increment. Usage charges are computed and rounded up to the nearest one (1) cent on a per call basis. Prepaid Balances are not charged for incomplete calls. Prepaid Calling Cards The Confinement Facilities that offer the option of Prepaid Calling Cards may purchase Prepaid Calling Cards directly from the Company. Inmates then purchase the Cards from authorized personnel at the Confinement Facilities. The Company does not engage in direct monetary transactions with the Inmate. The Inmate may purchase a Prepaid Calling Card in denominations determined by the Confinement Facility. Prepaid Calling Cards are offered only to Inmates at Confinement Facilities and not to the general public. Prepaid Calling Cards are valid for one hundred eighty (180) days from the date of first usage. Unused Prepaid Balances may be used by the Inmate User or Authorized User following release from the Confinement Facility only through the Company’s network by dialing a special toll free access number with automatically connects the call to the Company’s network. Unused Prepaid Balances are not refundable nor may Prepaid Calling Cards be replenished upon the depletion of the Prepaid Balance. Inmates may purchase additional cards, as permitted by their Confinement Facility. Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 33 of 86 PageID #: 189 Securus Technologies, Inc. Original Sheet 6 Rate Schedule - Arkansas Effective: August 30, 2013 By: Curtis Hopfinger, Director - Regulatory & Government Affairs 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 SERVICES AND RATE SCHEDULE, CONTINUED Prepaid Service, Continued Prepaid Calling Cards and Debit Accounts, Continued. Prepaid Debit Accounts For a Prepaid Debit Account, the Inmate may set up the account through the Confinement Facility administrators with an initial payment typically through the Inmate’s commissary account, in those Confinement Facilities where this service is available. Upon the depletion of the Prepaid Balance, the Prepaid Debit Account may be replenished by depositing funds into the Account via the Confinement Facility administrator. Prepaid Debit Accounts are considered dormant if there is no activity for one hundred eighty (180) days following the last call made. Inactive accounts will be removed from the Company’s system. In conjunction with their release from the Confinement Facility, the Inmate may request a refund from the Confinement Facility administrator. AdvanceConnect Accounts End Users who prefer to pay in advance for Collect Calls that originate from Confinement Facilities, or else if the End User’s local exchange carrier does not have a billing and collection agreement with the Company or its intermediary, may set up an AdvanceConnect Account with the Company with a minimum initial fifty dollar ($50) payment. The Account is set up with the initial payment and may be replenished by the End User. Applicable state taxes and fees are calculated and deducted from the balance at the conclusion of the call. When the balance in an AdvanceConnect Account reaches twenty dollars ($20) or below, the End User will receive an automated courtesy call from the Company notifying the End User with such an announcement. If the End User’s balance reaches zero prior to replenishment of the Account, the End User will be blocked from receiving further calls from any Confinement Facility served by the Company until the balance is replenished or an alternative billing arrangement is made. The End User may request a refund of the available balance in the AdvanceConnect Account either by written request to the Company or by contacting the Company at its toll free telephone number once the End User verifies certain account information. Any such unused balances will expire in one hundred eighty (180) days following the last call made, unless the balance is either fully depleted or a refund has been requested. Refunds are subject to a processing fee of up to $4.95 and no refunds will be issued for accounts reflecting a balance of $4.95 or less; this policy applies only to accounts established on or after November 1, 2008. No refunds of unused balances will be issued after the expiration date. AdvanceConnect Account service is available twenty-four (24) hours a day, seven (7) days a week to all terminating locations served. Access to such services by the Inmate User may be subject to time-of-day and usage restrictions imposed by individual Confinement Facilities. No minimum service period applies. For debiting purposes, call timing is rounded up to the nearest one (1) minute increment. Usage charges are computed and rounded up to the nearest one (1) cent on a per call basis. Balances are not charged for incomplete calls. Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 34 of 86 PageID #: 190 Securus Technologies, Inc. First Revised Sheet 7 Rate Schedule - Arkansas Cancels Original Sheet 7 Effective: October 3, 2013 By: Curtis Hopfinger, Director - Regulatory & Government Affairs 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 SERVICES AND RATE SCHEDULE, CONTINUED Prepaid Service, Continued Wireless Administration Fee - a monthly fee of up to $3.99 is applicable to any AdvanceConnect account with a wireless telephone number included as a number authorized to receive calls. This fee applies once per month, per account regardless of the number of wireless telephone numbers authorized. The fee amount will be deducted from the AdvanceConnect account balance on a monthly basis as long as a wireless number remains on the AdvanceConnect account. As of the initial effective date of this fee, existing AdvanceConnect accounts with existing authorized wireless numbers will be Grandfathered and the Wireless Administration Fee will not apply. If an existing AdvanceConnect account adds or changes a wireless number on the account, the Wireless Administration Fee will apply going forward. Inmate Debit Inmate Debit is a prepaid telephone account offering made available to Inmates by the Company when permitted by the Confinement Facility. Inmate Debit provides an alternative method for Inmates to prepay for and make calls. An Inmate Debit account associated with the Inmate’s Personal Identification Number (PIN) is automatically established by the Company. Inmates fund and replenish their Inmate Debit account through electing to transfer funds from either their facility’s inmate trust fund or commissary account to their Inmate Debit account. Inmate Debit accounts may also be funded by inmate friends and family members via the Company’s points-of-sale. Funds placed in this account become the property of the inmate. Inmate Debit calls are processed by dialing a special access dialing sequence that connects directly to the Company’s network at the Confinement Facility. Inmates must enter a valid Authorization Code to access their Inmate Debit account. The Company’s system automatically informs the Inmate of the prepaid balance remaining on the Inmate Debit account prior to each call, provides prompts to place the call by entering the destination telephone number, and informs the Inmate of the rates for the call being attempted. Call charges are deducted from the prepaid account balance on a real-time basis as the call progresses. Applicable state taxes and fees are in addition to the rates and charges for calling service. During an Inmate Debit call, when the prepaid account balance is one minute prior to depletion, the Inmate will be interrupted with such an announcement. Inmate Debit services are available twenty-four (24) hours a day, seven (7) days per week to all terminating locations serviced. Access to such telephone services by an Inmate may be subject to time-of-day and usage restrictions imposed by individual Confinement Facilities. No minimum service period applies. For debiting purposes, call timing is rounded up to the nearest one (1) minute increment. Usage charges are computed and rounded up to the nearest one (1) cent on a per call basis. Prepaid balances are not charged for incomplete calls. Refunds of unused Inmate Debit account balances are issued by the entity controlling the actual cash deposits, which is either the Company, the commissary, the Confinement Facility or its agent, depending on the specific arrangements, unless otherwise directed by state law. Depending on the entity issuing the refund, refund fees and/or minimum refund amounts may apply. The prepaid balance expires ninety (90) days from the date of the last call placed on the Inmate Debit account unless alternative arrangements are expressly requested by the Confinement Facility. No refunds of unused balances will be issued after the expiration date. (I) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 35 of 86 PageID #: 191 Securus Technologies, Inc. Original Sheet 8 Rate Schedule - Arkansas Effective: August 30, 2013 By: Curtis Hopfinger, Director - Regulatory & Government Affairs 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 SERVICES AND RATE SCHEDULE, CONTINUED Prepaid Service, Continued Prepaid Calling Cards and Debit Accounts Option 1 PER MINUTE USAGE CHARGE $0.50 An additional per call service charge of up to $3.00 may apply to all completed prepaid calling card IntraLATA and InterLATA telephone calls. Option 2 Rates and charges for prepaid calling services are provided at a ten percent discount off standard operator assisted collect call rates. Option 3 PER MINUTE USAGE CHARGE $0.60 PER MINUTE USAGE CHARGE $0.75 Option 4 Rates and charges for prepaid calling card services are provided at the standard contracted collect call rates applicable to the facility requesting prepaid services. Option 5 PER MINUTE USAGE CHARGE $0.60 PER CALL SURCHARGE $0.60 AdvanceConnect Accounts The rates for AdvanceConnect Accounts are the same as those for automated Collect Call service. Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 36 of 86 PageID #: 192 Securus Technologies, Inc. First Revised Sheet 9 Rate Schedule - Arkansas Cancels Original Sheet 9 Effective: October 2, 2013 By: Curtis Hopfinger, Director - Regulatory & Government Affairs 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 SERVICES AND RATE SCHEDULE, CONTINUED Miscellaneous Fees and Charges Voice Biometrics Voice Biometrics provides validation of inmate personal identification numbers (PINs) through voice verification technology for purposes of improved security and reduced potential of fraud and consumer harassment by inmates. Where installation of Voice Biometrics is requested by confinement facilities, a per call service charge of $0.25 applies in addition to all applicable message charges, operator assistance service charges and other miscellaneous service charges. Bill Statement Fee An undiscountable bill statement fee of $3.49 may be applied to an end user’s local exchange carrier bill in each month in which collect calls from confinement facilities are billed, regardless of the number of calls accepted. The bill statement fee is a monthly charge to recover some of the company’s expenses associated with calls from confinement facilities served by the company and that are billed through local exchange carriers. No fee will be assessed in any month if no collect calls are accepted. This fee will not be assessed on end users that prepay for their services or those that are directly billed by the company. Return Check Charge A return check charge of $25.00 will be assessed for checks returned for insufficient funds. Any applicable return check charges will be assessed according to the terms and conditions of the Company or its billing agent and pursuant to Arkansas law. Transaction Processing Fee A convenience fee of up to $9.95 is applicable to credit and debit card payments submitted to the Company via the Securus automated system or the Securus call center. A convenience fee of up to $7.95 is applicable to credit and debit card payments submitted to the Company via the Securus website. These fees do not apply to payments mailed to the company or submitted via a customer’s online banking service. Universal Connectivity Charges Except for Prepaid Card and Prepaid Debit Account calls, non-coin payphone service provided pursuant to this rate schedule is subject to an undiscountable Universal Connectivity Charge, which is a recurring monthly charge equal to a percentage of the total new intrastate charges, after applicable of all applicable discounts and credits, as determined by the APSC. (T)(I) (T) (T) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 37 of 86 PageID #: 193 Securus Technologies, Inc. Original Sheet 10 Rate Schedule - Arkansas Effective: August 30, 2013 By: Curtis Hopfinger, Director - Regulatory & Government Affairs 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 SERVICES AND RATE SCHEDULE, CONTINUED Miscellaneous Fees and Charges, Continued Location Validation Fee At facilities where applicable, a four percent (4%) per-call surcharge will be applied to the base rate of all call types. The base rate of a call is set forth above and does not include any applicable taxes that may apply to the call. The Location Validation Fee is applied to calls originating from facilities that have elected to utilize Securus’ Location Based Services technology and recovers the cost of verifying the geographic location of the called party for security purposes pursuant to Correctional Institution contracts. The Location Validation Fee will not be assessed on End Users who are billed for services through their LECs. State Cost Recovery Fee Securus reserves the right to impose a State Cost Recovery Fee of up to five percent (5%) administered as a per-call surcharge applied to the base rate of all intrastate calls originating from facilities in order to partially recover expenses incurred with regard to operating as a regulated entity within the state. The base rate of a call is set forth above and does not include any applicable taxes that may apply to the call. Costs include, but are not limited to, such items as expenses associated with billing, collecting and remitting state USF as applicable, complying with mandatory state filings and reporting obligations, state regulatory fees, expenses for state regulatory proceedings and compliance, portions of local and state property taxes associated with intrastate calling and other non-income-tax related tax costs associated with intrastate calling and compensating other carriers for terminating calls within the state using their facilities. The State Cost Recovery Fee will not be assessed on End Users who are billed for services through their LECs. Pay Telephone Use Charge An undiscountable per call charge of $0.60 is applicable to all intrastate, interstate and international calls that originate from any domestic pay telephone used to access the Company’s services. This surcharge, which is in addition to standard usage charges and any applicable service charges and surcharges associated with the Company’s services, applies for the use of the instrument used to access the Company’s service and is unrelated to the service accessed from the pay telephone. This charge does not apply to calls placed from pay telephones which the caller pays for the call by inserting coins during the progress of the call. Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 38 of 86 PageID #: 194 Securus Technologies, Inc. Original Sheet 11 Rate Schedule - Arkansas Effective: August 30, 2013 By: Curtis Hopfinger, Director - Regulatory & Government Affairs 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 SERVICES AND RATE SCHEDULE, CONTINUED Contract Services At the option of the Company, service may be offered on a contract basis to meet specialized requirements of the Customer not contemplated in this rate schedule. The terms of each contract shall be mutually agreed upon between the Customer and the Company and may include discounts off of rates contained herein, waiver of recurring or nonrecurring charges, charges for specially designed constructed services not contained in the Company’s general service offerings, or other customized features. The terms of the contract may be based partially or completely on the term and volume commitment, type of originating or terminating access, mixture of service or other distinguishing features. Service shall be available to all similarly situated Customers for a fixed contract Customer as specified in each individual contract. Contract Location 1 Non-Sent Paid Local Calls: Flat Rate - $4.00 Prepaid Calling Cards Local Calls: Flat Rate - $3.65 Contract Location 2 The following rates are applicable to Collect, AdvanceConnect, Prepaid Card and Inmate Debit calls at the contracting facility. Surcharges and per minute rates apply regardless of mileage or time of day. Call Type Surcharge Per Minute Rate Local $3.65 N/A IntraLATA $3.65 $0.1911 InterLATA $2.80 $0.4700 Contract Location 3 The following rates are applicable to Collect, AdvanceConnect, and Inmate Debit calls at the contracting facilities. Surcharges and per minute rates apply regardless of mileage or time of day. Call Type Surcharge Per Minute Rate Local $3.00 $0.12 IntraLATA $3.00 $0.12 InterLATA $3.00 $0.12 Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 39 of 86 PageID #: 195 Securus Technologies, Inc. Original Sheet 12 Rate Schedule - Arkansas Effective: December 16, 2015 By: Curtis Hopfinger, Director - Regulatory & Government Affairs 14651 Dallas Parkway, Suite 600 Dallas, Texas 75254 SERVICES AND RATE SCHEDULE, CONTINUED Contract Location 4 The following rates are applicable to Collect, AdvanceConnect, and Prepaid Card calls at the contracting facilities. Surcharges and per minute rates apply regardless of mileage or time of day. Call Type Surcharge Per Minute Rate Local $0.00 $0.20 IntraLATA $0.00 $0.20 InterLATA $0.00 $0.20 (N) (N) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 40 of 86 PageID #: 196 EXHIBIT D Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 41 of 86 PageID #: 197 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 Original Sheet No. 1 Cancels and Replaces Evercom Systems, Inc. Georgia Public Service Commission Tariff No. 1 in its entirety Institutional Telecommunications Services TITLE PAGE This tariff applies to intrastate telecommunications services furnished by Securus Technologies, Inc. (“Securus”) between one or more points in the State of Georgia. This tariff is on file with the Georgia Public Service Commission (“Commission”), and copies may be inspected, during normal business hours, at the Company’s principal place of business at 14651 Dallas Parkway, Suite 600, Dallas, Texas 75254. This tariff (Securus Technologies Inc., Georgia Public Service Commission Tariff No. 1) cancels and replaces in its entirety to Evercom Systems, Inc. Tariff No. 1 on file with the Georgia Public Service Commission. ISSUED: September 21, 2010 EFFECTIVE: October 21, 2010 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 42 of 86 PageID #: 198 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 Fifth Revised Sheet No. 19 Cancels Fourth Sheet No. 19 Institutional Telecommunications Services 5.5. Deposits No advance deposits are required; provided, however, that in the event that any Customer wishes to exceed any maximum credit amount that may be predetermined by the Company, that Customer may do so by first posting a deposit with the Company in an amount such that the level of credit sought is equal to 90 percent of the deposit amount. The Company shall pay simple interest at a rate no less than the rate required for basis telephone service deposits. 5.6. Taxes and Regulatory Charges All federal, state and local taxes and regulatory charges (e.g. excise tax, gross receipts tax, sales tax, municipal utilities tax) for Collect Calls are billed as separate line items and are not included in the quoted rates. 5.6.1 Georgia Universal Access Fund Surcharge - Securus will comply with, and require its Customers to comply with, the Commission’s Universal Access Fund Requirements as set forth in O.C.G.A. Section 46-5-167 or any Commission order, rule, or regulation adopted or promulgated hereunder. The surcharge will be shown as a separate line item on the Customers’ monthly invoice and will read: GA UAF, GA Univ. Access Fund or GA Universal Access Fund. The rate of the surcharge will be equal to the contribution factor established by the Commission. 5.7 Transaction Processing Fee A convenience fee of up to $9.95 is applicable to credit and debit card payments submitted to the Company via the Securus automated system or via the Securus call center. A convenience fee in the amount of $7.95 is applicable to credit and debit card payments submitted to the Company via the the Securus website. These fees do not apply to payments mailed to the company or submitted via a customer’s online banking service. 5.8 Location Validation Fee At facilities where applicable, a four percent (4%) per-call surcharge will be applied to the base rate of all call types. The base rate of a call is set forth in Sections 6 and 8 and does not include any applicable taxes that may apply to the call. The Location Validation Fee is applied to calls originating from facilities that have elected to utilize Securus’ Location Based Services technology and recovers the cost of verifying the geographic location of the called party for security purposes pursuant to Correctional Institution contracts. The Location Validation Fee will not be assessed on End Users who are billed for services through their LECs. ISSUED: February 5, 2014 EFFECTIVE: February 12, 2014 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 (N)(I) (N)(T) (T) (T) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 43 of 86 PageID #: 199 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 Original Sheet No. 19.1 Institutional Telecommunications Services 5. PAYMENTS AND CHARGES (Continued) 5.9 State Cost Recovery Fee Securus reserves the right to impose a State Cost Recovery Fee of up to five percent (5%) administered as a per-call surcharge applied to the base rate of all intrastate calls originating from facilities in order to partially recover expenses incurred with regard to operating as a regulated entity within the state. The base rate of a call is set forth in Sections 6 and 8 and does not include any applicable taxes that may apply to the call. Costs include, but are not limited to, such items as expenses associated with billing, collecting and remitting state USF as applicable, complying with mandatory state filings and reporting obligations, state regulatory fees, expenses for state regulatory proceedings and compliance, portions of local and state property taxes associated with intrastate calling and other non-income-tax related tax costs associated with intrastate calling and compensating other carriers for terminating calls within the state using their facilities. The State Cost Recovery Fee will not be assessed on End Users who are billed for services through their LECs. 6. RATES AND CHARGES This section sets forth the rates and charges applicable to the Company’s intrastate telecommunications service offering. Long distance charges consist of a variable Measured Charge for usage, depending on the duration and distance of the call, plus a non-measured (fixed) Service Charge, depending on the type of billing selected (i.e. collect, prepaid calling). 6.1. Local Rates and Charges Local calls are based on an amount equal to the coin charge of the local exchange carrier for local calls, plus applicable Operator Service Charge as set forth below. Operator Service Charge - Local Collect $2.20 ISSUED: June 14, 2013 EFFECTIVE: June 21, 2013 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 (N) (N) (M) (M) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 44 of 86 PageID #: 200 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 Original Sheet No. 20 Institutional Telecommunications Service 6.2. IntraLATA Rates and Charges a. Measured Charge - IntraLATA 0 - 16 Miles: Each Minute Day: $0.0000 Each Minute Evening or Night/Weekend: $0.0000 16+ Miles: Each Minute: $0.1900 b. Operator Service Charge - IntraLATA Collect (Each Call): $2.00 ISSUED: September 21, 2010 EFFECTIVE: October 21, 2010 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 45 of 86 PageID #: 201 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 First Revised Sheet No. 21 Replaces Original Sheet No. 21 Institutional Telecommunications Services 6.3. InterLATA Rates and Charges Measured Charge - InterLATA 0 - 16 Miles: Each Minute Day: $0.0000 Each Minute Evening or Night/Weekend: $0.0000 16+ Miles: Each Minute: $0.1900 Operator Service Charge - InterLATA Collect (Each Call): $2.00 ISSUED: November 4, 2013 EFFECTIVE: November 11, 2013 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 (N) (N) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 46 of 86 PageID #: 202 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 First Revised Sheet No. 22 Replaces Original Sheet No. 22 Institutional Telecommunications Services 6.4. Prepaid Inmate Calling - Local, IntraLATA and InterLATA a. Local Each Call: $2.70 b. IntraLATA* Per Call Surcharge: $2.00 Per Minute: $0.1900 c. InterLATA* Per Call Surcharge: $2.00 Per Minute: $0.1900 * No per minute rates applies to an IntraLATA or InterLATA call within miles 0- 16. ISSUED: November 4, 2013 EFFECTIVE: November 11, 2013 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 (T) (T) (N) (N) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 47 of 86 PageID #: 203 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 Third Revised Sheet No. 24 Replaces Second Revised Sheet No. 24 Institutional Telecommunications Services 8. CONTRACT SERVICES 8.1. General At the option of the Company, service may be offered on a contract basis to meet specialized requirements of the Customer not contemplated in this tariff. The terms of each contract shall be mutually agreed upon between the Customer and Company and may include discounts off of rates contained herein, waiver of recurring or nonrecurring charges, charges for specially designed and constructed services not contained in the Company’s general service offerings, or other customized features. The terms of the contract maybe based partially or completely on the term and volume commitment, type of originating or terminating access, mixture of services for other distinguishing features. Service shall be available to all similarly situated Customers for a fixed period of time following the initial offering to the first contract Customer as specified in each individual contract. 8.1.1 RESERVED FOR FUTURE USE . ISSUED: November 4, 2013 EFFECTIVE: November 11, 2013 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 (D)(T) (D) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 48 of 86 PageID #: 204 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 Third Revised Sheet No. 24.1 Replaces Second Revised No. 24.1 Institutional Telecommunications Services 8. CONTRACT SERVICES 8.1. General 8.1.2 Contract Offering 2 The standard rates found in Sections 6.1-6.3 are applicable to traditional collect. The following rates are applicable to AdvanceConnect calls. All call types are limited to fifteen (15) minutes each. Call Type Per Minute Per Call Local $0.0600 $1.50 IntraLATA*/InterLATA $0.2200 $1.50 * No per minute rates applies to an IntraLATA or InterLATA call within miles 0-16. 8.1.3 Contract Offering 3 The standard rates found in Sections 6.1-6.3 are applicable to traditional collect. Inmate Debit and AdvanceConnect calls will be offered at 10% off the standard rates found in Sections 6.1-6.3. All call types are limited to fifteen (15) minutes each. 8.1.4 Contract Offering 4 The following rates are applicable to traditional collect and AdvanceConnect calls. Calls are limited to twenty (20) minutes each Call Type Per Minute Per Call Local N/A $2.70 IntraLATA/InterLATA $0.1900* $2.00 * No per minute rates applies to an IntraLATA or InterLATA call within miles 0-16. ISSUED: November 4, 2013 EFFECTIVE: November 11, 2013 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 (T) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 49 of 86 PageID #: 205 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 Original Sheet No. 24.2 Institutional Telecommunications Services 8. CONTRACT SERVICES 8.1. General 8.1.5 Contract Offering 5 The following rates are applicable to traditional collect and AdvanceConnect calls. Call Type Per Minute Per Call Local N/A $1.95 IntraLATA/InterLATA N/A $1.95 8.1.6 Contract Offering 6 The following rates are applicable to traditional collect, AdvanceConnect, Prepaid Calling Cards and Debit calls. Call Type Per Minute Per Call Local N/A $2.00 IntraLATA/InterLATA N/A $2.00 ISSUED: November 4, 2013 EFFECTIVE: November 11, 2013 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 (N) (N) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 50 of 86 PageID #: 206 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 Original Sheet No. 25 Institutional Telecommunications Services 9. AdvanceConnect Accounts End Users who prefer to pay in advance for Collect Calls that originate from Confinement Facilities, or else if the End User’s local exchange carrier does not have a billing and collection agreement with the Company or its intermediary, may set up an AdvanceConnect Account with the Company with a minimum initial fifty dollar ($50) payment. The Account is set up with the initial payment and may be replenished by the End User. Applicable state taxes and fees are calculated and deducted from the balance at the conclusion of the call. When the balance in an AdvanceConnect Account reaches twenty dollars ($20) or below, the End User will receive an automated courtesy call from the Company notifying the End User with such an announcement. If the End User’s balance reaches zero prior to replenishment of the Account, the End User will be blocked from receiving further calls from any Confinement Facility served by the Company until the balance is replenished or an alternative billing arrangement is made. The End User may request a refund of the available balance in the AdvanceConnect Account either by written request to the Company or by contacting the Company at its toll free telephone number once the End User verifies certain account information. Any such unused balances will expire in one hundred eighty (180) days following the last call made, unless the balance is either fully depleted or a refund has been requested. Refunds are subject to a processing fee of up to $4.95 and no refunds will be issued for accounts reflecting a balance of $4.95 or less; this policy applies only to accounts established on or after October 20, 2008. No refunds of unused balances will be issued after the expiration date. AdvanceConnect Account service is available twenty-four (24) hours a day, seven (7) days a week to all terminating locations served. Access to such services by the Inmate User may be subject to time-of-day and usage restrictions imposed by individual Confinement Facilities. No minimum service period applies. For debiting purposes, call timing is rounded up to the nearest one (1) minute increment. Usage charges are computed and rounded up to the nearest one (1) cent on a per call basis. Balances are not charged for incomplete calls. The rates for AdvanceConnect Accounts are the same as those for automated Collect Call service. ISSUED: September 21, 2010 EFFECTIVE: October 21, 2010 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 51 of 86 PageID #: 207 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 Second Revised Sheet No. 26 Replaces First Revised Sheet No. 26 Institutional Telecommunications Services 9. AdvanceConnect Accounts (Continued) Wireless Administration Fee - a monthly fee of up to $3.99 is applicable to any AdvanceConnect account with a wireless telephone number included as a number authorized to receive calls. This fee applies once per month, per account regardless of the number of wireless telephone numbers authorized. The fee amount will be deducted from the AdvanceConnect account balance on a monthly basis as long as a wireless number remains on the AdvanceConnect account. As of the initial effective date of this fee, existing AdvanceConnect accounts with existing authorized wireless numbers will be Grandfathered and the Wireless Administration Fee will not apply. If an existing AdvanceConnect account adds or changes a wireless number on the account, the Wireless Administration Fee will apply going forward. ISSUED: February 5, 2014 EFFECTIVE: February 12, 2014 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 (I) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 52 of 86 PageID #: 208 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 Original Sheet No. 27 Institutional Telecommunications Services 10. Prepaid Calling Cards Where offered by the Confinement Facility, Inmates may purchase a Prepaid Calling Card. Calls are made by dialing a special access dialing sequence that connects directly to the Company’s network at the Confinement Facility. A valid Authorization Code must be entered to access the account. The Company’s system automatically informs the Inmate User of the Prepaid Balance remaining on the Prepaid Calling Card, and provides prompts to place the call by entering the destination telephone number with area code. Network usage is deducted from the Prepaid Balance on a real time basis as the call progresses. Applicable state taxes and fees are included in the rates and charges for the calls made. On Prepaid Calling Card calls, when the Prepaid Balance is one minute prior to depletion, the Inmate User will be interrupted with such an announcement. Prepaid Calling Card services are available twenty-four (24) hours a day, seven (7) days per week to all terminating locations serviced. Access to such telephone services by an Inmate User may be subject to time-of-day and usage restrictions imposed by individual Confinement Facilities. No minimum service period applies. For debiting purposes, call timing is rounded up to the nearest one (1) minute increment. Usage charges are computed and rounded up to the nearest one (1) cent on a per call basis. Prepaid Balances are not charged for incomplete calls. The Confinement Facilities that offer the option of Prepaid Calling Cards may purchase Prepaid Calling Cards directly from the Company. Inmates then purchase the Cards from authorized personnel at the Confinement Facilities. The Company does not engage in direct monetary transactions with the Inmate. The Inmate may purchase a Prepaid Calling Card in denominations determined by the Confinement Facility. Prepaid Calling Cards are offered only to Inmates at Confinement Facilities and not to the general public. Prepaid Calling Cards are valid for one hundred eighty (180) days from the date of first usage. Unused Prepaid Balances may be used by the Inmate User or Authorized User following release from the Confinement Facility only through the Company’s network by dialing a special toll free access number which automatically connects the call to the Company’s network. Unused Prepaid Balances are not refundable nor may Prepaid Calling Cards be replenished upon the depletion of the Prepaid Balance. Inmates may purchase additional cards, as permitted by their Confinement Facility. ISSUED: June 11, 2012 EFFECTIVE: June 18, 2012 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 (N) (N) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 53 of 86 PageID #: 209 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 Original Sheet No. 28 Institutional Telecommunications Services 11. Inmate Debit Accounts Inmate Debit is a prepaid telephone account offering made available to Inmates by the Company when permitted by the Confinement Facility. Inmate Debit provides an alternative method for Inmates to prepay for and make calls. An Inmate Debit account associated with the Inmate’s Personal Identification Number (PIN) is automatically established by the Company. Inmates fund and replenish their Inmate Debit account through electing to transfer funds from either their facility’s inmate trust fund or commissary account to their Inmate Debit account. Inmate Debit accounts may also be funded by inmate friends and family members via the Company’s points-of-sale. Funds placed in this account become the property of the inmate. Inmate Debit calls are processed by dialing a special access dialing sequence that connects directly to the Company’s network at the Confinement Facility. Inmates must enter a valid Authorization Code to access their Inmate Debit account. The Company’s system automatically informs the Inmate of the prepaid balance remaining on the Inmate Debit account prior to each call, provides prompts to place the call by entering the destination telephone number, and informs the Inmate of the rates for the call being attempted. Call charges are deducted from the prepaid account balance on a real-time basis as the call progresses. Applicable state taxes and fees are in addition to the rates and charges for calling service. During an Inmate Debit call, when the prepaid account balance is one minute prior to depletion, the Inmate will be interrupted with such an announcement. Inmate Debit services are available twenty-four (24) hours a day, seven (7) days per week to all terminating locations serviced. Access to such telephone services by an Inmate may be subject to time-of-day and usage restrictions imposed by individual Confinement Facilities. No minimum service period applies. For debiting purposes, call timing is rounded up to the nearest one (1) minute increment. Usage charges are computed and rounded up to the nearest one (1) cent on a per call basis. Prepaid balances are not charged for incomplete calls. Refunds of unused Inmate Debit account balances are issued by the entity controlling the actual cash deposits, which is either the Company, the commissary, the Confinement Facility or its agent, depending on the specific arrangements, unless otherwise directed by state law. Depending on the entity issuing the refund, refund fees and/or minimum refund amounts may apply. The prepaid balance expires ninety (90) days from the date of the last call placed on the Inmate Debit account unless alternative arrangements are expressly requested by the Confinement Facility. No refunds of unused balances will be issued after the expiration date. ISSUED: June 11, 2012 EFFECTIVE: June 18, 2012 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 (N) (N) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 54 of 86 PageID #: 210 EXHIBIT E Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 55 of 86 PageID #: 211 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 Original Sheet No. 1 Cancels and Replaces Evercom Systems, Inc. Georgia Public Service Commission Tariff No. 1 in its entirety Institutional Telecommunications Services TITLE PAGE This tariff applies to intrastate telecommunications services furnished by Securus Technologies, Inc. (“Securus”) between one or more points in the State of Georgia. This tariff is on file with the Georgia Public Service Commission (“Commission”), and copies may be inspected, during normal business hours, at the Company’s principal place of business at 14651 Dallas Parkway, Suite 600, Dallas, Texas 75254. This tariff (Securus Technologies Inc., Georgia Public Service Commission Tariff No. 1) cancels and replaces in its entirety to Evercom Systems, Inc. Tariff No. 1 on file with the Georgia Public Service Commission. ISSUED: September 21, 2010 EFFECTIVE: October 21, 2010 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 56 of 86 PageID #: 212 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 Fifth Revised Sheet No. 19 Cancels Fourth Sheet No. 19 Institutional Telecommunications Services 5.5. Deposits No advance deposits are required; provided, however, that in the event that any Customer wishes to exceed any maximum credit amount that may be predetermined by the Company, that Customer may do so by first posting a deposit with the Company in an amount such that the level of credit sought is equal to 90 percent of the deposit amount. The Company shall pay simple interest at a rate no less than the rate required for basis telephone service deposits. 5.6. Taxes and Regulatory Charges All federal, state and local taxes and regulatory charges (e.g. excise tax, gross receipts tax, sales tax, municipal utilities tax) for Collect Calls are billed as separate line items and are not included in the quoted rates. 5.6.1 Georgia Universal Access Fund Surcharge - Securus will comply with, and require its Customers to comply with, the Commission’s Universal Access Fund Requirements as set forth in O.C.G.A. Section 46-5-167 or any Commission order, rule, or regulation adopted or promulgated hereunder. The surcharge will be shown as a separate line item on the Customers’ monthly invoice and will read: GA UAF, GA Univ. Access Fund or GA Universal Access Fund. The rate of the surcharge will be equal to the contribution factor established by the Commission. 5.7 Transaction Processing Fee A convenience fee of up to $9.95 is applicable to credit and debit card payments submitted to the Company via the Securus automated system or via the Securus call center. A convenience fee in the amount of $7.95 is applicable to credit and debit card payments submitted to the Company via the Securus website. These fees do not apply to payments mailed to the company or submitted via a customer’s online banking service. 5.8 Location Validation Fee At facilities where applicable, a four percent (4%) per-call surcharge will be applied to the base rate of all call types. The base rate of a call is set forth in Sections 6 and 8 and does not include any applicable taxes that may apply to the call. The Location Validation Fee is applied to calls originating from facilities that have elected to utilize Securus’ Location Based Services technology and recovers the cost of verifying the geographic location of the called party for security purposes pursuant to Correctional Institution contracts. The Location Validation Fee will not be assessed on End Users who are billed for services through their LECs. ISSUED: February 5, 2014 EFFECTIVE: February 12, 2014 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 (N)(I) (N)(T) (T) (T) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 57 of 86 PageID #: 213 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 Original Sheet No. 19.1 Institutional Telecommunications Services 5. PAYMENTS AND CHARGES (Continued) 5.9 State Cost Recovery Fee Securus reserves the right to impose a State Cost Recovery Fee of up to five percent (5%) administered as a per-call surcharge applied to the base rate of all intrastate calls originating from facilities in order to partially recover expenses incurred with regard to operating as a regulated entity within the state. The base rate of a call is set forth in Sections 6 and 8 and does not include any applicable taxes that may apply to the call. Costs include, but are not limited to, such items as expenses associated with billing, collecting and remitting state USF as applicable, complying with mandatory state filings and reporting obligations, state regulatory fees, expenses for state regulatory proceedings and compliance, portions of local and state property taxes associated with intrastate calling and other non-income-tax related tax costs associated with intrastate calling and compensating other carriers for terminating calls within the state using their facilities. The State Cost Recovery Fee will not be assessed on End Users who are billed for services through their LECs. 6. RATES AND CHARGES This section sets forth the rates and charges applicable to the Company’s intrastate telecommunications service offering. Long distance charges consist of a variable Measured Charge for usage, depending on the duration and distance of the call, plus a non-measured (fixed) Service Charge, depending on the type of billing selected (i.e. collect, prepaid calling). 6.1. Local Rates and Charges Local calls are based on an amount equal to the coin charge of the local exchange carrier for local calls, plus applicable Operator Service Charge as set forth below. Operator Service Charge - Local Collect $2.20 ISSUED: June 14, 2013 EFFECTIVE: June 21, 2013 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 (N) (N) (M) (M) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 58 of 86 PageID #: 214 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 Original Sheet No. 20 Institutional Telecommunications Service 6.2. IntraLATA Rates and Charges a. Measured Charge - IntraLATA 0 - 16 Miles: Each Minute Day: $0.0000 Each Minute Evening or Night/Weekend: $0.0000 16+ Miles: Each Minute: $0.1900 b. Operator Service Charge - IntraLATA Collect (Each Call): $2.00 ISSUED: September 21, 2010 EFFECTIVE: October 21, 2010 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 59 of 86 PageID #: 215 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 First Revised Sheet No. 21 Replaces Original Sheet No. 21 Institutional Telecommunications Services 6.3. InterLATA Rates and Charges Measured Charge - InterLATA 0 - 16 Miles: Each Minute Day: $0.0000 Each Minute Evening or Night/Weekend: $0.0000 16+ Miles: Each Minute: $0.1900 Operator Service Charge - InterLATA Collect (Each Call): $2.00 ISSUED: November 4, 2013 EFFECTIVE: November 11, 2013 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 (N) (N) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 60 of 86 PageID #: 216 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 First Revised Sheet No. 22 Replaces Original Sheet No. 22 Institutional Telecommunications Services 6.4. Prepaid Inmate Calling - Local, IntraLATA and InterLATA a. Local Each Call: $2.70 b. IntraLATA* Per Call Surcharge: $2.00 Per Minute: $0.1900 c. InterLATA* Per Call Surcharge: $2.00 Per Minute: $0.1900 * No per minute rates applies to an IntraLATA or InterLATA call within miles 0- 16. ISSUED: November 4, 2013 EFFECTIVE: November 11, 2013 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 (T) (T) (N) (N) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 61 of 86 PageID #: 217 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 Third Revised Sheet No. 24 Replaces Second Revised Sheet No. 24 Institutional Telecommunications Services 8. CONTRACT SERVICES 8.1. General At the option of the Company, service may be offered on a contract basis to meet specialized requirements of the Customer not contemplated in this tariff. The terms of each contract shall be mutually agreed upon between the Customer and Company and may include discounts off of rates contained herein, waiver of recurring or nonrecurring charges, charges for specially designed and constructed services not contained in the Company’s general service offerings, or other customized features. The terms of the contract maybe based partially or completely on the term and volume commitment, type of originating or terminating access, mixture of services for other distinguishing features. Service shall be available to all similarly situated Customers for a fixed period of time following the initial offering to the first contract Customer as specified in each individual contract. 8.1.1 RESERVED FOR FUTURE USE . ISSUED: November 4, 2013 EFFECTIVE: November 11, 2013 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 (D)(T) (D) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 62 of 86 PageID #: 218 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 Third Revised Sheet No. 24.1 Replaces Second Revised No. 24.1 Institutional Telecommunications Services 8. CONTRACT SERVICES 8.1. General 8.1.2 Contract Offering 2 The standard rates found in Sections 6.1-6.3 are applicable to traditional collect. The following rates are applicable to AdvanceConnect calls. All call types are limited to fifteen (15) minutes each. Call Type Per Minute Per Call Local $0.0600 $1.50 IntraLATA*/InterLATA $0.2200 $1.50 * No per minute rates applies to an IntraLATA or InterLATA call within miles 0-16. 8.1.3 Contract Offering 3 The standard rates found in Sections 6.1-6.3 are applicable to traditional collect. Inmate Debit and AdvanceConnect calls will be offered at 10% off the standard rates found in Sections 6.1-6.3. All call types are limited to fifteen (15) minutes each. 8.1.4 Contract Offering 4 The following rates are applicable to traditional collect and AdvanceConnect calls. Calls are limited to twenty (20) minutes each Call Type Per Minute Per Call Local N/A $2.70 IntraLATA/InterLATA $0.1900* $2.00 * No per minute rates applies to an IntraLATA or InterLATA call within miles 0-16. ISSUED: November 4, 2013 EFFECTIVE: November 11, 2013 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 (T) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 63 of 86 PageID #: 219 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 First Revised Sheet No. 24.2 Cancels Original Sheet No. 24.2 Institutional Telecommunications Services 8. CONTRACT SERVICES 8.1. General 8.1.5 Contract Offering 5 The following rates are applicable to traditional collect and AdvanceConnect calls. Call Type Per Minute Per Call Local N/A $1.95 IntraLATA/InterLATA N/A $1.95 8.1.6 Contract Offering 6 The following rates are applicable to traditional collect, AdvanceConnect, Prepaid Calling Cards and Debit calls. Call Type Per Minute Per Call Local N/A $2.00 IntraLATA/InterLATA N/A $2.00 8.1.7 Contract Offering 7 The following rates are applicable to traditional collect, AdvanceConnect and Debit calls. Call Type Per Minute Per Call Local N/A $2.50 IntraLATA/Intrastate (0-16 miles) N/A $2.00 IntraLATA/Intrastate (16+ miles) $0.03 $2.08 InterLATA/Intrastate (0-16 miles) N/A $2.00 InterLATA/Intrastate (16+ miles) $0.03 $2.08 Securus call rates will be capped at $2.50 per 15 minute call. ISSUED: October 23, 2015 EFFECTIVE: November 2, 2015 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 (N) (N) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 64 of 86 PageID #: 220 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 First Revised Sheet No. 25 Cancels Original Sheet No. 25 Institutional Telecommunications Services 9. AdvanceConnect Accounts End Users who prefer to pay in advance for Collect Calls that originate from Confinement Facilities, or else if the End User’s local exchange carrier does not have a billing and collection agreement with the Company or its intermediary, may set up an AdvanceConnect Account with the Company with a minimum initial fifty dollar ($50) payment. The Account is set up with the initial payment and may be replenished by the End User. Applicable state taxes and fees are calculated and deducted from the balance at the conclusion of the call. When the balance in an AdvanceConnect Account reaches twenty dollars ($20) or below, the End User will receive an automated courtesy call from the Company notifying the End User with such an announcement. If the End User’s balance reaches zero prior to replenishment of the Account, the End User will be blocked from receiving further calls from any Confinement Facility served by the Company until the balance is replenished or an alternative billing arrangement is made. The End User may request a refund of the available balance in the AdvanceConnect Account either by written request to the Company or by contacting the Company at its toll free telephone number once the End User verifies certain account information. Any such unused balances will expire in one hundred eighty (180) days following the last call made, unless the balance is either fully depleted or a refund has been requested. No refunds of unused balances will be issued after the expiration date. AdvanceConnect Account service is available twenty-four (24) hours a day, seven (7) days a week to all terminating locations served. Access to such services by the Inmate User may be subject to time-of-day and usage restrictions imposed by individual Confinement Facilities. No minimum service period applies. For debiting purposes, call timing is rounded up to the nearest one (1) minute increment. Usage charges are computed and rounded up to the nearest one (1) cent on a per call basis. Balances are not charged for incomplete calls. The rates for AdvanceConnect Accounts are the same as those for automated Collect Call service. ISSUED: October 23, 2015 EFFECTIVE: November 2, 2015 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 (T) (T) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 65 of 86 PageID #: 221 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 Second Revised Sheet No. 26 Replaces First Revised Sheet No. 26 Institutional Telecommunications Services 9. AdvanceConnect Accounts (Continued) Wireless Administration Fee - a monthly fee of up to $3.99 is applicable to any AdvanceConnect account with a wireless telephone number included as a number authorized to receive calls. This fee applies once per month, per account regardless of the number of wireless telephone numbers authorized. The fee amount will be deducted from the AdvanceConnect account balance on a monthly basis as long as a wireless number remains on the AdvanceConnect account. As of the initial effective date of this fee, existing AdvanceConnect accounts with existing authorized wireless numbers will be Grandfathered and the Wireless Administration Fee will not apply. If an existing AdvanceConnect account adds or changes a wireless number on the account, the Wireless Administration Fee will apply going forward. ISSUED: February 5, 2014 EFFECTIVE: February 12, 2014 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 (I) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 66 of 86 PageID #: 222 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 Original Sheet No. 27 Institutional Telecommunications Services 10. Prepaid Calling Cards Where offered by the Confinement Facility, Inmates may purchase a Prepaid Calling Card. Calls are made by dialing a special access dialing sequence that connects directly to the Company’s network at the Confinement Facility. A valid Authorization Code must be entered to access the account. The Company’s system automatically informs the Inmate User of the Prepaid Balance remaining on the Prepaid Calling Card, and provides prompts to place the call by entering the destination telephone number with area code. Network usage is deducted from the Prepaid Balance on a real time basis as the call progresses. Applicable state taxes and fees are included in the rates and charges for the calls made. On Prepaid Calling Card calls, when the Prepaid Balance is one minute prior to depletion, the Inmate User will be interrupted with such an announcement. Prepaid Calling Card services are available twenty-four (24) hours a day, seven (7) days per week to all terminating locations serviced. Access to such telephone services by an Inmate User may be subject to time-of-day and usage restrictions imposed by individual Confinement Facilities. No minimum service period applies. For debiting purposes, call timing is rounded up to the nearest one (1) minute increment. Usage charges are computed and rounded up to the nearest one (1) cent on a per call basis. Prepaid Balances are not charged for incomplete calls. The Confinement Facilities that offer the option of Prepaid Calling Cards may purchase Prepaid Calling Cards directly from the Company. Inmates then purchase the Cards from authorized personnel at the Confinement Facilities. The Company does not engage in direct monetary transactions with the Inmate. The Inmate may purchase a Prepaid Calling Card in denominations determined by the Confinement Facility. Prepaid Calling Cards are offered only to Inmates at Confinement Facilities and not to the general public. Prepaid Calling Cards are valid for one hundred eighty (180) days from the date of first usage. Unused Prepaid Balances may be used by the Inmate User or Authorized User following release from the Confinement Facility only through the Company’s network by dialing a special toll free access number which automatically connects the call to the Company’s network. Unused Prepaid Balances are not refundable nor may Prepaid Calling Cards be replenished upon the depletion of the Prepaid Balance. Inmates may purchase additional cards, as permitted by their Confinement Facility. ISSUED: June 11, 2012 EFFECTIVE: June 18, 2012 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 (N) (N) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 67 of 86 PageID #: 223 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 Original Sheet No. 28 Institutional Telecommunications Services 11. Inmate Debit Accounts Inmate Debit is a prepaid telephone account offering made available to Inmates by the Company when permitted by the Confinement Facility. Inmate Debit provides an alternative method for Inmates to prepay for and make calls. An Inmate Debit account associated with the Inmate’s Personal Identification Number (PIN) is automatically established by the Company. Inmates fund and replenish their Inmate Debit account through electing to transfer funds from either their facility’s inmate trust fund or commissary account to their Inmate Debit account. Inmate Debit accounts may also be funded by inmate friends and family members via the Company’s points-of-sale. Funds placed in this account become the property of the inmate. Inmate Debit calls are processed by dialing a special access dialing sequence that connects directly to the Company’s network at the Confinement Facility. Inmates must enter a valid Authorization Code to access their Inmate Debit account. The Company’s system automatically informs the Inmate of the prepaid balance remaining on the Inmate Debit account prior to each call, provides prompts to place the call by entering the destination telephone number, and informs the Inmate of the rates for the call being attempted. Call charges are deducted from the prepaid account balance on a real-time basis as the call progresses. Applicable state taxes and fees are in addition to the rates and charges for calling service. During an Inmate Debit call, when the prepaid account balance is one minute prior to depletion, the Inmate will be interrupted with such an announcement. Inmate Debit services are available twenty-four (24) hours a day, seven (7) days per week to all terminating locations serviced. Access to such telephone services by an Inmate may be subject to time-of-day and usage restrictions imposed by individual Confinement Facilities. No minimum service period applies. For debiting purposes, call timing is rounded up to the nearest one (1) minute increment. Usage charges are computed and rounded up to the nearest one (1) cent on a per call basis. Prepaid balances are not charged for incomplete calls. Refunds of unused Inmate Debit account balances are issued by the entity controlling the actual cash deposits, which is either the Company, the commissary, the Confinement Facility or its agent, depending on the specific arrangements, unless otherwise directed by state law. Depending on the entity issuing the refund, refund fees and/or minimum refund amounts may apply. The prepaid balance expires ninety (90) days from the date of the last call placed on the Inmate Debit account unless alternative arrangements are expressly requested by the Confinement Facility. No refunds of unused balances will be issued after the expiration date. ISSUED: June 11, 2012 EFFECTIVE: June 18, 2012 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 (N) (N) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 68 of 86 PageID #: 224 EXHIBIT F Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 69 of 86 PageID #: 225 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 Original Sheet No. 1 Cancels and Replaces Evercom Systems, Inc. Georgia Public Service Commission Tariff No. 1 in its entirety Institutional Telecommunications Services TITLE PAGE This tariff applies to intrastate telecommunications services furnished by Securus Technologies, Inc. (“Securus”) between one or more points in the State of Georgia. This tariff is on file with the Georgia Public Service Commission (“Commission”), and copies may be inspected, during normal business hours, at the Company’s principal place of business at 14651 Dallas Parkway, Suite 600, Dallas, Texas 75254. This tariff (Securus Technologies Inc., Georgia Public Service Commission Tariff No. 1) cancels and replaces in its entirety to Evercom Systems, Inc. Tariff No. 1 on file with the Georgia Public Service Commission. ISSUED: September 21, 2010 EFFECTIVE: October 21, 2010 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 70 of 86 PageID #: 226 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 Seventh Revised Sheet No. 19 Replaces Sixth Sheet No. 19 Institutional Telecommunications Services 5.5. Deposits No advance deposits are required; provided, however, that in the event that any Customer wishes to exceed any maximum credit amount that may be predetermined by the Company, that Customer may do so by first posting a deposit with the Company in an amount such that the level of credit sought is equal to 90 percent of the deposit amount. The Company shall pay simple interest at a rate no less than the rate required for basic telephone service deposits. 5.6. Taxes and Regulatory Charges All federal, state and local taxes and regulatory charges (e.g. excise tax, gross receipts tax, sales tax, municipal utilities tax) for Collect Calls are billed as separate line items and are not included in the quoted rates. 5.6.1 Georgia Universal Access Fund - Securus will comply with, and require its Customers to comply with, the Commission’s Universal Access Fund Requirements as set forth in O.C.G.A. Section 46-5-167 or any Commission order, rule, or regulation adopted or promulgated hereunder. The charge will be shown as a separate line item on the Customers’ monthly invoice and will read: GA UAF, GA Univ. Access Fund or GA Universal Access Fund. The rate of the charge will be equal to the contribution factor established by the Commission. 5.7 Reserved for Future Use 5.8 Reserved for Future Use ISSUED: July 13, 2016 EFFECTIVE: July 20, 2016 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 (D) (D)(T) (D) (D) (D)(T) (D) (D) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 71 of 86 PageID #: 227 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 Second Revised Sheet No. 19.1 Replaces First Revised Sheet No. 19.1 Institutional Telecommunications Services 5.9 Reserved for Future Use Material moved to Original Page 19.3 and Original Page 19.4. ISSUED: July 13, 2016 EFFECTIVE: July 20, 2016 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 (D) (D)(T) (D) (D) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 72 of 86 PageID #: 228 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 Original Sheet No. 19.2 Institutional Telecommunications Services The below fees and charges become effective March 17, 2016 for Prisons and June 20, 2016 for Jails. Confinement facility fees and charges will not exceed these rate caps. 5.10 Payment Fee Automated Payment Fees (where available) - Credit card payment, debit card payment, and bill processing fees, including fees for payments made by interactive voice response (IVR), web, or kiosk (where available). Automated payment fees - $3.00 Live Agent Fee - A fee associated with the optional use of a live operator to complete Inmate Calling Services transactions. Live Agent Fee - $5.95 5.11 Paper Bill/Statement Fee Paper Bill/Statement Fees - Fees associated with providing customers of Inmate Calling Services an optional paper billing statement. Paper Bill/Statement Fee - $2.00 ISSUED: March 16, 2016 EFFECTIVE: March 17, 2016 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 (N) (N) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 73 of 86 PageID #: 229 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 Original Sheet No. 19.3 Institutional Telecommunications Services The below content was previously found on Original Sheet No. 19.1. 6. RATES AND CHARGES This section sets forth the rates and charges applicable to the Company’s intrastate telecommunications service offering. The below rates become effective March 17, 2016 for Prisons. Prison Confinement facility rates will not exceed these rate caps. 6.1. Local/IntraLATA/InterLATA Usage Rates 6.1.1 Option 1 Collect/Prepaid Collect/Debit/Prepaid Calling Card Local Each Minute $0.13 IntraLATA/InterLATA (0-16 Miles) Each Minute $0.13 IntraLATA/InterLATA (17-9999 Miles) Each Minute $0.19 6.1.2 Option 2 Collect Local Each Minute $0.10 IntraLATA/InterLATA (0-16 Miles) Each Minute $0.13 IntraLATA/InterLATA (17-9999 Miles) Each Minute $0.19 Prepaid Collect Local Each Minute $0.13 IntraLATA/InterLATA (0-16 Miles) Each Minute $0.13 IntraLATA/InterLATA (17-9999 Miles) Each Minute $0.19 Debit/Prepaid Calling Card Local Each Minute $0.06 IntraLATA/InterLATA (0-16 Miles) Each Minute $0.13 IntraLATA/InterLATA (17-9999 Miles) Each Minute $0.19 ISSUED: March 16, 2016 EFFECTIVE: March 17, 2016 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 (M) (M) (N) (N) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 74 of 86 PageID #: 230 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 First Revised Sheet No. 19.4 Replaces Original Sheet No. 19.4 Institutional Telecommunications Services The below content was previously found on Original Sheet No. 19.1. The below rates are applicable to Jails. Jail Confinement facility rates will not exceed these rate caps. 6.2. Rates and Charges 6.2.1 Option 1 Collect/Prepaid Collect/Debit/Prepaid Calling Card Local Each Minute $0.18 (not to exceed $2.70) IntraLATA/InterLATA Each Minute $0.19 ISSUED: July 13, 2016 EFFECTIVE: July 20, 2016 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 (D) (N) (N) (T) (N) (N) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 75 of 86 PageID #: 231 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 Third Revised Sheet No. 24 Replaces Second Revised Sheet No. 24 Institutional Telecommunications Services 8. CONTRACT SERVICES 8.1. General At the option of the Company, service may be offered on a contract basis to meet specialized requirements of the Customer not contemplated in this tariff. The terms of each contract shall be mutually agreed upon between the Customer and Company and may include discounts off of rates contained herein, waiver of recurring or nonrecurring charges, charges for specially designed and constructed services not contained in the Company’s general service offerings, or other customized features. The terms of the contract maybe based partially or completely on the term and volume commitment, type of originating or terminating access, mixture of services for other distinguishing features. Service shall be available to all similarly situated Customers for a fixed period of time following the initial offering to the first contract Customer as specified in each individual contract. 8.1.1 RESERVED FOR FUTURE USE . ISSUED: November 4, 2013 EFFECTIVE: November 11, 2013 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 (D)(T) (D) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 76 of 86 PageID #: 232 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 Fifth Revised Sheet No. 24.1 Replaces Fourth Revised No. 24.1 Institutional Telecommunications Services 8. CONTRACT SERVICES 8.1. General Reserved for Future Use ISSUED: July 13, 2016 EFFECTIVE: July 20, 2016 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 (D) (D)(T) (D) (D) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 77 of 86 PageID #: 233 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 Third Revised Sheet No. 24.2 Cancels Second Revised Sheet No. 24.2 Institutional Telecommunications Services 8. CONTRACT SERVICES 8.1. General Reserved for Future Use ISSUED: July 13, 2016 EFFECTIVE: July 20, 2016 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 (D) (D)(T) (D) (D) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 78 of 86 PageID #: 234 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 First Revised Sheet No. 25 Cancels Original Sheet No. 25 Institutional Telecommunications Services 9. AdvanceConnect Accounts End Users who prefer to pay in advance for Collect Calls that originate from Confinement Facilities, or else if the End User’s local exchange carrier does not have a billing and collection agreement with the Company or its intermediary, may set up an AdvanceConnect Account with the Company with an initial payment. The Account is set up with the initial payment and may be replenished by the End User. Applicable state taxes and fees are calculated and deducted from the balance at the conclusion of the call. When the balance in an AdvanceConnect Account reaches ten dollars ($10) or below, the End User will receive an automated courtesy call from the Company notifying the End User with such an announcement. If the End User’s balance reaches zero prior to replenishment of the Account, the End User will be blocked from receiving further calls from any Confinement Facility served by the Company until the balance is replenished or an alternative billing arrangement is made. The End User may request a refund of the available balance in the AdvanceConnect Account either by written request to the Company or by contacting the Company at its toll free telephone number once the End User verifies certain account information. Any such unused balances will expire in one hundred eighty (180) days following the last call made, unless the balance is either fully depleted or a refund has been requested. No refunds of unused balances will be issued after the expiration date. AdvanceConnect Account service is available twenty-four (24) hours a day, seven (7) days a week to all terminating locations served. Access to such services by the Inmate User may be subject to time-of-day and usage restrictions imposed by individual Confinement Facilities. No minimum service period applies. For debiting purposes, call timing is rounded up to the nearest one (1) minute increment. Usage charges are computed and rounded up to the nearest one (1) cent on a per call basis. Balances are not charged for incomplete calls. ISSUED: March 16, 2016 EFFECTIVE: March 17, 2016 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 (C) (C) (D) (D) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 79 of 86 PageID #: 235 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 Fourth Revised Sheet No. 26 Replaces Third Revised Sheet No. 26 Institutional Telecommunications Services 9. AdvanceConnect Accounts (Continued) Reserved for Future Use ISSUED: July 13, 2016 EFFECTIVE: July 20, 2016 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 (D) (D)(T) (D) (D) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 80 of 86 PageID #: 236 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 Original Sheet No. 27 Institutional Telecommunications Services 10) Prepaid Calling Cards Where offered by the Confinement Facility, Inmates may purchase a Prepaid Calling Card. Calls are made by dialing a special access dialing sequence that connects directly to the Company’s network at the Confinement Facility. A valid Authorization Code must be entered to access the account. The Company’s system automatically informs the Inmate User of the Prepaid Balance remaining on the Prepaid Calling Card, and provides prompts to place the call by entering the destination telephone number with area code. Network usage is deducted from the Prepaid Balance on a real time basis as the call progresses. Applicable state taxes and fees are included in the rates and charges for the calls made. On Prepaid Calling Card calls, when the Prepaid Balance is one minute prior to depletion, the Inmate User will be interrupted with such an announcement. Prepaid Calling Card services are available twenty-four (24) hours a day, seven (7) days per week to all terminating locations serviced. Access to such telephone services by an Inmate User may be subject to time-of-day and usage restrictions imposed by individual Confinement Facilities. No minimum service period applies. For debiting purposes, call timing is rounded up to the nearest one (1) minute increment. Usage charges are computed and rounded up to the nearest one (1) cent on a per call basis. Prepaid Balances are not charged for incomplete calls. The Confinement Facilities that offer the option of Prepaid Calling Cards may purchase Prepaid Calling Cards directly from the Company. Inmates then purchase the Cards from authorized personnel at the Confinement Facilities. The Company does not engage in direct monetary transactions with the Inmate. The Inmate may purchase a Prepaid Calling Card in denominations determined by the Confinement Facility. Prepaid Calling Cards are offered only to Inmates at Confinement Facilities and not to the general public. Prepaid Calling Cards are valid for one hundred eighty (180) days from the date of first usage. Unused Prepaid Balances may be used by the Inmate User or Authorized User following release from the Confinement Facility only through the Company’s network by dialing a special toll free access number which automatically connects the call to the Company’s network. Unused Prepaid Balances are not refundable nor may Prepaid Calling Cards be replenished upon the depletion of the Prepaid Balance. Inmates may purchase additional cards, as permitted by their Confinement Facility. ISSUED: June 11, 2012 EFFECTIVE: June 18, 2012 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 (N) (N) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 81 of 86 PageID #: 237 SECURUS TECHNOLOGIES, INC. Georgia Public Service Commission Tariff No. 1 Original Sheet No. 28 Institutional Telecommunications Services 11) Inmate Debit Accounts Inmate Debit is a prepaid telephone account offering made available to Inmates by the Company when permitted by the Confinement Facility. Inmate Debit provides an alternative method for Inmates to prepay for and make calls. An Inmate Debit account associated with the Inmate’s Personal Identification Number (PIN) is automatically established by the Company. Inmates fund and replenish their Inmate Debit account through electing to transfer funds from either their facility’s inmate trust fund or commissary account to their Inmate Debit account. Inmate Debit accounts may also be funded by inmate friends and family members via the Company’s points-of-sale. Funds placed in this account become the property of the inmate. Inmate Debit calls are processed by dialing a special access dialing sequence that connects directly to the Company’s network at the Confinement Facility. Inmates must enter a valid Authorization Code to access their Inmate Debit account. The Company’s system automatically informs the Inmate of the prepaid balance remaining on the Inmate Debit account prior to each call, provides prompts to place the call by entering the destination telephone number, and informs the Inmate of the rates for the call being attempted. Call charges are deducted from the prepaid account balance on a real-time basis as the call progresses. Applicable state taxes and fees are in addition to the rates and charges for calling service. During an Inmate Debit call, when the prepaid account balance is one minute prior to depletion, the Inmate will be interrupted with such an announcement. Inmate Debit services are available twenty-four (24) hours a day, seven (7) days per week to all terminating locations serviced. Access to such telephone services by an Inmate may be subject to time-of-day and usage restrictions imposed by individual Confinement Facilities. No minimum service period applies. For debiting purposes, call timing is rounded up to the nearest one (1) minute increment. Usage charges are computed and rounded up to the nearest one (1) cent on a per call basis. Prepaid balances are not charged for incomplete calls. Refunds of unused Inmate Debit account balances are issued by the entity controlling the actual cash deposits, which is either the Company, the commissary, the Confinement Facility or its agent, depending on the specific arrangements, unless otherwise directed by state law. Depending on the entity issuing the refund, refund fees and/or minimum refund amounts may apply. The prepaid balance expires ninety (90) days from the date of the last call placed on the Inmate Debit account unless alternative arrangements are expressly requested by the Confinement Facility. No refunds of unused balances will be issued after the expiration date. ISSUED: June 11, 2012 EFFECTIVE: June 18, 2012 ISSUED BY: Curtis Hopfinger, Director - Regulatory & Government Affairs Securus Technologies, Inc. 14651 Dallas Parkway Dallas, Texas 75254 (N) (N) Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 82 of 86 PageID #: 238 EXHIBIT G Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 83 of 86 PageID #: 239 Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 84 of 86 PageID #: 240 Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 85 of 86 PageID #: 241 Case 5:17-cv-05008-TLB Document 30-2 Filed 03/06/17 Page 86 of 86 PageID #: 242 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ARKANSAS PATRICK ANTOON, JR., SHALIN MILLER, and SHARON VELAZQUEZ, individually and on behalf of all others similarly situated, Plaintiffs, v. SECURUS TECHNOLOGIES, INC., Defendant. Civil Action No. 17-5008 Honorable Timothy L. Brooks [PROPOSED] ORDER UPON CONSIDERATION of Defendant Securus Technologies, Inc.’s Motion to Dismiss and Motion to Strike Class Allegations (collectively, the “Motion”), the Memorandum and all documents in support thereof, and any response thereto, and all facts of which the Court may take judicial notice, it is this _____ day of _____________, 2017, hereby: ORDERED, that the Motion is GRANTED; and it is further ORDERED, that the claims of Plaintiff Patrick Antoon, Jr. are dismissed; and it is further ORDERED, that the claims of Plaintiff Shalin Miller are dismissed; and it is further ORDERED, that claims of Plaintiff Sharon Velazquez are dismissed; and it is further ORDERED that the class allegations regarding the states of Vermont, Delaware, and Hawaii are stricken; and it is further ORDERED, that the allegations of the Georgia Statutory Class are stricken. Case 5:17-cv-05008-TLB Document 30-3 Filed 03/06/17 Page 1 of 2 PageID #: 243 2 AFDOCS/11289123.1 It is so ordered. ____________________________ Timothy L. Brooks, J. U.S. District Court for the Western District of Arkansas Case 5:17-cv-05008-TLB Document 30-3 Filed 03/06/17 Page 2 of 2 PageID #: 244