DISSENTING STATEMENT OF
COMMISSIONER MICHAEL O’RIELLY
Re: Rates for Interstate Inmate Calling Services, WC Docket No. 12-375.
I dissent from this order because the Commission has not adequately considered objections by 
Securus Technologies, Inc., Global Tel*Link Corporation, and Telmate, LLC regarding the release of 
confidential data, including commercially sensitive cost data, to counsel for their competitor, Pay Tel
Communications, Inc.  On a larger scale, this item is interlinked to the current Commission’s sometimes 
inattentive approach to the sensitivities surrounding critical information provided to the Commission by 
outside parties.  
As an initial matter, the order claims that the objections are untimely because the companies
should have challenged the underlying protective order.  However, protective orders are adopted without 
notice and comment and, until recently, the Commission did not have specific procedures for challenging 
the terms of protective orders.  Moreover, parties may not reasonably know whether they will have 
objections until they receive a specific request.  How the general terms of a protective order will apply in 
a given situation may not be obvious until it happens.  Presumably, that is why protective orders include 
provisions allowing parties to object to particular persons reviewing the protected information.  
That is exactly what happened here.  While the companies did not oppose providing access to Pay 
Tel’s outside consultant, and may not have objected to requests from competitors that employ both in-
house and outside counsel, they did object to review by Pay Tel’s counsel based on Pay Tel’s particular
circumstances.  Specifically, they argue that Pay Tel’s outside counsel explicitly or effectively serves as 
its in-house counsel, meaning that there isn’t the customary separation between the company and the 
lawyers that will review the protected information.  Moreover, because of this arrangement, they argue 
that Pay Tel’s counsel is, at the very least, closer to “Competitive Decision-Making” than an outside 
counsel normally would be.  Especially in this proceeding, where it is argued that nearly every filing, 
Commission holding, and court decision has the potential to alter the competitive landscape and even put 
providers out of business, this seems like a credible concern, without making any comment on the 
professionalism of the individuals at the heart of the matter.  
The order acknowledges that the purpose of the objection process is to challenge whether 
someone is eligible to access information under the protective order.  But then the Commission should 
take these challenges seriously, including by looking behind the Acknowledgements of Confidentiality, 
where necessary, to be assured that review by certain entities is not just facially compliant but 
substantively appropriate.  Once the information is disclosed it cannot be unremembered.  Like in other 
instances, the bell cannot be unrung.
Furthermore, since Pay Tel’s outside consultant has access, the companies argue that Pay Tel is 
able to meaningfully participate in the proceeding, just as it has done in the past.
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  Accordingly, they state 
that any additional benefit of providing access to counsel is outweighed by the substantial and irreversible
competitive harm that would occur if the confidential data were disclosed even inadvertently.  
The order responds that, having already balanced the concerns of parties submitting information 
against the interest of the public in accessing that information by adopting a protective order, the 
Commission does not need to revisit that balance if specific objections are raised.  In other words, the 
                                                          
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In fact, one company asserts that there was no reason to think that they would receive a request from counsel 
because an outside consultant – the same economist employed by Pay Tel in this latest proceeding –previously 
handled and reviewed confidential cost data on behalf of a number of providers.
2expectation is that the Commission foresaw every possible concern and adopted a foolproof protective 
order.  I disagree with that mindset.  The Commission should be open to rebalancing the interests when 
subsequent developments call into question whether the Commission reached the right result.  Given that 
Pay Tel’s outside consultant already has access to the information, and the companies have made credible 
arguments as to why Pay Tel’s outside counsel should not review it, the Commission should have taken 
the next step to consider whether the benefits continue to outweigh the costs.