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Is There A Winning Argument Against Excessive Rates For Collect Calls From Prisoners?

by Madeline Severin, 25 Cardozo Law Review 1469, March, 2004

Review by John E. Dannenberg

We all know about how prisons and jails conspire with telephone companies to bilk recipients of prisoner phone calls via exorbitant chargesswollen by kickbacks approaching 60%but how does one legally challenge this scheme?

Yeshiva University Doctor of Jurisprudence candidate Madeline Severin has thoroughly researched existing case law, legislative histories and peer law review literature in creating her Cardozo Law Review treatise that insightfully discusses the history of state and federal legal challenges to prisoner telephone-call price gouging. Severin then proceeds to analyze each legal theory attempted, showing where it failed or occasionally, was held to have merit. From this analysis, she then looks forward to how the problem might have to be approached in the future. In sixty pages of text replete with 390 comprehensive footnotes informative for both pro-per and attorney readers, Severin first examines existing case law. She notes that federal prisoners pay lower rates, but that the legal theories protecting them have little to do with state law claims on prisoner phone rates.

One major obstacle is the "filed rate doctrine," wherein once a phone company has "filed" its rate plan with a state regulatory utility, it is automatically jurisdictionally saved from court review. Severin makes as much as possible from Judge Posner's recent ruling in Arsberry v. Illinois , 244 F.3d 558 (7th Cir. 2001) that rejected a summary dismissal based on such jurisdictional insulation. A discussion of the impact of the Federal Communications Commission Act of 1934 and the tariff-unraveling Federal Communications Act of 1992 next follow. This leads to a review of other defenses to outrageous tariffs, including seeking regulatory review before the tariff is approved. However, such defenses are rebuffed by simply passing off the rates as an "unfortunate incidence of incarceration", notwithstanding that the real plaintiffs (prisoners' families) are not incarcerated.

In another theory, the "state action doctrine," Severin notes that the anti competitive conduct at issue, when legislated by the state, is immune from antitrust liability. Even where evidence of conspiracy is presented, private defendants (e.g., phone companies) are immune under the judicially created Noerr-Pennington doctrine. Parenthetically, however, she notes that the Prison Litigation Reform Act is not relevant here because it is the call recipients, not the prisoners, who are the litigants.

Next, Severin reviews ten cases where the Sherman Antitrust Act was raised. In a few key cases the issue of standing (for antitrust purposes) was raised, and was affirmed under a five-part U.S. Supreme Court test. But defendants have historically weaseled out of liability by arguing that prisons are too small to be a "relevant market" for antitrust purposes. And even so, the question remains, is it the phone company or the prison that is truly driving the market?

Looking at constitutional arguments, Severin found First Amendment attacks of little hope, since the rates do not selectively restrain any particular protected speech, and thus do not rise to the requisite level of censorship. Fourteenth Amendment equal protection claims fail quickly because prisoner initiated collect calls and non-prisoner-initiated collect calls do not define similarly situated groups and prison security concerns clearly distinguish these. The fact that prisoner populations are racially skewed towards minorities does not ipso facto create a legally sustainable equal protection claim that phone rates discriminate against minorities.

Severin offers a small ray of hope in relying upon state constitutional takings clauses and the separation of powers. Two decisions explain these theories, Fair v. Sprint Payphone Services ,Inc. , 148 F.Supp. 2d 622 (D.S.C. 2001) and Valle v. New Mexico , 54 P.3d 71 (N.M. 2002).

Notwithstanding her analysis of the strengths and weaknesses of litigation, Severin believes the most meaningful resolution of the problem lies in state legislation to reduce excessive phone rates. Vermont is the national trendsetter (the feds have already established lower rate procedures) and other states are looking into it. However, a bill passed by the California Legislature was vetoed in 2003 by then Governor Davis because he "didn't want to give up the revenue stream" of the phone company's 46% kickback. But legislation has its pitfalls, too. Legislators are loathe not to look "tough on crime" by having aligned themselves with prisoners' families and friends.

Severin closes by noting the ultimate irony of phone-rate gouging. Since prisoner telephone contact with families strongly correlates with low recidivism, it would seem "penny-wise and pound-foolish" for states to brazenly extort 60% of prisoner phone revenues, only to thereby engender billions of dollars in taxpayer expense for further incarceration.

On the other hand, perhaps the prison-industrial complex knows precisely what it is doing with phone rates: "reaching out and incarcerating someone."

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