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Prison Phone Update: Appellate Court Deals Major Blow to Prisoners and Their Families

by Carrie Wilkinson

In a September 2016 article on the fight for comprehensive prison and jail phone reform, PLN reported that while limits on ancillary fees had been implemented by the FCC, intrastate (in-state) rate caps were stayed by the D.C. Circuit Court of Appeals after the FCC’s order was appealed by Global Tel*Link, Securus and other Inmate Calling Service (ICS) providers as well as various corrections officials. [See: PLN, Sept 2016, p.26].

As a result of that appeal the intrastate rate caps never went into effect, though interstate (long distance) rate caps ordered by the FCC in 2013 remained in place, at $.25/min. for collect calls and $.21/min. for debit and prepaid calls. Thus, in some cases – particularly local jails –unregulated in-state phone rates are much higher than long-distance rates. Within state prison systems, intrastate rates range up to $5.70 for a 15-minute call (in Kentucky), though in 22 states they are $.11 per minute or less.

Shortly before oral argument was scheduled in the D.C. Court of Appeals, counsel for the FCC advised the Court that due to a change in the composition of the FCC (resulting from the new presidential administration), “the majority of the current Commission does not believe that the agency has the authority to cap intrastate rates....” Therefore, during the February 3, 2017 oral argument, the FCC did not defend its former position that it could regulate intrastate ICS rates – a development noted by the judges in their subsequent ruling.

Instead, Andrew Jay Schwartzman, the attorney representing the organizations that had intervened in the lawsuit to uphold the FCC’s order – including the Human Rights Defense Center (HRDC), PLN’s parent organization – argued in support of the FCC’s jurisdiction over intrastate rate caps.

In a 2-1 decision on June 13, 2017, the Court of Appeals issued a decision that 1) vacated the FCC’s rate caps on intrastate prison and jail phone calls, finding the FCC lacked jurisdiction over in-state phone rates; 2) vacated the provision of the FCC’s order that used industry-averaged cost data; 3) ruled that the imposition of video visitation reporting requirements was beyond the statutory authority of the FCC; 4) held the proposed wholesale exclusion of commission kickbacks from the FCC’s cost calculations for ICS calls was arbitrary and capricious, and must be vacated; and 5) found “the FCC had no authority to impose ancillary fee caps with respect to intrastate calls,” and remanded that issue to determine whether such fees can be segregated between interstate and intrastate calls.

Additionally, the D.C. Circuit rejected a challenge to the FCC’s requirement that ICS providers report on their site commission payments, and dismissed several other claims. See: Global Tel*Link v. FCC, 866 F.3d 397 (D.C. Cir. 2017).

The appellate court’s ruling was a significant blow to the limited but important strides that have been made in recent years to reform the prison phone industry and curtail the price-gouging of prisoners’ families through high phone rates and ancillary fees. [See: PLN, May 2016, p.36; Dec. 2015, p.40; Dec. 2013, p.1].

The D.C. Circuit’s ruling was a disappointing setback for all parties involved in the fight against exploitive prison phone rates, but not for ICS providers and the correctional facilities that receive large commission kickbacks paid from prison phone revenue. Currently, 39 state prison systems and all but two county jails nationwide receive kickbacks from ICS providers, which typically result in higher phone rates and fees.

HRDC executive director Paul Wright noted that “regulatory efforts to resolve the financial exploitation of prisoners and their families by the FCC have not proven to be very effective in addition to being long-running” – which, he observed, “seems to be the biggest message from this ruling.”

Based upon the appellate decision, intrastate prison phone rates and fees nationwide remain completely unregulated by the FCC, and caps on interstate ancillary fees will likely be revised. ICS providers and correctional facilities have historically acted in their own self-interest with complete disregard for how prisoners and their families are affected, and we can expect that trend to continue. Absent the ability to regulate prison and jail phone services on a national level, grassroots efforts at the local and state levels will be necessary to implement reforms. While a federal resolution has been introduced by U.S. Rep. Bobby Rush and Senator Cory Booker to address high prison phone rates, it is unlikely to make it through the current Congress.

Regardless, HRDC plans to continue the work it started when it co-founded the Campaign for Prison Phone Justice in 2011 to reduce the costs of phone calls for prisoners and their family members, who have been price-gouged by ICS providers and corrections officials for far too long. The struggle for phone justice continues. 


Additional source: The Intercept

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Related legal case

Global Tel*Link v. FCC