By Christopher Zoukis
Following a change in its makeup, the Federal Communications Commission (FCC) has reversed its position on rate-cap rules for many inmate calling services which the agency adopted – by a narrow 3-2 party-line vote in October 2015.
Those rules have not yet taken effect, due to legal challenges pending before a federal appeals court in Washington, DC, and the FCC has served notice with the court that it will no longer defend key parts of those rules.
Until late January, the FCC and the Department of Justice had defended the rules against six pending lawsuits brought by inmate phone services providers, nine states, and two groups of state and local corrections officials— about the same number of states supported the rules, however. Opponents argued the FCC exceeded its authority in several ways: by extending rules already in effect for interstate calls to also cover intrastate calls (which make up about 80 percent of inmate calls), and by setting rates too low for providers to make a profit.
The FCC’s regulatory and litigation battles over capping prison and jail phone charges have been going on for years. In 2013, responding to a citizen petition, the agency placed interim caps on interstate calls (21¢ per minute for interstate calls and 25¢ per minute for collect interstate calls). At the same time, the FCC also began a rulemaking proceeding to look at curbs on charges for other services. In 2015, the agency lowered the per-minute rate for interstate phone calls to prisons to 11¢, with per-minute rates for jails ranging between 13¢ and 22¢, depending on size.
Besides attacking the coverage of intrastate calls as beyond the FCC’s lawful powers, some opponents of the rules, including major providers of inmate calling services, such as Securus Technologies and Global Tel Link , contended the agency’s method for calculating rates wrongly put them below their costs, especially since the FCC formula fails to take into account the sizable commission payments required by contracts with some state and local facilities – which some cap backers call “kickbacks.” Some sheriffs warned moving against those payments would lead them to drop prisoner phone services.
By late January, two FCC backers of the rule, both Democrats, had left the agency. The former agency head resigned and the term of another member expired. The Trump administration promptly filled the vacant chairmanship with a Republican already in the commission, Ajit Pai, an outspoken advocate of deregulation and a harsh critic of the prison phone rate caps, who noted the federal appeals court has acted to freeze the agency’s actions on prison rate caps four times.
Within days, the new chairman notified the court considering the challenges to the rate cap rules that the FCC would no longer defend major parts of the rules. The Department of Justice soon said it would follow the FCC’s lead.
At a Feb. 6 hearing before a three-judge panel of the appeals court, the remaining Democratic FCC member filed a written statement stressing the importance of phone calls to those incarcerated and their families, and the FCC had turned over part of its scheduled time to a lawyer representing advocates of prison rate caps.
Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonLawBlog.com.