Appeals Court Tosses FCC Rate Controls on Most Prison Calls

On June 13, a  three-judge panel handed down a 2-1 decision knocking down the intrastate FCC rate cap on calls to prison and jail inmates.

On June 13, a  three-judge panel handed down a 2-1 decision knocking down the intrastate FCC rate cap on calls to prison and jail inmates.

By Christopher Zoukis

Advocates of government action on lowering phone rates for calls to prison and jail inmates were handed a major setback June 13 when three-judge panel of a Washington, D.C. federal appeals court ruled the Federal Communications Commission (FCC) lacked legal authority to impose rate limits on intrastate calls to inmates.

In October 2015, the agency – then under Democratic control – voted 3-2 along party lines to issue rules blocking state prisons or local jails from charging inmates more than 11 cents per minute on local and long-distance calls, plus a variety of changes, including caps or bans on a host of other charges, such as for video and other technically advanced services. About 80 percent of inmate calls are intrastate.

A coalition of inmates, their families, and other activists supported the agency’s action, and some even argued for farther-reaching steps, arguing that the high expense of inmate calls interferes with keeping ties with their families and communities. Studies show inmates who stay in contact with their families while incarcerated have lower recidivism rates.

In 2016, companies providing inmate calling services filed a challenge to the new FCC rules in a federal appeals court in Washington, D.C., as did a group of eight states. Both groups argued many of the regulations exceeded the agency’s authority.

Certain parts of the FCC rules drew challenges from one group or the other. For example, the states challenging the rules said the low FCC-set cap on intrastate call rates would keep state prisons and local jails from recovering their costs for security-related services and technology updates needed for inmate phone systems. The National Association of Regulatory Utility Commissioners also opposed the FCC rules as exceeding the agency’s authority.

Earlier this year, while reviewing the legal challenges, the appellate court twice froze large sections of the rules, including the intrastate rate cap. After the Trump administration took control, the FCC’s new chairman – who had been one of the two dissenting agency members when the rules were adopted – announced the FCC would stop defending the rule in court. He pledged he’d work on relief from expensive prison and jail phone rates, but “in a lawful manner.” It was left to a variety of intervening advocates to defend the FCC rules.

But on June 13, the three-judge panel handed down a 2-1 decision knocking down the intrastate rate cap. Writing for the majority, Judge Harry Edwards held the FCC had misinterpreted the Telecommunications Act, as well as earlier decisions by the agency and courts. The appeals court also dismissed the way the FCC rules calculated industry cost data, saying it was arbitrary and capricious, lacked justification in the rulemaking record, and was unsupported “by reasoned decisionmaking.”

The court also found the FCC exceeded its authority in imposing reporting requirements on video visitation communications. While sending a few issues back to the agency for further work, the decision likely means the end—for the time being—of the effort to impose federal regulations on most phone calls to jail and prison inmates. 

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 PrisonerResource.com.