IPR Files Brief Supporting FCC Efforts to Lower Prison Phone Bills

Earlier this week, IPR filed a brief on behalf of prisoners and their families supporting the Federal Communication Commission’s recent efforts to lower the costs of prison payphones so that families could speak with their imprisoned loved ones more often.

The brief was filed on behalf of prisoners, prisoners’ family members, and public interest organizations known as the Wright Petitioners.  The petitioners began their efforts to lower prison phone rates in 2000 after Martha Wright, a retired nurse living in Washington, D.C., was charged nearly $100 for calling her then-imprisoned grandson. More than a decade after the groups petitioned the FCC to lower prison phone rates, the Commission adopted interim rules that slashed the cost of a 15-minute phone call, which could cost up to nearly $18, down to under $3.

In fall of 2013, the FCC adopted interim rate caps that prohibited a prison telephone provider from charging more than $0.21 per minute for prepaid calls and $0.25 per minute for collect calls unless the provider justified a higher charge. The FCC also created safe harbor rates — $0.12 per minute prepaid and $0.14 per minute collect — that afforded greater protections to service providers that charged at or below those rates. Additionally, the FCC prohibited prison telephone providers from passing on the cost of kickbacks the companies pay to correctional facilities, known as site commissions, to users of prison telephone services. The FCC also required that certain charges providers bill customers for – known as ancillary fees – be cost-based. These fees include charges to set up an account with a provider, add money to an account, or close an account.

A group of correctional facilities, along with three prison phone providers, known as Inmate Calling Services (ICS) providers, sought review of the FCC’s 2013 rules in the U.S. Court of Appeals for the District of Columbia and asked the court to stay the FCC’s rules. The D.C. Circuit granted a partial stay, blocking the interim safe harbor rates and the cost-based rule from taking effect. The remainder of the rules went into effect in early 2014.

The brief IPR filed on Monday responds to arguments made by both the correctional facilities and ICS providers. Specifically, the groups argued that the Commission exceeded its authority in enacting its interim rules and that the Commission was interfering with the day-to-day administration of state and local prisons facilities by barring site commissions. The groups also argued the Commission did not have authority to regulate ancillary fees.

IPR’s brief responds to both arguments and demonstrates that the Commission’s interim rules were a lawful and reasonable response to the failed prison phone service market. The brief first argues that the Commission did not interfere with prison facility administration because it did not bar site commissions. Instead, the Commission merely prevented ICS providers from passing on the cost of these site commissions to customers of prison phone services. Next, the brief argues that the Commission had broad authority to determine costs and exclude certain expenses ICS providers incur, such as site commissions, from the ultimate rate charged to customers. Finally, the brief argues that even if the effect of the 2013 rules were to bar commissions as ICS and the correctional facilities claimed, such FCC action would still be lawful, as prior cases had established that the Commission does not exceed its authority when its actions have practical effects on entities outside its jurisdiction.

Responding to ICS providers’ second argument, IPR’s brief demonstrates that the plain language of the Communications Act provides the Commission with clear authority over ancillary fees. IPR also argues that the Commission’s ancillary fee regulation prevented ICS providers from offsetting lower rate caps with higher ancillary fees to keep ICS customers’ bills high.

The case is Securus v. FCC, No. 13-1280.

Georgetown Law Student Greg DiBella helped draft this post.

Wright Petitioners Intervenors Brief

Posted in Communications and Technology Law | Leave a comment

IPR Helps Community Radio Groups Attempting to Get on Air

In a filing this week, IPR supported efforts by a group of community radio applicants that hope to create a low power radio station for a historic neighborhood in Philadelphia.

The applicants, three non-profit organizations from Germantown, Philadelphia, have applied for licenses to operate low power FM (LPFM) radio stations. LPFM stations are community-based, non-commercial stations that have a broadcast radius of about 3 miles, allowing licensees to serve their local communities.

The three organizations IPR assisted – Germantown United, Germantown Life Enrichment Center, and G-town Radio – applied for their LPFM licenses in the fall of 2013 after the Federal Communications Commission opened a window seeking new licensees. Just under 3,000 groups across the country applied for radio licenses, but because space on the FM dial is limited, competition for stations was expected to be fierce. To resolve competing license applications, the Commission created a point system and encouraged applicants that were tied to try to share air time. Groups that agreed to share air time could then aggregate their points and claim the radio license for a particular channel.

Recognizing that only a handful of channels were available on the FM dial in Philadelphia, the three groups each filed separate applications and discussed potentially sharing time at a later date to create a radio station dedicated to serving Germantown. Germantown is a 3.3 square-mile area located in Northwest Philadelphia that is one of the most historically iconic areas in all of the United States; it was the birthplace of the anti-slavery movement and the site of a battle in the American Revolution.

Four other groups from Philadelphia also applied for the same radio channel as the Germantown groups.  Because all the groups had the same number of points under the Commission’s rules, they had to negotiate whether they could share air time. As those negotiations were underway, two of the other groups filed challenges to the Germantown groups’ applications – called petitions to deny – to try to prevent the Germantown applicants from receiving a license.

In the petitions to deny, The Social Justice Law Project of the Philadelphia NAACP, Inc. and Nueva Esperanza, Inc. argued that the Germantown applicants violated Commission rules by tentatively agreeing to work together before applying for LPFM licenses and by failing to disclose overlapping board membership between organizations..

IPR filed an opposition to the petitions on behalf of the Germantown groups demonstrating that they did nothing wrong in trying to secure a radio license for their community. As the opposition describes, the Commission had encouraged local organizations to work together in advance of the application window and endorsed resource sharing, including applicants agreeing to share broadcast studio locations. Additionally, the opposition refuted allegations of improper board member commonality.

Moreover, the opposition showed that many of the factual and legal claims made in the petition were without merit. Each of the Germantown Applicants is an independent non-profit organization with distinct a local mission. Although they each have separate missions, the groups applied for LPFM licenses in the hope of providing educational programming about Germantown’s unique history and culture. The groups all followed FCC rules in applying for licenses.

The FCC must now decide whether to grant or deny the petitions. Should the FCC deny the petitions, the Germantown organizations will have taken an important step toward obtaining an LPFM license and airing programming about Germantown.

Georgetown Law student Dan Syed helped draft this post.

G-Town Consolidated Opposition 10.20.14

Posted in Communications and Technology Law | Leave a comment

FCC Seeks Comment on Petition for Rulemaking to Extend Online Filing of Public Inspection Files to Cable and Satellite

On July 31, IPR filed a petition for rulemaking on behalf of the Campaign Legal Center, Sunlight Foundation, and Common Cause.  The petition asks the FCC to extend its existing requirement that broadcast television stations  place online the contents of their public inspection files, including records of political advertisements, to cable and satellite providers.   On August 7, the FCC sought public comment on this proposal.

Posted in Communications and Technology Law | Leave a comment

IPR’s native and environmental clients win critical protections for Black Mesa land

The following was issued as a press release on May 12, 2014

Native and environmental groups win critical protections for Black Mesa land
Federal mine regulators now under mandate to give greater consideration to Peabody coal mine’s impacts on cultural and water resources.

Black Mesa, Arizona: Native and environmental organizations reached a landmark agreement with the Federal government today that will ensure environmental, cultural, and historic impacts to Black Mesa land are considered before allowing the Peabody-owned Kayenta Coal Mine to continue operating.  Additionally, renewable energy proposals must be considered for tribal lands permanently damaged by Peabody’s mining and for purposes of powering the Central Arizona Project. The mine provides coal to the controversial Navajo Generating Station.

“These concessions are a small, but critical step to undoing the 40 year legacy of environmental impacts and harm Peabody has caused our community,” said Nichole Horseherder, a Black Mesa resident and co-director of To’ Nizhoni Ani, one of the Plaintiff organizations. “This is my homeland. My community. I raise my children here and they will raise theirs here. We are hopeful that this agreement is a signal that U.S. Secretary of Jewell is taking our concerns seriously, but we will continue to stand and fight until these dirty energy projects are retired.”

In 2012, three native organizations To’ Nizhoni Ani, Black Mesa Water Coalition, and Diné Citizens Against Ruining our Environment—joined by the Sierra Club, and the Center for Biological Diversity—challenged Peabody’s permit to continue strip mining at Kayenta. The U.S. Office of Surface Mining and Reclamation Enforcement (“OSM”) oversees Peabody’s mining operation and reviews Peabody’s applications to renew or revise its five-year mine operator’s permit. When OSM approved Peabody’s latest application to renew its Kayenta Mine permit, the groups took action.

“Legal action is only one strategy we’re using to address the concerns of Black Mesa and Navajo Nation communities,” said Jihan Gearon, Executive Director of the Black Mesa Water Coalition. “But,” she continued, “it’s an important step in calling out Southern Arizona’s insatiable and unsustainable energy and water consumption, for which our communities suffer. It’s time the Navajo Nation is afforded the opportunity to create a just transition to an economy that works for us. Navajo-owned renewables can help start that transition.”

For the residents of the Black Mesa region, the Kayenta Mine and the nearby coal-fired Navajo Generating Station it feeds have meant decades of environmental degradation and disruption to historical and sacred sites. In addition to seeing visible impacts on the landscape since the mining operation first began in 1973, Black Mesa residents have felt the operations’ impacts on air quality, and on the quality and quantity of water available from the Navajo Sandstone Aquifer, or “N-aquifer,” located beneath the area surrounding the mine.

“For far too long, our communities’ interests have been ignored while our land, water, and culture has been threatened,” said Nellis Kennedy-Howard, of the Sierra Club’s Beyond Coal Campaign. “This is a very important step forward for better preserving the environment and the well-being of the Black Mesa region.”

The lawsuit brought before the U.S. Department of Interior’s Office of Hearings and Appeals in 2012 was finally resolved on April 29, 2014, when the parties all signed a settlement agreement, available here.

“The settlement is a recognition that the community’s concerns are valid,” said attorney Justin Gundlach of the Institute for Public Representation at Georgetown University Law Center. “The community wants a relationship with OSM where their interests and concerns stand on an equal footing with Peabody’s. We feel this is a small step by the agency in that direction.”

The settlement followed two years of litigation and negotiations. The settlement agreement requires Peabody and OSM to do several things differently:

  • In its upcoming review of Peabody’s application for a revised permit, OSM must consider the effects of mining and of the Navajo Generating Station on the environmental, cultural, and historical resources of Black Mesa.
  • When it conducts the process required by the National Historic Preservation Act, OSM must give To’ Nizhoni Ani and Black Mesa Water Coalition a seat at the table for discussions and evaluation of the historical resources of Black Mesa. OSM must also evaluate the merits of placing Black Mesa on the National Register of Historic Places.
  • To monitor the mine’s impacts on the N-aquifer, OSM must now take physical measurements at well heads in the vicinity of the mine—this departs from the approach that the 2012 Permit Renewal would have allowed, which was not to measure anything, but to estimate water levels using a computer model designed by a Peabody-hired contractor.
  • When deciding what to do with lands damaged by mining, OSM must now evaluate using the site for renewable energy generation to power the Central Arizona Project.

This FACT SHEET contains further details.

The parties have not yet resolved their dispute over fees and costs, though the settlement caps recovery at just over $48,000 (roughly the amount of our clients’ costs in the case).

 

 

Posted in Environmental Law | Comments Off

The Sunlight Foundation and Campaign Legal Center File Complaints Against Eleven Broadcasters Flouting Political Ad Disclosure Rules

Today, the Sunlight Foundation and Campaign Legal Center, through IPR, filed complaints against eleven broadcasters for failing to disclose legally-required information about the political ads they ran in early 2014.

Stations must disclose information about political ads they run and the purchaser of those ads. This provides more transparency into political advertising, an area often shrouded in secrecy by groups with names like “American Encore” and “LIBRE Initiative.” Without disclosure of information like the chief executive officer/board of directors, and information about what candidates or issues the ad refers to, the public will be left in the dark. This is especially important given the Wesleyan Media Project’s recent finding that ad viewers give ads by outside groups more credence than ads by candidates.

IPR student Matthew Dulac investigated the online political files of many stations by going through the stations’ online public files, accessible at http://stations.fcc.gov. Through that research, we identified eleven broadcasters, among many more, that showed the breadth of violations. These violations span network affiliations, station owners, political parties, and areas of the country. For example: WDIV, an NBC affiliate in Detroit, among other things, failed to upload its documents in a timely manner–waiting over two months to upload the purchase contracts that disclose the rates, dates, and times the ad ran. WTVD, an ABC affiliate in Durham, NC, ran an ad that explicitly stated on-screen “Vote for Thom Tillis,” but did not disclose Tillis’ name, nor the election the ad referred to–the upcoming primary election in North Carolina.

Smaller stations will soon have to upload this information to the FCC-hosted online public file. Those stations, as well as the stations that already disclose online, must take their disclosure requirements seriously, not only because it is a legal requirement, but because disclosure of advertising funders is vital in a functioning and vibrant democracy.

Below is a list of links to the filings:

Posted in Communications and Technology Law | Comments Off

IPR files amicus brief on behalf of the American Thoracic Society in latest Supreme Court case to address application of the Clean Air Act to GHG emissions

At 5 a.m. on Monday, February 24, 2014, members of the Institute for Public Representation’s Environmental Section lined up outside the Supreme Court to secure seats at oral argument for Utility Air Regulatory Group v. EPA, Case No. 12-1146 (see photo at the bottom of this post). A month earlier, on January 28, 2014, IPR had filed an amicus curiae brief in the case on behalf of the American Thoracic Society (ATS). The brief urged the Supreme Court to affirm the D.C. Circuit’s ruling upholding EPA’s Timing and Tailoring Rules, which provide for regulation of greenhouse gas (GHG) emissions from stationary sources under the Clean Air Act’s (CAA) Prevention of Significant Deterioration (PSD) program. As the brief pointed out, to do otherwise would ignore the CAA’s clear instructions to EPA, abrogate EPA’s longstanding interpretation of the Act, and allow for more emissions of harmful air pollution.

ATS is an international educational and scientific organization that represents more than 15,000 health care professionals. ATS was founded in 1905 and works to prevent and fight respiratory disease around the globe through research, education, patient care, and advocacy.  The organization filed its amicus brief chiefly to explain the impacts of GHG emissions and climate change on Americans’ health—and their respiratory health in particular. ATS was also keen to explain why EPA’s approach to GHG regulation would reduce not only harms associated with GHG emissions, but also harms associated with emissions of other air pollutants long regulated under the PSD program.

The Regulations at Issue

The issue in Utility Air Regulatory Group has roots in the Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007), which found that GHGs “without a doubt” fall under the CAA’s “sweeping” definition of “air pollutant.” Once that decision resolved the question of whether the machinery of the CAA should apply to GHGs, EPA began applying the CAA’s various components to emitters of GHGs.

EPA took the first step in that process in 2009 with the issuance of the Endangerment and Cause or Contribute Findings. In those Findings, EPA concluded that GHGs’ presence in the atmosphere threatens the public health and welfare of current and future generations, and further, that motor vehicle emissions contribute to GHG pollution. Accordingly, in May 2010, EPA promulgated the Tailpipe Rule, which set GHG emission standards for light-duty motor vehicles, and, for the first time, limited GHG emissions pursuant to the CAA. Next, in April 2010, EPA anticipated regulations for stationary sources by issuing the Timing Decision, which explains that a pollutant becomes “subject to regulation” under the CAA when compliance is required with the emission standards for that pollutant.  For GHGs, that date was January 2, 2011—when EPA first required compliance with the Tailpipe Rule. However, because regulation under the PSD and Title V provisions is triggered when sources emit regulated air pollutants in excess of statutory thresholds (100/250 tons per year (tpy), depending on the pollutant), and because a great many sources have the potential to emit GHGs in excess of these thresholds, EPA also issued the Tailoring Rule. In that Rule, EPA explained that immediate application of permitting requirements to every stationary source that emits GHGs in excess of the 100/250 tpy threshold would overwhelm the agency’s capacity to regulate GHG emissions from any stationary sources; accordingly, EPA would instead phase in application of PSD and Title V requirements, starting with the largest GHG emitters.

Several states and regulated industries argued that EPA misconstrued the CAA, and petitioned for judicial review of EPA’s Endangerment Finding, Tailpipe Rule, Timing Decision, and Tailoring Rule. EPA defended its statutory interpretation on the grounds that it has, for over thirty years, understood PSD requirements to apply to any pollutant subject to regulation under the Act, and that it has always interpreted Title V (added to the CAA in 1990) to cover the same. The D.C. Circuit consolidated Petitioners’ challenges, and, in June of 2012 unanimously held that “1) the Endangerment Finding and Tailpipe Rule are neither arbitrary nor capricious; 2) EPA’s interpretation of the governing CAA provisions is unambiguously correct; and 3) no petitioner has standing to challenge the Timing and Tailoring Rules.” The court dismissed for lack of jurisdiction all petitions for review of the Timing and Tailoring Rules, and denied the remainder of the petitions. The full D.C. Circuit denied petitioners’ motion for rehearing en banc.

The Case

On October 15, 2013, the Supreme Court granted certiorari to answer the following, narrow question: Did EPA permissibly determine that its regulation of GHG emissions from new motor vehicles triggered permitting requirements under the CAA for stationary sources that emit GHGs? In its merits brief, EPA explained why the CAA not only authorizes, but obligates it to regulate GHG emissions from stationary sources now that GHGs are “subject to regulation” under Title II. EPA’s brief also cited precedent to support its authority to enforce the Act’s requirements “one-step-at-a-time.”  Petitioners (briefs available here) advanced several arguments to dispute EPA’s reading of the statute—among them, that Congress did not intend the PSD program to cover GHGs, and that the term “air pollutant” has different meanings in different sections of the Act, such that regulation under Title II does not compel regulation under the PSD program.

ATS’s amicus brief focused on the impacts of GHG emissions and global climate change on human health. ATS highlighted the scientific community’s consensus that mortality will increase due to the effects of anthropomorphic climate change; that children and the elderly will feel the effects most acutely; and that climate change will increase health risks for people suffering from a wide variety of diseases. ATS’s brief also explained how regulating GHG emissions from stationary sources would yield the co-benefit of reducing emissions of other air pollutants, and conversely, how adopting petitioners’ proposals would curtail EPA’s authority to regulate all non-criteria pollutants—not just GHGs.

Oral Argument

Both Petitioners and the Government faced a hot bench at oral argument (click here for the transcript). Petitioners maintained that “any air pollutant” has different meanings in different sections of the CAA, and that Congress did not intend for the PSD program to deal with GHG emissions. Justice Kagan noted that Petitioners’ briefs advanced four different interpretations of “any air pollutant,” and Justice Sotomayor—after pointing out that counsel for the Petitioners had just presented a fifth—asked why, in the face of such ambiguity, the Court should not defer to EPA’s reasonable interpretation.  According to Justice Kagan, “reading ‘any pollutant’ to mean any pollutant except greenhouse gases for reasons that have nothing to do with the purpose of the [CAA] is not a plausible alternative to EPA’s interpretation”—particularly in light of Massachusetts v. EPA. Justice Breyer questioned why EPA and the Court should not read an implicit exception into the Act, as Courts and agencies have in other situations.  He explained,

Statutes all the time have implicit exceptions, and not every statute has such exceptions written in words into it. . . . So what’s the big problem here that everybody seems to have, except me? I mean, what’s the big problem with writing an implicit exception so that you don’t regulate tiny little things which no one normally wants to have regulated?

Chief Justice Roberts questioned why the parties were arguing over the scope of EPA’s authority when, as a practical matter, one approach would address 83 percent of GHG emissions and the other 86 percent. Justice Alito presented the government with another challenge: if—as EPA argued—immediate application of the 100/250 tpy threshold to GHGs would make the PSD program “unrecognizable” to Congress, would not EPA’s goal to eventually apply the thresholds to GHGs achieve the same unrecognizable result? And if that was the case, how could EPA argue that its interpretation conformed to congressional intent? Justice Alito, along with several of the other Justices, also questioned whether EPA had authority to alter the CAA’s numerical thresholds for other pollutants; to this the government answered “yes.” When the Court asked for caselaw to support such authority, the government cited Morton v. Ruiz, 415 U.S. 199 (1974)—a case that, as Justice Kennedy pointed out, was absent from EPA’s brief. Justice Scalia opined that EPA should have adopted a statutory interpretation that avoided the “absurdity” requiring the Tailoring Rule.

As usual, Justice Thomas said nothing.  Justice Kennedy, often the “tie-breaker,”  offered few clues as to where he stood.  The Supreme Court is expected to issue its decision in June, 2014.

IPR braves the cold!

 
IPR braves the cold!
Pictured (left to right): Jessica Nyman, Jamie Bowers, Aislinn Shaul-Jensen, Lynne Dzubow, TJ Graven, and Stephen Ruotsi

 

Georgetown Law student Jessica Nyman helped draft this post.

 

Posted in Environmental Law | Comments Off

Andy Schwartzman Joins IPR’s Communications Practice

IPR is excited to announce that Andrew Jay Schwartzman will join the “Communications, Technology and the Public Interest” practice of the clinic as the Benton Senior Counselor.

AJSAndy brings to the clinic his vast knowledge and expertise in this field as former head of Media Access Project, a public interest law firm that brought many cases on which the broader public interest communications practice now relies. He has been a constant figure in the fight for civil rights and civil liberties in communications, and has worked tirelessly to ensure a thriving media ecosystem. He is currently on the FCC’s Advisory Committee on Diversity in the Digital Age, and teaches at Johns Hopkins University. The issues Andy will work on include media ownership, prison phones, and political advertising.

A more complete description of his extensive background can be found here. Georgetown’s press release is here.

Posted in Communications and Technology Law | Comments Off

IPR Reunion Happy Hour

A big thank you to IPR alums Erin Dozier, Corie Wright, Jenny Prime, Karen Henein, and Khaliah Barnes, for organizing a Reunion Happy Hour for former IPR students and fellows who worked in the communications section while at IPR and/or are currently working the in a communications-related area.  The well-attended event was held on January 30, 2014, at James Hoban’s Irish Bar.  Former students spanned the range from Sherille Ismail (F1980), who works at the FCC, to to recent graduate Amanda Burkett (F2013). Former fellows ranged from Karen Oneiji (formerly Edward, 1995-97), who also works at the FCC, to current fellow Eric Null.  If you are an IPR alum and did not receive an invitation to this fun, not to mention great-networking, event, we probably don’t have you correct email address.  Let us know by sending your contact information to nwp2@law.georgetown.edu.

Posted in Uncategorized | Comments Off

2014 Spring Semester Students

Spring 2014 IPR Students

Posted in Uncategorized | Tagged , | Comments Off

IPR Recovers Attorney’s Fees Following Its FOIA Victory Against the District of Columbia

Way back in 2009, IPR filed a Freedom of Information Act (FOIA) request with the District of Columbia on behalf of its client, Friends of McMillan Park (FMP). FMP opposes the District’s effort to convert McMillan Park – currently an open green space and the site of a historic water filtration system – into a private mixed-use development. They advocate for, at a minimum, preservation of publicly accessible green space at McMillan. IPR’s FOIA request sought documents and communications from the District that relate to the planned development.

When the District refused to supply documents in response to IPR’s request, IPR filed suit, beginning what became a protracted litigation. Over three years of motions practice, the presiding judge gave the District several opportunities to produce either documents responsive to IPR’s requests or a legally valid explanation for why those documents should be withheld. The District produced a fraction of what was sought, along with deficient explanations of why others should be withheld. Finally, in August of 2013, the judge reviewed the remaining disputed documents in camera and ordered the District to produce over 80 percent of what IPR initially sought. (Click here to access the judge’s order to that effect.)

IPR began working on a petition in September of 2013 to recover the fees and costs available to it as a prevailing party under the DC Freedom of Information Act. Before IPR filed that petition, however, the parties entered into settlement talks and ultimately agreed that the District would pay IPR $58,500 to resolve the matter. (Click here to access the executed settlement agreement.)

As this Washington Post article describes, plans for McMillan Park’s development have continued to pass regulatory hurdles, albeit slowly.

Posted in Environmental Law | Comments Off