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.