FCC’s Prison Payphone Rates Stayed on Appeal, Likely to Be Struck Down

Today, the D.C. Circuit stayed the rate-of-return regulations the Federal Communications Commission adopted last summer to lower interstate calling rates for prisoners in state prisons. Thus, until the (expedited) appeal is resolved, the FCC will not be able to enforce its requirement that “All rates charged for Inmate Calling Services and all Ancillary Charges must be based only on costs that are reasonably and directly related to the provision of ICS,” but the Commision will be able to enforce its caps on total charges. The following quote can be attributed to Berin Szoka, President of TechFreedom:  

Today marks the beginning of litigation that the FCC will probably lose. The agency’s goal was a noble one: the FCC should have acted on petitions to lower calling rates for prisoners a decade ago. But rate-of-return regulation was not clearly proposed in the Commission’s 2012 NPRM, so basic administrative law required the FCC to issue a Further Notice of Proposed Rulemaking to seek comment on this idea and further develop the factual record about the need for, and likely effects of, this approach before issuing this Order. Most ironically, artificially low caps might simply mean the end of inmate calling altogether in smaller jails.

Instead, FCC Commissioner Mignon Clyburn quickly announced a public workshop on the issue in July, then forced a vote on the final rule less than a month later. She gave other Commissioners just two weeks to see a first draft of the order, and then circulated a substantially revised second draft less than forty-eight hours before the vote at the FCC’s August Open Meeting. Rather than letting the matter drag out until after the Senate had confirmed Tom Wheeler as Chairman, Clyburn rammed through an order that seemed to offer the lowest possible calling rates — never mind the legal questions or practical consequences.


But if the court ultimately strikes down the order, it will all have been for naught: prisoners and their families will have to wait years more for the FCC to find a legally defensible way of lowering their calling costs. The saddest part is it didn’t have to be this way: all five Commissioners enthusiastically supported the FCC’s NPRM, and Republican Commissioner Ajit Pai proposed a compromise that would have been easy to defend in court and would not have shut off service in smaller jails: two different caps, one for prisons and one for jails.

The best prisoners and their families can hope for now is that the court resolves this matter quickly and, if the FCC loses, Chairman Wheeler does what Clyburn refused to do: reach across the aisle and work out a solution that won’t get tied up in court or end up hurting the very people it’s supposed to help.

Szoka is available for comment at media@techfreedom.org. TechFreedom filed FCC comments in March on this issue, and issued statements on both the August workshop and the FCC’s vote to issue this order.

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