FCC Tweaks Prison Call Caps. Could Help Legal Challenge

July 22, 2016

The FCC is making tweaks to its effort to reduce the cost of prison phone calls as it tries to navigate a legal challenge and salvage a policy it's championed as protecting vulnerable families.

The agency is proposing to slightly increase the allowed rates from what it set in the fall. Prison reform advocates aren't happy with the idea, but say it’s clear the FCC needs to make some changes to give the reforms a chance of surviving a lawsuit mounted by inmate calling service providers and law enforcement groups.

“They’re trying to ensure that some reforms go forward,” said Alex Friedmann, associate director of Human Rights Defense Center, which has pushed for lower prison call rates. “You can get part of something or 100 percent of nothing. ... We understand the dynamic. We don’t like it, but we understand it.”

In a party-line vote in October, the FCC approved rate caps for local and long-distance calls of 11 cents per minute in prisons, and 14 to 22 cents per minute for jails. The agency also approved rules limiting ancillary service charges. Democratic Commissioner Mignon Clyburn, who has championed the reforms, said at the time that a "predatory" market had led to steep rates and fees for families trying to keep in touch with incarcerated loved ones.

But inmate calling service providers like Global Tel*Link, Securus Technologies and CenturyLink sued to block the rates, saying the FCC set them below the cost of doing business and failed to ban the commissions that providers pay to correctional facilities to win contracts. The D.C. Circuit Court of Appeals in March granted their request to pause the new rates pending resolution of the case. Such a request is rarely granted, and was widely viewed as a sign the rate caps are in danger.

“The reason for the FCC’s rather rapid change of position is they must be concerned they are going to lose all or part of the appeal if they make no changes — or at least it seems likely that is the advice their lawyers are giving them,” said James Bradford Ramsay, general counsel for the National Association of Regulatory Utility Commissioners, which is also appealing the FCC’s rate caps order.

The FCC’s new proposal, to be voted on at the agency's Aug. 4 meeting, would slightly increase the rates, to 13 cents per minute for prisons, and to a range from 19 to 31 cents per minute for jails, depending on the size. The new rates are meant to address the costs that jails and prisons bear in providing access to calling services, such as a sheriff’s deputy who has to monitor a call at a small jail, the FCC says.

The agency is acting on a January petition from prisoner civil rights attorney Michael Hamden, whose ultimate goal was to prod the FCC into banning site commissions, the payments calling providers make to correctional facilities to win contracts that are a main factor in driving up the call rates.

“Simply increasing the rates doesn’t seem to accomplish anything for prisoners and their families, and it doesn’t clarify the relationship between correctional facilities and [inmate calling service] providers,” Hamden said in an interview.

FCC Chairman Tom Wheeler and Clyburn said in a fact sheet that the new proposed rate increases will ensure that families of inmates will be charged “reasonable rates” for local and long-distance calls. But the FCC isn't planning to ban site commissions in its upcoming order.

“Let’s remember when we started inmate calling reform efforts, it was not unheard of that a 15-minute prison call would cost as much as $21," a Clyburn spokesman said in a statement. "That same call, under the order on circulation, would cost as little as 75 cents. What we are doing here is providing a national backstop for interstate and intrastate rates that allows even the highest cost providers to recover their costs — both those incurred by the provider and the facility."

It’s unclear if the tweaks are going to be enough to fend off the appeal. The FCC asked the D.C. Circuit to pause the case until after the commission votes, arguing “the nature and scope of this litigation will be substantially altered” if the new caps are adopted.

Several inmate calling service providers declined comment, as did the Oklahoma Attorney General’s Office, which led an appeal with other states and sheriff's associations.

Representatives with Securus, one of the providers, met with Clyburn's office in late June to discuss a compromise on rates and fees, according to an ex parte filing with the FCC. "Securus reiterated the request ... that the commission consider the adoption of a per-minute additive rate to compensate jails," the company wrote in the filing.

Calculating rates based on new data the agency learned through litigation could help improve the FCC’s position, said attorney Andrew Jay Schwartzman, who represents several prison phone reform advocates in the case.

“Even if the court decides that there are problems with the rate caps, and I don’t think they will in the end, certainly if the commission goes through with its plan to tweak the rates to adjust them upward for the smaller institutions, then the greatest exposure the commission has might be whether it needs to fiddle again with the rate caps as opposed to getting the whole thing tossed out,” Schwartzman said.