-----------------------~

IB\

AMERICAN BAR ASSOCIATION

H. Thomas Wells, Jr.
President

Defen~ing
lib~rty
Pursuing Justice

321 North Clark Street
Chicago, IL 60654-7598
(312) 988-5109
Fax: (312) 988-5100
E-mail: abapresident@abanet.org

January 15, 2009
Marlene H. Dortch
Office of the Secretary
Federal Communications Commission
445 12th Street, SW Room TW-A325
Washington, D.C. 20554
Dear Secretary Dortch and Commission Members:
Pursuant to Federal Communications Commission Rule § 1.1206, the American Bar Association
(ABA) submits the following ex parte presentation in support of a comprehensive resolution of
issues related to prisoner telephone services. Alternative Rulemaking Proposal Related to Inmate
Calling Services submitted by Martha Wright, et al. (Petitioners) on March 1, 2007, CC Docket No.
96-128. Specifically, the ABA writes to direct the Commission’s attention to a proposal filed on 29
October 2008 that sets forth a basis for fair and final resolution of the several complex issues under
consideration in this proceeding.
Description and Mission of the American Bar Association
The ABA is the largest voluntary professional association in the world. With more than 400,000
members, the ABA provides law school accreditation, continuing legal education, information
about the law, programs to assist lawyers and judges in their work, and initiatives to improve the
legal system for the public.
The Mission of the American Bar Association is to be the national representative of the legal
profession, serving the public and the profession by promoting justice, professional excellence and
respect for the law.
Statement of Interest
For over twenty-five years, the ABA steadfastly has maintained that any limitations placed on
“prisoners’ communications should be the least restrictive necessary to serve the legitimate interests
of institutional order and security and the protection of the public.” 1 Indeed, as recently as 2005,
the ABA House of Delegates voted unanimously to adopt a resolution that provides:
RESOLVED, That the American Bar Association encourages federal, state,
territorial and local governments, consistent with sound correctional management,
law enforcement and national security principles, to afford prison and jail inmates
reasonable opportunity to maintain telephonic communication with the free
1

ABA Standards for Criminal Justice, Legal Status of Prisoners, Standard 23-6.1. (a)(1981)(communication rights).

community, and to offer telephone services in the correctional setting with an
appropriate range of options at the lowest possible rates.
By letter dated January 31, 2006, the ABA wrote U.S. Representative Bobby L. Rush to
express strong support for legislation to amend the Communications Act of 1934 to require
the Federal Communications Commission to consider, inter alia, prescribing prisoner
telephone rates. In the following year, we wrote on May 1, 2007 to encourage the Federal
Communications Commission (FCC) to “take meaningful action to address excessive inmate
phone service rates and ensure the broadest possible range of calling options” in the Wright
Proceeding.
The subject presented in the Alternative Wright Petition and the broader issues implicated in these
proceedings are directly related to ABA policy and have a potentially adverse impact on pretrial
detainees and prisoners across the country, as well as their families.
Comments of the American Bar Association Regarding the Proposal
For a Comprehensive Resolution of Issues Related to the Alternative Wright Petition
As described by the ABA in its letter of May 2007, telephone access is increasingly important in the
operation of correctional facilities (as a control mechanism), in the lives of prisoners 2 and their
families, in the capacity of prisoners to confer with counsel, 3 and in the ability of prisoners to
maintain ties with their communities, maximizing the chance of a successful transition after release
from prison.
However, in the past 20 years, practices have developed in the prison telephone industry which raise
questions of propriety of correctional professionals, when they enter into non-competitive, profitsharing contracts with telephone providers that provide for extremely high-cost telephone service
for prisoners, 4 a vulnerable and impoverished segment of society.
2

Approximately 40% of the national prison population is functionally illiterate. The Center on Crime, Communities &
Culture, Education as Crime Prevention: Providing Education to Prisoners, Research Brief: Occasional Paper Series 2
(Sept. 1997).
3
Courts have long recognized that the ability to communicate privately with an attorney by telephone is essential to the
exercise of the constitutional rights to counsel and to access to the courts. Murphy v. Waller, 51 F.3d 714, 718 & n.7
(7th Cir. 1995)(“Restrictions on a detainee’s telephone privileges that prevented him from contacting his attorney
violate the Sixth Amendment right to counsel. . . . In certain limited circumstances, unreasonable restrictions on a
detainee’s access to a telephone may also violate the Fourteenth Amendment.”); Tucker v. Randall, 948 F.2d 388, 39091 (7th Cir. 1991)(denying a pre-trial detainee telephone access to his lawyer for four days would implicate the Sixth
Amendment); Johnson-El v. Schoemehl, 878 F.2d 1043, 1051 (8th Cir.1989)(holding that inmates’ challenge to
restrictions on the number and time of telephone calls stated a claim for violation of their rights to counsel); Miller v.
Carlson, 401 F. Supp. 835 (M.D. Fla. 1975), aff’d & modified on other grounds, 563 F.2d 741 (5th Cir. 1977)(granting
a permanent injunction precluding the monitoring and denial of inmates’ telephone calls to their attorneys). Courts have
also held that, when a prison’s collect call-only policies interfere with the ability of incarcerated people to communicate
with their lawyers, correctional officials may be in violation of the Constitution). See, e.g., In re Ron Grimes, 208 Cal.
App. 3d 1175, 1178 (1989)(holding that switch by Humboldt County (California) Jail from coin operated to collect-only
calls violated the constitutional rights of people incarcerated there because the public defender’s office, other county
departments, and some private attorneys did not accept collect calls).
4
“Commissions,” a profit-sharing arrangement between prison phone service providers and correctional facilities for
exclusive rights to operate phone systems, create monopolies and fuel ever-increasing fees and rates for consumers.
“Commissions” in some jurisdictions now reach 60% of revenue, a cost that is born by those who pay for prisoner
phone calls. Collect-only policies ensure that such calls are billed at the highest calling rate. Three-way call detection

The ex parte proposal for a comprehensive resolution of issues related to the Alternative Wright
Petition is directly related to ABA policy. The pernicious practices described elsewhere in this
presentation have an adverse impact on pretrial detainees and prisoners, impair the capacity of
counsel to represent their incarcerated clients, and, for the families of prisoners, are extortionate.
A Comprehensive Resolution of These Abuses is Required
According to a recent report filed with the FCC on behalf of seven prison phone service providers,
the “benchmark” rates demanded by petitioners in this proceeding are readily achievable, given a
mechanism for service providers to recoup the costs of calls of short duration. 5 Thus, the FCC
should establish a comprehensive, fair rate (derived from the lower rates outlined in the Wood
Report) for all intra-state and inter-state prisoner collect, pre-paid, and debit telephone calls that
covers legitimate costs, provides a reasonable rate of return to prison phone providers, eliminates
“commissions,” forecloses alternative means to unjustifiably inflate the cost of prisoner phone calls,
and defers to state public service commission’s to address requested cost adjustments – all toward
the end of providing fair and reasonable rates for the widest possible range of prisoner-initiated
telephone calls.
In this way, the FCC can fairly and definitively resolve these issues, fulfilling its mandate to
regulate telephone services for all consumers throughout the 50 states. The ABA urges the
Commission to adopt such an approach promptly in the interest of the public.
Respectfully submitted,

Thomas M. Susman
Director
cc:

Chairman Kevin J. Martin
Commissioner Jonathan S. Adelstein
Commissioner Michael J. Copps
Commissioner Robert M. McDowell
Commissioner Deborah Taylor Tate.

often results in an improper disconnection, requiring the caller to inquire first-minute chares (including “set-up” fees) a
second time. Moreover, additional fees are billed to consumers who wish to establish pre-paid accounts; charges are
assessed to process customers’ payments,’ and funds held in accounts without activity for as little as 3 months are
confiscated. These “tack-on” charges dramatically increase the cost of communicating with incarcerated loved ones,
but they do not appear as a part of the cost of the call reflected on a telephone bill. Such charges should be prohibited.
5
See, Don J. Wood, “Inmate Calling Services – Interstate Call Cost Study” (filed 15 August 2008)(hereafter, Wood
Report); see also cost analysis at pp. 15 – 18, Michael S. Hamden Ex Parte Proposal - Martha Wright, et al.(29 October
2008)(hereafter, Hamden Proposal).