P R I S O N

Legal News
VOL. 18 No. 1
ISSN 1075-7678

Dedicated to Protecting Human Rights

January 2007

Ex-Communication: Competition and Collusion in
the U.S. Prison Telephone Industry
by Steven J. Jackson

T

he prison communication industries occupy a large and
significant blind spot within the literature
of critical communication scholarship
and the social sciences more generally.
Professional arguments around crime,
punishment and the American prison
system have dealt with communication
issues as a footnote, if at all.
For their part, communication scholars have largely ignored the question of
prisons, neglecting almost entirely their
unique communicative forms, institutions, and industrial structures. But as
historians and social theorists have come
to appreciate, prisons often mirror, in

Inside
From the Editor

12

Los Angeles Jail Problems

14

Wisconsin DOC Medical Suit

20

Prison Struggle in Brazil

22

Washington Health Care Problems

25

Illinois Parole Settlement

28

Vienna Convention Suits

30

Indigent Defense Settlement

32

New Mexico Strip Searches

34

Mississippi Beating Verdict

37

BOP Property Suit Allowed

40

News in Brief

42

Colorado Ad Seg Suit

44

Prison Legal News

uncanny and revealing ways, the societies
that produce them. So too in the more
specific institutional world of correctional
communications, whose distinctive characteristics speak to pressing issues in the
field of communication writ large: the
dangers and abuse of monopoly power;
the attendant need (and frequent failure)
of regulation; the sometimes dubious
marriage of state and corporate interest;
and ultimately the role of social movement
and citizen mobilization in moderating
the worst abuses of state and corporate
power.
This article tells a small but important
part of the larger prison communication
story: the rise in the 1990s of a deeply
inequitable pricing scheme that has seen
the cost of prisoner phone calls skyrocket,
even as rates available to businesses and
consumers on the outside world have
fallen dramatically. The story takes place
under the unsettling shadow of two of the
more consequential social movements of
the past twenty-five years: the unparalleled explosion in national incarceration
rates, and the apparent triumph of deregulatory philosophies in the national
telecommunication arena. Driven by a
combination of social, economic, and
ultimately political factors, the national
prison “market” has grown faster than at
any time in its history.
Enticed by a separate combination
of institutional, fiscal, and political opportunities, the prices charged prisoner
telephone calls vis-à-vis those available
in the outside world have risen no less
dramatically. Since the late 1980s, county,
state, federal and private detention facility

1

officials have exploited their monopoly
sourcing power to enter into what amount
to profit-sharing arrangements with the
major telephone companies, offering
exclusive service rights in exchange for
exorbitant commissions, calculated as
a percentage on revenue or profit, paid
back to the state. By the mid-1990s, the
price of a single fifteen-minute in-state
call had topped $20 in some jurisdictions,
with out-of-state fees spiking to as high as
two dollars per minute (“When Johnny
Calls Home,” 1999; Wunder, 1995). The
net result is a sharp rise in the cost of
maintaining family and community connections across prison walls – a cost borne
most immediately by the individuals directly affected, but ultimately by society as
a whole. This article traces the origins of
this uniquely pathological outcome, and
details the protests and challenges that
have begun to be mounted against it.

Growing the Market
Present trends in the prison phone
industry must be placed against the
backdrop of a broader and longer history of American penology, the most
salient feature of which has been a massive socially- and racially-unbalanced
expansion over the past thirty years.
The roots of the national revolution in
crime and punishment can be traced in
part to responses to the economic crises,
social unrest and urban disturbances of
the 1960s and 70s. The perceived failure
of law enforcement efforts vis-à-vis the
anti-war, civil rights and black power
movements of the time prompted major
investments and a major rethinking of

January 2007

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PUBLISHER
Rollin Wright
EDITOR
Paul Wright
ASSOCIATE EDITOR
Alex Friedmann
EXECUTIVE DIRECTOR
Donald W. Miniken Jr.
COLUMNISTS
Mumia Abu Jamal, Denise
Johnston, Daniel E. Manville,
Kent Russell
CONTRIBUTING WRITERS

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Gary Hunter, David Reutter,
Mike Rigby, Sam Rutherford,
Roger Smith, Silja J.A. Talvi,
Bob Williams & Mark Wilson

LAYOUT

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Communications

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Prison Legal News

Ex-Communication (cont.)
the nature of domestic policing efforts,
blurring the line between international, federal and local jurisdictions,
introducing both new players (the
federal Law Enforcement Assistance
Administration, the Drug Enforcement
Administration) and new techniques
(helicopter surveillance, SWAT teams,
community policing, advanced command-and-control communications, the
FBI’s computer-based National Crime
Information Center) to the landscape
of domestic law enforcement. These
macro-scale political motivations were
joined at the local level by the real and
frequently destructive consequences
of crime and drugs on working class,
inner city and impoverished neighborhoods, turning the effort to police, or
‘reclaim,’ urban neighborhoods into a
political and moral project of considerable complexity.
Such revolutions in policing both
reflected and supported contemporary
legislative developments. The 1968 Omnibus Crime Control and Safe Streets
Act marked the first serious federal foray
into the previously local jurisdiction of
law enforcement, introducing new lines
of federal funding, training, and institutional support, and carrying among its
provisions an erosion of the recently-won
Miranda rights of suspects along with
previous restrictions on domestic wiretapping and other surveillance activities.
Incremental reforms throughout the early
1970s, along with new laws against drug
abuse and organized crime, further loosened restrictions on the activities of law
enforcement officials and federal prosecutors. Following a post-Watergate reprieve
lasting through the later 1970s, the Comprehensive Crime Control and Sentencing
Reform Acts of 1984 introduced new and
wide-ranging provisions, with stricter
sentencing laws (including mandatory
minimums for many categories of drugand gun-related offences) and new search,
seizure and forfeiture powers.
In the late 1980s, additional federal
legislation was passed, enshrining the
basic legislative framework for the federal
war on drugs, curtailing probation and
suspended sentences, and introducing
harsh mandatory minimums for the sale
(and in some cases the mere possession)
of illicit drugs. Federal legislative developments have been matched (and in some

3

cases exceeded) by parallel ‘tough-oncrime’ legislation at the state level.
In 1973, New York introduced its
Rockefeller Drug Laws, imposing severe
mandatory minimums for minor sale and
possession offences. In 1994, a popular
ballot initiative brought in California’s
controversial “Three Strikes Law,” requiring lengthy and mandatory prison terms
for repeat offenders. So-called truth-insentencing laws have been introduced
federally and in several states, stipulating that convicted felons serve a fixed
minimum percentage of their sentence
(typically 85 percent) before being eligible
for parole. In many states during the 1980s
and 90s prison alternatives and re-entry
programs (including parole, probation,
counseling, psychiatric care, mandatory
treatment, rehabilitation, and early-release programs) were being de-funded,
rolled back, outsourced, and in some
cases, terminated.
These and other changes have fundamentally altered the traditional balance
of prosecution, defense and judicial
functions within the American legal
system. The introduction of mandatory
minimums and longer prison terms has
moved the prosecutor’s unchecked charging power to the center of the criminal
justice process, controlling the schedule
and process of prosecution-defense negotiation, and effectively setting the terms
of imprisonment. At the same time, massively overworked and under-resourced
public defenders and court-appointed
attorneys have faced funding reductions
and workload increases that make adequate investigation of cases and effective
client counseling virtually impossible.
Meanwhile, minimum sentencing laws
and the expansion of the plea-bargaining mechanism have narrowed the
traditional discretion accorded judges
in tailoring punishment to fit the unique
circumstances of each crime. As a result, “assembly-line justice facilitated by
powerful prosecutors, helpless defense
attorneys, and increasingly powerless
judges now characterizes the system that
determines whether a person will lose his
liberty or even his life.”
The most immediate consequence of
these shifts has been a sharp and sustained
explosion in the national rate of incarceration lasting through the 1980s and
90s. From a figure of less than 320,000
at the start of the prison boom in 1980,
the number of persons serving time in
state and federal custody had more than

January 2007

Ex-Communication (cont.)
quadrupled to nearly 1.47 million by 2003.
Adding in those awaiting trial or serving
short-term sentences in county jails, the
total incarcerated population nationwide
grew from slightly more than 500,000 to
well over 2 million, for a national incarceration rate of 702 per 100,000 (Bureau
of Justice Statistics, 2005). Expanded to
include individuals serving time on parole
or probation, the total population under
state supervision by 2003 had reached
6.9 million, or approximately 3.2% of the
adult U.S. population (Bureau of Justice
Statistics, 2005).
Moreover, these aggregate figures
hide an even more insidious pattern of
racial inequity. At the end of 2002, black
males of all ages were more than five
times more likely than white, and three
times more likely than Hispanic males,
to be serving time in a state or federal
prison. Multiplied by inequities in law
enforcement, arraignment, probation,
parole, and prison policy, by the early
2000s, approximately two-thirds of all
U.S. prisoners were members of racial or
ethnic minorities (Sourcebook of Criminal
Justice Statistics, 2002; The Sentencing
Project, 2000). In addition to the longterm effects of incarceration on family
members and communities, new legislative
measures passed in the early 1990s have
banned certain categories of offenders
(principally felons and many classes of
drug-related convictions) from eligibility
for many basic rights and social services,
including welfare benefits, loans for higher
education, and voting.
This explosion in numbers has fed
and been fed by an unprecedented boom
in prison construction that, in scale and
pattern, has significantly altered the
geography of American crime and punishment. Between 1980 and 2000, more
than $7 billion per year was spent on the
construction of new prisons; between
1990-1995 alone, 213 institutions were
added to the state and federal systems,
among these a high proportion of oversized and high security “super-max”
facilities (Bureau of Justice Statistics,
1995). This massive system expansion
has followed the contours of a distinctive
spatial logic, with new prisons targeting
economically depressed and geographically remote areas whose local boosters
have competed aggressively to attract the
jobs and investment widely believed to

January 2007

come with the construction and operation
of a new facility. Through much of the exindustrial and post-Cold War north and
rural south, prison building emerged in
the neo-liberal 1980s and 1990s as a form
of backdoor Keynesianism, the next (and
last) best thing to a regional industrial
policy. This activity has further skewed
the already unbalanced geography of the
American prison system, as aging urban
facilities are taken off-line and replaced by
a new class of institutions located far from
national population centers.1 By 2003, the
sentence-miles of the American penal system, measured as a combination of time
and distance served, reached an all-time
high. Punishment had been in-shored.
Geographic trends within the state
and federal systems have been exacerbated
by the concurrent return of the private
prison industry, growing up around
the edges and cracks of an increasingly
overburdened public system. 2 Lifted by
the same tide of mass incarceration, and
boosted by a parallel ideological shift
favoring the “natural” efficiency of the private sector, private prisons were embraced
across much of the country as a promising
(and profitable) solution to the problem
of the corrections explosion. Beginning
with tentative inroads at the margins of
the correctional mainstream in the early
1980s (immigration detention centers,
minimum security and treatment facilities), by the mid-1990s industry leaders
such as Wackenhut and the Corrections
Corporation of America were competing
aggressively over local, state and federal
contracts for facilities of every type and
level. Between 1995 and 2000, the size
of the private prison population grew by
more than 450%, from 16,663 to 93,077
(Bureau of Justice Statistics, 2000). By
2000 more than 264 private facilities
were operating under contract with the
state and federal governments, and the
percentage of privately-housed prisoners
nation-wide stood at 6.1% (Sourcebook
of Criminal Justice Statistics, 2002).3 The
privatization of prisons has furthered
the above-noted trend towards in-shoring, with states now routinely sending
prisoners of all offense categories to
serve their time in out-of-state facilities.
Industry-leader Corrections Corporation
of America, for instance, maintains a geographic stronghold in Tennessee, housing
prisoners from as far afield as Montana,
Hawaii and Puerto Rico.
Driven by all these factors – the dramatic expansion in prison population,

4

the increasing distance between places
of crime, conviction and punishment
(and thus a greater need for long-distance methods of outside contact), and
a growing awareness of the previously
staid prison sector as a site for dynamic
and creative profit-making – the prison
telephone industry emerged during the
1980s and 90s as an important and distinctive sub-market within the national
telecommunication industry as a whole.
By the 1990s, the prison telephone sector
had grown into a billion dollar market.
Companies – and states – wanted a piece
of the action.

Building the Industry
The history of prison telephone
access in the U.S. is itself of relatively
recent vintage. Until the early 1970s,
prisoners of the state and federal prison
systems were limited to one collect call
every three months, granted at the discretion of prison officials in response to
a formal petition process. In 1973, the
federal Bureau of Prisons called for an
expanded telephone access program that
would “permit constructive, wholesome
community contact” while addressing security concerns through rudimentary call
monitoring capabilities (Department of
Justice, 1999). Citing contemporary recidivism studies showing a strong correlation
between weakened family and community
bonds and the likelihood of re-offense,
federal prison officials argued that a more
liberalized regime of telephone access
could help to maintain prisoner-community connections that were valuable
to the rehabilitation process. State prison
departments throughout the country
generally followed suit over the course of
the 1970s, installing widespread access to
commercial payphone service as a regular
feature of American prison life.
Until 1984, the fledgling prisoner
telephone market remained the exclusive
purview of AT&T, and rates for operator-assisted collect calling – the only form
of service available to prisoners – kept
pace with those for similar services in the
outside world. As with other segments
of the American telecommunications
market, the 1984 Consent Decree authorizing the break-up of AT&T threw this
long-standing equilibrium up for grabs,
setting off a succession of market entries
and FCC rules-makings that substantially
altered the architecture of American telecommunications. Changes in the prison
phone sector were quickly caught within

Prison Legal News

the deregulatory wind blowing through
the industry as a whole, with piecemeal
and interim steps away from the AT&T
monopoly enacted throughout the latter
half of the 1980s. A more focused Prisoner
Services Order issued by the Federal Communication Commission in the early 1990s
sought to eliminate a variety of vestigial
barriers to competition in the prison
phone market, establishing a nominally
pro-competitive regulatory framework
governing the relation between new
entrants and incumbent local exchange
carriers – the Regional Bell Operating
Companies formed in the wake of the
AT&T break-up – upon whose larger
network would-be competitors continued
to rely.
First into the newly-liberalized market were AT&T rivals MCI and Sprint,
followed closely by a series of dedicated
start-ups. In 1989, MCI introduced its
‘Maximum Security’ service, part of
a larger and concerted push into the
government and institutional services
market. By 1995, the company held monopoly or near-monopoly contracts for
prison service in California, Ohio, Connecticut, Virginia, Wisconsin, Missouri
and Kentucky. The reorganized AT&T’s

Prisoner Services Division managed to
hold on to detention markets in New
Jersey, Pennsylvania, Michigan, New
Mexico, Mississippi and Washington,
followed by tier-two players GTE (Washington DC, Hawaii, Indiana, parts of
the Michigan contract), Sprint (sharing
Michigan, also Nevada) and US West
(New Mexico, Idaho, Oregon, South Dakota, and Nebraska). In most instances,
local and long-distance contracts were
awarded separately, with long-distance
provisions split between the majors
and the former regional bell operating
companies holding the majority of local
contracts: Bell Atlantic in Maryland,
Delaware, and West Virginia; NyNex in
Massachusetts; Southern Bell in North
and South Carolina; and South Central
Bell in Alabama and Mississippi.
In addition to these familiar names,
several niche players have sought to establish a foothold in the lucrative prison
market. North Carolina-based Pay-Tel
Communications moved aggressively
into the market in the late 1980s, winning
service deals in North and South Carolina in 1989, and subsequently adding
contracts in Tennessee, Georgia, Virginia
and Florida. Other post-divestiture com-

petitors have sprung up in the specialized
prison equipment market, selling technologies, services and security features
designed to correctional specifications.4
Several of these companies attempted to
make the leap from equipment supplier
to stand-alone service provider. Longtime equipment supplier T-NETIX, for
instance, won exclusive service rights to
the Indiana system in 2001, adding to
its previous contracts in New Mexico
and Pennsylvania. Competitor Global
Tel*Link was awarded the contract for
prison facilities in Louisiana. Like the
traditional majors, newcomers like PayTel have sought to compete by offering
service packages that “best take advantage
of pending regulatory changes to enhance
revenues and increase our clients’ commissions” (http://www.paytel.com/backgrd.
html). By 2000, competition in the prison
phone industry had shrunk appreciably,
with MCI solidifying control in the crucial California and New York markets,
and adding contracts in Florida, Illinois,
and Georgia. Sprint had strengthened its
hand considerably, landing a major long
distance contract with the Federal Bureau
of Prisons, along with contracts in the important state markets of Georgia, Florida,

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Prison Legal News

5

January 2007

Ex-Communication (cont.)
Michigan and South Carolina.
Whatever their merits in the larger
telecom world, incentives to competition
within the prison telephone industry have
proven fundamentally perverse. Armed
with a uniquely effective monopoly
sourcing power, county, state and federal
officials have entered into what amount to
profit-sharing agreements with telephone
service providers, exchanging exclusive
service rights for large commissions paid
back into state funds.5 Under such conditions, the incentives of price competition
have worked in precisely the opposite
direction, with companies offering the
highest bids (in terms of rates and commissions) routinely awarded contracts,
the costs of which are passed on to the
(literally) captive market. The net result
of deregulation and competition in the
prison phone industry, then, has been a
dramatic rise in prices – even as consumer
rates available elsewhere in the American
telecommunications landscape have plummeted.
By the mid 1990s, this perverse
competition had driven prison phone
commissions and rates to new heights.
According to an American Corrections
Association survey published in 1995,
nearly 90% of detention systems nation-wide received a percentage of the
profits derived from prisoner-placed
collect calls, ranging from 10-55% of
gross revenues. For states struggling to
keep up with the costs of the incarceration explosion described above, phone
revenues represented a welcome and
multi-million dollar source of income.
According to the results of the 1995 ACA
survey, based on state self-reporting,
Ohio was making $21 million annually

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January 2007

in prison phone commissions, while New
York brought in $15 million, California
$9 million, Florida $8.2 million, and
Michigan $7.5 million. Nationwide, the
32 state departments of correction and
24 city and county jails surveyed – a far
from complete count of the national total
– reported phone commission revenues
in 1994 exceeding $100 million. Such
windfall profits for the states (along with
the undisclosed profits of the telephone
companies themselves) have been accompanied and enabled by a dramatic rise in
the price of prison collect calling. As of
1994, respondents to the ACA survey
reported initial connection fees running
between one and three dollars, followed
by per minute charges ranging as high as
ninety cents for local calls, and $2.25 for
long distance. Fifteen minute phone calls
(the institutionally-allowed maximum)
billed at $20 or more were routine, while
monthly phone bills for family members
receiving prisoner collect calls climbed
into the several hundred (and in some
cases, thousand) dollar range.
This situation has met so far with a
general absence of regulatory oversight.
In 1996, Congress instructed the FCC,
under Section 176 of the revamped Telecommunications Act of 1996 (TCA), to
revise the rule and policies governing the
national payphone industry in support
of the TCA’s stated goal of ensuring a
“pro-competitive deregulatory national
framework.” In its September 20, 1996
Report and Order, the Commission
observed that low cost and technology
barriers to entry made the payphone sector well-suited to competition, and noted
that, “a large number of firms, both large
and small, have entered the industry since
it was initially opened to competition
in 1984, and those firms have provided
competition in at least some segments
of the payphone market” (FCC, 1996,
para. 12). The Report did, however, hold
open the possibility of three scenarios in
which the benefits of competition might
not be realized: the potential conflict of
interest experienced by local exchange
carriers offering their own payphone
services at the same time as providing the
underlying service for payphone competitors; cases of inadequate disclosure, in
which consumers are unaware of rates
for coin-operated or operator-assisted
service prior to placing calls; and finally,
the existence of “certain locations where,
because of the size of the location or the
caller’s lack of time to identify potential

6

substitute payphones, no ‘off premises’
payphone serves as an adequate substitute for an ‘on premises’ payphone”
(FCC, 1996, para. 14).
The report goes on to note that:
“In such locations, the location provider can contract exclusively with one
PSP [payphone service provider] to establish that PSP as the monopoly provider of
payphone service. Absent any regulation,
this could allow the PSP to charge supracompetitive prices. The location provider
would share in the resulting ‘locational
rents’ through commissions paid by the
PSPs. To the extent that market forces
cannot ensure competitive prices at such
locations, continued regulation may be
necessary (FCC, 1996, para. 16).”
Despite this acknowledgement of
the market dynamics driving the prison
phone escalation, the Commission failed
to address or act to remedy the large and
growing prisoner charges already well in
evidence. Where it touched the matter at
all, it argued that compensation rates in
the prisoner payphone industry should be
left to the discretion of detention officials,
along with contractual arrangements
between location owners and service
providers.
A second potential regulatory opening came with 1998 FCC investigations
into the issue of “billed party preference,”
i.e. the question of whether recipients of
collect calls from payphones should be
able to select from a competitive range
of service providers, or whether that right
could be ‘sold’ by location owners to a
single monopoly provider. In this case, as
anticipated in the 1996 Report and Order,
the price benefits of competition celebrated under the 1984 AT&T divestiture and
1996 Telecommunications Act once again
cut the other way. A separate statement by
Commissioner Gloria Tristani attached to
the ruling acknowledged:
“Unfortunately, operator services
from payphones are a rare example of
competition leading to higher prices for
consumers. When more OSPs [Operator
Service Providers] compete for the right
to serve a particular location, they must
pay higher commissions to the location’s
owner. OSPs often recover those higher
commissions from consumers in the form
of higher calling charges (FCC, 1998, addendum).”
Nevertheless, while the unique circumstances of prison calling were recognized
in the preamble to the proceedings, the
FCC’s ultimate remedy to the problem

Prison Legal News

– rate disclosure prior to connection – ignored the core issue of price, particularly
in settings (like prisons) where this sort of
“buyer beware” solution proved impractical. Moreover, the Commission pointedly
excluded concerns of high prisoner phone
tariffs from the general findings of the
billed party preference decision, bending
to the predictable arguments advanced by
MCI, AT&T, Sprint and a variety of other
industry players that expense, security and
penological concerns unique to the detention setting overbalanced the potential
benefits to be derived from competition
or rate caps.
In the face of this studied regulatory indifference, commissions, prices and
profits from the prison phone industry
continued to rise through the latter half of
the 1990s. By 2000, commissions on prisoner calling had reached new levels, with
California at 44%, Georgia 46%, South
Carolina 48%, Illinois, Ohio and Pennsylvania 50%, Indiana 53%, Florida 57%,
and New York a national high of 60%. At
least ten states were taking in $10 million
or greater from prisoner calling, with
California, New York, and the Federal
Bureau of Prisons leading the way with
more than $20 million in prison phone
revenues each. Such patterns were broadly
if unevenly replicated at the local level,
with city and county jails – home to more
than 700,000 prisoners, or about 35% of
individuals incarcerated nationwide
– entering into similar commission-based
phone contracts. Escalating commissions
have been recouped in escalating charges
levied against the recipients of prison
collect calls. In theory, price ceilings for
in-state prisoner calling are established
and regulated by state-level public utility
or interstate commerce commissions; in
practice, such ceilings have proven largely
ineffective in reining in rate abuses in the
prisoner telephone industry.6
In addition to the central issue of
price, family members and advocates
have raised a variety of other concerns
regarding the prison phone system. 7
One common complaint is with excessive “branding”, the legally mandated
voice-over informing call recipients that
they are speaking to an individual in
state or federal custody. The brand
plays at the beginning and periodically
throughout every prison-originated call,
during which time voice communication
is impossible, thereby reducing the usable
part of an already limited fifteen minute
call. Quality of service complaints are

Prison Legal News

frequent, with call interruptions and premature disconnections routine. Family
members have expressed frustration and
suspicion at the frequency with which
prison-originated connections were lost
mid-conversation, causing billed parties
to re-incur connection fees as high as
$3 twice or more within a single fifteen
minute calling window. Similar frustrations have greeted carrier rate assignment
practices, with family members noting
instances of calls placed at off-peak
hours being billed at peak rates. Some
respondents cited phone bills purporting to show prison collect calls falling
outside of institutionally allowed access
times. Other family members pointed to
calls billed at twenty minutes or more, in
systems in which prison-originated calls
are automatically terminated after fifteen
minutes. In 1999, suspicions of abuse
were successfully tested in administrative
hearings by the San Diego-based Utilities
Consumer Action Network, which filed a
complaint against MCI before the California Public Utilities Commission over
irregularities in the company’s billing
practices and quality of service for calls
originating from California correctional
facilities. In a 2001 settlement, MCI was
ordered by state regulators to refund
(in the form of an MCI-funded Prison
Communication and Visitation Grant
Program) more than $500,000 in illegal
overcharges to California prison families.
This followed a pattern of regulatory
actions and settlements dating from the
early 1990s that saw companies ranging
from People’s Telephone to MCI fined
as much as $100,000 and forced to pay
refunds on illegal prison billings running
as high as $1.7 million (Florida House of
Representatives, n.d.).
As interviews with advocates and
family members reveal, the social costs
of this pricing regime have been enormous. By 2000, low-income families with
monthly phone bills running to several
hundred, and in some cases, thousands
of dollars, faced a series of hard financial decisions. Several family members
reported foregoing medical operations
or prescription drugs in order to meet
payments on their MCI, AT&T or other
phone bills. For some, telephone service
surpassed rent as the largest household
monthly bill. Many more had had their
numbers blocked, suspended or permanently disconnected over unpaid prison
bills, thus losing telephone service altogether. Some had seen their credit ratings

7

permanently ruined.
Many more, however, had simply
given up, and were forced to voluntarily
restrict, and in some cases cut off, contacts
with incarcerated relatives. And here the
individualized costs cited above meet up
with a set of larger social costs which
reveal the present pricing regime to be
not only inequitable, but also strikingly
ill-considered on purely policy grounds.
As these accounts suggest, the ultimate
effect of profit-sharing and what amount
to price-gouging arrangements in the
prison phone sector has been a long-term
trend towards ex-communication, making contact between prisoners and family
members on the outside more costly, and
therefore more difficult to maintain. But
this goes directly against the findings of
several decades of recidivism and community impact studies, some of which were
used to justify the introduction of prison
calling in the first place.
Such studies have found that a powerful predictor for re-offense is the failure to
maintain family and community contact
while under incarceration. As this body
of work demonstrates, a reliable way of
increasing the likelihood that prisoners
will re-offend is to break all ties with the

HARVEY R. COX, MS
Corrections Consultant

(Both Federal and State Inmates)
32 years Correctional Employment,
including Federal, State, & Private Prisons
(Warden at 3 Institutions)

Reasonable Rates for
Assistance in:
PSI Review Prior to Sentencing
(Impacts on Prison Designation and
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Weatherford, TX 76086
(817) 596-8457
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E-mail: hrcox@yahoo.com
www.prisonconsultant.com

January 2007

Ex-Communication (cont.)
outside world and then place them back
on the street years later, with little re-entry
support, in a community to which they
have become a stranger. Beyond such individual-level outcomes, numerous scholars
have pointed to the wider social costs
associated with the disruption of family
and community contact, in the form of
weakened parent-child relations and more
general damage to community social networks and authority structures .
These costs are once again borne
immediately and disproportionately by
low-income and communities of colour
– but in the long run by society as a whole,
through downstream costs in policing,
educational decline, and future costs
passed through the juvenile and adult correctional systems. To support a policy and
pricing regime that encourages precisely
this outcome would seem to amount to a
staggeringly short-sighted piece of public
policy.

Opposition, Challenges, Alternatives
Since the late 1990s, pricing and
other abuses in the prison telephone sector have attracted a growing chorus of
critics and opponents. The past four years
have seen a series of court-based challenges to the commissioned monopoly
system, launched by prisoners, prison
families and public interest law firms.
In a series of class action suits, the New
York-based Center for Constitutional
Rights has attacked such arrangements
on constitutional grounds, arguing that
the present system constitutes a case of
unlawful taxation, and moreover that the
high prices resulting from monopoly service provision in state, county and private
prison facilities violates First and Fourteenth amendment rights to free speech,
association and equal protection of both
prisoners and family members (Arsberry
v. Illinois, 244 F.3d 558 (7th Cir., 2001);
Bullard v. New York, 307 A.D.2d 676
(New York SC, App. Div., 3rd Dep, 2003)
Wright v. Corrections Corporation of
America, C.A. No. 00-293 (GK) (D.D.C.

45

January 2007

Aug 22, 2001). These challenges have
met with limited success to date. Courts
at the district and circuit level have
remanded some cases to relevant state
regulators and the Federal Communication Commission under the filed-rate and
primary-jurisdiction doctrines, declining
to rule on constitutional issues until the
rate questions have undergone appropriate administrative review. Other cases
have been dismissed on grounds long
familiar to plaintiffs of prison-related
suits: the requirement for prior exhaustion of lengthy, obscure and frequently
futile internal appeal procedures to the
full satisfaction of the court; the court’s
traditional deference to the discretion
of prison administrators, and the concomitant low levels of judicial scrutiny
applied to security-inspired abrogations
of the constitutional rights of prisoners;
and the perennial imbalance in resources
available to legal aid and public interest
lawyers versus those of corporate and
government legal departments.
Other parties to the prison telephone
debate have sought technical solutions
to the problem of excessive pricing. New
companies such as Outside Connection,
Tele-Net, Prisoner Calling Solutions, and
Private Lines Inc. have sprung up to offer
reduced prison telephone services through
remote call forwarding (RCF) techniques,
allowing prisoners access to cheaper local
service rates for contact with geographically distant family members.8 While not
technically illegal, and subject to the same
security checks (e.g. monitoring, recording, number verification) as calls placed
through the institutionally contracted
long distance carriers, such third-party
services have been vigorously opposed by
prison industry officials and monopoly
providers. Prisoners with RCF numbers
on their call list have been threatened and
punished with a variety of administrative
sanctions, ranging from the suspension
of privileges to periods of administrative
segregation (i.e. solitary confinement)
lasting as long as two weeks. In at least
one instance, RCF calling has been punished as a category 2 infraction, typically
reserved for violent offenses such as assaulting another prisoner. For their part,
monopoly providers including MCI and
Sprint have placed blocks and cancelled
service on prisoner family phones who
receive forwarded calls.
Such practices, together with the
manifest reluctance of the courts to
rule on prison telephone issues, has in

8

recent years returned much of the action to the regulatory arena, in the form
of key rulings pending before the Federal Communication Commission. In
December 2002, RCF provider Outside
Connection filed a petition requesting that the Commission intervene to
prevent MCI’s practice of blocking the
numbers of forwarded prisoner call
recipients, arguing that RCF services
represented a viable and secure means
of bringing competition and price relief
to the prisoner telephone industry (Pae
Tec Communications and Outside Connection, Dec. 11, 2002). In an April 16th
response, MCI urged the FCC to dismiss
the Outside Connection petition, arguing that the company’s business model
interfered with the security concerns
and contractual freedoms of prison officials (WorldCom, Apr. 17, 2003). Soon
thereafter, the first of the court-referred
constitutional challenges, Wright v. Corrections Corporation of America, began
making its way through the regulatory
process. Filed in October 2003, the 388page Wright petition called upon the
Commission to redress the issue of excessive charges by requiring competition
in prisoner telephone service provision,
along with debit calling options as an
alternative to more expensive collect
calls. Citing the experience of the Federal Bureau of Prisons with debit-based
calling systems,9 together with affidavits
from industry security experts attesting
to the technical feasibility of a secureyet-competitive prisoner calling market,
the Wright petition asks the Commission to reverse its traditional position
of deferential non-action to protect the
public interest in non-exorbitant prisoner
calling rates (Wright, et. al., November 3,
2003.) Not surprisingly, the petition has
attracted the usual barrage of criticism
from established players in the prison
telephone industry, ranging from the
major national service providers (e.g.
Sprint, MCI, AT&T), to private prison
corporations and state departments of
correction. In fairly representative March
2004 filings, for instance, both MCI and
AT&T responded to the Wright petition
on ostensibly jurisdictional and security
grounds, arguing that the FCC should
maintain its traditional pattern of deference vis-à-vis the penological discretion
and contractual freedoms of state departments of correction, and pointing
to a recent pattern of occasional rate
reduction as evidence that rate excesses

Prison Legal News

could be curbed short of FCC intervention (AT&T, Mar 10, 2004; WorldCom,
Mar 10, 2004.) As with the RCF case
noted above, the outcome of the Wright
petition remains before the commission
at the time of writing.
Developments in the legal and regulatory arenas have been paralleled by
a wider movement to build legislative
and public support for price reform. In
January 2000, Citizens United for the Rehabilitation of Errants (CURE) launched
a national Campaign to Promote Equitable Telephone Charges, seeking to
eliminate excessive rates and improve
access through legislative, administrative
and media pressure. Promoting alternatives such as debit calling and advocating
legislative reform along with the reduction or outright elimination of state and
county commissions, the CURE campaign has targeted lawmakers, detention
authorities and media outlets in states
where correctional phone contracts are
up for renewal. Community groups such
as Brooklyn’s 5th Avenue Project and the
Los Angeles Metropolitan Churches have
pursued prison telephone reform efforts at
the local and state-wide levels. In August
2000, advocates and church leaders called
for a one-month boycott of MCI services
in retaliation for its involvement in the
prison phone industry.
These activist efforts, like the legal
and regulatory actions noted above, have
produced mixed results to date. CURE
campaign organizers point to more than
150 articles and a dozen sympathetic editorials in the mainstream press, and report
overwhelmingly favorable responses to the
public lobbying campaign. These generally sympathetic media treatments and
targeted lobbying efforts have resulted
in occasional and partial victories in the
form of regulatory, legislative, and policy
reform. In 2002, a bill was introduced in
the Texas legislature instructing the state
Department of Criminal Justice to explore
the feasibility of implementing a prisoner
calling system. In 2002, California once
again entered into exclusive contracts
with MCI and Verizon, but agreed to a
reduction in state commissions that would
reduce the cost of prisoner calling by as
much as 25%. During summer 2003, in
apparent response to pressures emanating from the legislature, state PUC, and
potential competition in the remote call
forwarding market, MCI and the New
York Department of Corrections announced that state prison facilities would

Prison Legal News

be moving to a flat-rate pricing system,
with all in-state calls, local or long-distance, priced at 16 cents a minute with a $3
connection fee – an increase over local fees
under the previous system, but delivering
substantial long-distance savings. Legislatures in Missouri and Kentucky have
instructed state purchasing and prison officials to prioritize price over commission
revenue in the awarding of new correctional phone contracts. Prison telephone
practices and alternatives (including price
reductions and debit calling options) have
been scheduled for legislative review in
seven states (www.curenational.org/~etc/,
retrieved March 24, 2005).
Despite these partial and important
successes, advocates acknowledge that
changing phone policy and pricing structures is still an uphill battle. In addition to
the legal hurdles noted above, opponents
of current prison phone practices face the
problem of organizing a socially disparate
and largely economically disadvantaged
class. As several respondents contacted
during research for this article note, the
people most adversely affected under
the current telephone regime are also,
not coincidentally, those with the fewest
social resources available to contest it.
In other cases, the felt vulnerability of
prison families and incarcerated relatives
is a barrier to advocacy: family members
are reluctant to engage in overt activities
on the outside for fear of provoking internal retribution against prisoners. Most
materially, advocates of prison phone
reform are confronted with the entrenched
political economic interests of powerful
corporate and state institutions. Reluctant
to surrender their standing in a lucrative
and rapidly expanding market, prison
phone service providers have launched
powerful and well-funded defenses against
legal and/or regulatory actions before the
courts, FCC, and state-level public utility
commissions. Utility commissions in most
states are staffed by former employees of
the industries they purport to regulate.
In the past four years, increasingly severe
pressures on state budgets have made any
proposal that would eliminate politically
‘soft’ sources of revenue, justified or not,
an extremely hard sell for legislators.

Conclusion
This article has offered a preliminary foray into the oddly parallel worlds
of telecommunications reform and the
American prison sector, both of which
have experienced radical change over

9

the past 25 years. The prison telephone
controversy represents in some ways the
most mundane, but also arguably the most
deeply and destructively felt, point of their
intersection. At the time of writing, the
political and economic complexion of the
prison telephone industry remains fundamentally up for grabs. On one hand, the
efforts of a growing movement of family
members and advocates to raise the issue
to legal, legislative and public attention
have created new political pressures and
new political openings to curb the worst
abuses of the commissioned monopoly
system. In some cases, such efforts have
produced important breakthroughs and
concessions, leading to the partial rollback of price spikes experienced in the
1990s. On the other, prison telephone
monopolies remain firmly in place and
ineffectively regulated throughout large
parts of the country, where price gouging and other abusive practices continue
unabated. On the legal front the phone
industry is batting 100% and has yet to
lose a single case involving prison or jail
telephone rates.
On the face of it, the case of the
prison telephone industry would seem
to suggest contradictory lessons vis-à-vis

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January 2007

Ex-Communication (cont.)
current trends in the field of telecommunications policy. At first glance, the
obvious abuses of monopoly power at
work in the prison telephone industry
might be taken as evidentiary support for
the reform arguments of competition advocates (who have nevertheless remained
uncharacteristically silent on this issue).
Viewed more closely, inequities in prison
telephone pricing constitute a clear case
of market failure, starkly exemplifying the
power of unregulated markets to produce
outcomes that are both non-equilibrating (in the economist’s sense) and deeply
objectionable, on both ethical and social
policy grounds. In this regard, the prison
telephone industry provide compelling evidence, contra the deregulatory winds that
continue to blow through Washington, of
the responsibility of a robust regulatory
presence to mitigate and correct the sometimes manifest errors and injustices of
markets – a responsibility that the Federal
Communications Commission and most
state-level regulators and law-makers have
to date failed to exercise.
Beyond such immediate policy concerns, however, the prison telephone story
points to both the logic and limits of
telecommunications development under
the anti-regulatory ethos of present day
neo-liberalism. The prison telephone
market may be something of a special
case, set apart by the notably attenuated citizenship, legal, and other rights
granted to prisoners and their families
under prevailing legal, moral, and political orders. It nevertheless expresses a
notable logic and power of segmentation
that has emerged in recent decades as a
primary force and engine of capitalist
market development. This power, like the
American prison system itself, grows in
conjunction with a steadily finer capacity
for discrimination: the heightened ability
of powerful state and corporate institutions to sort, classify and order markets
and populations in increasingly detailed,
effective, and ultimately profitable ways.
In this regard, the apparent specificity of
the prison telephone industry might be
regarded as an extreme but still recognizable moment within a broader political
economic and cultural shift from the
logic of publics to the logic of segments.
This larger shift, built around increasingly precise procedures of distinction and
exclusion, opens up new and challenging

January 2007

terrains for political economy and critical
communication scholarship more generally. If contemporary logics of capitalist
economy and liberal governmentality have
indeed traded mass for segment as the
principal organizing unit of production,
market development, and social order
– as observers of various theoretical and
political stripes have in recent years argued – it is perhaps high time that critical
communication scholarship begin its own
long march through the niches. The prison
is a good place to start.
Endnotes
1 A striking indicator of the scale of this
spatial effect can be seen in the National Criminal Justice Commission’s estimate that 5% of
rural growth nation-wide between 1980 and
1990 can be attributed to the simple transfer of
offenders from cities to their new rural prison
settings (cited in Parenti, 1999, p. 213).
2 Private prisons were common in many
parts of the country during the nineteenth and
early twentieth centuries. Private contractors
were key players in the convict lease programs
of the post-Reconstruction South, whereby
prisoners were “leased” to industrial and agricultural concerns, sustaining the labor (and
racial) base of the Southern plantation economy well beyond its nominal demise during the
Civil War. The storied abuses of this system led
to its eventual demise under reformist pressures
in the early twentieth century.
3 In 2000, Texas was the largest single
exporter to the private prison sector, housing more than ten thousand, or 6.8%, of its
prisoners, in private facilities. Smaller systems,
such as New Mexico, Alaska, and Montana,
contributed higher percentages, but lower raw
totals, of state prisoners. In other states, including the large systems of California, New York,
and Illinois, the power of (politically conservative) guard unions has prevented large-scale
outsourcing to private facilities.
4 Founded in 1986, Dallas-based TNETIX provides call processing, monitoring,
prisoner management, and fraud control
software to more than 1600 facilities in the
U.S., maintaining significant supply and outsourcing relationships with AT&T, SBC,
Qwest and Verizon. Alabama-based Global
Tel*Link, owned since 1993 by energy transnational Schlumberger, provides call tracking
and billing equipment to MCI’s correctional
services division. Other equipment competitors
include EverCom, specializing in correctional
call management, monitoring and billing and
payment systems aimed at the institutional
and consumer markets, and New Jersey-based
Science Dynamics, offering call management

10

equipment for institutional settings.
5 In some states (e.g. New York, Florida,
Michigan) prisoner phone revenues are paid
into the department of corrections, in some
cases into prisoner benefit or welfare funds;
in others (e.g. California, Connecticut, Massachusetts) phone revenues go straight into
general funds.
6 While practices vary from state to state,
PUC rate caps are frequently defined against
the statutory rates filed by the dominant local
exchange carrier (typically the regional Bell
operating company). In many states, however,
formal rate caps have been relaxed or gone
unenforced. In any case, formal rate caps
for operator-assisted collect calls – a largely
obsolete calling option in the outside world
– provide a poor guide for prison phone rate
setting, where cheaper calling options do not
exist.
7 Information for this section of the article was gathered from twelve telephone and
face-to-face interviews conducted with prison
advocates, prison and jail officials, and family
members between June-November, 2003, along
with numerous email exchanges and participation in online discussion groups dedicated to
prison family issues.
8 RCF services assign prisoners a number
within the local calling area which automatically forwards to a pre-assigned family number,
circumventing high monopoly long-distance
tariffs. Companies advertise savings as high as
60-70% over available institutional rates.
9 Federal Bureau of Prison facilities have
recently moved to a debit-based calling system,
in which prisoners and families are assigned
pre-paid accounts, rather than billed on a
call-by-call basis to call recipients. The system
remains subject to monopoly provision and all
the usual security features, but has resulted in
most cases in substantial savings to prisoners
and family members.

Steven J. Jackson is an Assistant Professor in the School of Information at the
University of Michigan. Correspondence
to: School of Information, University of
Michigan, 550 East University Avenue,
Ann Arbor, MI USA 48109-1092. Tel:
734-647-8031; Email: jacksons@umich.
edu. Research for this paper was conducted
while a Ph.D. Candidate in the Department
of Communication at the University of
California, San Diego, and was previously
presented at the 2004 Union for Democratic
Communication Conference, in St. Louis,
MO. The author wishes to thank Robert
Horwitz, Gary Fields, and an anonymous
reviewer for comments on an earlier draft
of this paper.

Prison Legal News