DC Court Rules FCC Did Not Have Authority to Cap Intrastate Phone Rates

In a disheartening two to one ruling, the DC Circuit Court of Appeals ruled yesterday in the case of Global Tel*Link vs. the FCC, that the FCC did not have the authority to set rates caps for intrastate phone rates in its 2015 Order. As a consequence, Inmate Calling Service (ICS) providers can continue to charge exorbitant rates for families and incarcerated individuals who can least afford it. The earlier FCC interstate rate caps of 21 cents for debit or pre-paid and 25 cents for collect calls remain in effect. Read the full decision here. The New York Times coverage is here.

FCC Commissioner Clyburn said in a statement:

Today’s D.C. Circuit decision is deeply disappointing, not just for me and the many advocates who have fought for more than a decade to bring about much needed reform in the inmate calling services regime … it is a sad day for the more than 2.7 million children in this country with at least one incarcerated parent. But the families who have experienced the pain, anguish and financial burden of trying to communicate with a loved one in jail or prison, are still counting on us, so we will press on.

I remain committed to doing everything I can from working with my colleagues at the Commission, to supporting the efforts of Congress and those in the states to bring relief to millions who continue to suffer from the greatest form of regulatory injustice I have seen in my 18 years as a regulator in the communications space.

Lee Petro, attorney for the Wright Petitioners, who petitioned the FCC nearly two decades ago, said:

Needless to say, we are profoundly disappointed the majority’s reasoning with respect to the FCC’s jurisdiction over intrastate rates. Judge Pillard’s dissent correctly focused on past court decisions [one of which Judge Edwards joined] which acknowledged the FCC’s ‘unambiguous’ authority to regulate intrastate rates. Judge Pillard also correctly focused on the necessity of the FCC to reject efforts by ICS providers to pass through to the families of inmates the significant kickback payments paid to state and local governments. These payments are voluntarily provided so that ICS providers obtain monopoly control of communications services at the correctional facility, and both the providers and correctional authorities have rejected all efforts to introduce competition at the facility-level. In the end, millions of wives, children and grandparents will lose, while privately-owned ICS providers and their correctional authority partners are permitted to continue “earn” unjust, unreasonable and unfair monopoly profits.

We share in their disappointment, but note New Jersey’s ban on commissions, 11 cent rate cap for domestic calls and 25 cent rate cap for international calls remain in place in New Jersey, even as they are challenged in Mercer Superior Court by another provider, Securus Technologies.

In a Letter to FCC, Senator Booker Expresses ‘Disappointment and Concerns’ Over Chairman Pai’s Not Defending Intrastate Rate Caps

The day before a Senate Commerce Committee FCC Oversight hearing, Senator Booker sent a letter to Chairman Pai expressing his ‘disappointment and concerns‘ over the Chairman’s decision to stop FCC attorneys from defending the FCC’s intrastate rate caps in federal court. The completed briefs were already filed in the case, but Chairman Pai instructed FCC attorneys not to include intrastate rate caps in their oral arguments defending the order. Senator Booker requests ‘a detailed, written explanation…‘ by April 7th.

Read the letter here

Senate Commerce Committee to Hold FCC Oversight Hearing

The Senate Commerce Committee will hold an FCC Oversight hearing tomorrow, where the three current FCC Commissioners will testify. Look for some of the Democratic members of the committee to challenge the brash moves of recently promoted Chairman Pai.

Senate Commerce Committee Press Release:

FCC Commissioners to Testify on March 8

WASHINGTON – U.S. Sen. John Thune (R-S.D.), chairman of the Senate Committee on Commerce, Science, and Transportation, will convene a hearing on Wednesday, March 8, 2017 at 10:00 a.m., entitled, “Oversight of the Federal Communications Commission.” As part of the Committee’s oversight responsibilities, the hearing will have a broad scope covering every aspect of the agency and major policy issues before the Commission…

– The Honorable Ajit Pai, Chairman, Federal Communications Commission
– The Honorable Mignon Clyburn, Commissioner, Federal Communications Commission
– The Honorable Michael O’Rielly, Commissioner, Federal Communications Commission

Hearing Details:
Wednesday, March 8, 2017, 10:00 a.m., Full Committee

The hearing will be held in Senate Hart Office Building, Room 216. Witness testimony, opening statements, and a live video of the hearing will be available on www.commerce.senate.gov.

Minority Members of the Committee: Ranking Member Bill Nelson FL, Maria Cantwell WA, Amy Klobuchar MN, Richard Blumenthal CT, Brian Schatz HI, Edward Markey MA, Cory Booker NJ, Tom Udall NM, Gary Peters MI, Tammy Baldwin WI, Tammy Duckworth IL, Maggie Hassan NH, and Catherine Cortez Masto NV.

The hearing video will be archived.

Pew Article on Video Visitation

Mindy Fetterman of Stateline has written an article, Face to Face Family Visits Return to Some Jails, noting:

And as video visitation has increased, face-to-face visitation has declined. The PPI [Prison Policy Initiative] found in a 2015 study that 74 percent of jails dropped in-person visits when they started video visits. Often the private companies that provide video visitation services require governments to drop in-person visits.

Read more here.

Phone Companies’ Appeal of FCC Order Capping In-State Rates & Commissioner Clyburn’s Response

Yesterday, a three judge panel of the DC Appeals Court heard the phone companies’ appeal of the FCC’s October 2015 Order capping in-state prison and jail phone rates. There’s a good summary in this article, The FCC has stopped defending its own rules lowering the cost of prisoner phone calls and commentary here: The FCC’s legal battle over prison phones just took a weird turn.

FCC Commissioner Mignon Clyburn wrote a very poignant blog about being in the courtroom: My personal story in search of #PhoneJustice.

NJAID & NYU IRC and Wright Petitioners File Comments on FCC Commissioner Clyburn’s #Solutions2020 Call to Action Plan

January 11, 2017

Mignon Clyburn, Commissioner
Federal Communications Commission
445 12th Street, SW
Washington, DC 20554

RE: #Solutions2020 Comment on Prison Phone and Video Rates by New Jersey Advocates for Immigrant Detainees and New York University School of Law Immigrant Rights Clinic, Public Notice #342689

Dear Commissioner Clyburn,

Members of the New Jersey Advocates for Immigrant Detainees and New York University School of Law Immigrant Rights Clinic have commented on the Federal Communications Commission (FCC) docket #12-375 and at a New York City listening tour forum you conducted since early 2013. Our first comments addressed interstate phone rates in New Jersey prisons and jails, followed by intrastate phone rates and, finally, international rates. In the current comments, we will update you with information concerning: 1) the recent New Jersey law capping phone rates and banning commissions in the state, 2) changes in phone rates and commissions in two county jails, 3) the closure of two facilities that we previously reported on and the recent surge in immigration detention, and 4) issues related to video visitation.

When we started our New Jersey Phone Justice Campaign, the state prisons charged a 33-cent flat fee for calls, and took a 41% commission. New Jersey county jails were charging even higher rates for non-local calls and taking commissions between 50% and 70%. Today, most facilities in New Jersey are charging 4.384 cents per minute , the rate negotiated in the current five-year state contract, and no commissions.

Read more here.

Read comments from the Wright Petitioners, signed on to by NJAID, here. These comments include extensive information on rates in facilities around the country, and highlight massive disparities in rates around the country, potential violations of the FCC’s Order to eliminate surcharges, and contain a call for costs of systems to detect contraband cellphone use not to be passed on to incarcerated individuals and their families.

Passaic County Cuts Phone Rates

The Passaic County Freeholders voted to cut phone rates for inmate domestic telephone calls to $0.11 per minute, with no commission to the County, ensuring compliance with the new New Jersey statute (P.L. 2016 Chapter 37). The rate will exist on a month-to-month basis until a new contract is implemented. As of June 28, 2016, the rates had been $2.55 for the first minute, 25 cents for additional minutes, and the County was taking a 53% commission.

The resolution, dated December 13, 2016, can be read below.

Passaic Phone Rates Resolution

Assemblyman Johnson Introduces Strong Video Visitation Legislation in NJ

Legislation Introduced to Restore Face to Face Family Visits in New Jersey Jails
Advocates Applaud Legislators Call for Reduced Cost for those Incarcerated and their Families

For Immediate Release, December 8, 2016 Contact: Karina Wilkinson, [email protected]

Trenton, NJ – Assemblyman Gordon Johnson (D-Bergen) introduced legislation this week to guarantee face to face family visits for individuals incarcerated in New Jersey. The bill, A4389, would cap costs at 11 cents per minute, ban commissions, require refunds for poor quality and ban fees on professional visits from lawyers and clergy. Similar legislation governing phone rates in prisons and jails was signed into law in August, 2016.

“We applaud Assemblyman Johnson for taking the lead on ensuring that people incarcerated in New Jersey and their families are not taken advantage of by an unregulated industry that is only interested in profits and counties that are looking to gain revenue off of those who can least afford it,” said Karina Wilkinson of the New Jersey Phone Justice Campaign (NJPhoneJustice.org). “We also welcome Congresswoman Duckworth’s efforts at the federal level to require the FCC to regulate video visitation.”

Also this week, Congresswoman Duckworth (IL-8) introduced federal legislation, the Video Visitation in Prisons Act of 2016, that would require the Federal Communications Commission (FCC) to regulate video visitation services, including capping rates, ensuring quality and banning the elimination of in-person visits.

Read more here.

Senator Booker Files Resolution Asking FCC to Cap Domestic Prison & Jail Phone Rates

Today’s press release from Senator Booker and Congressman Rush:

Sen. Booker and Rep. Rush Introduce Concurrent Resolution to Address Prison Reform and Changes to Exorbitant Prison Phone Rates

Jeff Giertz (Booker), [email protected]
Debra Johnson (Rush), [email protected]

WASHINGTON — Today, U.S. Sen. Cory Booker (D-N.J.) and U.S. Representative Bobby L. Rush (D-Ill.)introduced a Concurrent Resolution to address exorbitant prison phone rates between the imprisoned and their loved ones.

“Implementing fair and reasonable prison phone rates is the right thing to do and plain common sense. This resolution supports recent efforts by the FCC to protect those serving their time and their families from exorbitant and unfounded calling fees imposed on some of America’s most financially fragile households. These excessive fees are not only baseless attempts to profit off of vulnerable families, they undermine the financial security of those trying to stay in touch with a partner, parent, or child behind bars. In addition, excessive fees on inmate calls can pose a substantial barrier to successful reentry once individuals have paid their debt to society. That debt should not include paying excessive fees per minute to speak with your child, ” Sen. Booker said.

“For last decade, I have sought to end the ‘family divide,’ a term analogous to the ‘digital divide’ that exists with regard to unequal access to communication services between incarcerated members of our society and their loved ones,” said Rep. Rush. “I firmly believe that communication, along with the ability to express love toward family, is a fundamental need, and one’s humanity does not perish when they enter the prison system.”

Although this is an issue that affects families from all backgrounds (over 2.7 million children in the United States have at least one parent in prison), more than 60 percent of incarcerated prisoners are African- or Latino-American. In addition, many prison offenders come from economically vulnerable communities where unreasonable prison phone rates severely harm and exploit prison populations.

Research proves that there is a significant decline in recidivism rates for inmates who communicate with family members while incarcerated compared to those who do not. Expensive phone call rates deter such communication and result in costly re-incarceration. Scores of states receive hundreds of millions of dollars in commissions from companies to land exclusive contracts to provide prison phone services without facing competition from other lower-cost providers; a possible reason for why prison phone call rates have skyrocketed. Bloomberg reports the lucrative market for prison phone services, which totals approximately $1.2 billion dollars in annual revenues, is currently dominated by two companies, Global Tel Link and Securus Technologies.

Ensuring that prison phone rates are adjusted to reasonable levels will not only increase affordability of service for families, but will also help keep families intact as much as possible while reducing recidivism.