Prisoner Advocates See Calling Rates as Settled for Now
Supporters of the FCC’s July order reducing call rates for people in prison while establishing interim rate caps for video calls (see 2407180039) said Friday they’re cautiously optimistic that the agency won’t make significant rules changes. Chairman Brendan Carr expressed some concerns in July and concurred with only parts of the incarcerated people’s communication services (IPCS) order, but he also said most of his objections were already addressed. The order implements the Martha Wright-Reed Act of 2022.
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The October petitions for reconsideration filed by NCIC Communications and HomeWAV questioned the agency’s categorization of costs and fees, handling of provider expenses and timing of the order’s changes to prison calling rules (see 2411260044). The order is also being challenged in the 1st U.S. Circuit Court of Appeals (see 2502140049).
“As the item itself acknowledges, at least some IPCS providers will likely lose money for every call made under the new rules,” Carr said at the time. “It is in nobody’s interest for these providers to exit the market, or for smaller facilities to go unserved, because the economics no longer make sense.”
Cheryl Leanza, policy adviser at the United Church of Christ Media Justice Ministry, noted that neither the courts nor the FCC have stayed the order, which is in effect. Most of Carr’s questions appeared to have been addressed through a Further NPRM, “which remains pending before the FCC, and the staggered implementation, which addresses any facility that did not make provision for a change of FCC regulation in its contract already,” Leanza told us.
Republican and Democratic commissioners “have expressed unanimous concern with the flawed [IPCS] marketplace,” Leanza said: “Any previous questions about FCC authority have been fully addressed” by Congress. Leanza said that typically, the FCC would wait for litigation to finish before considering changes proposed in an FNPRM, “particularly given Carr’s successful push for the staggered deadline.” She expects the FCC to act on the FNPRM after the court acts, she said.
Bianca Tylek, executive director of Worth Rises, a group that promotes prison reform, said Friday that some of Carr’s concerns reflect objections that IPCS providers raised. “These are final rules,” she said. While various recon petitions are before the FCC, “I don’t think any of them have moved too far.”
Tylek noted that the July decision was unanimous and that the FCC issued a comprehensive, 470-page order. “The FCC did not want to leave any room for confusion about how it came to any of its decisions” or for an appellate court to see the rules as "arbitrary and capricious." The order is as “robust” as possible so that any court “would have to say there was thought that went into this by people who are experts in this space."
Tylek also said her group is pleased that the 1st Circuit was chosen by lottery to hear the case. The 1st Circuit is considered a middle-of-the-road court, while appellants have sought to have the case transferred to the conservative and more industry-friendly 5th Circuit.
NCIC, meanwhile, urged the FCC to act on its recon petition, noting that it had been pending for four months.
“NCIC’s Petition demonstrated that the FCC’s ratemaking methodology created to establish the IPCS rate caps for audio and video IPCS communications led to arbitrary rate caps that were below the costs incurred by IPCS providers to provide service in a majority of correctional facilities, and will lead to IPCS providers refusing to bid on high-cost, rural jails,” said a filing posted Friday in docket 12-375.
“NCIC shares the concerns raised by Chairman Carr, and believed that filing a petition for reconsideration (rather than racing to court) would provide the FCC the opportunity to fix the errors on reconsideration,” emailed Dickinson Wright’s Lee Petro, who represents the prison-calling company. The alternative is “waiting a much longer period of time for the pending appeal in the 1st Circuit to play out,” he said.
NCIC hopes the proposal it filed “provides a roadmap for the FCC and involved parties to find a reasonable solution expeditiously,” Petro added.
Carr will be “guided by the facts, including prisons' experience with the new order so far, in determining how to react to recon petitions,” predicted Joe Kane, director-broadband and spectrum policy at the Information Technology and Innovation Foundation. Carr’s “interest in taking up the issue probably depends on whether there is a big problem on the ground,” he said: “Otherwise, the benefits of more affordable inmate calling will likely outweigh calls for major changes.”