Public Interest and Consumer Groups Defend FCC's Prison-Calling Order
Public interest groups defended the FCC’s July order implementing the Martha Wright-Reed Act of 2022 (see 2501280053) in briefs filed last week at the 1st U.S. Circuit Court of Appeals. The order reduces call rates for people in prisons while establishing interim rate caps for video calls (see 2407180039). Parts of the order were challenged by Securus and Pay Tel, which provide incarcerated people’s communication services (IPCS), as well as by state and law enforcement interests led by the National Sheriffs’ Association (see 2502140049). Briefs were posted last week in 24-8028.
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“Incarcerated people need affordable communications services to maintain vital connections with their family and loved ones, their counsel, and their broader support systems,” said Direct Action for Rights and Equality and other groups: “Yet for far too long, incarcerated individuals have paid exorbitant prices for [IPCS] due to market failures that eliminate any meaningful competitive pressure for IPCS providers to reduce costs at the facilities they serve.”
Also signing the brief was the Criminal Justice Reform Clinic, the Pennsylvania Prison Society and the Office of Communication of the United Church of Christ. The FCC order was “a significant step forward,” it said. “Affordable IPCS benefits not only incarcerated people, but also their families and loved ones by maintaining vital connections,” and it “reduces violence and conflict” in prisons and recidivism rates, “making communities safer.” The FCC was well within its authority to act under the Martha Wright-Reed Act, “which expressly directs the Commission to set ‘just and reasonable’ IPCS rates,” the groups added.
The brief argued that the prison-calling market is essentially broken. “IPCS providers have long charged egregiously high rates to the captive IPCS market because they enjoy a monopoly at each facility they serve.” To the extent that competition exists, “it has taken the form of site commissions that IPCS providers pay to prisons and jails in exchange for the exclusive contracts to operate at their facilities.”
A second brief, by the National Consumer Law Center and other groups, also supported the FCC order. “Historically, most correctional facilities have issued IPCS contracts that allow the facility to obtain a portion of the revenue collected from consumers; as a result, both the provider and the correctional facility are incentivized to impose high prices on consumers who have no other alternative,” it said.
The Telecom Act of 1996 “emphasizes market competition; yet competition alone cannot heal all wounds, particularly in markets where consumers lack any semblance of choice,” the law center's brief said. “Perhaps no portion of the telecommunications landscape is more bereft of competitive forces than the market for IPCS.” Joining that brief were the Electronic Privacy Information Center, the Prison Policy Initiative and The Utility Reform Network.
Public Knowledge led another brief defending the authority of the FCC to issue the IPCS order against a challenge by the states. “The FCC is a quintessential independent agency: a multi-member, bipartisan commission with fixed terms,” it said. “Such agencies have long been held constitutionally permissible.” The Benton Institute for Broadband & Society, the Center for Digital Democracy and Free Press also joined that brief.