FCC Drops Defense of Part of Prison Phone Rate Order

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By Lydia Beyoud

The Federal Communications Commission will not defend all its rules capping the rates prison telephone providers can charge inmates during oral argument Feb. 6, an FCC official told a federal appeals court Jan. 31.

The commission is defending its 2015 rules, approved on a 3-2 party-line vote, against a legal challenge from prison telephone providers, including Global Tel*Link, Pay Tel Communications Inc. and Securus Technologies Inc., state law enforcement and regulators, and several other parties.

The current Republican-controlled FCC won’t defend caps set on the in-state, or “intrastate” calls, during oral argument, nor will it argue that it lawfully considered industry-wide averages in setting the rate caps contained in the order, FCC Deputy General Counsel David M. Gossett said in a letter to the U.S. Court of Appeals for the District of Columbia Circuit.

The decision leaves intervenors, primarily civil rights groups, to defend the intrastate calling caps. The FCC will still defend “the significant remaining portions” of the order, including rate caps for interstate calls, Gossett wrote.

The only remaining Democratic FCC Commissioner, Mignon Clyburn, has been spearheading an effort at the agency to curb what some advocates have called the exorbitant costs that prisoners and their families encounter when using prison phone facilities.

Clyburn’s office didn’t immediately respond to requests for comment on the FCC’s letter to the court. Earlier in the day, Clyburn said, in a statement, that she was pleased the FCC would continue to defend its inmate calling service rules before the court.

Decision Due to New Leadership

The FCC’s decision is precipitated by the leadership change at the now three-member commission. As a commissioner, new Republican Chairman Ajit Pai dissented on the order in 2015 and on revised, slightly higher rate caps approved in August 2016, also on a party-line vote.

Pai and fellow GOP Commissioner Michael O’Rielly, who also dissented, said the rules failed to account for the costs to jails and prisons of phone service administration.

The National Association of Regulatory Utility Commissioners welcomed the FCC’s decision. The group joined in the appeal of the FCC’s rules on the grounds that it exceeded its authority in setting intrastate rate caps. “We appreciated the current FCC majority’s original dissents earlier before the agency, and we appreciate their actions here,” NARUC President Robert F. Powelson of Pennsylvania said in a statement.

Oral argument will be held at 9:30 a.m. on Feb. 6.

Global TelLink v. FCC, et al , D.C. Cir. App., No. 15-01461, filing 1/31/17

To contact the reporter on this story: Lydia Beyoud in Washington at lbeyoud@bna.com

To contact the editor responsible for this story: Keith Perine at kperine@bna.com

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