The Washington PostDemocracy Dies in Darkness

FCC made a case for limiting cost of prison phone calls. Not anymore.

President Trump named Ajit Pai, second from right, to be chairman of the Federal Communications Commission last month. (Susan Walsh/AP)

Federal regulators no longer are pressing to cut the costs of most prison phone calls, backing away from a years-long effort to limit charges imposed by a handful of private companies on inmates and their families.

The shift by the Federal Communications Commission comes as the U.S. Court of Appeals for the D.C. Circuit on Monday considers whether commissioners went too far when they capped prices for inmate calls that had reached more than a $1 per minute.

To make phone calls from most federal and state prisons, inmates generally must set up accounts with a private company to hold money deposited by family members. The companies typically have a contract with the prisons, which receive a portion of the call revenue.

Federal regulators had pushed since 2013 to lower the costs, saying the prices made it too hard for relatives to stay in touch.

But a week after President Trump tapped a new leader for the FCC, the commission’s attorneys changed course and told the court that the FCC no longer would defend one of its own key provisions that limited fees for prisoners’ intrastate calls. The issue set for court Monday was first raised more than 15 years ago by a retired nurse in the District who could not afford to call her incarcerated grandson.

Martha Wright-Reed, who died two years ago, was paying more than $100 a month to call her grandson, who was locked up in Arizona.

The FCC letter to the court

The shift by the FCC is a small but clear sign of how the new administration is remaking policies throughout government.

The new FCC chairman, Ajit Pai, voted against the now-contested rate caps on prison calls as a sitting Republican FCC commissioner. With the resignation of two Democratic commissioners in January, two of the remaining three commissioners share that position.

The majority “does not believe that the agency has the authority to cap intrastate rates,” the commission’s deputy general counsel, David M. Gossett, said in a letter to the court’s clerk. “We are abandoning, and I am not authorized to defend at argument, the contention . . . that the Commission has the authority to cap intrastate rates for inmate calling services.”

After almost a decade, FCC has yet to rule on high cost of prison phone calls

The newly configured FCC will defend the limits on calls between states, but not on in-state calls, which inmate advocates say account for more than 80 percent of all inmate calls.

“Virtually all of these calls home from jail are in-state calls,” said Peter Wagner, executive director of the Prison Policy Initiative. “We are seeing the cost of these calls rise — up to $1.50 per minute — for a simple in-state phone call.”

Wright-Reed’s initial class-action lawsuit after the experience with her grandson was dismissed, and she turned to the FCC for help. Her petition languished for years until it was picked up by former FCC chairwoman Mignon Clyburn, now the lone Democratic commissioner.

Clyburn attributed the high rates to an “egregious case of market failure” because of a lack of competition between the companies that negotiate contracts for the exclusive right to provide a prison’s phone services.

Law enforcement officials opposed to the rate caps say they depend on the shared funds they get under the contracts to help pay for inmate programs such as addiction counseling. The funds also have gone to pay salaries and benefits, according to court filings.

Cheryl Leanza, a policy adviser with the media justice ministry of the United Church of Christ, said it is “inappropriate for state governments or local governments to rely on the family members of incarcerated people to subsidize the cost of government. This should not be put on families who are the least able to afford it.”

In 2015, the FCC voted 3-to-2 to cap rates for state and federal prison inmates at 11 cents per minute. The agency's order dropped the average rates for in-state calls from a total of $2.96 for 15-minutes to no more than $1.65 for 15 minutes. For calls between states, the order dropped the average from a total of $3.15 for 15 minutes to no more than $1.65 for 15 minutes.

At the time of the 2015 vote, Pai called the rules “well-intentioned” and praised efforts to reduce the rates. But he said the commission had gone too far and that the rules would not survive a legal challenge.

The companies providing prison phone services quickly went to court.

The major providers — led by Securus Technologies, Global Tel Link and CenturyLink — and a group of state and local law enforcement officials are challenging the authority of the commission to regulate calling prices. The FCC is relying on a “mishmash approach” to interpreting the law, opponents of price caps say.

The Court of Appeals for the D.C. Circuit last year temporarily blocked some of the 2015 rules from taking effect. In response, the FCC reworked the caps by a 3-to-2 vote.

Local sheriffs and attorneys general from nine states told the court that the FCC was pursuing “its own purposes and policies” rather than executing existing law and was expecting courts “to abdicate their role” by going along with the cap, according to a brief from the group of law enforcement officials led by Scott Pruitt, Oklahoma’s attorney general. Pruitt is Trump’s nominee to lead the Environmental Protection Agency.

But supporters of the FCC's limits say the phone contracts are being awarded on the basis of companies' willingness to pay the highest commissions to prison systems — not on the basis of lowest rates or best service. In 2013, phone-service companies paid at least $460 million in commissions to correctional facilities, according to a brief filed by a coalition of advocates for inmates and their families.

A number of state prison systems, including in New York’s, Mississippi’s and New Jersey’s, have taken steps to reduce rates and in some cases to limit commissions.

Even before the change of administration, the court took the unusual step of asking whether it should put the case on hold in light of the likely changes at the FCC.

After hearing from lawyers on both sides in January, the three judges who will hear the case Monday — Cornelia T.L. Pillard, Harry T. Edwards and Laurence H. Silberman — decided to press ahead.

Silberman, however, issued a brief, prescient dissent in which he wrote: “I would not be surprised” if, after the inauguration, “the FCC changed its position.”

Because the FCC is no longer defending a key provision of its own rule, the court has provided additional time Monday for arguments from attorney Andrew Jay Schwartzman, who represents inmate advocates, including the D.C. Prisoners’ Legal Services Project and the Human Rights Defense Center.

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