Rosenworcel Backs FCC Action on ICS Rates; at Least Three Votes Seen
Commissioner Jessica Rosenworcel backed FCC inmate calling service (ICS) action as the agency heads toward a planned vote Thursday on a draft item to limit ICS user rates and charges. “The high cost that prison inmates and their families pay for phone service is not just a marketplace issue, it is a broader issue of social justice. That’s why it is so important for us to act in this proceeding,” Rosenworcel said in an email from her office in response to our query. The offices of other commissioners provided no comment on the plan circulated by Chairman Tom Wheeler and Commissioner Mignon Clyburn to cap all ICS rates, restrict ancillary fees, "strongly discourage" site commissions indirectly and implement changes after 90 days (see 1509300067).
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
Rosenworcel is likely to ensure Wheeler and Clyburn have a majority to approve an order, said Harold Feld, senior vice president at Public Knowledge, which backs the FCC action. "Commissioner Rosenworcel voted for the ICS Interim Order and I have no doubt she will vote for this Order as well," Feld emailed us Friday. "The issue here is clear, the Commission's authority is straightforward, and the record is well developed."
Parties in the rulemaking made a flurry of closing arguments Oct. 15 before lobbying restrictions took effect ahead of the planned vote on the draft order and Further NPRM. “It’s been a busy week at the commission with a lot of intensity,” an agency official said Friday. ICS providers and allies warned the FCC it would face legal challenges if it moved ahead with its proposals to restrict charges, including for intrastate rates, without directly addressing their site commission payments to correctional authorities. But advocates for inmates and their families urged the FCC to move ahead with its planned actions.
Global Tel*Link, Pay-Tel Communications, Securus and Telmate summarized their criticisms of the FCC draft item and requested a “summit” meeting to be attended by CEOs of the companies. The FCC plan “falls short of a comprehensive, sustainable approach to ICS reform as it would not permit fair compensation for ICS providers,” they said in a filing posted Friday. The companies said the commission should adopt a proposal from Morgan Lewis attorney Andrew Lipman, on behalf of clients with ICS interests, under which existing site commissions would be “replaced with and limited to a capped, per-minute admin-support payment based on average daily population that would be additive” to the FCC-proposed ICS rates. A mechanism to recover site-commission costs is the “most important aspect” of the rulemaking, and without it, various companies would be forced to challenge the coming agency order in full, they said. The companies and Lipman made numerous other filings in docket 12-375 fleshing out their policy and legal arguments.
CenturyLink and NARUC said the FCC lacked authority to regulate intrastate ICS rates (filings here and here). CenturyLink cited various other objections to the Wheeler/Clyburn proposals. Sheriffs’ groups also continued to make filings voicing concerns about the FCC plans.
However, the Martha Wright petitioner group said the “proposed rate caps will largely cover the individual ICS providers costs.” The petitioners also said that the 90-day transition was sufficient due to “change in law” or "force majeure" contract clauses, particularly given that the commission “has chosen wisely not to ban site commissions.” Martha Wright counsel Lee Petro, a Drinker Biddle attorney, told us: “I think it’s pretty clear to the commission that they don’t have the statutory authority to ban or regulate site commissions. The FCC is taking the appropriate measures under their authority by capping the rates and restricting ancillary fees, thereby effectively starving the beast by limiting the amount of revenue that providers can share with the authorities.”
The FCC plan also picked up support from various others. A coalition of 20 “civil rights and social justice” groups called on the FCC to carry out comprehensive reforms to make ICS rates more affordable for inmates and their families. The Leadership Conference on Civil and Human Rights and other organizations also voiced support for FCC action as did Public Knowledge, though it urged the agency to take steps to ensure ICS providers don't "illegally impose unjust and unreasonable fees to circumvent the rate cap -- particularly if commissions are still required as a cost of doing business." ICSolutions expressed similar concerns that ICS providers could get around restrictions on transaction charges. Verizon also voiced support for FCC action, as did various others.