FCC Expected To Deny Petitions for Stay From ICS Providers, Lawyer Says
The FCC will likely deny petitions for stay from Securus and Global Tel*Link (GTL), forcing the prison phone service providers to seek legal review in the court of appeals, Lee Petro, a Drinker Biddle lawyer representing the so-called Wright Petitioners, told us Wednesday. The Wright Petitioners filed oppositions to petitions for stay from both Securus and GTL in docket 12-375, alleging those companies ignored the “enormous impact caused by a further delay in providing real relief to ICS [inmate calling service] consumers.” A 2012 petition to reform high inmate calling rates by the late Martha Wright, a Washington, D.C., woman whose grandson was imprisoned (see 1209260042), set into motion interim interstate price caps approved by the commission in 2013 (see 1308120049).
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It's not the FCC’s responsibility to bail out the ICS providers for their own poor business decisions, Petro said. The whole proceeding is about protecting consumers from being taken advantage of by those companies that have no competition, he said. Neither Securus nor GTL commented Wednesday.
A delay in the effective date of the order, approved by a divided FCC in October, would delay relief to millions of intrastate ICS customers and all ICS customers currently being charged usurious ancillary fees, the filing said. The Wright Petitioners claim that increased contact between inmates and their families will reduce recidivism rates, the filing said.
GTL asked the FCC to stay when rate caps in the order take effect, pending further judicial review (see 1512220055). The legal action last week specifically challenges FCC Order No. 15-136, which regulates rates and ancillary fees for intrastate and interstate calls made from U.S. inmate facilities (see 1510220059).
Securus is fighting to keep their “exorbitant” ancillary fees in place because of the need to make every ICS call as profitable as possible, the petition said. For that reason, the petitioners are asking the FCC to reject Securus’ attempt to separate the ICS ancillary fees from ICS rates. Ancillary fee caps reflect the FCC’s reasoned decision to impose a solution to per-minute rates and fees charged to ICS customers, the opposition to Securus’ stay said. ICS customers have no choice other than to deal with the one provider serving the facility if they want to get calls from an inmate, Wright Petitions said.
The Wright Petitioners said Securus’ petition lacks evidence that the effects of the ancillary fee rate caps are irreparable, and relies instead on cost studies and other financial information that have been shown to be misleading. “Securus forgets that the whole point of this proceeding was to eliminate the monopoly profits earned by ICS providers, and to protect ICS customers from unjust, unreasonable and unfair rates and ancillary fees,” the filing said.
GTL incorrectly claims the FCC was required to reduce or ban site commissions in the second report and order adopted in October, because site commissions are a necessary cost of providing services, said the Wright Petitioners’ opposition to petition for stay to GTL’s petition for stay. Site commissions operate outside the costs associated with telephone equipment and lease of local telephone lines, the filing said. GTL forgot that site commissions are new and until the mid-1990s ICS was provided without demand and payment of site commissions, the opposition petition said.
It's unlikely GTL will succeed in getting a stay from the FCC by arguing that the commission failed to provide adequate notice it wouldn't ban site commissions, the filing said. The Administrative Procedure Act doesn’t require the FCC to adopt every proposal in an NPRM, the opposition filing said.
Initial comments in the docket are due Jan. 19 and replies Feb. 1 on the FCC's Further NPRM on ICS, said a Wireline Bureau public notice last week (see 1512230034).