Court Stays FCC ICS Rate Caps, One Other Set of Limits, Leaves Rest of Order Intact
Federal judges blocked new FCC inmate calling service rate caps and one other set of fee restrictions, pending further judicial review, while leaving untouched the rest of the commission’s 2015 ICS order. In a short order Monday, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit partially granted ICS provider motions, issuing a stay of rules capping interstate and intrastate ICS rates at between 11 cents and 22 cents per minute, and of a rule capping ancillary fees for single-call and related services, but denied the stay requests in all other respects in the consolidated case Global Tel*Link v. FCC, No. 15-1461. It also denied a separate motion of Oklahoma state officials seeking a stay.
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The panel didn't provide an explanation for the partial stay other than to say “petitioners have satisfied the stringent requirements for a stay pending court review” of their underlying legal challenges to the FCC order on the merits. Under federal court standards, parties seeking a stay have to show some likelihood or possibility of succeeding on the merits and of suffering irreparable harm absent injunctive relief, among other things. Judges David Tatel, Janice Rogers Brown and Thomas Griffith served on the panel.
The D.C. Circuit “declined to delay critical reforms including implementation of caps and restrictions on ancillary fees,” said an FCC release that was described as a statement from Chairman Tom Wheeler and Commissioner Mignon Clyburn. “Relief from these egregious fees will take effect on March 17 for prisons, and June 20 for jails. The stay does not disrupt the interim rates set by the Commission in 2013.” The 2013 order capped interstate ICS rates at 21 cents/minute for debit and prepaid calls and 25 cents/minute for collect calls, but there's some question whether those caps now apply to intrastate ICS rates, since the 2015 order eliminated “interstate” from the ICS definition and that change wasn't stayed.
“While we regret that relief from high inmate calling rates will be delayed for struggling families and their 2.7 million children trying to stay in touch with a loved one, we are gratified that costly and burdensome ancillary charges will come to an end,” Wheeler and Clyburn said. “These fees can increase the cost to consumers of a call by nearly 40 percent, compounding the burden of rates that are too high. This is significant relief, particularly in combination with the 2013 rate caps, and will still provide significant and meaningful relief to consumers. Ultimately, we believe the court will uphold the new rates set by the Commission.”
Commissioner Ajit Pai said the partial say was no surprise since he had warned the agency, when he dissented from the order, that its regulations were unlawful. “The FCC should have learned its lesson the first time around, in 2013. Then, too, I warned the agency that its regulations were fatally flawed -- and then, too, the D.C. Circuit blocked those regulations,” Pai said in a statement. “This case captures well how the FCC in recent years has done business. Political expedience trumps everything else; the rule of law is ridiculed rather than respected; and bipartisan compromise is rejected in favor of a party-line vote. Thankfully, we can still count on the federal courts to rebuke an agency untethered to the rule of law.”
ICS providers had no comment. CenturyLink, Global Tel*Link, Securus and Telmate had sought a stay.
A lawyer representing Martha Wright Petitioners stressed the positive from the perspective of his group, which supports the FCC order. “Our initial reading is that the Court has allowed almost all of the new rules to go into effect for both inter- and intra-state calling,” emailed Andrew Schwartzman, senior counselor at the Georgetown Institute for Public Representation. “It is especially important that the Commission will be allowed to go forward with most limits on abusive 'ancillary fees' that have been used to rip off prisoners and their families."
The D.C. Circuit again reminded the FCC “that good intentions are not enough,” said TechFreedom President Berin Szoka in a release. “The FCC must follow basic requirements of administrative law. When it fails to do so, all its talk of protecting consumers is just that: empty talk.” Tech Freedom Policy Counsel Tom Struble said that the stay "isn’t a certain death knell for the inmate calling order, but it certainly casts a grim pall over the order’s future.”
Szoka said it's worth noting that Tatel was on the panel that imposed the partial ICS stay. He's also seen as a key judge on the panel reviewing the FCC net neutrality order (see 1510280052). “Even though today’s stay order addresses unrelated issues, it may suggest that the D.C. Circuit is taking a harsher look at the FCC’s procedure, and while the court didn’t grant an initial stay in the challenge to the Open Internet Order, the FCC could still lose on the merits of that case when it comes to the threshold question of whether it provided adequate notice of Title II [broadband] reclassification, and rules that went well beyond ‘net neutrality,’" wrote Szoka. "If so, the court might simply kick the matter back to the FCC and set the stage for a fourth court battle over the key legal questions.”
Parties to the ICS case should submit proposed briefing formats by March 28, the D.C. Circuit said in a separate order. Parties were “strongly urged to submit a joint proposal.”