FCC Asks Court to Put Inmate Calling Case on Hold, Given Planned Rate Cap Vote
The FCC asked a court to suspend review of an inmate calling service case while the commission considers a draft order that would raise ICS rate caps that are being challenged in the litigation. The order "would meaningfully increase the rate caps challenged by the petitioners here, thus mooting or substantially altering the scope of issues central to this litigation," said a motion (in Pacer) from the FCC and DOJ to hold the case in abeyance. It was filed Wednesday at the U.S. Court of Appeals for the D.C. Circuit (Global Tel*Link, et al. v. FCC, No. 15-1461 and consolidated cases). Petitioner Telmate and intervenors supporting the FCC consented, but other petitioners are expected to file responses or oppositions, the motion said.
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ICS providers are challenging per-minute rate caps of 11 cents to 22 cents for interstate and intrastate debit and prepaid calls in prisons and jails (with higher caps for smaller jails), and other fee limitations and decisions from a 2015 order (see 1606070030). States and sheriffs also are challenging FCC intrastate jurisdiction and refusal to account for what they say are their ICS costs. The D.C. Circuit stayed the rate caps and fees on "single calls" and related services (see 1603070055) plus the agency's attempt to apply interim 2013 rate caps to intrastate rates due to the first stay (see 1603230058). The 21 cent (debit/prepaid) and 25 cent (collect) interstate rate caps remain in effect.
The FCC/DOJ said the petitioners in particular are challenging the rate caps, "which they contend (among other things) do not adequately account for the legitimate costs of providing inmate calling services, including costs incurred by correctional facilities." But in response to a petition for reconsideration, FCC Chairman Tom Wheeler and Commissioner Mignon Clyburn recently proposed the agency vote Aug. 4 on a draft order to raise the per-minute rate caps on interstate/intrastate debit and prepaid calls to between 13 cents and 31 cents, with caps for collect calls slightly higher and then brought into line after a two-year transition (see 1607140087). The proposed new rate caps would "account for costs facilities incur in offering ICS, particularly the higher costs smaller institutions may face," said an FCC fact sheet.
The agencies said the current litigation would be "substantially altered" if the commission revises rate caps that are a "central focus" of the case. "There is little point for the parties to pursue (and for the respondents to defend) the current rate caps if those caps have been materially revised on reconsideration," said their motion. "Given that reconsideration is a distinct possibility, the most sensible course is to place the cases in abeyance while the Commission completes its work. Doing so will conserve the resources of the respondents, their intervenors, and numerous potential amici that would otherwise need to spend the coming weeks preparing briefs in this litigation that will become more or require substantial revision if the Commission adopts the proposed reconsideration order."
The government proposed the case be postponed until after Aug. 4. They said they would advise the court by Aug. 5 whether the commission adopted the order revising the rate caps, and they anticipated parties would file motions on how to proceed. They also asked the D.C. Circuit to suspend the briefing schedule. The FCC/DOJ brief is due Aug. 5.
"You never know" but "in general, the court likes things that may simplify their cases," emailed Andrew Schwartzman, senior counselor at the Georgetown Law Institute for Public Representation and counsel for intervenors Ulandis Forte, et al. (the Martha Wright Petitioners). "Keeping the current schedule would involve briefing in issues that may be moot and might require supplemental briefs. Given the fact that rate caps have been stayed, there is minimal harm to the carriers."
NARUC will oppose the motion, said General Counsel Brad Ramsay. "Obviously, nothing they do in the pending agenda item for August can remotely impact the State jurisdictional issues," he emailed. "Either they have the authority to dictate intrastate toll or they do not. Statute suggests they do not."
"We will confer with the other plaintiff states in reviewing this motion, and the multistate petitioners will respond in court at the appropriate time to this proposed change in the respondent’s posture," emailed Bryan Corbin, a spokesman for the Indiana attorney general's office. Representatives of ICS providers, other states and sheriffs we contacted didn't comment.