Pai FCC Won't Defend Inmate Calling Intrastate Rate Caps, Will Defend Other Parts

The ICS order was adopted 3-2 in October 2015, but since then, previous Chairman Tom Wheeler and Commissioner Jessica Rosenworcel (both Democrats), left, and Ajit Pai (a Republican) became chairman. So noted Deputy General Counsel David Gossett, in a letter Tuesday (in Pacer) to the U.S. Court of Appeals of the D.C. Circuit in Global Tel*Link v. FCC, No. 15-1461. He said two of the three remaining commissioners (Pai and fellow Republican Mike O'Rielly) dissented from the order "on the grounds that, in specific respects, it exceeds the agency’s lawful authority," and the two now comprise the majority.

"A majority of the current Commission does not believe that the agency has the authority to cap intrastate rates under section 276 of the [Communications] Act," Gossett wrote. "We are abandoning, and I am not authorized to defend at argument, the contention -- contained in Section I of our brief -- that the Commission has the authority to cap intrastate rates for inmate calling services. If the Court reaches the issue, we are also abandoning, and I am also not authorized to defend, the argument (contained in a portion of section III.B of the brief) that the Commission lawfully considered industry-wide averages in setting the rate caps contained in the Order."

Gossett said the FCC will continue to defend "the significant remaining portions" of the order, which included interstate rate caps and various ancillary service fee limitations. "Given that the government’s position at argument has changed, the Commission has ceded ten minutes of its allotted argument time to [Andrew] Schwartzman, counsel for the 'Wright Petitioner' intervenors, who will be prepared to defend all aspects of the Order," Gossett added.

NARUC hailed the FCC decision. "NARUC appealed this order because agencies should be required to adhere to the rule of law. Whatever the merits of the FCC’s decision, the fact is, Congress simply did not give the agency authority to cap intrastate rates for these services. We appreciated the current FCC majority’s original dissents earlier before the agency and we appreciate their actions here,” said President Robert Powelson of Pennsylvania in an emailed statement.

Earlier in the day, Democratic Commissioner Mignon Clyburn said she is pleased advocates of FCC actions to bring down "egregious call rates and fees" will finally get their day in court. “It is a time-honored principle that an agency has the duty to defend its actions -- regardless of politics -- whenever a reasonable argument can be made in support. I am pleased that the Commission will carry forward with its defense of our inmate calling service rulemakings before the D.C. Circuit," she said in a statement. ICS provider, state and sheriff petitioners had asked the D.C. Circuit to hold the case in abeyance to give the new FCC to decide on its course, but a 2-1 panel denied the requests (see 1701180026). Clyburn's office didn't respond to our query after the Gossett letter was released noting the FCC's decision to abandon defense of the intrastate rate caps. She tweeted earlier about a news story reporting one inmate family paying $260-$450 a month "to keep a father in his kids’ lives."