IPCS Providers and Others Urge 1st Circuit to Overturn July FCC Order
Securus and Pay Tel accused the FCC of acting outside the bounds of what was allowed under the Martha Wright-Reed (MWR) Act of 2022 in its July order reducing call rates for people in prisons while establishing interim rate caps for video calls (see 2407180039). The two providers of incarcerated people’s communication services (IPCS) filed preliminary briefs Thursday, as did state and law enforcement challengers and groups representing prisoners and their families. The case is before the 1st U.S. Circuit Court of Appeals, though various parties are still asking that it be moved to the 5th Circuit (see 2501280053).
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"The FCC violated Congress’s command that the agency’s compensation plan ensure that 'all' IPCS providers are 'fairly compensated,'" Securus and Pay Tel said. “The FCC interpreted ‘all’ to mean ‘efficient’ and erased the ‘fairly compensated’ requirement from the statute by concluding that just and reasonable rates necessarily provide fair compensation,” they said: “These two legal errors led the FCC to select rate caps so low that -- even on its own flawed estimates -- one-third of all IPCS providers will be unable to recover their costs.”
Quoting a July statement from current FCC Chairman Brendan Carr, the IPCS players said “the FCC went ‘too far in one direction’ and ‘overcorrected in ways that’ will ‘ultimately work against the interests of inmates, their families, IPCS providers, state correctional facilities, and the public-safety officials who operate them.’” The companies charged that the order “violates the plain text of the MWR Act” and the Communications Act and is “arbitrary and capricious in multiple respects.”
State and enforcement interests led by the National Sheriffs’ Association (NSA) said that in a violation of the MWR Act, the July order “severely limited cost recovery for safety and security measures.” The act specified that the FCC "'shall consider' the costs of necessary safety and security measures,” the groups said: “The FCC improperly concluded that this statutory mandate did not require giving any ‘specific weight’ to such costs, effectively rendering Congress’s directive superfluous.”
Correctional facilities aren’t required to allow IPCS in most places, and the MWR Act doesn’t change that, the NSA-led brief contended. “Correctional facilities make IPCS available because it benefits incarcerated people, even as they safeguard that benefit by also protecting and benefiting their loved ones and the public at large,” it said: Unlike traditional telecom service, “where access to communications is a matter of a customer purchasing a service from a provider, access to IPCS for incarcerated people is not a given.”
IPCS is available in correctional facilities only “to the extent it meets the safety and security requirements of the correctional officers who operate the facility, the families and friends of the incarcerated persons, and the public,” the brief said. The FCC’s analysis “fails to recognize this intrinsic connection between security and access.”
Direct Action for Rights and Equality, the Criminal Justice Reform Clinic and the Pennsylvania Prison Society called the order “a significant step forward” but said it imposes unnecessary costs on prisoners and their families. They also challenged how calling rates are calculated.
Though the FCC “took significant steps to protect consumers who choose an alternate pricing plan, the Commission accorded IPCS providers tremendous flexibility to design such plans so long as they are formally structured to have a ‘break-even’ point equal to or less than the otherwise applicable per-minute provider rate,” the public interest groups' brief said. “By focusing only on the theoretical structure of such plans, the Commission left open the possibility that incarcerated people and their loved ones will pay more than the otherwise applicable rate caps in situations where their usage is low, and it unreasonably placed the burden on consumers to complain about any such issues.”