Lottery Expected to Resolve Which of 5 Circuits Will Hear Latest IPCS Challenge
The FCC notified the U.S. Judicial Panel on Multidistrict Litigation on Tuesday that five challenges have been filed in five circuits over its latest incarcerated people's communications services (IPCS) order, which significantly revised an order approved in 2024 (see 2510280045). In the latest complaint to be posted, IPCS provider NCIC challenged the order in the historically conservative 5th U.S. Circuit Court of Appeals. The next step is expected to be a lottery to pick which circuit will hear the case.
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The 1st Circuit, which heard oral argument in October on a challenge to the 2024 order (see 2510070044), is viewed, at least by opponents of rolling back the rules, as having the best claim. But it’s by no means certain that another circuit would give up jurisdiction, said lawyers active in the case.
IPCS providers had filed challenges to the 2024 FCC order in the 5th Circuit, but the case was assigned to the 1st Circuit through a lottery. The providers argued repeatedly that the 1st Circuit should have yielded to the 5th. In contrast to the 5th Circuit, the 1st Circuit is unique in that most of its active judges are Democratic appointees.
“It’s definitely all forum shopping,” Worth Rises Executive Director Bianca Tylek told us Tuesday. The NCIC challenge wasn’t a surprise, said a lawyer active in the proceeding. “Several of the things they asked for they did not get.” The company had only two places it could file, the D.C. Circuit or the 5th Circuit, where it's based, the lawyer said.
As the Pennsylvania Prison Society said in its petition for review with the 3rd Circuit (see 2512120010), if another circuit wins the lottery, the case should be transferred to the 1st Circuit, said Andrew Schwartzman, who represents the group. Given the “special circumstances” of the case -- with the FCC modifying an order already under review in the 1st Circuit -- “it is entirely appropriate” that the 1st Circuit hears the case, he said.
NCIC contested the denial of the payment of site commissions, “and that is definitely a place” where the company “didn’t get what it had asked for,” said United Church of Christ attorney Cheryl Leanza. “The 1st Circuit already decided that it did have jurisdiction, [and] it did issue a ruling.” The next step will be a lottery and a discussion over whether any of the parties will oppose transfer, she added.
UCC’s Media Justice Ministry challenged the order in the D.C. Circuit. Other challenges were filed in the 1st and 9th circuits. NCIC filed a challenge Dec. 12, but it was posted only this week by the 5th Circuit.
The FCC’s latest order “denied NCIC’s request for reconsideration of the Commission’s decision to prohibit the payment of site commissions by NCIC and other” IPCS providers, NCIC said in its petition. The revised order also “partially denied NCIC’s request for reconsideration of the Commission’s methodology used to establish per-minute rate caps for intrastate and interstate audio and video IPCS communication services.” In addition, the recent order “rejected NCIC’s alternative proposals,” including that the FCC modify the rate caps adopted in the 2024 order, “adopt a per-minute additive fee to reimburse jail and prison authorities, and “re-establish a small number of fees that IPCS providers would be permitted to charge IPCS consumers,” NCIC said.