A federal court denied an appeal of a three-judge panel's inmate calling service ruling that reversed key FCC pricing decisions in a 2015 order, including intrastate rate caps (see 1707280058 and 1706130047). No judge of the U.S. Court of Appeals for the D.C. Circuit asked for a vote on Wright Petitioners' request for en banc review, said a brief order Tuesday in Global Tel*Link v. FCC, No. 15-1461. "This was not unexpected, but it is nonetheless very disappointing," said petitioners' counsel Andrew Schwartzman, Georgetown Law Institute for Public Representation senior counselor, Wednesday.
The D.C. Circuit U.S. Court of Appeals shouldn’t rehear en banc a three-judge panel’s ruling that reversed key FCC 2015 inmate calling service pricing decisions, including intrastate rate caps, said the FCC, states and ICS providers. Wright Petitioners, representing inmate families, asked in July for en banc review, saying that the ruling conflicted with Chevron principles and decisions of the Supreme Court and D.C. Circuit (see 1707280058). The petitioners’ request “depends on a misreading of the majority opinion,” the FCC said in a response (in Pacer) last week in Global Tel*Link v. FCC, No. 15-1461. “And the remaining grounds they advance for en banc rehearing fall far short of meeting the stringent standard for that relief.” The court’s Aug. 4 clarification of the majority opinion “makes clear that this case presents no substantial issue regarding application of Chevron,” and petitioners failed to identify any conflict between the panel decision and the court’s prior decisions, ICS providers CenturyLink, Global Tel*Link, Pay Tel, Securus and Telmate said in a joint response (in Pacer). Courts should sparingly grant en banc hearings, and the petitioners failed to provide a compelling argument, a group of state and local governments said in another response (in Pacer). “The Order is unprecedented; the decision vacating it does not conflict with precedent,” they said. “Rehearing is not warranted in this case.”
FCC Chairman Ajit Pai appears free to consider issues affecting Securus and inmate calling services in general, despite allegations he has a conflict of interest stemming from his past legal work for the ICS provider, ethics specialists and former commissioners told us. They noted Pai is more than five years removed from his Securus representation, and government recusal requirements last only one to two years. But two government watchdog advocates suggested Pai hold himself to a higher standard to avoid any appearance of a conflict.
The Alabama Public Service Commission lacks authority to revise price caps on inmate calling service single-call usage fees, Global Tel*Link commented last week in docket 15957. The PSC may vote Sept. 12 on ICS rule changes including revising the price cap so users pay for actual minutes used, rather than a $6 flat fee based on an average 12-minute call duration (see 1708150047). “The Commission’s authority over ICS providers is limited to their utility ‘rates and charges’ and their ‘public duties,’" GTL said. “Neither the ancillary service fee caps nor the single payment call rule relate to charges for ‘utility’ services. These charges relate to financial services or billing and collection arrangements by which ICS customers will choose to pay or be billed for services.” The PSC has no jurisdiction over financial services or billing and collecting, the company said.
Telmate asked the FCC to waive a video visitation annual reporting requirement for inmate calling service providers. Telmate said the waiver is justified because the U.S. Court of Appeals for the D.C. Circuit recently vacated the video visitation reporting requirement, though the court’s mandate hasn't been issued, technically leaving the rule in place. The "requirement would impose a significant burden" as "Telmate would be required to expend internal resources in order to gather and provide the video visitation information," said a petition posted Tuesday in docket 12-375. As an alternative, the company asked that its video visitation reporting deadline be extended until 15 days after the FCC acts on its petition. ICS provider Global Tel*Link recently bought Telmate.
The Regulatory Commission of Alaska warned Securus about the risk of trying to close its sale to Platinum Equity before getting RCA approval. Alaska and California reviews are pending, with California to vote in late August, but Securus said Friday it didn’t mislead the FCC when it said it had all necessary state regulatory OKs and urged quick federal approval (see 1708030040). Over the weekend in FCC docket 17-126, the inmate calling service (ICS) provider clarified that it has OKs from all states where it was “contractually” obligated, and urged the federal commission to quickly greenlight the deal. Opponents the Wright Petitioners disputed the explanation.
Securus needs at least two state regulatory OKs for its sale to Platinum Equity, despite Securus CEO Richard Smith telling the FCC last week the company got OKs from all states needed. With an FCC decision expected soon, the Regulatory Commission of Alaska (RCA) said Wednesday it will decide by Dec. 11. Earlier, the California Public Utilities Commission said it couldn’t issue an order until at least its Aug. 10 meeting (see 1708010030). Securus targeted an Aug. 1 closing date and recently warned it would incur $75,000 in transaction fees on every day after Aug. 1 that the deal wasn’t closed. The Securus deal is still under review, an FCC spokesman said Thursday.
The Wright Petitioners asked for en banc review of a panel ruling that reversed key FCC inmate calling service pricing decisions, including intrastate rate caps, in a 2015 order (see 1706130047). A divided three-judge's panel's opinion "is at odds with fundamental Chevron principles and conflicts with decisions of the Supreme Court and this Circuit," said the inmate family advocates' petition (in Pacer) for rehearing en banc by the U.S. Court of Appeals for the District of Columbia Circuit in Global Tel*Link v. FCC, No. 15-1461. The panel "struck down FCC regulations designed to rein in monopoly-fueled overcharges for prison inmates’ telephone calls that often constitute the only contact between incarcerated individuals and their families," the petition said Friday. "The panel did so on the basis of its de novo interpretation of the governing statute, refusing, except on one issue, to defer to the FCC’s longstanding statutory interpretations in a notice-and-comment rulemaking. This was not because the interpretations were unreasonable, or because the Commission had rescinded its decision, but because the agency’s Deputy General Counsel represented in a letter to the Court that a majority of the Commission no longer supported all of the issues as briefed. ... Courts review decisions, not letters from counsel." The FCC didn't comment. "Given the history of stays in this proceedings, the FCC’s stance on the crucial issues, and the straight forward arguments presented, this seems a real long shot," NARUC General Counsel Brad Ramsay told us. The Wright Petitioners had said they planned to file the petition when they asked the D.C. Circuit to delay consideration of an industry challenge to a 2016 FCC reconsideration order that revised ICS rates (see 1707140044).
Some states are weighing caps on inmate calling service rates after the U.S. Court of Appeals for the D.C. Circuit last month struck down FCC intrastate rate caps, and as Chairman Ajit Pai seeks a “lawful” way to address high costs (see 1706130047). Tuesday, the Montana Public Service Commission opened a rulemaking to revise the rates, concerned charges may exceed provider costs. Other states are watching the issue, officials told us, while Securus CEO Richard Smith supports state reviews of intrastate rate caps, blaming high fees on commissions it pays to government agencies to win ICS contracts.
Inmate family advocates and the DOJ and FCC said a court should continue to delay consideration of an industry challenge to a 2016 commission order that revised inmate calling service (ICS) rates set the previous year. The Wright Petitioners said they are planning by July 28 to petition for rehearing of a related U.S. Court of Appeals for the D.C. Circuit ruling reversing key ICS rate decisions in a 2015 FCC order in Global Tel*Link v. FCC, No. 15-1461 (see 1706130047). The D.C. Circuit should thus continue to hold in abeyance its review of a challenge to the commission's 2016 ICS reconsideration order, said a Wright Petitioners' filing (in Pacer) Friday in Securus Technologies v. FCC, No. 16-1321. If the rehearing petition is filed on GlobalTel*Link, the Securus case should continue to be held in abeyance until the rehearing petition is resolved, agreed a joint DOJ and FCC filing (in Pacer) Thursday. But Securus, Global Tel*Link, Telmate and CenturyLink (here in Pacer), Pay Tel Communications (here in Pacer) and state and local entities (here in Pacer) said the court should vacate the recon order and remand it to the FCC. The ICS providers asked that a court stay of the order remain in place while the commission considers issues on remand. Meanwhile, a Wright Petitioners filing in FCC docket 17-126 disputed arguments in a recent filing by Securus and SCRS Acquisition defending the planned sale of Securus to SCRS. The Wright Petitioners also criticized the parties' procedural handling of filings, given their requests for both domestic and international service FCC approvals.