DOJ said it would defer to the FCC's decision not to defend intrastate rate caps in a 2015 inmate calling services order set for oral argument Monday at the U.S. Court of Appeals for the D.C. Circuit. The department also deferred to the commission decision not to defend any arguments that the regulator lawfully considered industrywide averages in setting the order's rate caps, which included interstate rate caps. "The United States, however, continues to join the Commission's defense of 'the significant remaining portions of the Order,'" said a DOJ letter (in Pacer) Thursday in Global Tel*Link v. FCC, No. 15-1461, citing language from an FCC letter Tuesday (see 1701310061).
The GOP-run FCC said it won't defend inmate calling service intrastate rate caps that the previous Democratic majority instituted, but will continue to defend most other parts of a recent ICS order being challenged in court. It said it would cede some time at Monday's oral argument to an inmate family advocate to defend all aspects of the order.
Global Tel*Link urged the new FCC to ask a court to hold an inmate calling service case in abeyance due to the change in commission leadership, said the ICS provider's filings Thursday in docket 12-375 on meetings with aides to Chairman Ajit Pai and Commissioner Michael O'Rielly. A split panel of the U.S. Court of Appeals for the D.C. Circuit decided Jan. 18 to proceed with its review and set Feb. 6 oral argument on petitioner challenges to the commission's ICS rate caps, fee restrictions and other decisions in Global Tel*Link v. FCC, No. 15-1461 (see 1701180026). Previous abeyance requests of ICS provider, state and sheriff petitioners were opposed by the Democratic-run FCC and DOJ, but they're now under Republican control. In dissenting from the Jan. 18 panel order, Judge Laurence Silberman said he wouldn't be surprised if the new FCC "changes its position and we had to cancel the Feb. 6 oral argument."
An FCC inmate calling service case will proceed as scheduled with Feb. 6 oral argument, ruled a divided three-judge panel of the U.S. Court of Appeals in an order (in Pacer) Wednesday, with Judges Cornelia Pillard and Harry Edwards in the majority. Judge Laurence Silberman dissented, labeling "silly" a counsel's argument that a change in the FCC's position was only "hypothetical," given the looming agency takeover by Republican commissioners who dissented on ICS decisions. The FCC and DOJ had said the case shouldn't be held in abeyance, while most ICS providers and state and local officials said it should be to give Republican commissioners time to consider their course (see 1701170046). The Wright Petitioners also asked the appellate court not to hold the case in abeyance, arguing that some intervenors are plaintiffs in a lower-court class-action lawsuit that has been in abeyance since 2001. In that case, a District Court referred questions on both inter- and intrastate ICS calls to the commission, but the agency took over 15 years to answer, the inmate family advocacy group told the D.C. Circuit, which recently asked parties to show cause why its review shouldn't be delayed given the FCC changes. "Delaying resolution of these important issues would subject the class action plaintiffs to an additional and indefinite delay in obtaining relief from the excessively high cost of calls to and from prisons," said the group's response (in Pacer) Tuesday in Global Tel*Link v. FCC, No. 15-1461.
The FCC and critics diverged on whether inmate calling service litigation should be suspended as Republican commissioners prepare to take control of the agency Friday. The commission and DOJ said it shouldn't be delayed, but ICS providers and state and local government officials challenging the FCC orders said it should be. The U.S. Court of Appeals for the D.C. Circuit asked litigants to show cause by Tuesday why its review shouldn't be delayed "in light of the impending changes to the Commission" (see 1701110073). "The Court should allow these cases -- which are fully briefed and ready for argument -- to proceed on the current schedule," said an FCC/DOJ response (in Pacer) in Global Tel-Link v. FCC, No. 15-1461, which is scheduled for oral argument Feb. 6. "Particularly given how long inmates and their families have awaited relief from the exorbitant rates they pay for inmate calls, and given the considerable resources all parties have already invested in this litigation, the Court should not place these cases in abeyance based on a possibility that a newly constituted Commission might adopt different policies." Others disagreed. "It makes perfect sense to give the Commission a reasonable period of time -- as explained below, we propose 60 days -- to inform the Court as to whether it intends to revisit the confusing array of orders issued by the prior Commission," said a Global Tel*Link and CenturyLink response (in Pacer). "Republican commissioners will hold a 2-1 majority on the Commission. Both of the Republican commissioners issued vigorous dissents from the Commissions prior rulings. It is therefore appropriate for the Court to give the new Commission an opportunity to take a position on the issues implicated by the petitions for review before the Court devotes further resources to this case." Pay Tel Communications, Securus, Telmate and NARUC and state and local government officials also filed responses (here, here, here and here, all in Pacer) that backed holding the case in abeyance. But a Network Communications International response (in Pacer) said the case shouldn't be held in abeyance.
A federal court will hear oral argument Feb. 6 on FCC inmate calling service orders capping rates and restricting ancillary service fees in regulations being challenged by various ICS providers, states and sheriff groups. The three-judge panel hearing the argument is usually revealed 30 days beforehand, said the short order (in Pacer) Tuesday from the U.S. Court of Appeals for the D.C. Circuit, which is reviewing Global Tel*Link v. FCC (No. 15-1461 and consolidated cases). The D.C. Circuit has issued four stays blocking implementation, pending further review, of several FCC rate decisions in three orders over recent years, though 2013 interstate ICS rate caps remain in effect.
A court granted Securus and others a stay of new FCC inmate calling service rate caps included in an August order that allowed ICS providers to cover correctional facility costs, but without restricting their site-commission payments (see 1608040037). A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit issued a brief order (in Pacer) Wednesday saying petitioners had met the stringent requirements for a stay in Securus v. FCC, No. 16-1321 and consolidated cases. The judges were Judith Rogers, Sri Srinivasan and Robert Wilkins (all Democratic appointees).
Inmate advocates are focused on defending FCC limits on ancillary service charges in a 2015 order that capped inmate calling service (ICS) rates (see 1510220059). The commission had the authority to regulate the ancillary service charges and is entitled to judicial deference in its statutory interpretations, said the intervenor brief (in Pacer) Thursday of Ulandis Forte and other individuals and groups (Wright Petitioners) to the U.S. Court of Appeals for the D.C. Circuit, which is reviewing ICS provider and state/sheriff challenges to the order (Global Tel*Link, et.al. v. FCC, No. 15-1461 and consolidated cases). The commission carried out a "meticulous examination" of the record to decide on the restrictions for the ancillary fees, which "have been used to circumvent rate caps," the brief said. The late Martha Wright, a retired nurse in Washington, D.C., was paying more than $100 a month to call Forte, her grandson incarcerated in Arizona, it said. She filed a petition that helped prod the FCC to act.
The FCC Wireline Bureau denied petitions to stay an inmate calling service order on reconsideration that raised ICS rate caps without restricting site-commission payments to correctional authorities (see 1609020028). "Petitioners have failed to demonstrate that they will suffer irreparable harm if the Reconsideration Order is not stayed," said a bureau order Friday in docket 12-375. "Nor have they persuaded us that they are likely to succeed on the merits or that a stay would be in the public interest. To the contrary, we find that other parties -- particularly ICS consumers -- will be harmed if the Reconsideration Order is stayed." ICS providers -- Global Tel*Link, Securus and Telmate -- along with NARUC, states and sheriffs filed four petitions asking the FCC to stay its own order. The petitioners cited three previous stays of FCC ICS orders by the U.S. Court of Appeals for the D.C. Circuit, pending its review of underlying challenges to those orders on the merits. Absent an FCC stay of the recon order, petitioners said they plan to seek a new court stay.
California localities told a court that FCC inmate calling service rate caps will spur communications that benefit inmate families and broader society. Santa Clara County and the city and county of San Francisco said they experienced increased inmate calling activity after interim 2013 FCC interstate ICS rate caps took effect and the localities voluntarily reduced their intrastate ICS rates in 2014 and 2015. "The Counties have no doubt that the reduction in rate caps for inmate calling adopted by the FCC in 2015 will increase inmate calling nationwide," said a Santa Clara and San Francisco amicus brief Wednesday to the U.S. Court of Appeals for the D.C. Circuit, which is reviewing industry and state/sheriff challenges to commission ICS regulations (Global Tel*Link v. FCC, No. 15-1461 and consolidated cases). "The increase in inmate call activity will increase inmate communications with friends and family, resulting in benefits to inmates, their family and friends, and the criminal justice system." Intervenor Network Communications International Corp. filed Thursday in support of the 2015 order, including its rate caps for intrastate calling and ancillary services. The rates "balance the diverse interests of inmates, their families, correctional facilities, and ICS providers, who will continue to receive adequate compensation while ensuring that inmates and families pay reasonable rates," said NCIC's brief (in Pacer). "Encouraging inmate communication with loved ones through reasonable rates for communications services is a crucial part of the rehabilitation process," NCIC wrote. Reasonable rates also "support cost-effective inmate access to counsel, lead to lower recidivism, and increase the likelihood that inmates and their families will stay together after reentry into society. All of these benefits save taxpayer money," it wrote.