Securus opposed an FCC court motion to suspend review of an inmate calling service case while the agency considers proposed rate cap increases that could affect core challenges in the litigation. Instead, the U.S. Court of Appeals for the D.C. Circuit should extend briefing deadlines by 30 days while the commission decides whether to approve an ICS draft order tentatively scheduled for an Aug. 4 vote, said a Securus filing (in Pacer) to the court (Global Tel*Link, Securus Technologies, et al., v. FCC, No. 15-1461, 15-1498 and consolidated cases). The FCC is proposing to issue its third ICS order in less than three years (see 1607140087), even though petitioners challenging the two previous orders have yet to obtain court decisions on their merits, Securus said. "At some point, this game of moving the goal posts and forcing Petitioners to start over must end and the Court must ensure that its jurisdiction to review the Commission's final orders is not frustrated," it wrote. The FCC motion (see 1607200053) said the draft order could revise ICS rate caps "that are the central focus of this litigation," Securus wrote. "This is a vast overstatement. In fact, the new calling rate caps adopted in the Second Report and Order are only one of several key issues in this appeal. It said petitioners have challenged several FCC rules and conclusions, including that site commission payments aren't ICS "costs" and its intrastate rate jurisdiction, among others. Assuming the FCC issues a new order, parties should have a week to file motions to govern future proceedings, it said. Separately, Pay Tel Communications urged the FCC to modify its draft order (described in a fact sheet) to make clear "that a per-minute fee, not to exceed the additive, may be collected by ICS providers and remitted to facilities in lieu of other payments." The revisions "could be implemented through a regulatory directive or through a rebuttable presumption, but in either case the Commission has authority to regulate the payments made by ICS providers to confinement facilities," it said in a filing on one of two meetings with FCC officials posted Tuesday in docket 12-375 (other one here). "Pay Tel further emphasized the need to clarify whether and how site commission payments may be made by ICS providers to confinement facilities, especially in light of the differing interpretations of the applicable legal requirements." Attorney Michael Hamden, whose petition the FCC cited in proposing the draft order, this week called on the commission to ban or strictly limit site commissions (see 1607250027).
The FCC asked a court to suspend review of an inmate calling service case while the commission considers a draft order that would raise ICS rate caps that are being challenged in the litigation. The order "would meaningfully increase the rate caps challenged by the petitioners here, thus mooting or substantially altering the scope of issues central to this litigation," said a motion (in Pacer) from the FCC and DOJ to hold the case in abeyance. It was filed Wednesday at the U.S. Court of Appeals for the D.C. Circuit (Global Tel*Link, et al. v. FCC, No. 15-1461 and consolidated cases). Petitioner Telmate and intervenors supporting the FCC consented, but other petitioners are expected to file responses or oppositions, the motion said.
Securus officials again explored at the FCC whether an inmate calling service compromise could be reached to resolve disagreements over ICS rates and fees. CEO Richard Smith and others met Tuesday with an aide to Commissioner Mignon Clyburn, said a company filing Thursday in docket 12-375. "Securus reiterated the request, proposed to Commissioner Clyburn by several ICS carriers in October 2015, that the Commission consider the adoption of a per-minute additive rate to compensate jails," said the filing. "This additive rate would be part of a comprehensive solution on which the Commission can obtain comment." Clyburn spearheaded the FCC effort to limit ICS provider rates and fees, while discouraging but not prohibiting provider site-commission payments to correctional authorities (see 1510220059). The FCC decision is being challenged by Securus and others in court (see 1606070030). Clyburn's office and a Securus counsel didn't comment Friday. Representatives of Securus, Global Tel*Link, Pay Tel Communications and Telmate discussed the possibility of a compromise with agency officials in April (see 1604150054).
The Human Rights Defense Center asked why Global Tel*Link is seeking a waiver to FCC inmate calling service rule changes that it already has implemented. The HRDC noted a GTL release Monday that said it "completed implementation of rate and fee changes" under the rules that took effect the same day, and commended its law enforcement and correctional facility customers for helping to ensure compliance. "This document begs the question of why GTL has expended so much in the way of public and private resources in pursuing what is clearly an unnecessary waiver request and why they haven’t moved to withdraw the petition," said an HRDC filing Wednesday in docket 12-375. "If they have completed implementation of the FCC rates why are they seeking a waiver if not to be able to continue gouging the public and exploiting the poor as they have for decades?" GTL didn't comment Thursday. GTL's waiver petition asked the FCC for 90 extra days to implement two rules: 64.6080, barring providers from imposing per-call or per-connection charges on ICS consumers, and 64.6090, barring providers from offering flat-rate ICS calling. GTL said it needed more time to complete contract talks with its correctional facility customers and to seek relief at the state level on "intrastate ICS rate cap regimes that will result in confiscatory rates once the per-call surcharge or flat-rate calling component is removed."
The FCC set the pleading cycle for a Global Tel*Link petition for a temporary waiver from a June 20 deadline for two inmate calling service rules: one preventing providers from imposing per-call or per-connection charges on consumers, and one preventing them from offering flat-rate calling. Comments are due June 17 and replies June 24 on GTL's request, said a Wireline Bureau public notice in docket 12-375 listed in Wednesday's Daily Digest. GTL said it needs a 90-day extension (1) to complete contract negotiations and renegotiations with correctional facilities, (2) to seek state-level relief from certain "confiscatory" FCC rate caps, and (3) to make up for time lost due to confusion over court stays of parts of the FCC's 2015 ICS order (see 1603070055 and 1603230058).
Inmate calling service providers and others detailed their arguments against the FCC's 2015 order restricting domestic ICS rates and fees and imposing other duties (see 1510220059). The commission "overreached" in capping interstate and intrastate ICS rates, "banning or strictly limiting" ancillary service fees, and regulating advanced services such as video, said CenturyLink, Global Tel*Link, Pay Tel Communications, Securus Technologies and Telmate, in a brief (in Pacer) Monday to the U.S. Court of Appeals for the D.C. Circuit (Global Tel*Link v. FCC, No. 15-1461). Securus filed a separate brief (in Pacer) saying certain ancillary fee restrictions were below its demonstrated costs.
A court ordered that challenges to a 2013 FCC inmate calling service order capping interstate rates (Securus Technologies v. FCC, No. 13-1280) continue to be held in abeyance pending resolution of challenges to a 2015 order capping all domestic ICS rates and restricting ancillary service charges (Global Tel*Link v. FCC No. 15-1461). The U.S. Court of Appeals Thursday granted (in Pacer) the unopposed motion filed Tuesday by the FCC (see 1605170072).
The FCC filed an "unopposed" motion for a court to continue to hold in abeyance challenges to a 2013 commission order capping interstate inmate calling service rates (Securus Technologies v. FCC, No. 13-1280) pending court resolution of challenges to a 2015 order capping interstate and intrastate ICS rates and other charges (Global Tel*Link v. FCC, Nos. 15-1461 et al.). In a motion (in Pacer) filed Tuesday in the U.S. Court of Appeals for the D.C. Circuit, the FCC's counsel said he is "authorized to represent that no party opposes the Motion." The court has issued two stays blocking rate caps and other parts of the 2015 order pending further review on the merits (see 1603070055 and 1603230058)
Global Tel*Link representatives laid out potential problems of managed access systems (MAS) in prisons, in a meeting with Nicholas Degani, aide to FCC Commissioner Ajit Pai. The systems are one response to combating contraband cellphones, a Pai priority (see 1604070055). Managed access systems are “plagued by an overly complicated and lengthy process for licensing to operate in a non-commercial setting, and staggering costs to deploy and operate,” GTL said. “Depending on the size of the facility, the number of sites within a facility complex, the characterization of the surrounding geography from a topographical and urban versus rural standpoint, the architectural structure of the facility, and the ongoing system maintenance and software upgrades, costs to deploy can start at $1.5 million or more per customer. This does not include any of the regulatory costs for authority to operate such systems.” Funding is critical, the company said. “GTL suggested possible models for funding such as the E911 cost recovery mechanism or direct state efforts like those undertaken by the State of Maryland to deploy MAS at two facilities,” said the filing in docket 13-111.
A court set an inmate calling service briefing schedule running through early October, largely accepting the timetable and format of a joint proposal by the parties (see 1603280021). Briefs from ICS providers and state and local petitioners challenging the FCC 2015 order will be due June 6, with industry allotted 15,500 words (1,500 of which is for a separate brief by Securus Technologies analyzing cost data), and the government parties 14,000, said the order (in Pacer) from the U.S. Court of Appeals for the D.C. Circuit in the consolidated case Global Tel*Link v. FCC, No. 15-1461. The FCC response brief is due Aug. 5 and that of supporting intervenors is due Aug. 22, with the FCC allotted 18,500 words, Martha Wright Petitioners 7,500 and Network Communications International 3,500. Petitioner reply briefs are due Sept. 21 and allotted 14,750 words (7,750 for industry and 7,000 for state/local groups). Final briefs incorporating a joint appendix are due Oct. 5, and oral argument will typically be set for at least 45 days later, said the order. It said counsel must notify the court "as soon as settlement negotiations begin, when settlement of the case becomes likely, and when settlement is reached." Various ICS industry representatives met with FCC officials last week to discuss whether a comprehensive resolution of disputes was possible, but they said they didn't discuss substantive proposals (see 1604150054). The court has stayed FCC rate caps, one set of ancillary fees and application of 2013 interim interstate rate caps to intrastate services, pending further review (see 1603070055 and 1603230058). The panel reviewing the merits of the case will be announced later. Also Monday, parties asked for an extra 30 days to file motions advising the court on how the 2015 order affected an earlier Securus challenge to the FCC's 2013 order (Securus v. FCC, No. 13-1280). The parties have conferred but not reached a consensus on what to propose, with the court's partial stays of the 2015 order complicating debate, said an unopposed motion (in Pacer) filed by Securus, the FCC and others.