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.
Litigants should show cause why an FCC inmate calling service case shouldn't be held in abeyance, "in light of the impending changes to the Commission," said a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit. Responses are due Tuesday by 4 p.m. (EST), said a per curiam order (in Pacer) Wednesday in Global Tel-Link v. FCC, No. 15-1461 and consolidated cases. The order listed Judge Cornelia Pillard and Senior Judges Harry Edwards and Laurence Silberman. The D.C. Circuit has oral argument scheduled Feb. 6 on industry, state and sheriff challenges to various FCC inmate calling service rate caps, ancillary service fees and other rules (see 1612130041).
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.
Seven state attorneys general defended an FCC inmate calling service order limiting ICS rates and fees, which is being challenged in court by industry parties and other state interests. AGs from Minnesota, Illinois, Massachusetts, New Mexico, New York, Washington state and Washington, D.C., said almost all state prison inmates are eventually released, but in prison they face "prohibitively high charges" for phone calls that far exceed rates outside the correctional system. The AGs support the 2015 order "because providing telephone service to prison inmates at a reasonable cost is feasible, and it fosters public safety, successful rehabilitation, reduction in recidivism, and improved outcomes for offenders' children and families," said their amicus brief (in Pacer) Monday to the U.S. Court of Appeals for the D.C. Circuit (Global Tel*Link v. FCC, No. 15-1461). ICS providers, various other states and sheriffs filed their initial arguments in June (see 1606070030). The FCC and DOJ responded last week, noting the commission updated its rate caps to account for correctional facility costs (see 1609140033).
Judges shouldn't rule on previous FCC inmate calling service rate caps because they were significantly altered in an August reconsideration order, the commission and DOJ told the U.S. Court of Appeals for the D.C. Circuit. There isn't any reason for the court to address the caps in a 2015 order because they have been stayed and "will now never take effect," said the government reply brief posted by the commission Tuesday in Global Tel*Link v. FCC, No. 15-1461 and previously consolidated cases. It said the D.C. Circuit either should dismiss the challenges as moot or consolidate them with new challenges to the recon order, which will raise the tiered rate caps for debit/prepaid ICS domestic calls in prisons and jails from 11-22 cents per minute to 13-31 cents per minute, but without regulating site commission payments to correctional authorities (see 1608040037). If the D.C. Circuit nevertheless decides to rule on the 2015 order, it should uphold the commission decisions, said the brief responding to the arguments of ICS providers, states and sheriffs (see 1606070030). Global Tel*Link said in a release it challenged the FCC recon order at the D.C. Circuit. GTL and others have asked the commission to stay the order pending judicial review of underlying challenges. An inmate advocacy group opposed the requests (see 1609060072). Network Communications International also opposed the stay petitions -- from GTL, Securus, Telmate and states and sheriffs -- in a filing posted Wednesday in FCC docket 12-375.
The Wright Petitioners urged the FCC to deny Global Tel*Link's request for a stay of an August order raising inmate calling service rate caps without restricting site-commission payments to correctional authorities (see 1609020028). GTL isn't likely to prevail on the merits of a legal challenge to the order and wouldn't suffer irreparable harm absent a stay, said the inmate family advocacy group in opposition posted Thursday in docket 12-375, after similar filings against Securus and Telmate stay requests. State and sheriff interests more recently sought a stay (see 1609060072), which the Wright Petitioners also opposed in a Friday filing.