The Wright Petitioners opposed Telmate's request for the FCC to stay its August order raising inmate calling service rate caps to account for correctional facility costs without restricting ICS provider site-commission payments (see 1608310042). Telmate failed to show it would likely prevail on the merits of its underlying legal challenge or to provide "any evidence" it will suffer irreparable harm in the meantime, said the advocates for inmate families in opposition posted Tuesday in docket 12-375. The group previously opposed a Securus stay petition (see 1609010071). Meanwhile, nine states, several sheriff interests and NARUC filed a petition Friday asking the FCC to stay the recent order. Global Tel*Link has also sought a stay (see 1609020028).
Global Tel*Link became the third inmate calling service provider to seek an FCC stay of its August order raising ICS rate caps to account for correctional facility costs without restricting industry site-commissions payments (see 1608040037). GTL said the "performance" of the commission's previous ICS orders at the U.S. Court of Appeals for the D.C. Circuit "is not a pretty sight." The D.C. Circuit has issued three stays, effectively sending a message that the agency's rate decisions need to be subject to judicial review before taking effect, GTL told the FCC in a stay petition Thursday in docket 12-375. A commission stay of its most recent order "is the only course that pays due respect" to the prior court stays, said the company, which also lobbied an aide to FCC Chairman Tom Wheeler and other agency staffers in support of a stay (here). Securus and Telmate had sought an FCC stay (see 1608250064 and 1608310042). Inmate Calling Solutions and the Wright Petitioners filed stay oppositions against Securus bid (see 1609010071). Parties still can weigh in on the Telmate and GTL requests.
A federal court rejected an FCC request to hold up inmate calling service litigation after the commission Aug. 4 approved an order to increase ICS rate caps currently under judicial review (see 1608110020 and 1608040037). The U.S. Court of Appeals for the D.C. Circuit also revised the remaining briefing schedule in an order Friday by Judges Karen LeCraft Henderson and Cornelia Pillard, a motion panel in the case (Global Tel*Link v. FCC, No. 15-1461). ICS provider, state and sheriff petitioners challenging the commission's previous ICS orders filed their opening briefs earlier this summer (see 1606070030). Response briefs are now due from the FCC and DOJ Sept. 12, and from Network Communications International and other intervenors supporting the FCC Sept. 29. Reply briefs from petitioners and supporting intervenors are due Oct. 31. The parties were directed to file motions governing further proceedings within seven days of the deadline for challenging the FCC's Aug. 4 order. "I expect new petitions for review, new stay motions and new briefs. I imagine the new cases will catch up to the old ones," emailed Andrew Schwartzman, Georgetown Law Institute for Public Representation senior counselor, who represents intervenors supporting the FCC. GlobalTel*Link already said it intends to challenge the Aug. 4 order. “GTL applauds the action of the court, which offers all parties the shortest timeline to resolve the central issues of this proceeding -- rates below costs and whether the FCC has jurisdiction to control security policy in state, county and municipal corrections facilities,” emailed a GTL spokesman. “After years of discussion and debate, GTL looks forward to the definitive resolution of these questions and the end of uncertainty in the market.” The FCC didn't comment.
The FCC and DOJ asked a court to suspend review of an inmate calling service case, after the commission's recent reconsideration order to increase ICS rate caps (see 1608040037). The current ICS rate caps from a 2015 FCC order were challenged and stayed by the U.S. Court of Appeals for the D.C. Circuit in the current litigation, which also addresses other issues (Global Tel*Link, et al., v. FCC, No. 15-1461 and consolidated cases). The FCC/DOJ said the court shouldn't bifurcate the litigation. "Given the Commission’s adoption of a new order that materially alters the order under review, this Court should grant the respondents’ motion to hold these cases in abeyance," they said in a response (in Pacer) Thursday to oppositions to their motion. "It does not make sense to litigate these cases independent of the challenges that several of the petitioners have already announced they will file to the Reconsideration Order. The Court should therefore place these consolidated cases in abeyance until ... challenges to the Reconsideration Order have been filed and consolidated with these cases. The Court could direct the parties, in the meantime, to confer and file a revised briefing schedule designed to minimize any delay in resolving these cases." Litigant Global Tel*Link said Thursday it would also challenge the new "piecemeal" FCC order. The ICS provider believes the order set rate caps below costs and exceeded the agency's jurisdiction through preemption of state and local decision making. "It is time for the FCC to stop changing the rules, to allow the courts to resolve these fundamental issues and end the uncertainty," said GTL President Brian Oliver in a release. The FCC/DOJ position was no surprise, emailed Brad Ramsay, general counsel of NARUC, a state litigant. "It will be interesting to see how the Court considers the agency’s arguments for more delay given the FCC refused to give affected parties in the appeal similar courtesy -- specifically rejecting arguments to delay the subject Order’s effectiveness until the time to file appeals has lapsed," he said.
Global Tel*Link said the FCC's inmate calling service rate cap increases fail to achieve a lasting solution, and an advocate for inmate families also was critical. But other advocates said the new rate caps would expedite relief for inmate families, given ongoing litigation that blocked ICS rate caps of 11-22 cents per minute in a 2015 agency order. Commissioners Thursday voted 3-2 to approve an order to raise the ICS rate caps to 13-31 cents per minute to account for correctional facility costs (see 1608040037).
The FCC voted 3-2 to adopt an order to increase inmate calling service rate caps and cover correctional facility costs, but without restricting ICS provider site-commission payments to prisons and jails. The decision, as described in an FCC release and by officials, tracked the proposals in a fact sheet circulated last month by Chairman Tom Wheeler and Commissioner Mignon Clyburn (see 1607140087). It's also consistent with expectations of most parties we talked to this week, who doubted the commission would regulate site commissions (see 1608030063). Commissioner Jessica Rosenworcel joined her Democratic colleagues in voting for the order.
The Wright petitioners backed an FCC draft order to raise inmate calling service rate caps. The group, which advocates for inmates and their families, said the order is needed to reinstate caps on all domestic ICS calls after a court stayed rate caps from a 2015 order, which left only interim 2013 interstate rate caps in place. The FCC-proposed rate cap increases, which it plans to vote on Thursday (see 1607140087), would give ICS providers a windfall beyond their costs, but also would "eliminate any basis for ICS providers and correctional facilities to argue that any aspect of their cost to provide ICS to inmates and their loved ones will not be reimbursed," said a filing posted Monday in docket 12-375 by the group summarizing a meeting with agency officials, including an aide to Chairman Tom Wheeler. The petitioners provided evidence they said showed ICS providers and correctional authorities had recently amended their contracts to preserve revenue -- which would otherwise be lost under the FCC's 2015 ancillary fee restrictions -- by raising uncapped intrastate rates and adopting new fees. "The information provided in Exhibit B highlight the extent to which the ICS providers and correctional authorities will go to ensure that their profit margins are untouched by Commission ICS reform," the Wright group said. "If Telmate, Securus and GTL [Global Tel*Link] are willing to propose amendments to their existing contracts to keep each party 'whole,' the Commission is correct in its decision not to ban site commissions. Instead, it is clear that, should the Commission ban site commissions as these parties suggest, ICS providers and their correctional partners simply will devise new attempts to divvy up the unjust, unreasonable and unfairly earned ICS revenue." Telmate, Securus and GTL didn't comment to us Monday. Telmate asked the commission "to pause before it imposes yet another set of new rates" on ICS providers. "If the Commission is concerned about the legal validity of its most recent Order, it should revisit that decision in an orderly fashion, on a full record and with a meaningful opportunity to comment," said a Telmate filing Friday summarizing meetings with FCC officials. Meanwhile, the U.S. Court of Appeals for the D.C. Circuit issued a short order (in Pacer) suspending the briefing schedule in the current ICS litigation "pending disposition" of an FCC motion to hold the case in abeyance (see 1607200053).
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).