Analysis

FCC's Prison Call Cost Cut Underscores Need For Legislation

Law360 (July 31, 2020, 4:55 PM EDT) -- The Federal Communications Commission is planning to launch a years-in-the-making rulemaking on Thursday that would rein in the rates prisons and jails may charge for out-of-state calls, but advocates say congressional intervention is also necessary to address high in-state rates.

While the FCC proposal that recommends slashing out-of-state rate caps is seen as a useful first step, it will only cover about 20% of prison and jail calls, emphasizing the importance of pending bills that would extend the agency's authority to in-state traffic as well.

"It's good that we are seeing a proposal to lower the rate caps for interstate calls. It will make it easier for families," said Ariel Nelson, a staff attorney with the National Consumer Law Center. "But we do need Congress to act now."

The FCC's planned notice of proposed rulemaking responds to a 2017 directive from the D.C. Circuit, which curtailed the Obama-era FCC's attempt to regulate the often-outsized prison phone rates, finding the agency had no authority over in-state calling rates.

FCC Chairman Ajit Pai has now signaled that he'll build on the court remand with more concrete steps, proposing to lower the out-of-state per-minute rates by several cents per minute.

As the cost of phone calls declines thanks to technology advances, Marashlian & Donahue PLLC special counsel Robert Jackson said it only makes sense that incarcerated individuals and their families should reap the benefits alongside consumers at large.

However, he noted that the FCC can address in-state rates only if Congress expressly gives it authority to tackle them alongside out-of-state rates, which the 2017 court ruling confirmed.

"It's not surprising to think that the prices for inmate calling services should go down too, even though this is a more expensive service to provide," Jackson said. "I think the arguments that you make for interstate reform apply equally to in-state calls and local calls."

While Pai can't directly lower in-state rates yet, he has appealed to state utility regulators, asking them in a recent letter to lower prison calling charges under their purview. While it's a worthy goal for Pai to work with states on lowering local call rates, some experts surmise that approach is likely to enjoy limited success.

Al Kramer, a senior fellow at think tank Public Knowledge, noted that many states have different degrees of jurisdiction over phone rates, including some that have imposed statutory requirements for the rates charged to incarcerated people.

"Right now, the emphasis should be on getting that jurisdiction in one place where there can be uniform rules that apply to jails, prisons and any other place of incarceration," Kramer said.

At least two pieces of active legislation could address this problem.

Rep. Bobby Rush, D-Ill., folded a piece of legislation into the House's latest coronavirus rescue package that would cap both in- and out-of-state rates between 4 and 5 cents per minute and ban site commissions — arrangements in which service providers give a portion of their profits back to the prison in exchange for a contract to do business there.

In the upper chamber, Sen. Tammy Duckworth, D-Ill., led a similar yet narrower bipartisan bill last year that would give the FCC jurisdiction over intrastate rates.

"The bills are structured differently, but that legal piece is clearly in both of them," Kramer said.

In the meantime, inmates and their families must wait for relief, as federal statute requires the FCC to collect at least two rounds of public comment before pushing out a final rule.

"It always takes longer than the proponents think it should," Jackson said of FCC rulemakings, especially those that respond to a court remand. "It doesn't seem to matter which party is in power. The FCC does some things like licensing fairly quickly, but it's just not nimble when it comes to rulemaking."

Until Congress does act, more than 80% of America's inmates will continue to pay exorbitant amounts for in-state calls that help them stay connected with their families, Nelson said. This distribution is influenced by a number of factors, including that many people are jailed locally pending a trial.

As the FCC sets its wheels in motion, both the agency and Congress have an opportunity to address an important piece of the prison system that disproportionately affects minority families, Nelson said.

"I would like to hope that it's a recognition that the system is broken, especially as we're thinking about big questions about our criminal legal system and police," she said. "Prison phone justice is a part of that."

--Editing by Brian Baresch.

For a reprint of this article, please contact reprints@law360.com.

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