Most of us stopped paying by-the-minute for phone calls years ago; a luxury that’s not available to the men and women in prison, where the few providers of phone service charge as much as $14/minute. The FCC’s efforts to cap these rates are currently being held up in court, and with a new business-friendly Chairman at the helm, the FCC has opted to not defend the very rules it came up with only 15 months ago.
In 2015, the FCC approved a rule to put caps on inmate calling services (ICS) rates.
That rule reduced the limit for ICS calls of 15 minutes or less to no more than $1.65 and set the per-minute rate limits for prepaid calls to $0.11-$0.22 per minute depending on the kind and size of facility the call comes from. The rule also banned “flat-rate calling,” which charges all inmates for at 15 minutes of use, no matter how long or short the actual call is. And it set limits on the “ancillary service charges” ICS providers charge inmates for the very act of being billed and paying that bill.
As you can imagine, the entities that reap revenue from charging high ICS rates — which includes the states and the private companies that run prisons — want to keep raking in as much money as they can. And so the state of Oklahoma, the Sheriff of Oklahoma County, and ICS provider Global Tel-Link filed a lawsuit to block enforcement of the restrictions.
In March, 2016, a federal appeals court agreed to place a stay on the calling rate caps, pending the outcome of further litigation. The restrictions on ancillary fees, however, did take hold in March and June of last year.
Then in August, recognizing that inflation happens and the cost of business fluctuates, the FCC adjusted their caps slightly, from the $0.11 – $0.22 range to $0.13 – $0.31. Those caps, however, still only exist on paper and are not enforced, because of the court-ordered stay.
Now, it seems, they never will be enforced — at least, not any time in the near future. Because earlier this week, the lawyer arguing the FCC’s side of the case informed the court [PDF] informing the court that the FCC is abandoning the case, and will not be defending its side.
At the time the rule was adopted in 2015, it passed on a 3-2 vote: Chair Tom Wheeler and commissioners Jessica Rosenworcel and Mignon Clyburn voted in favor, while commissioners Ajit Pai and Michael O’Rielly dissented. However, the winds of change have since blown like a hurricane through D.C. in recent days. Now Ajit Pai is the Commission’s chair, and Rosenworcel and Wheeler are gone. That makes the FCC tilted 2-1 the other way, and it now has different priorities.
“A majority of the current Commission does not believe that the agency has the authority to cap intrastate rates,” FCC Deputy General Counsel David Gossett wrote to the court in his brief. “I am therefore informing the parties and the Court that we are abandoning, and I am not authorized to defend at argument, the contention … that the Commission has the authority to cap intrastate rates for inmate calling services.”
The FCC will still be defending the rest of the Order, Gossett noted, but those parts were also not subject to a stay.