Bill Would Authorize FCC Regulation of Intrastate ICS Rates
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Thursday, March 8, 2018

Bill Would Authorize FCC Regulation of Intrastate ICS Rates

Sens. Tammy Duckworth (D., Ill.), Rob Portman (R, Ohio), Cory Booker (D., N.J.) and Brian Schatz (D., Hawaii) today introduced a bill to give the FCC authority to regulate rates for intrastate inmate calling (ICS) services and to use its “traditional procedures” for addressing unreasonable rates.

Last year the U.S. Court of Appeals for the District of Columbia Circuit overturned most of the provisions of the FCC’s 2015 ICS order, including its effort to regulate intrastate ICS rates, its use of industry-averaged cost data to set rate caps, and its exclusion of site commissions from its calculation of costs (TR Daily, June 13, 2017).

Shortly after Republican Commissioner Ajit Pai took over the helm of the agency as Chairman early last year, the FCC’s Office of General Counsel told the court that in light of the opposition of the agency’s new Republican majority to the 2015 order’s provisions on intrastate rate caps, the Commission was no longer defending the order’s imposition of caps on ICS rates or the use of industry-wide averages in setting rate caps (TR Daily, Jan. 31, 2017).

In a “Dear Colleague” memo explaining the newly proposed Inmate Calling Technical Corrections Act, Sen. Duckworth pointed out that Chairman Pai testified at his confirmation hearing last year that the agency’s action was “purely a legal position” and that he would “welcome additional authority” for the FCC over ICS rates “should Congress see fit to provide it.”

The court had ruled that provisions in the 1996 Telecommunications Act mandating that payphone providers be “fairly compensated” applies only to payments between providers, not to payments made by consumers to providers. The Duckworth memo explains that the proposed bill “makes clear that ratepayers should also receive just and reasonable charges, drawing on the standard in Section 202 of the Communications Act.”

The memo also says that the bill is “future-proof” because it “makes clear that the obligations of fairness and just and reasonable rates apply to all inmate communications regardless of technology used, like video visitation services and other advanced communications services. This also ensures that the needs of inmates with disabilities is addressed.”

The memo adds, “This legislation is precisely targeted at clarifying existing law in light of the U.S. Court of Appeals decision and to permit the FCC to use its traditional procedures and authority to address unjust and unreasonable rates.”

The bill would amend the language of the payphone provisions of the 1996 Act to include a call for all charges to be just and reasonable and to expand coverage from “calls” using payphones to “communications” using payphones. It also would amend the Act’s definition of “advanced communications services” to include “any audio or video communications service provided at a correctional institution, regardless of technology used.” It would require the FCC to adopt implementing regulations within 18 months of enactment of the legislation. And it would authorize the FCC in determining whether ICS rates are just and reasonable to “use industry average costs and collect and analyze such data as the Commission determines necessary.”

The sponsors emphasized findings that maintaining family and community contacts while incarcerated reduces recidivism “and thereby save[s] taxpayer dollars.”

“The vast majority of prisoners will eventually be released, and it’s only common-sense that—once they’ve repaid their debt to society—we should do whatever we can to ensure they do not return to a life of crime and instead have a chance to succeed,” said Sen. Duckworth.

“Outrageously high prison phone call rates create an often insurmountable barrier between those in prison and their families,” said Sen. Portman. “While Ohio has done a good job of tackling this problem, this bill fills a void by helping to solve this problem nationwide. I look forward to working with my colleagues to get this common-sense, bipartisan solution to the president’s desk for signature.”

Sen. Booker said that “our broken criminal justice system allows these calling services to charge exorbitant and prohibitively expensive rates that are as high as $400 to $500 per month. Our bipartisan bill would address this long-standing injustice by allowing the FCC to protect consumers against these unfair rates.”

Sen. Schatz, the ranking minority member on the Senate communications, technology, innovation and the Internet subcommittee, said, “People in prison should not have to pay exorbitant fees just to talk on the phone with their kids, their clergy, or their counsel. It’s bad for human rights, it’s bad for our justice system, and it’s bad for our taxpayers. With this bill, we’re giving the FCC the authority to fix the problem once and for all.”

In a statement, FCC Commissioner Mignon L. Clyburn, who had pushed agency action on a long pending petition for relief from high ICS rates during her time as acting Chairman in 2013, said, “For far too long inmates and their loved ones have suffered under the burden of egregious inmate calling and video visitation rates. I commend Senators Duckworth, Portman, Booker, and Schatz for their work on the Inmate Calling Technical Corrections Act of 2018, which would clarify the FCC’s authority to tackle this problem in a comprehensive manner and establish a timeline for doing so. I look forward to the day where we can truly say that inmate calling rates across the nation are just and reasonable.” Public Knowledge Vice President Chris Lewis said, “For too long family members who committed no crime have borne the burden of price gouging and unreasonable rates when calling loved ones behind bars. Families have fought for justice in phone rates in the courts and at the FCC and been turned away over legal definitions.”

Mr. Lewis added, “Reasonable rates for phone calls keep children connected to parents and can reduce recidivism rates. This is why we applaud Senator Duckworth and this group of bipartisan Senators for empowering the FCC to protect Americans who simply want to speak with their loved ones. We encourage all members of Congress to support this legislation to correct this inequity as soon as possible.” —Lynn Stanton, lynn.stanton@wolterskluwer.com

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