When a US federal agency refuses to defend its own regulations in court, calling them illegal, there's a very good chance that those rules will be struck down.
That's precisely what happened Tuesday after a US appeals court threw out federal prison phone rate caps for in-state calls, thereby ensuring that many of the nation's 2.2 million inmates and their families will continue to face sky-high calling charges for the foreseeable future.
The DC Circuit's decision arrived just months after President Trump's Federal Communications Commission chief, Republican Ajit Pai, decided to stop defending the agency's Obama-era rate caps from a legal challenge mounted by the nation's largest private prison phone providers.
The ruling is a major blow for criminal justice reform advocates who have been working for more than a decade to bring relief to prison inmates, their families, and their lawyers, who have long faced astronomical calling charges—in some cases as much as $14 per minute—thanks to what critics call exploitative practices by the two companies, Securus Technologies and Global Tel*Link, that largely control the $1.2 billion prison phone market.
"This court decision is a disaster for families of incarcerated people, a large percentage of whom are low-income and people of color," Malkia Cyril, co-founder and executive director of the Center for Media Justice, a nonprofit digital rights group, told Motherboard. "In refusing to defend its own decision to reduce the cost of calls from prison, Trump's FCC chairman Ajit Pai went above and beyond to defend predatory private interests, hurting America's most vulnerable population, children with an incarcerated parent."
Criminal justice reform advocates say exorbitant prison phone costs place an often-crushing financial burden on families. A 2015 study by a coalition of groups including the Ella Baker Center for Human Rights found that one in three families go into debt because of the high cost of maintaining phone contact with incarcerated loved ones. Not surprisingly, 87% of the family members forced to bear these costs are women, many with children, the study found.
"The greatest form of regulatory injustice I have seen in my 18 years as a regulator."
In 2015, the FCC approved rate caps on in-state prison calls of 11 cents to 22 cents per minute, depending on the facility, reducing the average cost of most 15-minute calls from $2.96 to $1.65. That prompted a lawsuit from Securus and Global Tel*Link. (Securus CEO Richard Smith claimed that lower costs for inmate phone calls would cause "jail unrest.") Last year, the FCC voted to increase the caps to 13 cents to 31 cents per minute, in part to assuage the companies and the DC Circuit, which has been handling the case.
In January, Pai directed FCC lawyers to stop defending the in-state caps in court, claiming that the agency lacked the legal authority to enforce them. The DC Circuit apparently got the message loud and clear, and on Tuesday, threw out the in-state caps altogether. The FCC's out-of-state long-distance rate caps of 21 cents to 25 cents per minute remain in effect, but that's little consolation to inmate advocates, who point out that the vast majority of prison phone calls are made within a state.
Democratic FCC commissioner Mignon Clyburn, a fierce champion for fairer prison phone rates, called the court's decision "deeply disappointing" but vowed in a statement to continue fighting "to bring relief to millions who continue to suffer from the greatest form of regulatory injustice I have seen in my 18 years as a regulator in the communications space."
In a statement, Global Tel*Link "commended" the decision and said that it is "committed to market-based reforms that result in lower rates for inmates and their friends and family members, but those reforms must account for the true costs of providing [inmate calling services] and give deference to state and local governments on issues of intrastate rates and security." (A spokesperson for Securus did not immediately respond to a request for comment.)
FCC Chairman Pai likewise praised the court for agreeing "with my position that the FCC exceeded its authority when it attempted to impose rate caps on intrastate calls made by inmates." Pai, a former Verizon lawyer who has long opposed the FCC's rate caps, added that he plans "to work with my colleagues at the Commission, Congress, and all stakeholders to address the problem of high inmate calling rates in a lawful manner."
A FCC spokesperson declined to comment on a query from Motherboard about how exactly Pai plans to address this problem. "Not at this time," the spokesperson said.
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