Order on Prison Reform Would Set Up ‘Safe Harbor’ on Interstate Rates, Followed by Rate Cap
A circulating FCC order on prison phone rate reform focuses on interstate rates, while an attached further rulemaking notice tees up intrastate issues, agency officials told us. The order, which on Monday was added to the Aug. 9 meeting agenda, would set up a “safe harbor” on per-minute interstate rates, said an FCC official. Anything under a certain per-minute rate would be okay, and above that, inmate calling service (ICS) companies would be able to justify that figure based on their own costs, said the official. But prices can only be justified until a certain point, at which they're capped, the official said.
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The order builds on reforms enacted by the eight states that have taken on state-level reforms, agency officials said. Acting Chairwoman Mignon Clyburn referred to those state-level reforms at last month’s prison calling workshop as proof that it’s possible to reform the inmate rate structure while maintaining security features (CD July 11 p1).
The order is fairly detailed, and deals with more than just per-minute rates, an agency official said: It also takes on specific fees. Prisoners’ rights groups have long criticized what they see as exorbitant fees of several dollars to put money on a debit card.
Collect calls would get a higher safe harbor and rate cap than debit and prepaid calls, an agency official said. That’s because, based on the record, collect calls generally have a higher cost associated with them, the official said. Rates in the order vary, but aren’t as low as the 7 cents per minute sought by petitioner Martha Wright and several prisoners’ rights groups, the official said: Everything is in the 10-30 cent per minute range, the official said. An agency spokesman declined to comment.
The further notice involves intrastate rates, going into more detail than the NPRM issued earlier this year on the legal arguments about the FCC getting involved in state issues, agency officials said. In announcing the pending proposal Monday, Clyburn lamented “the high cost of long-distance calls from prisoners to their loved ones across state lines” (CD July 30 p7). But the big money comes from calls within state lines, agency and industry officials said. The further notice maintains that the agency would have the authority to get involved in state ratemaking, an FCC official said.
If the FCC doesn’t get involved in intrastate rates, that could increase the potential for arbitrage schemes, agency officials and prisoners’ rights groups said. “I think they have to,” said Deborah Golden, director of the DC Prisoners’ Project of the Washington Lawyers Committee for Civil Rights and Urban Affairs. If the FCC lowers interstate but not intrastate rates, and someone lives in a state with high intrastate prices, “all you have to do is go online and get a Google Voice number with a different out of state area code,” she said. The Google number could then forward the call to a local phone, meaning the caller could take advantage of the lower FCC-mandated interstate rates, she said.
Whether the FCC can regulate state rates is “a complex legal question,” said Troutman Sanders lawyer Glenn Manishin, who represents ICS provider Telmate. “It’s difficult for [the FCC] because if they only address interstate rates, they only address a small part of the problem,” Manishin said. If the commission did take on intrastate rates, that “would end up with a massive struggle with NARUC and the state PUCs,” he said.