Intrastate Prison Calling Rates Remain in Question for State Regulators
The FCC decided to include intrastate prison calling rate changes in an NPRM because it knew states would have conflicting opinions, said state regulators in a series of interviews. Eight states have already imposed changes on their prison calling rates, but the FCC needs to take action in order to get all 50 states to participate, said Jason Marks, a former New Mexico Public Regulation commissioner who helped to pass changes in his state. “It’s not reasonable to expect all 50 states will choose to regulate for inmate services, and therefore the FCC needs to step in,” Marks said.
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Lower prison calling rates are necessary to keep inmates connected to their families, said Anne Boyle, Nebraska Public Service Commission chair. The FCC said intrastate rates have the same legal and policy concerns as interstate rates, since the “lack of regular contact between incarcerated parents and their children is linked to truancy, homelessness, depression, aggression, and poor classroom performance.” A significant number of inmate calling services are intrastate, which highlights the need for revision of intrastate rates, said the FCC. Intrastate rates now vary from $0.043 per minute in New Mexico to $0.89 per minute with a $3.95 setup charge in Georgia, said the NPRM (http://bit.ly/1fuJ6Ug).
The FCC is getting its legal authority to regulate intrastate rates under Section 276 of the Communications Act to regulate intrastate and interstate payphone services. The statute defines these services to include “the provision of inmate telephone service in correctional institutions and any ancillary services,” said the NPRM. The U.S. Court of Appeals for the D.C. Circuit upheld a jurisdictional precedent in Illinois Public Telecommunications Association v. FCC to preempt inconsistent state regulation of local coin rates for payphones, said the FCC.
The legal rationale for regulating intrastate rates is a “bit of stretch,” said Brad Ramsey, NARUC general counsel. “The FCC has some concerns that there would be an immediate appeal on intrastate or they would have done this in the first order,” said Ramsey. Section “276 has been stretched before and you can understand the motivation in what they are trying to do.” Marks said prison calling companies may sue the FCC, but the FCC will prevail. “We found in New Mexico that the large prisons saw our regulations coming,” he said. “There are players in this industry who want to compete on value.”
Not enough information was available for the FCC to act on intrastate prison calling rates, said some state regulators. “The FCC majority shows they understand the intrastate issue because without regulation of intrastate rates some states would have no regulations,” said Marks. Washington, D.C. passed changes to its intrastate calling rates 13 years ago, said D.C. Public Service Commission Chairman Betty Ann Kane. “We are interested in the interstate issue because many of our prisoners are from out of state, but states are capable of taking care of intrastate rates on their own authority,” said Kane. The FCC is only trying to see if it can get any interest in intrastate regulations, said Nebraska’s Boyle. “It’s something they are looking into, but it’s going to take them a while to resolve this issue and they are asking for comments,” said Boyle.
States that have not their own implemented prison calling cost revisions may be hesitant to speak out to the FCC because they feel like they don’t have voice in this issue, said John Burke, National Association of Regulatory Utility Commissioners Committee on Telecommunications chair and Vermont Public Service Board member. “These states are not going to stand up until their legislatures tell them what to do,” said Burke. “We need to see what they will say in their comments, especially those in a deregulatory state.” The FCC is encroaching on the states’ territory on intrastate rates, said Burke. “The Act does not traditionally say the FCC can regulate this, but they have done it before.”