Court hears plea to end cost caps on prison calls

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Law enforcement officials and private phone companies urged a federal appeals court Monday to scrap limits on the high cost of phone calls for prison inmates and their families.

The question for the U.S. Court of Appeals for the D.C. Circuit is whether federal regulators have the authority to cap prices for inmate calls that have reached more than $1 per minute. But the issue took on a new political dimension in the wake of the presidential inauguration and a change in the balance of power at the Federal Communications Commission.

Federal regulators had pressed since 2013 to lower the phone call costs, but the FCC abruptly announced last week that it would no longer defend a major part of its own rules in court. The change in position followed the departure last month of two Democratic commissioners.

The commission’s new majority, including President Donald Trump’s pick to serve as chairman, Ajit Pai, does not think that the FCC is on solid legal footing when it comes to regulating in-state prison phone calls. Those calls represent more than 80 percent of inmate calls.

With the FCC abandoning a key provision of the regulations, Judge Laurence H. Silberman repeatedly asked Monday why the court should not put the case challenging the price limits on hold given that the FCC attorney in court wasn’t speaking up for the FCC policy that capped in-state call rates.

“This case is really strange,” Silberman noted.

A hold would give the commission time to rescind or rework the regulations on its own, he said.

In general, inmates making calls from state and federal facilities must have accounts with private companies to hold money deposited by family members. The companies then share some of the revenue with the facilities.

Although several states, including New York, New Jersey and Ohio, have independently lowered prison phone call rates, the caps are opposed by a coalition of law enforcement officials from nine states.

Mithun Mansinghani, Oklahoma’s deputy solicitor general, told the court that prison facilities rely on the money from private companies to pay for inmate programs aimed at reducing recidivism and to ensure the security of the phone calls.

Inmates, he said, have used the prison phone services for “nefarious purposes” such as smuggling drugs and planning murders.

Judge Cornelia T.L. Pillard seemed skeptical that the states — rather than the private companies — were bearing the cost to ensure secure phone calls. Pillard suggested that the rate caps were aimed at controlling prices charged by the handful of companies that control the market for inmate calls, not at eliminating commissions to prison facilities.

The FCC is saying that “you work it out,” Pillard said.

Phone-service companies paid at least $460 million in commissions to correctional facilities in 2013, according to a brief filed by a coalition of advocates for inmates and their families.

Attorney Michael K. Kellogg, who represented the phone service companies in court, said the FCC had “created something of a mess.”

The agency, he said, “is trying to make it impossible to collect commissions,” and the rate caps “will put us under water.”

In 2015, the FCC voted 3-2 to cap rates for state and federal prison inmates at 11 cents per minute. The agency’s order dropped the average rates for in-state calls from a total of $2.96 for 15 minutes to no more than $1.65 for 15 minutes. For calls between states, the order dropped the average from a total of $3.15 for 15 minutes to no more than $1.65 for 15 minutes.

The D.C. Circuit temporarily blocked some of the 2015 rules from taking effect after opposition from the phone companies and law enforcement officials. In response, the FCC reworked the caps by a 3-to-2 vote.

Sitting in the front row of the courtroom Monday was Mignon Clyburn, the lone Democratic commissioner, who first pushed the issue in 2013.

Clyburn said after the hearing that the FCC has an obligation to ensure “just, reasonable and fair rates.”

“We’re here for phone justice,” she said. “That’s what we’re asking for.”