The Federal Communications Commission today voted unanimously to lower the prices inmates pay for phone calls from prisons and jails, but the organization reiterated its position that state governments must take action to lower prices on the majority of inmate calls.

Today’s action is a proposal to “substantially reduce [the FCC’s] interstate rate caps—currently $0.21 per minute for debit and prepaid calls and $0.25 per minute for collect calls—to $0.14 per minute for debit, prepaid, and collect calls from prisons, and $0.16 per minute for debit, prepaid, and collect calls from jails.” This is part of a Notice of Proposed Rulemaking, which means the commission will take public comment before finalizing the new caps and could change the plan before making it final.

Since the proposed rate cap limits prices on interstate calls only, it won’t affect the approximately 80 percent of prison calls that don’t cross state lines. Last month, FCC Chairman Ajit Pai urged state governments to cap intrastate calling prices, saying the FCC lacks authority to do so. Pai said that “33 states allow rates that are at least double the current federal cap, and 27 states allow excessive ‘first-minute’ charges up to 26 times that of the first minute of an interstate call.”

Prison phone companies Global Tel*Link and Securus Technologies have repeatedly challenged FCC-imposed rate limits in court. But while the Obama-era FCC fought in court to lower intrastate rates, Pai in January 2017 instructed FCC lawyers to drop the commission’s court defense of the FCC cap on intrastate calling rates. The FCC might have lost that case anyway, as previous court rulings went against the commission. But Pai’s decision to drop the court defense helped ensure that the FCC wouldn’t be able to cap intrastate rates.

Today’s FCC announcement said “the commission urges its state partners to take action to address the egregiously high intrastate ICS [inmate calling services] rates across the country.”

FCC limits add-on fees

The FCC did take one other action today that should lower some of the “ancillary” fees prison phone companies apply to both interstate and intrastate calls. Limits approved by the Obama-era FCC say that prison phone companies can’t charge more than $3 for making automated payments by phone or website; $5.95 for making payments with a “live agent;” and $2 for “paper bill fees.” The Obama-era FCC also voted to ban other ancillary service charges.

The FCC vote today ensures that these limits can be applied to intrastate calls in some circumstances. The FCC noted that the June 2017 ruling by the US Court of Appeals for the District of Columbia Circuit “directed the Commission to consider whether these [ancillary] charges can be segregated into interstate and intrastate components for the purpose of excluding the intrastate components from the reach of the FCC’s rules.” The FCC continued:

Today’s Order finds that, as a practical matter, these charges cannot be segregated between interstate and intrastate calls except in a limited number of cases. As a result, ICS providers are generally subject to the FCC’s rules when it comes to ancillary service charges. This means that ICS providers generally cannot charge incarcerated individuals and their families ancillary service charges other than the types allowed by the Commission’s rules and providers generally cannot charge ancillary service fees above the Commission’s applicable fee caps.

Prison phone providers won’t have to follow the FCC ancillary-fee limits in all cases, though. Take the $3 limit on fees for making automated payments; the FCC noted in a draft of today’s order that “automated payments fund prepaid or debit accounts that can be used to pay for inmate calling services,” and these prepaid or debit accounts can be used to make both interstate and intrastate calls.

“When automated payments cannot be segregated by jurisdiction, they are subject to our ancillary service charge rules,” including the $3 limit, the FCC said. But in cases where an automated payment is made after calls are made, and in which the provider “can confirm that not one call with an outstanding balance was made that crossed state lines,” the providers could still tack fees higher than $3 onto those payments.

The FCC also said that an ancillary fee applied to a single intrastate call “is beyond the reach of our regulations,” giving providers leeway to impose extra fees on individual calls.

FCC order welcome but long “overdue”

Despite those limits, the FCC decision was seen as step forward. “By claiming jurisdiction over ancillary fees, the FCC has moved to apply the agency’s uniform rate caps to the fees permitted under the FCC rules instead of allowing differing—and often higher—state charges for these services,” consumer-advocacy group Public Knowledge said today. Public Knowledge also said the FCC should consider even lower caps on interstate rates than the 14¢-per-minute limit tentatively approved today, and the group urged Congress to explicitly allow the FCC to regulate intrastate rates.

FCC Commissioner Jessica Rosenworcel, one of two Democrats on the Republican-majority agency, said at today’s FCC meeting that “today’s order is welcome, even if it is overdue.” She noted that the order came “more than three years after a court sent our work on this issue back to the agency” and that the FCC first received a petition to lower inmate calling rates 17 years ago. The price of a single call from prison “can be as much as many of us pay for unlimited monthly plans,” Rosenworcel said.

“This agency should be embarrassed,” Rosenworcel said. “The fact that it has taken us so long to fix this problem is especially shameful now as we wrestle with a health crisis that has made our prisons less safe and in-person visits no longer viable.”

https://arstechnica.com/?p=1697219