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Legacy Inmate Communications
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Where Communications and Corrections Converge
Where Communications and Corrections Converge

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Read the dissenting statement of FCC Commissioner Michael O'Rielly released last Thursday on the FCC's website.

Re: Rates for Interstate Inmate Calling Services, WC Docket No. 12-375.

Highlight quote "the Commission today adopts detailed and excessive regulations—covering intrastate, interstate, and collect call rates, as well as ancillary fees—that far exceed our narrow legal authority. I cannot support this approach." "it is highly probable that the end result of the changes in this item will lead to a worse situation for prisoners and convicts"

https://www.fcc.gov/article/fcc-15-136a6
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Read the dissenting statement of FCC Commissioner Ajit Pai released last Thursday on the FCC's website. https://www.fcc.gov/article/fcc-15-136a5

Re: Rates for Interstate Inmate Calling Services, WC Docket No. 12-375.

Highlight quote "Unfortunately, I cannot support these regulations either because I believe that they are also unlawful. The Order fails to respect the bounds that the Communications Act places on our jurisdiction and fails to comply with the Administrative Procedure Act’s requirement that our rules not be arbitrary and capricious in light of the evidence contained in the record."
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This article discusses FCC Commissioners Ajit Pai's and Michael O’Rielly's dissent of the FCC Instituted Inmate Rate Caps.

http://www.law360.com/…/fcc-out-of-line-in-capping-prison-c…

Here is the full article in case you don't have a Law 360 account:

Law360, Washington (November 6, 2015, 4:34 PM ET) -- The Federal Communications Commission's Republican minority argued Thursday the agency lacks the jurisdiction to institute the inmate calling service rate caps that the FCC narrowly approved last month.

The dissenting statements of Commissioners Ajit Pai and Michael O’Rielly were released Thursday, along with the full text of the inmate calling service reform order, which provides rate caps on local and long-distance calls from prisons and jails. The agency had approved the order by a party-line, 3-2 vote at its October meeting. Both Pai and O’Rielly said in separate statements Thursday that the commission is overstepping its authority in attempting to regulate intrastate call rates.

“While there is no dispute that the prison payphone market as a whole does not seem to be functioning properly, we must respect the limits of our authority,” O’Rielly said in his dissent. “The proper place to deal with any issues would be the Congress, where I suspect there may be receptivity to address specific problems. But it is not our role to create imaginary authority to serve a social agenda.”

The order expands the commission’s 2013 rate caps on interstate calls to cover both local and long-distance calls. Much of the 2013 order was subsequently stayed by the D.C. Circuit, Pai noted in his dissent.

“Unfortunately, I cannot support these regulations either because I believe that they are also unlawful,” Pai said. “The order fails to respect the bounds that the Communications Act places on our jurisdiction and fails to comply with the Administrative Procedure Act’s requirement that our rules not be arbitrary and capricious in light of the evidence contained in the record.”

The order relies on the direction from Section 276 of the Communications Act that the commission should ensure that payphone service providers are fairly compensated for intrastate and interstate calls.

“We find that these statutory sections provide the commission with the authority to regulate interstate ICS rates and practices, including the use of per-call or per-connection fees as well as flat-rate calling,” the order released Thursday said.

O’Rielly said ICS providers voluntarily bid for and enter into contracts with correctional facilities, which establishes that they are fairly compensated and Section 276 is satisfied.

“The assertions in the record that some prison payphone providers may be overcompensated as a result of these contracts could raise some legitimate policy concerns, but that is outside the scope of Section 276,” O’Rielly said.

The order creates an 11-cent-per-minute rate cap for prisons and a range of 14 to 22 cents per minute in jails. Besides capping rates, the order caps ancillary service charges related to payment methods, bans other service charges, and bans flat-rate calling charges assessed regardless of a call's duration.

Pai also took issue with how the commission landed on the rate caps. He said under the given rate caps, inmate calling service annual revenue should be about $610 million each year, while he estimated the costs to be $671 million.

“You can’t cap rates in aggregate so that revenues won’t cover expenses unless you want the quantity produced (here, likely the number of facilities served) to be reduced,” Pai said in his dissent. “That doesn’t appear to the commission’s policy, nor is it Congress’s, but it’s the ineluctable result of these caps.”

The order said the commission calculated the rate caps based on data submitted by providers even though there is “evidence that they are overstated.”

“As a result, we believe our rate caps are conservative and include sufficiently generous margins to allow providers to earn a profit,” the order said.

The order does not ban or take action on site commissions — the controversial payments from phone providers to facilities that have been singled out as the largest factor in skyrocketing rates. Several inmate calling services providers had told the agency in the lead-up to the vote that they will appeal the order if it does not address site commissions.

Drinker Biddle & Reath LLP’s Lee G. Petro, who represents the petitioners that pushed for more than a decade for rate reform, said in statement Friday that the FCC took action within its authority to provide relief.

“While it is unfortunate that several ICS providers announced they would appeal the order even before its release, we firmly support the FCC’s approach to help resolve this significant criminal justice and civil rights issue.”

The order Thursday said the commission does not consider site commissions a legitimate cost of providing inmate calling services, and excluded site commission payment data from its calculations in determining the rate caps.

“We conclude that we do not need to prohibit site commissions in order to ensure that interstate rates for ICS are fair, just and reasonable and that intrastate rates are fair,” the order said.

In his dissent, Pai also raised the issue of inmates' use of contraband cellphones. He said he learned in a visit to a Georgia prison that contraband cellphones are delivered via drones. Pai hopes the agency will take action on a proceeding it began in 2013 aimed at spurring development of technological solutions to combat the use of contraband cellphones.

The issue has not escaped notice by the U.S. Department of Justice, which said Wednesday that the Federal Bureau of Prisons is seeking reports describing technology that can track, identify and respond to drones flying near the country's correctional facilities.

--Additional reporting by Adam Sege. Editing by Edrienne Su.

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Legacy Spotlight in Corrections Forum Magazine. http://issuu.com/jakinos/docs/may_june15

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