One of the very first actions taken by the new Republican-majority Federal Communications Commission (FCC) was to partially abandon the FCC’s legal defense of a 2015 order that placed new caps on the cost of phone calls placed by prison inmates. Specifically, the FCC General Counsel’s office informed the D.C. Circuit—where the rules had been challenged—that, among other things, it was no longer authorized to defend the legality of the order’s cap on charges for intrastate calls. Significantly, as the FCC stated in its order, over 80 percent of inmate calls do not cross state lines. So the FCC’s change in position affected the most significant part of a policy meant to ease a major financial burden on prisoners.
The basic problem regarding inmate calling rates is—despite the partisan split at the FCC—a widely acknowledged one. Over the past several decades, the communications industry in general has seen a steady if slow move away from monopoly provision to one of (imperfect) competition. Not so with prisons. So-called “inmate calling service providers” remain monopolists. If an inmate in a given prison wants to make a call, and do so legally, she has only one choice. And if left unchecked, of course, monopolists will charge higher prices—indeed, this is the rationale for the FCC’s historic authority over telephone charges.
High charges for inmate calls makes it very expensive to connect with loved ones outside of prison. For many families, this means less contact with members in prison. Understandably, that may greatly increase the stress of prison for all involved—not only those who are incarcerated. In addition, studies have shown that more frequent outside contact reduces the likelihood of recidivism.
The issue that divided the FCC did not pertain to the above. Rather, the Republican Commissioners objected to the intrastate rate caps on legal grounds. To understand the division requires a bit of Communications Act arcana, which I’ll try to summarize as briefly as possible. Traditionally, the Communications Act allows the FCC to regulate interstate call rates, but it leaves the regulation of intrastate rates to the states. However, that neat division has been eroded over the years as Congress has introduced a variety of provisions into the Communications Act, primarily designed to curb the excesses of the Bell monopoly and to encourage competition. Thus, in certain areas, the Commission can regulate intrastate as well as interstate communications. The legal disagreement concerns whether prisoner phone call rates is one of those areas.
Putting aside the specifics of the prison-calling issue, the position taken by the new FCC majority tells us something important, if not terribly surprising, about the direction the Commission is likely to move over the next several years. There is a general consensus that the Communications Act is falling into obsolescence—that it doesn’t speak to current problems, even widely acknowledged ones, with the kind of clarity we’d hope for. That’s not surprising, given that the Act was largely written at a time when copper telephony—a form of technology that may well be extinct within the next decade—occupied a dominant position.
The Obama-era FCC, especially during the last several years, showed a willingness to try to adapt the Act so that it would speak to current concerns. That often entailed taking legal risks. Sometimes these risks paid off, as with the Open Internet Order, which was upheld by a panel of the D.C. Circuit. Sometimes they did not, as when the Commission’s attempt to preempt certain state-law restrictions on municipal broadband was struck down by the Sixth Circuit. The new Republican-majority FCC is much more likely to be conservative (in a small-c sense) in its willingness to engage at all. And that unwillingness will have real-world effects, for inmates seeking to connect with the outside world and, ultimately, for all of us.