Prison Phone Justice

Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554

In the Matter of:
Implementation of Pay Telephone
Reclassification and Compensation
Provisions of the Telecommunications Act
of 1996
Petition for Rulemaking or, in the
Alternative, Petition to Address Referral
Issues In Pending Rulemaking

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CC Docket No. 96-128

DA 03-4027

COMMENTS OF THE AMERICAN CIVIL LIBERTIES UNION AND
THE WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL
RIGHTS AND URBAN AFFAIRS
The American Civil Liberties Union (“ACLU”) and the Washington Lawyers’
Committee for Civil Rights and Urban Affairs (“WLC”) (collectively, the “Commenters”)
hereby respond to the Commission’s public notice in the above-referenced proceeding1 seeking
comment on the exclusive service agreements and other restrictions on prison inmate calling
options that Martha Wright and other prisoner and non-prisoner petitioners raised in the Wright
Petition.2 The Commenters agree that the Commission should prohibit providers of prisoner
calling services from entering into exclusive service agreements with privately-administered
prison facilities and from paying excessive commissions to such administrators for the exclusive
1

FCC Public Notice, Petition for Rulemaking Filed Regarding Issues Related to Inmate Calling
Services, Pleading Cycle Established, CC Docket No. 96-128, DA No. 03-4027 (Dec. 31, 2003).
The comment deadline was extended from February 9, 2004, to March 10, 2004.
2

Martha Wright, et al. Petition for Rulemaking or, in the Alternative, Petition to Address
Referral Issues in Pending Rulemaking (Oct. 31, 2003).

right to provide calling services in a prison facility. These exclusive arrangements prevent
competitive forces from driving down the cost of prisoner calling services, and the commissions
dramatically increase such costs.3
I.

INTRODUCTION AND SUMMARY.
The ACLU is a nationwide, nonprofit, nonpartisan organization of more than 400,000

members dedicated to the principles of liberty and equality embodied in the Constitution and this
nation’s civil rights laws. The ACLU established the National Prison Project in 1972 to protect
and promote the civil and constitutional rights of prisoners. Through the National Prison Project,
the ACLU advocates for the reform of criminal justice policy and educates the public about the
social and fiscal ramifications of the current trend of moving away from rehabilitation toward
debilitating imprisonment.
For more than thirty years, the WLC has represented both individuals and groups seeking
to protect their constitutional and civil rights. The WLC’s mission is to address issues of
discrimination, poverty, and other injustices in our community. It represents people with claims
of discrimination based upon race, gender, national origin, disability, age, religion, and sexual
orientation. It also assists immigrants seeking asylum and educational issues. The WLC has a
very long history of providing legal assistance to D.C. men and women who are incarcerated.
More than two million people are currently incarcerated in the United States, many of
them located in overcrowded prisons. Contact with family and friends is the single most
important factor in stabilizing a prisoner’s mental health and supporting a prisoner’s successful

3

Although the Wright Petition addresses long distance telephone services provided to prisoners
in privately-administered prison facilities, the Commenters support the implementation of similar
relief in all prisons.

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return to society. These ties, however, can be difficult, or even impossible, for prisoners to
maintain in the face of the excessive charges for prisoner calling services.
Agreements allowing one telecommunications carrier to provide exclusive service to a
prison facility and commissions paid to prison administrators for such exclusivity are responsible
for prisoner calling rates that far exceed market rates for long distance telephone services that are
available to the general public. Particularly for the many prisoners from low-income
backgrounds whose friends and families cannot afford the expense, these rates prevent prisoners
and their families and friends from associating with each other, in violation of their
Constitutional rights. Accordingly, the Commenters urge the Commission to grant the Wright
Petition and allow competition in the prisoner calling market and prohibit the payment of
commissions to prison administrators.
The Wright Petition arises from a referral order in a class action brought in the United
States District Court for the District of Columbia.4 The plaintiffs in the class action lawsuit
allege that the exclusive dealing arrangements between certain telecommunications carriers and
private prison administrators restrict the choices prisoners and their families and friends have for
telephone services in violation of Section 201(b) of the Communications Act of 1934, as
amended (the “Communications Act”),5 and the First, Fifth and Fourteenth Amendments.6 The
reasonableness of these restrictions and prisoner calling rates are common elements in the
statutory and Constitutional claims raised in the class action lawsuit. For example, whether
exclusive dealing arrangements abridge prisoners’ First Amendment rights will depend partly

4

Wright v. Corrections Corp. of America, C.A. No. 00-293 (GK) (D.D.C. Aug. 22, 2001).

5

47 U.S.C. § 201(b).

6

Wright Petition at 6-7.

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upon whether these arrangements are justified and whether the calling rates charged under those
arrangements are reasonable. Although the Wright Petition does not request that the
Commission act on the Constitutional claims raised in the class action lawsuit, the Commission’s
decision in this proceeding regarding telecommunications issues will impact the court’s
consideration of the plaintiffs’ non-Communications Act claims.
II.

THE COMMISSION SHOULD ALLOW COMPETITION IN THE PROVISION
OF PRISON CALLING SERVICES BY PROHIBITING EXCLUSIVE DEALING
ARRANGEMENTS AND THE PAYMENT OF COMMISSIONS UNDER THOSE
ARRANGEMENTS.
In many facilities, prisoners are able to communicate with family and friends only

through the telephone, and then only using collect calling services. As the Wright Petition
explained, those calling services are in turn provided by one carrier in each prison, which secures
the exclusive right to serve the facility under an arrangement by which it pays the prison
administrator a substantial commission. Carriers increase their calling rates to some of the
highest rates in the country to recoup the commissions. These exclusive dealing arrangements
have been long defended as necessary due to certain security and penological measures, such as
call monitoring, blocking and routing functions.7
These exclusive arrangements and the commissions paid for them result in unreasonable
calling rates. Because collect calling services are typically the only option available to a
prisoner, his or her family members and friends pay these high rates. Many of the consumers
who receive collect calls from prisoners are economically disadvantaged. These consumers are
often presented with an untenable choice – pay unreasonable amounts every month to talk to
their loved ones who are in prison, or pay for housing, food and medicine.
7

See, e.g., Implementation of the Pay Telephone Reclassification and Compensation Provisions
of the Telecommunications Act of 1996, 17 FCC Rcd 3248, 3276-77 (2002).

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The Wright Petition proposes one way for multiple carriers to provide prisoner calling
services to a prison without sacrificing security and penological measures that have been
implemented at the facility. The affidavit of Douglas Dawson, which is attached to the Wright
Petition, details how competitive services can be made available to prisoners and their families
and friends and the feasibility of such a competitive system. The introduction of competitive
telephone services in a prison would eventually put downward pressure on prisoner calling rates
as competition has done in other markets. Not only would consumers have a choice of telephone
service providers, but they also would enjoy lower calling rates. Prisoners would be able to
spend more time on the telephone with parents, children, spouses, siblings and friends,
strengthening ties with their community and reducing the chance of recidivism. This, in turn,
benefits society by decreasing the prison population and the cost of housing them and increasing
the number of productive, law-abiding citizens that contribute to the community.
Similarly, those using prisoner calling services should be presented with a choice of
calling services. In particular, debit card and debit account systems should be available in
private prisons. In many cases, debit services are less expensive than collect calling service.
Providing an alternative, less expensive calling service should also put downward pressure on
collect calling rates. Furthermore, it provides both non-prisoner and prisoner consumers with the
ability to choose, a basic freedom they previously lacked. The federal penal system has already
successfully implemented a debit system; thus, the security and penological measures prison
administrators must employ can still be used when debit calling services are available.8
8

Affidavit of Douglas A. Dawson at 16-18 (Oct. 29, 2003) (Attachment A to Wright Petition);
see also CURE Comments, Implementation of the Pay Telephone Reclassification and
Compensation Provisions of the Telecommunications Act of 1996, CC Docket No. 96-128, at 7
(May 24, 2002) (noting that the federal penal system and some state prison systems allow the use
of debit systems).

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Allowing carriers to recoup the substantial commissions they pay to prison administrators
through prisoner calling rates also disserves the public. As previously noted, those paying for
prisoner calls are typically a prisoner’s family and friends. Requiring them to pay for the
commissions to prison administrators discriminates against these consumers and unfairly
penalizes them for maintaining a relationship with someone that is incarcerated. These
consumers should be afforded the same right to affordable and non-discriminatory
telecommunications services that all consumers enjoy under the Communications Act.
III.

CONCLUSION.
The Commenters urge the Commission to act quickly to address the unreasonably high

rates that consumers are currently paying for prisoner calling services. Carriers and privatelyadministered prison facilities should be prohibited from entering into exclusive dealing
arrangements and carriers should be prohibited from paying commissions to the administrators
under these arrangements. The Commission should take whatever steps are necessary to ensure
that non-inmate and inmate consumers have a choice of inmate calling services and providers of
such services. Competition in the inmate calling market will lead to lower calling rates, support
the rehabilitation of inmates, and benefit society as a whole.
Respectfully submitted,
/s/ Elizabeth Alexander

/s/ Roderic V.O. Boggs

Elizabeth Alexander
Director, National Prison Project
American Civil Liberties Union
733 15th Street, N.W., Suite 620
Washington, D.C. 20005
(202) 393-4930

Roderic V.O. Boggs
Executive Director
Washington Lawyers’ Committee for Civil
Rights and Urban Affairs
11 Dupont Circle, N.W., Suite 400
Washington, D.C. 20036
(202) 319-1000

March 10, 2004

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CERTIFICATE OF SERVICE
I, Jessica Feierman, hereby certify on this 10th day of March, 2004, a copy of the
foregoing Comments have been served via electronic mail (*) or first class mail, postage prepaid, to the following:
Charles H. Kennedy
Frank W. Krogh
Jennifer L. Kostyu
Morrison & Foerster LLP
2000 Pennsylvania Ave., NW
Suite 5500
Washington, D.C. 20086

Deena Shetler (2 copies)
Deputy Division Chief
Pricing Policy Division
Wireline Competition Bureau
Federal Communications Commission
Wireline Competition Bureau
445 12th Street, S.W., Room 5-A221
Washington, D.C. 20554

Counsel to Martha Wright, et al.
Deborah M. Golden
D.C. Prisoners’ Legal Services Project, Inc.
2639 Connecticut Ave., N.W.
Suite 225
Washington, D.C. 20008

Joi Nolen*
Pricing Policy Division
Wireline Competition Bureau
Federal Communications Commission
Wireline Competition Bureau
445 12th Street, S.W., Room 5-A221
Washington, D.C. 20554
Joi.Nolen@fcc.gov

Counsel to Martha Wright, et al.

Stephen G. Seliger
Laurie S. Elkin
Seliger & Elkin, Ltd. #500
155 North Michigan Avenue
Chicago, IL 60601

Qualex International*
Portals II
445 12th Street, S.W., Room CY-B402
Washington, D.C. 20554
qualexint@aol.com

Counsel to Martha Wright, et al.
Barbara J. Olshansky
Center for Constitutional Rights
666 Broadway, 7th Floor
New York, NY 10012

Paul C. Besozzi
Patton Boggs LLP
2550 M Street, N.W.
Washington, D.C. 20037

Counsel to Martha Wright, et al.

Counsel to Evercom Systems, Inc.

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Glenn B. Manishin
Stephanie A. Joyce
Kelley Drye & Warren LLP
1200 19th Street, N.W., Suite 500
Washington, D.C. 20036

Anita L. Wallgren
Sidley Austin Brown & Wood, LLP
1501 K Street, N.W.
Washington, D.C. 20005
Counsel to Corrections Corporation of
America, Inc.

Counsel to T-Netix, Inc.

/s/ Jessica Feierman

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