Prison Phone Justice

USCA Case #15-1461

Document #1598725

Filed: 02/12/2016

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In the
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

GLOBAL TEL*LINK, et al.
Petitioners,
v.
FEDERAL COMMUNICATIONS
COMMISSION and UNITED STATES
OF AMERICA
Respondents ,
ULANDIS FORTE, et al.
Movant-Intervenors.

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No. 15-1461 (and
consolidated cases)

MOVANT-INTERVENORS’ JOINT OPPOSITION TO
MOTIONS FOR STAY PENDING JUDICIAL REVIEW

Andrew Jay Schwartzman
Eric G. Null
Institute for Public Representation
Georgetown University Law Center
600 New Jersey Ave., NW
Washington, DC 20001
Counsel for Movant-Intervenors
February 12, 2016

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TABLE OF CONTENTS
TABLE OF CONTENTS .......................................................................................... ii
INTRODUCTION .....................................................................................................1
ARGUMENT .............................................................................................................3
I. Staying the Order would exacerbate the substantial harm prisoners and their
families have been suffering for years.............................................................3
A. ICS rates are exorbitant and prisoners and their families cannot afford
to pay them. ...........................................................................................4
B.

High ICS rates reduce inmate communication and cause concrete
harm to prisoners and their families......................................................6

C.

State-level reform is insufficient for prisoners and their families;
however, it could provide relief to ICS providers. .............................11

D. Petitioners incorrectly argue that the Wright Petitioners will not be
harmed by a stay..................................................................................12
II. Granting a stay would be detrimental to the public interest. .........................13
A. The Order will help reduce recidivism and decrease costs within the
incarceration system. ...........................................................................14
B.

The Order will benefit prison welfare and prison security. ................16

C.

The Order will reduce the burden on defense lawyers representing
incarcerated clients. .............................................................................17

III. Petitioners fail to show irreparable harm.......................................................17
CONCLUSION ........................................................................................................20

ii

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Movant-Intervenors, the Wright Petitioners, 1 DC Prisoners’ Project of the
Washington Lawyers Committee for Civil Rights and Urban Affairs, Citizens for
Rehabilitation of Errants, Prison Policy Initiative, Campaign for Prison Phone
Justice, Human Rights Defense Center, and the United Church of Christ, Office of
Communication, Inc. respectfully submit this opposition to the pending motions
for stay in this proceeding. 2
INTRODUCTION
Maintaining ties with the outside world is vital not just for inmates but for
their families and loved ones, their counsel, and society. Telephone calls are the
most practical means for such communication, especially because prisoners are
often incarcerated far from home. But even as recent advances in technology and
increased consolidation have greatly reduced the cost of providing inmate calling
services (“ICS”), ICS providers continue to charge exorbitant prices. They can
charge these prices because they operate in a monopoly market. Only one ICS
provider, chosen by bid, serves each institution. Often, the bid winner is the
provider that agrees to share the greatest percentage of its revenue with the

1

Although the lead petitioner, Martha Wright, died in 2014, these individuals and
organizations have been collectively referred to throughout this proceeding as “the
Wright Petitioners.” The individual petitioners include Ulandis Forte, Ethel
Peoples, Laurie Lamancusa, Dedra Emmons, Charles Wade, Earl Peoples, Darrell
Nelson, and Jackie Lucas.
2
Movant-Intervenors filed their unopposed Motion For Leave To Intervene on
January 8, 2016.

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correctional institution, not necessarily the one that will provide the best service.
Thus, competition in this setting perversely increases ICS rates, which are often
borne by prisoners and their families, who can rarely afford these calls.
After adopting interim rate caps for interstate calls in 2013, the Federal
Communications Commission (“FCC”) collected data on the costs of providing
ICS and considered whether to adopt permanent caps for both inter- and intrastate
ICS calls. The Order on review sets interstate and intrastate rate caps for ICS and
caps ancillary fees. 3 Intrastate caps are particularly important because more than
80% of calls to and from correctional facilities are intrastate. 4 These new rules
will bring sorely-needed relief to prisoners and families who have been exploited
by monopolistic ICS providers for years.
Four ICS providers (“Petitioners”) have sought partial stays of the rules.
However, none have met the heavy burden of proving that (1) they are likely to
succeed on the merits, (2) they will be irreparably injured without a stay, (3) a stay
will not substantially harm third parties, and (4) a stay will not harm the public
interest. 5 Notably, this is a balancing test. A stay requires more than Petitioners’

3

Second Report and Order and Third Further Notice of Proposed
Rulemaking, Rates for Interstate Inmate Calling Services, 30 FCCRcd 12763
(2015) (“Order”).
4
Id. at 12768, ¶7.
5
Virginia Petroleum Jobbers Ass’n v. Federal Power Commission, 259 F.2d 921,
925 (1958) (Petroleum Jobbers). See Washington Metro. Area Transit Comm’n v.
Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977).
2

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claimed likelihood of success on the merits and purported injuries. 6 Rather, this
Court should also weigh the extensive harm to third parties and the public interest.
In this Opposition, Movant-Intervenors elaborate on the harm faced by third
parties and the broader public interest considerations. In addition, because
Petitioner CenturyLink Public Communications, Inc., inexplicably waited six
weeks to seek an administrative stay, the Commission did not have an opportunity
to address CenturyLink’s arguments before it sought stay relief from this Court.7
Accordingly, Movant-Intervenors briefly address CenturyLink’s assertions with
respect to the irreparable harm it would supposedly suffer.
ARGUMENT
I. Staying the Order would exacerbate the substantial harm prisoners and
their families have been suffering for years.
Petitioners argue that third parties “will not suffer irreparable injury if the
Order’s rate caps are stayed pending judicial review” because the interim rates will

6

Respondent FCC thoroughly addressed Petitioners’ claims in its unusually
detailed decision denying three requests for administrative stays and in its
opposition to the now-pending motions before this Court.
7
The FCC released the text of its decision on November 5, 2015. It was published
in the Federal Register on December 18, 2015 (80 Fed. Reg. 79020). GTL and
Securus filed their administrative stay motions on December 22, 2015, and
Telmate filed its motion on January 6, 2016. By contrast, CenturyLink did not file
its administrative stay motion until February 5, 2016. Thus, the Commission did
not have an opportunity to address CenturyLink’s factual assertions before
CenturyLink filed its stay motion, by direction of this Court, on February 12, 2016.
3

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remain in effect.8 This argument is not persuasive. Even the interim caps have left
prisoners continuing to pay unjust and unreasonable prices for ICS. Millions of
prisoners and their families have been waiting for comprehensive ICS rate reform
for over a decade. The Order gave those prisoners relief from the monopolistic
practices of the ICS providers. Staying the rule will only further delay this relief.
A. ICS rates are exorbitant and prisoners and their families
cannot afford to pay them.
Incarceration is financially devastating for inmates and their families, a
disproportionate number of which are already low-income. 9 More than two-thirds
of incarcerated people reported annual incomes of under $12,000 prior to arrest.10
While incarcerated, inmates earn an average of 93 cents per day. 11 With such low
incomes, prisoners can rarely afford to pay ICS rates.
Inmates’ families often cannot afford high ICS rates either. They are
typically “scrambl[ing] to make ends meet” after the financially devastating event

8

Motion of CenturyLink for Partial Stay Pending Judicial Review at 19
(CenturyLink Motion). See Motion of Global Tel*Link for Partial Stay Pending
Judicial Review at 19-20 (GTL Motion); Motion of Telmate, LLC for Stay
Pending Judicial Review at 20 (Telmate Motion).
9
Letter from HRDC (Sept. 8, 2015). All comments, letters, notices of ex parte
presentations, and other documents referenced in the record were filed in FCC
Docket Number 12-375 unless otherwise specified. All such documents are
available on the Internet through the FCC’s Electronic Comment Filing System.
10
Letter from Legal Services for Prisoners with Children (Dec. 4, 2014).
11
Center of the Administration of Criminal Law Comments at 4-5 (Mar. 25, 2013)
(Center Comments).
4

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of a family member being jailed. 12 Nevertheless, families are often forced to pay
extremely high bills to communicate with their loved ones.
Rates for prison phone calls far exceed ordinary phone rates. The FCC
found that the family of one inmate paid between $300 and $400 per month during
his 10-month incarceration, and that one mother paid $40 per week for phone calls
with her son.13 A single fifteen-minute phone call can cost $20 or more. 14 The
record contains substantial evidence of high ICS rates. 15
High per-minute rates are compounded by punishing ancillary fees. For
example, in “single-call” programs, ancillary fees can account for up to 88% of the
$14.99 a customer pays for a single conversation.16 These fees are often
unavoidable. The FCC found that ICS providers charged at least 52 different
ancillary fees, including to open and close accounts, to use and not use accounts,
and even to issue a refund of funds belonging to the user.17

12

Id.
Order, 30 FCCRcd at 12767, ¶3.
14
Letter from Deborah Aylor-Polisoto (Dec. 17, 2013).
15
See, e.g., Letter from Prison Policy Initiative (July 8, 2014) (describing how
costs of communicating reached $400/month, driving a family into debt); Letter
from HRDC (Oct. 4, 2015) (reporting that phone bills can exceed $700/month).
16
Comments from Prison Policy Initiative re: Second Further Notice of Proposed
Rulemaking ¶¶ 98-102, single call programs at 3 (Jan. 12, 2015).
17
Order, 30 FCCRcd at 12838, n.519 (ancillary fees include “an account close-out
fee, account transfer fee, automated information services, automated operator
recharge fee, bill processing charge for direct billed calls, bill processing fee, bill
statement fee, biometric service charge, carrier cost recovery fee, collect call bill
statement fee, collect call regulatory fee, collect interstate USF cost recovery fee,
5
13

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B. High ICS rates reduce inmate communication and cause
concrete harm to prisoners and their families.
Difficulty in paying prison phone bills causes several harms. First, high ICS
rates force families to decide between necessities and speaking with incarcerated
family members. Some families have reported forgoing medical operations,
necessary medications, 18 and food in order to cover the costs of calls.19 Others
reported losing their telephone service altogether because they were unable to pay
prison phone bills. 20 Some are left with no choice but to cut off contact
altogether. 21 One inmate characterized the effect on poor families:

continuous voice verification, credit card charge-back fee, credit card processing
fee, federal regulatory recovery fee, federal USF, federal USF administration fee
for LEC billed calls, federal USF administration fee for non-LEC billed calls,
funding fee, funding fee from cashier’s check deposit, funding fee from
credit/debit cards, funding fee from money order deposit, funding fee from
Western Union deposit, live operator recharge fee, live prepaid account set-up fee,
load fee, location validation, minimum payment fee, monthly bill statement fee,
payment fee - IVR/web, payment fee - live operator, per call administrative fee for
calls from county facilities, prepaid accounts, prepaid deposit fees, processing fee,
refund fee, regulatory assessment fee, sales tax, state cost recovery fee, state
regulatory cost recovery fee for LEC-billed calls, state regulatory cost recovery fee
for non-LEC billed calls, state USF, state USF administration fee for LEC billed
calls, technology, USF administrative fee, USF federal, USF federal (LEC billed),
validation recovery fee, victim information and notification everyday (VINE),
voice biometrics, web interface account set-up and recharge fee, and wireless
administration fee.”).
18
Center Comments at 6; Statement of Commissioner Clyburn, 30 FCCRcd at
12956.
19
Order, 30 FCCRcd at 12767, ¶3.
20
Center Comments at 6.
21
Id.; see also Letter from HRDC (Oct. 4, 2015) (citing Letter from Prison Legal
News (April 18, 2007) (Dkt. 96-128)) (explaining that some families have to cut
6

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It’s a wife that has three children at home, and her husband is in jail,
so now she has a choice: “Do I send money to him so he can afford to
stay in touch with the kids, or do I feed the kids?”22
Another inmate seeking intrastate rate regulation in New Jersey told the FCC
that it is “at times impossible for me to stay in touch with my family.” 23 He stated
that he has gone for months without speaking to his wife or three children, and at
one point lost contact with them for three years. He also emphasized that the
“prison’s rules and manuals [] say they promote family and community ties,” but
that in practice such contact is simply unaffordable.24 The record is replete with
letters from parents, spouses, and prisoners describing the damage that high ICS
costs inflicts on their health and relationships.25
Second, high ICS rates discourage inmates’ contact with their loved ones,
which particularly affects children. Over 2.7 million children have an incarcerated

off telephone contact with loved ones and sometimes bills are as high as $700 per
month) (“Letter from Prison Legal News”).
22
Comments from Prison Policy Initiative re: Second Further Notice of Proposed
Rulemaking §III(C) (Jan. 12, 2015) (citing Daniel Wagner, Prison Bankers Cash
in on Captive Customers, Center for Public Integrity (Sept. 30, 2014)).
23
Letter from Rasool McCrimmon (Dec. 26, 2014).
24
Id.
25
See, e.g., Letter from David Holmes (Mar. 19, 2013) (wishing he could afford to
speak with his wife more than once a week, in the hopes of improving his
marriage); Letter from Ian Robinson (Mar. 11, 2013) (lamenting the strain placed
by high rates on his relationship with his daughter, who once asked him “how can I
love somebody I don’t know?”); Letter from Marteze Harris (Mar. 25, 2013)
(noting that while “phone calls are our lifelines to sanity,” inmates cannot ask their
families to foot such “outrageous” bills).
7

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parent 26 but only 53% of incarcerated parents in state prisons had direct phone
contact with their children during their confinement.27 The importance of the
parent-child relationship cannot be overstated. The daughter of a former inmate
commented, “[m]y dad was in jail when I was a child and at this price there is no
way my mom would have been able to afford to let me talk to him. Without my
dad I would not be who I am today.” 28 Alex Garcia, an inmate, wrote that when he
moved to a facility with no connection fees and lower per-minute charges, he was
able to call his daughter “before she heads for kindergarten [5min., $0.60], after
school [5min., $0.60], and give her a kiss good night [5min., $0.60].” 29
The ICS rate structure often discourages this interaction. Richard Heary was
at one time able to communicate with his children on a daily basis. Once he
moved to a jail with high rates, he contacted his children only 20 times during two
years of confinement.30 Inmates’ partners described similar hardships: “because
I’m a single mom now, I can’t afford to indulge [my daughter] so she can talk to
the only man she’s ever called Daddy. That is wrong.”31

26

Letter from Legal Services for Prisoners with Children (Dec. 4, 2014).
Comments of Vera Institute of Justice at 2 (Mar. 14, 2013) (“Vera Inst.
Comments”).
28
Letter from Prison Policy Initiative (June 20, 2014) (citing Leah Sakala, The
Father’s Day Profiteers that Put Hallmark to Shame, Huff. Post (June 13, 2014)).
29
Letter from Alex Garcia (Mar. 21, 2013).
30
Letter from Richard Heary (Mar. 13, 2013).
31
Letter from Prison Policy Initiative, supra note 28.
8
27

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Without opportunities to stay connected with their imprisoned parents,
children are more likely to have substance abuse problems, perform poorly in
school, and engage in criminal conduct. 32 These children also face a greater
likelihood of ending up homeless, in foster care, or in the juvenile justice system. 33
As Commissioner Clyburn stated,
[i]f you were to ask their [children’s] teachers, it is affecting their
academic performance. If you ask the school counselors, it affects
their behavior and attitudes. And if you were to speak with the
guardians, families and friends, it impacts their ability to adequately
and affordably care for these children.” 34
Obstructing parental communication is not only emotionally damaging, but
unnecessarily punishes those children for something they did not do.
In some states, such as New York, parents could lose parental rights for
failing to communicate with their child. New York Domestic Relations law
requires a parent to communicate with their child at least once every six months, or
lose her ability to refuse adoption of the child.35 High ICS rates could contribute to
this loss of rights.
Third, high ICS rates harm a prisoner’s ability to return to society.
Infrequent communication with families can contribute to feelings of isolation and

32

Center Comments at 11.
Vera Inst. Comments at 2-3.
34
Remarks of Commissioner Clyburn at Inmate Calling Workshop, July 10, 2013,
https://apps.fcc.gov/edocs_public/attachmatch/DOC-322109A1.pdf.
35
Order, 30 FCCRcd at 12766-67, n.14; N.Y. Dom. Rel. §111(2).
9
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complicate the re-entry process. M. Domingues, an inmate on death row who has
watched hundreds of inmates cycle through his facility, described what happens
when prisoners gradually lose touch with their families while in prison:
Inmates that have minimal contact with family tend to believe no one
gives a damn about them and therefore don’t care about themselves.
As they quit caring about themselves they quit caring about what they
do to others. They go home with that mentality and eventually commit
more crime. 36
The Ohio Department of Rehabilitation and Correction noted, when it lowered
intrastate ICS rates, that telephone calls “are one of the primary means of inmates
maintaining connections with family,” and that such calls “positively influ[ence]
behavior in prison and the likelihood an offender will succeed upon release from
prison.”37 Former inmate Brian Nelson stated he has “become an asset to society”
since his release and credits his ability to stay in touch with family and priests for
his smooth transition back to society. 38
The benefits of the Order to prisoners and their families are legion. Any
attempt to delay this relief will further exacerbate the harms that high ICS rates
cause. These harms more than outweigh the speculative harms to ICS providers.

36

Letter from M. Domingues (Mar. 1, 2013).
Order, 30 FCCRcd at 12774, ¶19.
38
Letter from Prison Policy Initiative, supra note 22.
10
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C. State-level reform is insufficient for prisoners and their
families; however, it could provide relief to ICS providers.
Petitioners claim that a stay of the intrastate caps will not harm third parties
because “states retain the authority to constrain intrastate rates at any time, and
many states have done so.”39 This argument should be rejected.
State efforts to rein in intrastate charges are rare and, when they occur, are
challenged nearly in perpetuity by the ICS providers. In New Mexico, it took six
years to adopt intrastate rates. The delay was primarily caused by the ICS
providers fighting the new rule by seeking reconsideration and renewing contracts
to take advantage of the rule’s grandfathering provision. In Massachusetts in 2009,
GTL filed a petition for relief of new intrastate rates, which was not put out for
comment until 2011. In 2013, Securus filed a motion to hold the proceeding in
abeyance pending the FCC’s on-going rulemaking. In Louisiana, which adopted
intrastate rates, ICS providers sought to suppress the new rules and requested stays
of certain portions of the rules. A similar course took place in Alabama. 40 Thus,
the argument that prisoners and their families will not be harmed by a stay because
they can (somehow) convince 40 or more state legislatures to reduce intrastate
rates, against the substantial pushback of the ICS providers, is absurd.

39
40

GTL Motion at 20.
Reply Comments of Martha Wright et al. at 10 (Jan. 13, 2014).
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Actually, the process can work the other way. ICS providers could seek
relief from state legislatures by using their political clout. For example,
CenturyLink claims that Texas requires a “40 percent site commission mandated
by state law, which CenturyLink has no way of avoiding.”41 While the Texas law
appears to allow renegotiation of the current 40% rate, this is the type of provision
that CenturyLink could ask Texas to modify or remove in light of the Order.
The Court should not issue a stay of the Order on the grounds that prisoners
and their families can seek relief on a state-by-state basis that would be incredibly
onerous. This is merely another attempt to place significant burdens on those that
can least afford or carry them.
D. Petitioners incorrectly argue that the Wright Petitioners will
not be harmed by a stay.
Petitioners argue that Wright Petitioners “cannot claim to be harmed by rates
that comply with [the 2013 interim] caps, since they are nearly identical to what
[those parties] requested in the first place.”42 This is outrageously wrong.
It is true that in 2007, Wright Petitioners filed an Alternative Rulemaking
Proposal seeking interstate rate caps of $0.20 for debit calls and $0.25 for collect
calls with no per-call charge.43 However, those proposals were made based on rate

41

CenturyLink Motion at 18.
GTL Motion at 20; Centurylink Motion at 19-20.
43
Alternative Rulemaking Proposal of Wright Petitioners at 16 (2007).
12
42

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and cost information from 2006 and earlier, 44 and without the type of evidentiary
record the FCC has developed. Further, it only covered a small portion of ICS
charges (interstate rates and per-call charges). Nine years later, based on an
extensive record, the FCC found that advances in technology and new industry cost
data supported lower interstate rate caps than the Wright Petitioners originally
proposed.45 This hardly means that Movant-Intervenors would not incur harm by
having to pay more than what the current record demonstrates to be just and
reasonable for interstate calls, and it certainly has no bearing on the harm they
would incur for intrastate calls.
II. Granting a stay would be detrimental to the public interest.
Petitioners claim that the public interest favors a stay. 46 Securus argues it
will have to discontinue certain services under the new caps 47 and Telmate argues
that a stay would allow ICS providers to “continue doing business.” 48 On the
contrary, the public interest would be significantly harmed by a stay.
The record clearly shows the harms to the public interest that unjust,
unreasonable, and unfair ICS rates impose. The Order caps intrastate calls (which

44

Id. at 2.
Order, 30 FCCRcd at 12769-70, ¶9.
46
CenturyLink Motion at 20; GTL Motion at 20; Telmate Motion at 19-20;
Securus Technologies Inc. Emergency Motion for Partial Stay of FCC Order 15136 Pending Review at 19-20 (Securus Motion).
47
Securus Motion, at 19-20.
48
Telmate Motion at 20.
13
45

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account for 80% of calls to and from correctional facilities 49) and ancillary fees,
and lowers the cap on interstate rates. The Order will have even more profound
public interest benefits than the interim caps. Staying the Order would only
further delay these much-needed benefits.
A. The Order will help reduce recidivism and decrease costs
within the incarceration system.
Lower ICS rates will help increase prisoner communication and therefore
ease the transition into society upon release and reduce the chance of recidivism.
Ninety-five percent of the United States’ 2.2 million incarcerated persons will one
day return to society, 50 but 75% of released inmates are re-arrested within five
years. 51 Inmates are significantly less likely to relapse following their release if
they maintain contact with friends and family during their confinement. 52
Inmates who frequently communicate with loved ones are more likely to
maintain a stake in the welfare of the community to which they will return. This
increases their opportunity to obtain gainful employment and otherwise transition
out of the criminal justice system. 53 Fifty-one former Attorneys General

49

Order, 30 FCCRcd at 12768, ¶7.
Letter from Former Attorneys General (Jan. 9. 2015).
51
Order, 30 FCCRcd at 12767, ¶4 (citing U.S. Department of Justice, Recidivism
of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010 at 1
(2014), http://www.bjs.gov/content/pub/pdf/rprts05p0510.pdf).
52
Id. at 12766-67, ¶3.
53
Center Comments at 2 (citing Nancy La Vigne, Examining the Effect of
Incarceration and In-Prison Family Contact on Prisoners’ Family Relationships,
14
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commented that studies show that “people who maintain supportive relationships
with family members have better outcomes – such as stable housing and
employment – when they return to the community,” 54 and that such former
inmates “are more likely to succeed after their release.” 55 Their contributions to
society benefit the public.
Reducing recidivism will also save the criminal justice system millions of
dollars. As mentioned above, studies show 75% of released inmates are re-arrested
within five years. Incarceration costs taxpayers $31,000 per year per inmate on
average.56 Reducing recidivism could save between $60 and $70 billion dollars in
detention costs per year, nationwide. 57 The criminal justice system would save
more than $250 million if recidivism were reduced by even one percent. 58 This
would create significant cost-savings to taxpayers, jails and prisons, and society.

21 J. Contemp. Crim. Justice 314, 316 (2005) (showing the positive effects of
increased family contact)).
54
Letter from Former Attorneys General, supra note 50 (citing a 2011 study from
the Vera Institute); see also Letter from Prison Legal News, supra note 21 (quoting
Donal Campbell, former Commissioner of Tenn. Dept. of Corrections: “As you
know, maintaining contact with family and friends in the new world is an
important part of an inmates rehabilitation and preparation to return to the
community.”).
55
Letter from Former Attorneys General, supra note 50 (citing a 2012 study from
the Vera Institute).
56
Order, 30 FCCRcd at 12767, ¶4.
57
Transcript of Reforming ICS Rates Workshop at 126 (testimony of Alex
Friedmann, HRDC) (July 16, 2013), https://transition.fcc.gov/files/documents/icsworkshop-transcript-07102013.pdf.
58
Wright Petitioners’ Comments (Mar. 25, 2013) (Ex. C, Bazelon Decl. ¶48).
15

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B. The Order will benefit prison welfare and prison security.
Phone calls are a lifeline to the outside world for inmates. This
communication can have a profound impact on the emotional well-being of
prisoners, thereby making prisons safer.59 One commenter stated the following:
I get to see my [imprisoned] loved one once in every six months or so,
and he doesn’t get any visitors apart from me, so calling daily helps
him retain his sanity. I think the connection he’s given to his family is
really important; there are so many times that he’s called really angry
at other inmates, saying that he just wanted to talk so that he can cool
down and not start a fight. If calls are made more affordable,
especially for indigent families, it may reduce prison violence as well
as make the prisons a safer place for [corrections officers] to work
in.60
If more inmates speak with family and friends to “cool down and not start a fight,”
inmates, guards, and the prison generally will be safer.
Lower ICS rates also reduce the demand for contraband cell phones.61
Using contraband cell phones not only undermines prison security, but can result in
increased incarceration time for inmates and increased costs to the state. 62 Low

59

Order, 30 FCCRcd at 12767-68, at ¶5.
Id.
61
See Letter from Prison Policy Initiative (June 12, 2015) (attaching Amanda
Seitz, Phone Calls from Prison Cheaper, Dayton Daily News, April 1, 2015)
(“Lowering the phone charges will help inmates stay connected to their family
while they serve their time and could reduce the number of cellphones smuggled
into the prisons, DRC director Gary Mohr said.”).
62
Center Comments at 2.
16
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ICS costs, therefore, promote prison security and the interests of all stakeholders in
the criminal justice community.
C. The Order will reduce the burden on defense lawyers
representing incarcerated clients.
Maintaining the new rules will reduce burdens on lawyers representing
incarcerated persons. Public defender offices can spend “more than $100,000 a
year accepting collect calls from prisoners.” 63 High phone bills may also deter
private lawyers from representing incarcerated clients.64 Low ICS rates will allow
lawyers additional resources to more zealously represent their clients.
Thus, the public interest will be harmed by a stay of the Order.
III.

Petitioners fail to show irreparable harm.

Petitioners fail to show that they will suffer irreparable harm if the Order is
stayed. First, it is important to note the self-serving nature of the Petitioners’
claims with respect to irreparable harm. Specifically, claims that a “substantial
percentage of contracts [] are not subject to renegotiation”65 or that “revising
hundreds of contracts would consume tremendous resources and potentially … risk

63

Report and Order, Rates for Interstate Inmate Calling Services, 28 FCCRcd
14107, 14131, ¶44 (2013).
64
See, e.g., Order, 30 FCCRcd at 12765, n.4 (describing an attorney who paid $56
for a four-minute phone call with an inmate client in a Florida institution).
65
GTL Motion at 19. Similarly, Telmate has indicated it may be unable to
negotiate some of its contracts and has asserted that “some facilities have already
threatened Telmate with litigation if it does so.” Telmate Motion at 19.
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the providers’ goodwill”66 are not supported by the record. Indeed, the providers
failed to submit contracts to the FCC to substantiate their assertions despite the
FCC repeatedly requesting copies of those contracts. 67 Consequently, the FCC
based its decision on information submitted by Movant-Intervenors and others
after an onerous exercise to obtain examples of the contracts from publiclyavailable sources. Thus, Petitioners have purposely withheld key evidence and
now seek to use that fact against the FCC.
Second, a central element of CenturyLink’s claim of harm is that, in many
jurisdictions, the Commission’s new rate caps do not permit it to recover other
costs after paying mandated site commissions, which are not compensable costs. 68
This and similar arguments should also be rejected.
As an initial matter, based on an exhaustive review of industry costs, the
Commission found that the caps it adopted will allow companies to earn a fair
profit. 69 Even if CenturyLink were correct, it is in this predicament largely of its
own volition. CenturyLink has been on notice that the FCC might impose caps

66

GTL Motion at 19.
See Notice of Proposed Rulemaking, Rates for Interstate Inmate Calling
Services, 27 FCCRcd 16629, at 16637, 16645, ¶¶18, 19, 43 (2012). In addition,
the FCC issued two public notices specifically asking for data about contracts.
Data on Service Contracts Included in Record of Inmate Calling Service Rates
Proceeding, 28 FCCRcd 9083 (2013); More Data Sought on Extra Fees Levied on
Inmate Calling Services, 28 FCCRcd 9080 (2013).
68
CenturyLink Motion at 16-17.
69
Order, 30 FCCRcd at 12787, ¶49
18
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that would not include site commissions as costs since August 2013. Since then, it
voluntarily entered into several ICS contracts that require some of the very highest
site commissions ever negotiated, including Alabama (87.69%), Arizona (93.9%),
and Utah (90%). 70 The Court should not grant stay relief based on CenturyLink’s
own willingness to enter into contracts it knew could be altered in the future.
Further, CenturyLink spends considerable time discussing its investment in
Texas, stating it has made significant “capital investment for wiring and phone
infrastructure at the 114 facilities overseen by the Texas Department of Criminal
Justice.”71 However, CenturyLink entered into this agreement in 2008. Under the
Internal Revenue Code, investments in telecommunications equipment may be
amortized in 7 years. 72 Thus, capital investment made in 2008 was likely fully
amortized and beyond its useful life by 2015. Therefore, CenturyLink’s concern
about its “investment in equipment and wiring necessary to make service possible”
is largely irrelevant. 73 In any event, the Texas contract has a force majeure
provision allowing renegotiation in the event of regulatory change. 74 As

70

Wright Petitioners’ Opposition to CenturyLink Motion for Stay, at 8-9.
CenturyLink Motion, Ex. 2 at 5.
72
See Internal Revenue Manual, 1.35.6.10, Property and Equipment Capitalization
(https://www.irs.gov/irm/part1/irm_01-035-006.html).
73
CenturyLink Motion at 18.
74
Wright Petitioners’ Letter at 1 (Aug. 2, 2013).
19
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mentioned above, this is the type of statute that could be modified or repealed if
CenturyLink lobbied the Texas state legislature in light of the Order.
Third, ICS providers’ argument ignores evidence that lower ICS rates
increase call volume, which in turn increases revenue. Praeses, a firm that
negotiates contracts for jails and prisons, reported that since the interim rate
reform, interstate call volume in facilities operated by its clients increased 76% and
revenue increased 12%; it expects a similar increase for intrastate calls after the
rules go into effect.75 Similarly, ICSolutions reported increases in call volume by
as much as 150%, and increases in revenue by approximately 30% when
implementing lower rates. 76 Further, many letters from prisoners stated that they
would make more calls if they could afford them. 77 Thus, ICS providers have
failed to show irreparable harm.
CONCLUSION
The Court should deny the requests for stay and grant all such other relief as
may be necessary and proper.

75

Order, 30 FCCRcd at 12792, ¶56.
Id.
77
See, e.g., Letter from Raymond Kolarik (Mar. 21, 2013) (“[i]f rates could be
more reasonable, it would allow myself and others to better stay in touch with our
families; Gillett Letter (suggesting his call volume would increase by a factor of
ten); Letter from Joseph Richmond (Mar. 19, 2013) (asserting that lower rates
would lead him to call more often, and for more minutes per call).
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Respectfully submitted,

/s/ Andrew Jay Schwartzman
Andrew Jay Schwartzman
Eric G. Null
Institute for Public Representation
Georgetown University Law Center
600 New Jersey Ave., NW
Washington, DC 20001
202-662-9535
Counsel for Movant-Intervenors

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CERTIFICATE OF SERVICE
I hereby certify that on February 12, 2016, a copy of the foregoing MovantIntervenor’s Joint Opposition to Motions for Stay Pending Judicial Review was
electronically filed with the Clerk of the Court using CM/ECF and was served on
counsel of record who have registered for such services as of February 12, 2016.

/s/ Eric G. Null
Eric G. Null
Institute for Public Representation