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ORAL ARGUMENT NOT YET SCHEDULED
No. 13-1280 (consolidated with 13-1281, 13-1291, 13-1300, 14-1006)
IN THE
United States Court of Appeals for the District of Columbia Circuit
SECURUS TECHNOLOGIES, INC., ET AL.,
Petitioners,
and
ARKANSAS DEPARTMENT OF CORRECTIONS, ET AL.,
Intervenors in Support of Petitioners.
v.
FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA.
Respondents.
On Petition for Review of an Order of
the Federal Communications Commission
AMICI BRIEF in Support of the Federal Communications Commission
on Behalf of Professors Richard H. Frankel, Steven H. Goldblatt, and
Alistair E. Newbern, of the Law School Appellate Litigation Clinics at
Drexel, Georgetown and Vanderbilt Universities
Steven H. Goldblatt
APPELLATE LITIGATION PROGRAM
GEORGETOWN UNIVERSITY LAW CENTER
111 F Street, NW, Suite 306
Washington, D.C. 20001
(202) 662-9555
goldblat@law.georgetown.edu
Counsel for Amici Curiae

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CERTIFICATE OF INTERESTED PARTIES,
RULINGS, AND RELATED CASES
AND CORPORATE DISCLOSURE STATEMENT
1. Parties and Amici
All parties and intervenors appearing in this court are listed in
the petitioners‟ briefs. This amici brief is submitted by Professors Richard H. Frankel, Steven H. Goldblatt, and Alistair E. Newbern, of the
Law School Appellate Litigation Clinics at Drexel, Georgetown and
Vanderbilt Universities.

Undersigned counsel understands that two

other amicus curiae intend to submit briefs in support of the Federal
Communications Commission: Asian Americans Advancing Justice et
al. and Verizon, Inc.
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure,
amici state that none of them is a publicly-held corporation, issue stock
or have a parent corporation. Amici provide pro bono legal services
through law school clinical programs.
2. Rulings Under Review
The ruling at issue is Rates for Interstate Inmate Calling Services,
78 Fed. Reg. 67,956 (Nov. 13, 2013) (to be codified at 47 C.F.R. pt. 64).
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3. Related Cases
The order on review has not previously been subject of a petition
for review in this Court or any other court. Counsel is not aware of any
related cases pending before this or any other court.
/s/ Steven H. Goldblatt
Steven H. Goldblatt
Counsel for Amici Curiae

Dated: July 28, 2014

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TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PARTIES, RULINGS, AND
RELATED CASES AND CORPORATE DISCLOSURE
STATEMENT ...................................................................................... i
TABLE OF CONTENTS ......................................................................... iii
TABLE OF AUTHORITIES ..................................................................... iv
GLOSSARY .............................................................................................. vi
INTEREST OF THE AMICI CURIAE ...................................................... 1
ARGUMENT ............................................................................................. 5
I.

THE CORRECTIONAL PETITIONERS‟ CHALLENGE
TO COMMISSION JURSIDICTION IS IN TENSION
WITH
PRIOR
JUDICIAL
RULINGS
THAT
CONSISTENTLY RECOGNIZED THE COMMISSION
AS THE APPROPRIATE ENTITY TO PROVIDE
RELIEF FROM UNREASONABLE INTERSTATE ICS
RATES AND PRACTICES. ...................................................... 6

II.

CONGRESSIONALLY-AUTHORIZED
FEDERAL
REGULATION AFFECTING STATE AND LOCAL
PRISONS
IS
NOT
THE
EXTRAORDINARY
INTRUSION PORTRAYED BY THE CORRECTIONAL
PETITIONERS........................................................................ 12

CONCLUSION ........................................................................................ 19
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES*
Federal Cases
Allnet Commc’n Serv., Inc. v. Nat’l Exch. Carrier Ass’n, Inc.,
965 F.2d 1118 (D.C. Cir. 1992) .......................................................... 7
* Arsberry v. Illinois, 244 F.3d 558 (7th Cir. 2001) .............. 3, 7, 8, 10, 11
Ashwander v. Tenn. Valley Auth., 297 U.S. 288 (1936).......................... 11
AT&T Co. v. Central Office Tel., Inc., 524 U.S. 214 (1998) ...................... 7
City of Arlington, Tex. v. FCC, 133 S. Ct. 1863 (2013) ........................... 13
City of New York v. FCC, 486 U.S. 57 (1988) ......................................... 14
Cutter v. Wilkinson, 544 U.S. 709 (2005) ................................................ 15
Daleure v. Kentucky, 119 F. Supp. 2d 683 (W.D. Ky. 2000) ............... 9, 11
Holloway v. Magness, No. 5:07-CV-00088, 2011 WL 204891
(E.D. Ark. Jan. 21, 2011) ............................................................... 6, 7
Kaufman v. Carter, 952 F. Supp. 520 (W.D. Mich. 1996) ....................... 16
McGuire v. Ameritech Servs., Inc., 253 F. Supp. 2d 988
(S.D. Ohio 2003) ................................................................................. 9
Nat’l Ass’n of Regulatory Util. Comm’rs. v. FCC, 746 F.2d 1501
(D.C. Cir. 1984) .................................................................................. 9
Pa. Dep’t of Corr. v. Yeske, 524 U.S. 206 (1998) ..................................... 17
Trice v. Pub. Comm. Servs., No. 4:11-CV-1880-TCM,
2012 WL 551813 (E.D. Mo. Feb. 19, 2012) .................................... 8, 9
Turner v. Safley, 482 U.S. 78 (1987) ......................................................... 4
United States v. Shimer, 367 U.S. 374 (1961) ........................................ 14
* Wright v. Corr. Corp. of America, No. 00-293, slip op.
(D.D.C. Aug. 22, 2001) ..................................................... 3, 7, 8, 9, 17

* Authorities chiefly relied upon are marked with asterisks.

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Federal Statutes
8 U.S.C. § 1252 .......................................................................................... 1
29 U.S.C. § 701 et seq. ............................................................................. 16
29 U.S.C. § 794 ........................................................................................ 16
42 U.S.C. §§ 2000cc to 2000cc-5 .............................................................. 14
42 U.S.C. § 2000cc-1(a)............................................................................ 15
42 U.S.C. § 2000cc-1(b)............................................................................ 15
42 U.S.C. § 12101 et seq. ......................................................................... 17
42 U.S.C. § 12131(1)(B) ........................................................................... 17
42 U.S.C. §§ 15601-15609 ....................................................................... 14
42 U.S.C. § 15607(e)(2) ............................................................................ 14
42 U.S.C. § 15607(e)(3) ............................................................................ 14
47 U.S.C. § 151 et seq. ............................................................................... 6
47 U.S.C. § 201 ........................................................................................ 12
47 U.S.C. § 201(b) .................................................................................... 17
47 U.S.C. § 276(b)(1)(A)................................................................. 9, 13, 17
47 U.S.C. § 276(d) .......................................................................... 9, 13, 17
Federal Regulation
Rates for Interstate Inmate Calling Services,
78 Fed. Reg. 67,956 (Nov. 13, 2013) ................................ 3, 5, 6, 9, 16

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GLOSSARY

ADA

Americans with Disabilities Act of 1990 (codified as amended at 42 U.S.C. § 12101 et
seq.)

Commission

Federal Communications Commission

Communications Act

Communications Act of 1934 (codified as
amended at 47 U.S.C. § 151 et seq.)

Corr. Br

Joint Brief for Correctional Facility Petitioners and Supporting Intervenors

FCC Br.

Brief for the Federal Communications
Commission

ICS

Inmate Calling Services

Order

Rates for Interstate Inmate Calling Services, 78 Fed. Reg. 67,956 (Nov. 13, 2013) (to
be codified at 47 C.F.R. pt. 64)

Rehabilitation Act

Rehabilitation Act of 1973 (codified as
amended at 29 U.S.C. § 701 et seq.)

RLUIPA

Religious Land Use and Institutionalized
Persons Act, 42 U.S.C. §§ 2000cc to 2000cc-5

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INTEREST OF THE AMICI CURIAE1
Amici curiae, three law school professors who supervise appellate
clinics representing prisoners and immigration detainees housed in
state or local prisons and jails, submit this brief in support of the Federal Communications Commission rulemaking under review. Our work
on behalf of prisoners and detainees (collectively, prisoners) spans appeals from habeas corpus petitions, civil rights actions, and immigration
matters (before the Board of Immigration Appeals and under 8 U.S.C.
§ 1252).2 Counsel rely heavily on telephone conversations to consult
with these clients. As the Commission found generally, exorbitant inmate calling rates burden communications between counsel and prisoners. See Br. for Fed. Commc‟n Comm‟n (“FCC Br.”) at 4-5.
We welcome the Commission ruling as a long-overdue first step
towards addressing exorbitant inmate calling rates. Our clinics, like

A motion for leave to file accompanies this brief as only some parties have consented. No counsel for a party authored any part of this
brief or made a monetary contribution intended to fund the preparation
or submission of this brief. No person other than amici or their counsel
made a monetary contribution to its preparation or submission.
1

The views in this brief are of the named amici and are not necessarily the views of their Universities.
2

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other legal service providers representing prisoners, directly benefit
from this relief. The Commission‟s rulemaking strengthens our ability
to provide legal services that are in short supply, yet essential to the
quality of justice.
Amici participate because our experience representing prisoners
affords a perspective not otherwise before this Court in this case. We
participate solely to address the jurisdictional arguments raised by the
Correctional Facility Petitioners and Supporting Intervenors (“Correctional Petitioners”), and, particularly, their contention that, by regulating interstate calling rates, the Commission has encroached on their sovereign police powers.3 See Joint Br. for Corr. Facility Pet‟rs & Supporting Intervenors (“Corr. Br.”) at 22-39. This invocation of sovereignty does not arise in a vacuum, and, in amici’s view, bears scrutiny
against the backdrop of more than a decade of federal and state litigation in which courts denying judicial relief to prisoners, their families,
and their counsel have consistently recognized the Commission‟s authority to address the fairness of Inmate Calling Services (“ICS”) rates.

Amici fully support the Commission on the merits, but do not brief
those issues because they are fully addressed in other briefs.
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Specifically, the cases relied on by the Correctional Petitioners, including the Seventh Circuit decision in Arsberry v. Illinois, 244 F.3d 558
(7th Cir. 2001), provide essential context for assessing the validity of
the Commission‟s jurisdiction here.
Although these prior decisions reject challenges to prisoner phone
charges, they also confirm that review is available from the Commission. As the origins of this rulemaking demonstrate, courts have consistently recognized that the Commission is the proper body to determine
whether ICS charges are unfair.4 The Correctional Petitioners ignore
the significance of this body of law and the destabilizing effect upon it
that a ruling in their favor on jurisdictional grounds would produce.
Denying the Commission authority to remedy unfair ICS rates would
conflict with judicial decisions that have explicitly recognized and, in
some instances, relied upon such authority as a rationale for denying
This case began as a class action brought by prisoners and their
relatives seeking a federal court order that exorbitant charges and unconscionable arrangements between prisons and carriers violated their
constitutional rights and various federal and local laws. It was referred
to the Commission under the primary jurisdiction doctrine. See Wright
v. Corr. Corp. of America, No. 00-293, slip op. at 14-15 (D.D.C. Aug. 22,
2001) (“Wright v. CCA”); Rates for Interstate Inmate Calling Services,
78 Fed. Reg. 67,956 (Nov. 13, 2013) (to be codified at 47 C.F.R. pt. 64)
(“Order”) ¶¶ 1, 9 (describing the rulemaking petition of Martha Wright).
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judicial relief. A holding that Commission jurisdiction does not exist
would trigger a whole new round of private due process actions previously dismissed on the ground that the Commission, not the courts in
the first instance, provided the process that was due.
Amici also write to provide perspective on the state sovereign interests asserted here and the extent to which those interests delimit
Commission jurisdiction. Prisoners routinely raise constitutional and
federal statutory claims challenging the boundaries of state and local
jailers‟ authority. These cases recognize the limits of federalism but belie any suggestion that the deference owed to the Correctional Petitioners is nearly as “wide-ranging” as they assert. Corr. Br. at 23. State
and local jailers are not only subject to federal judicial review to ensure
that prisoners‟ constitutional rights are honored, they are also subject
to congressional and federal agency regulation under federal statutes
that derive from Congress‟ power to regulate state actors under the
Spending and Interstate Commerce Clauses.
The degree of deference due must also be considered in context.
Although security and police power concerns may hold sway when jailers act qua jailers, see Turner v. Safley, 482 U.S. 78 (1987), where pris4

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on administrators choose to enter the stream of interstate commerce
and derive revenue nationally, it is they who are “intrud[ing]” into the
Commission‟s core domain, not the other way around. Corr. Br. at 2.
Moreover, the Commission gave due deference here by balancing prisonspecific security concerns that affect calling costs in determining just,
reasonable, and fair rates. See FCC Br. at 7-8, 63. In reviewing whether this balance was properly struck, this Court should reject the Correctional Petitioners‟ claim to carte blanche or near carte blanche authority.
ARGUMENT
The Commission rule under review seeks to eliminate exorbitant
telephone charges for collect and debit calls initiated by inmates in
American prisons, jails, and detention facilities. See Rates for Interstate Inmate Calling Services, 78 Fed. Reg. 67,956 (Nov. 13, 2013) (to be
codified at 47 C.F.R. pt. 64) (“Order”). Yet, contrary to Correctional Petitioners‟ suggestion, the Order is far from an overeager attempt by the
Commission to thrust itself into correctional policy-making. See generally Corr. Br. at 3 (“[T]he commission [has] arrogate[d] to itself the policy judgments of how to properly fund [inmate] programs . . . .”). Rather,
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the Commission entered the fray only after several States had themselves reformed the egregious practices addressed by the Order, see Order ¶ 4, and only after the filing of “[t]ens of thousands” of petitions for
rulemaking, id. ¶ 1, and numerous lawsuits seeking relief from unreasonable ICS rates and practices. In promulgating the Order, the Commission hewed closely to its statutory mandate, exercising its core authority in this first step of what will be an ongoing effort to determine
reasonable rates for prisoners‟ interstate telephone calls.
I.

THE CORRECTIONAL PETITIONERS’ CHALLENGE
TO COMMISSION JURSIDICTION IS IN TENSION
WITH PRIOR JUDICIAL RULINGS THAT CONSISTENTLY RECOGNIZED THE COMMISSION AS THE
APPROPRIATE ENTITY TO PROVIDE RELIEF FROM
UNREASONABLE INTERSTATE ICS RATES AND
PRACTICES.

For more than a decade before the Commission finally took the action under review here, inmates and their families brought dozens of
state and federal lawsuits challenging unreasonable ICS rates and
practices. Beyond claims under the Communications Act itself, see 47
U.S.C. § 151 et seq., these suits sought relief under federal and state antitrust, consumer protection, and unfair practices statutes. See Holloway v. Magness, No. 5:07-CV-00088, 2011 WL 204891, at *4 & nn.11-15
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(E.D. Ark. Jan. 21, 2011) (collecting cases).

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Additionally, litigants

raised federal constitutional claims under the First Amendment, the
Contracts Clause, the Takings Clause, the Equal Protection Clause, and
the substantive and procedural components of the Due Process Clause.
See id. at *4 & nn.17-21.
To be sure, courts reaching the merits in these cases have yet to
grant relief. See Holloway, 2011 WL 204891, at *4 & n.22. But many
federal courts, however, do not reach the merits, and instead express
skepticism regarding their institutional competence to decide rate cases
in the first instance. Often at the behest of named defendants, see, e.g.,
Wright v. Corr. Corp. of America, No. 00-293, slip op. at 4 n.6 (D.D.C.
Aug. 22, 2001) (“Wright v. CCA”), courts have invoked the primary jurisdiction doctrine5 or the filed rate rule6 in declining to address such

Courts use the primary jurisdiction doctrine to dismiss a case
where the agency is “best suited to make the initial decision on the
issues in dispute, even though the district court ha[s] subject matter
jurisdiction.” Allnet Commc’n Serv., Inc. v. Nat’l Exch. Carrier Ass’n,
Inc., 965 F.2d 1118, 1120 (D.C. Cir. 1992).
5

The “filed rate” doctrine “forbids a court to revise a *** common
carrier‟s filed tariff.” Arsberry, 244 F.3d at 562; see also AT&T Co. v.
Central Office Tel., Inc., 524 U.S. 214, 223 (1998).
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claims, instead referring them to the Commission for “resolution of the
underlying issues committed to the [Commission]‟s expertise,” Trice v.
Pub. Comm. Servs., No. 4:11-CV-1880-TCM, 2012 WL 551813, at *3
(E.D. Mo. Feb. 19, 2012), as was done here, see Wright v. CCA, slip op.
at 14-15.
In so doing, courts have explicitly recognized that the Commission
possesses both the institutional competence and the regulatory authority to determine reasonable interstate ICS rates and practices. Thus, in
Arsberry, a case relied upon by Correctional Petitioners, Br. at 25, 28,
the Seventh Circuit dismissed an equal protection challenge to ICS site
commission arrangements on primary jurisdiction grounds, explaining:
A claim of discriminatory tariffed telephone rates is precisely the
kind of claim that is within the primary jurisdiction of the telephone regulators. The plaintiffs are asking us to compare the
rates on inmate calls with rates on comparable calls of other persons; that is what we cannot do but the regulatory agencies can.
244 F.3d at 565 (second emphasis added).
This recognition that the Commission possesses the authority to
address unreasonable interstate ICS rates pervades the cases. Courts
consistently find that “[r]ate setting and related relief is the bailiwick of
the [Commission],” and that plaintiffs‟ “remedy lies with the [Commis8

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sion].” McGuire v. Ameritech Servs., Inc., 253 F. Supp. 2d 988, 1014
(S.D. Ohio 2003); see also, e.g., Trice, 2012 WL 551813, at *3; Daleure v.
Kentucky, 119 F. Supp. 2d 683, 689-90 (W.D. Ky. 2000).
“Significantly,” as the district court in Wright noted, “the [Commission], in exercising its mandate to regulate the reasonableness of
rates . . . can adequately address those issues by prohibiting longdistance carriers from considering commission costs in their cost-basis.”
Slip op. at 7. This is because Congress has given the Commission “explicit statutory authority to regulate inmate payphone services.” Id. at
8 (citing 47 U.S.C. § 276(d)); see also 47 U.S.C. § 276(b)(1)(A); Order
¶ 14.7
Correctional Petitioners, however, ignore this long history of judicial decisions confirming that the Commission, not the federal courts, is
primarily responsible for determining reasonable ICS rates. Far from
supporting the proposition that the Commission lacks regulatory au-

The Commission has general authority to regulate interstate
telephone rates. Nat’l Ass’n of Regulatory Util. Comm’rs. v. FCC, 746
F.2d 1492, 1501 (D.C. Cir. 1984) (Commission may invalidate state
impediments to interstate communications). The Order applies only to
interstate ICS rates.
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thority in this area, or that its jurisdiction is limited because the issue
is one committed to state and local policy prerogatives, the case law in
this area confirms the propriety of the Commission‟s actions.
Thus, although the Correctional Petitioners quote Arsberry to assert “[t]he decision of how to „cover the expense of prisons‟—„by whatever combination of taxes and user charges‟ might be deemed best—is not
for a federal agency to make, but is instead one for States and localities
„to resolve‟ for themselves,” Br. 28 (quoting Arsberry, 244 F.3d at 566),
they do so inaccurately. The full quote says something quite different:
“By what combination of taxes and user charges the state covers the expense of prisons is hardly an issue for the federal courts to resolve.”
Arsberry, 244 F.3d at 564 (emphasis added). Arsberry nowhere states,
much less holds, that the Commission lacks the authority to address issues of unreasonably high rates. Instead, it explicitly notes that such
claims are “squarely within the [Commission]‟s jurisdiction.” Id. at 563.
Deferring to the Commission has thus allowed federal courts to
avoid the merits of colorable constitutional claims. The assurance of
plaintiffs‟ procedural “due process right to challenge the inmate telephone rates in the regulatory agencies,” moreover, has allayed any con10

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cerns of procedural due process violations for courts that deny relief
outright. Arsberry, 244 F.3d at 566. Because parties challenging ICS
rates can avail themselves of an administrative mechanism to “avoid[]
any injustice,” Daleure, 119 F. Supp. 2d at 689-90, courts have dismissed lawsuits comforted by the knowledge that injured parties have
an alternative forum available. Correctional Petitioners‟ jurisdictional
position, however, effectively deprives injured parties of any forum for
challenging the fairness of interstate ICS rates. So crabbed a reading of
the Commission‟s jurisdictional reach is not only textually indefensible,
it also gives rise to serious constitutional concerns. Cf. Ashwander v.
Tenn. Valley Auth., 297 U.S. 288, 348 (1936) (Brandeis, J., concurring).
In short, Correctional Petitioners advance a constitutionally suspect jurisdictional trap: Courts have concluded that they lack the authority and institutional competence to provide relief without Commission guidance. But Correctional Petitioners contend that the Commission cannot act because its regulation of ICS rates and practices supposedly intrudes on state and local policy prerogatives.
Such absolute or even near-absolute immunity from review is unwarranted and unnecessary to afford Correctional Petitioners the pro11

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tections to which they are entitled. Correctional Petitioners, like all
others affected by agency decisions, may seek relief from legal errors
and arbitrary and capricious rulemaking, including any perceived
Commission failure to adequately weigh their security concerns. They
exercise that right here. Their Catch-22 jurisdictional argument, however, proves too much, by seeking unfettered—and unreviewable—
discretion to control interstate calling rates.
II.

CONGRESSIONALLY-AUTHORIZED FEDERAL REGULATION AFFECTING STATE AND LOCAL PRISONS
IS NOT THE EXTRAORDINARY INTRUSION PORTRAYED BY THE CORRECTIONAL PETITIONERS.

Because Congress expressly authorized the Commission to decide
whether ICS rates are fair, the Correctional Petitioners‟ contention that
the Order impermissibly “overrid[es] state and local budgetary judgments,” Br. at 29, has it backwards. When state and local governments
seek to derive revenue from a channel of interstate commerce regulated
by the Commission, it is the state governments that seek to override the
Commission‟s core authority over interstate telephone rates. See FCC
Br. at 2, 61-62.
Here, Congress has entrusted the Commission to ensure reasonable interstate telephone rates. See 47 U.S.C. § 201. And Congress ex12

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plicitly authorized the Commission to “establish a per call compensation
plan to ensure that all payphone service providers,” including ICS providers, “are fairly compensated for each and every completed intrastate
and interstate call.” See 47 U.S.C. § 276(b)(1)(A), (d). It is thus “fauxfederalism” for Correctional Petitioners to assert that the Commission
“invades and upends their governmental authority over prison management,” Corr. Br. at 1, when the Commission is merely exercising its
statutory mandate to regulate ICS rates. Cf. City of Arlington, Tex. v.
FCC, 133 S. Ct. 1863, 1873 (2013) (rejecting “faux-federalism” argument
that Commission overreached when it “assert[ed] jurisdiction over matters of traditional state and local concern,” and holding that Congress
had “supplant[ed] state authority”). State governments that attempt to
draw upon interstate telephone calls as a revenue source enter an area
of federal regulation that cannot be trumped by an ipse dixit assertion
of core police powers. In exercising its congressionally delegated authority, the Commission has no less pre-emptive power than does Congress, and its judgments are subject to judicial review only to determine
whether the agency has exceeded its statutory authority or acted arbi-

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trarily. United States v. Shimer, 367 U.S. 374, 381-382 (1961); City of
New York v. FCC, 486 U.S. 57, 63 (1988).
Moreover, the Correctional Petitioners‟ blanket assertion that the
Order “tramples on . . . legitimate, carefully calibrated choices of state
and local law enforcement officials and of state legislatures,” Corr. Br.
at 27, wrongly suggests that the Commission is treading where federal
agencies have no right to tread. In areas more closely tied to day-to-day
prison operations than interstate calling, state and local prisons and
jails are often subject to regulation by federal courts and federal agencies.
For example, Congress utilized its power under the Spending
Clause to enact the Prison Rape Elimination Act, 42 U.S.C. §§ 1560115609. This statute reduces a state‟s federal funding for prisons if the
state does not comply with nationally prescribed standards for eliminating prison rape, § 15607(e)(2), and further charges the Attorney General
with overseeing and reporting on compliance, § 15607(e)(3).
Similarly, Congress constrains state prison practices through the
Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42
U.S.C. §§ 2000cc to 2000cc-5, which prohibits state governments from
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imposing a “substantial burden on the religious exercise of a person residing in or confined to an institution” absent a compelling governmental interest and use of the least restrictive means to further that interest, § 2000cc-1(a). Enacted under both the Spending Clause and the
Commerce Clause, RLUIPA addresses state and local correctional policies that burden religious exercise with far greater potential to affect
“the prerogatives of state and local authorities,” Corr. Br. at 21, in running their facilities than the Commission‟s regulation of carriers‟ ICS
rates. See § 2000cc-1(b).
These statutes appropriately weigh federalism concerns by affording due deference to state and local interests. In Cutter v. Wilkinson,
544 U.S. 709 (2005), the Court upheld RLUIPA against an Establishment Clause challenge, rejecting the argument that the statute elevated
religious concerns above correctional facilities‟ critical safety and security concerns.

Id. at 722-23.

Cutter recognized that “due deference”

should be afforded to the expertise of prison and jail administrators in
these areas, id. at 716, and RLUIPA survived because it “permits safety
and security—which are undisputedly compelling state interests—to
outweigh an inmate‟s claim to a religious accommodation,” id. at 717.
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Due deference, however, is not tantamount to abdication of federal
jurisdiction. The Commission, in exercising its core authority to ensure
reasonable interstate rates, weighed “the legitimate and unique requirements for security and public safety in the provision of [ICS],” Order ¶ 8, and security costs factor into reasonable rate calculations, see
FCC Br. at 33-34 & n.4, 63. Whether such concerns were adequately
weighted goes to the merits of the Commission‟s decision, not to the
Commission‟s jurisdiction.
Nor must a statutory mandate be specifically directed towards local prisons and jails to permit federal regulation. Broadly applicable
statutes also suffice.

Thus, in enacting the Rehabilitation Act, 29

U.S.C. § 701 et seq., Congress “provide[d] broadly that its mandate extends to „any program or activity receiving Federal financial assistance.‟” Kaufman v. Carter, 952 F. Supp. 520, 527 (W.D. Mich. 1996)
(citing 29 U.S.C. § 794). The Kaufman Court upheld a federal regulation interpreting this language to include state prisons. It rejected an
argument echoing that of Correctional Petitioners: that “management of
state prisons is a core function of the state sovereign, and is not presumptively subject to federal control.” Id. at 528.
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Similarly, the Supreme Court has held that the broad language of
the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.,
which is applicable to “any department, agency, . . . or other instrumentality of a State . . . or local government,” § 12131(1)(B), applies to state
prisons.

Pa. Dep’t of Corr. v. Yeske, 524 U.S. 206, 210-12 (1998).

Whether Congress “envision[ed] that the ADA would be applied to state
prisoners,” is ultimately irrelevant, as “the fact that a statute can be
applied in situations not expressly anticipated . . . does not demonstrate
ambiguity. It demonstrates breadth.” Id. at 212.
Congress likewise used broad language in the Communications
Act, which brooks no exceptions for prisons or other state actors. Thus,
even if the Commission did not have explicit statutory authority over
ICS rates, see 47 U.S.C. § 276(b)(1)(A), (d)—which it does—it is also
“statutorily charged with handling all claims of contesting the reasonableness of telephone rates,” Wright v. CCA, slip op. at 6 (citing 47 U.S.C.
§ 201(b)) (emphasis added). As the application of other federal statutes
demonstrates, this broad statutory mandate, standing alone, authorizes
the ICS rulemaking.
***
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The Commission is consistently recognized as the appropriate forum to provide much-needed relief by courts that refuse to hear challenges to exorbitant ICS rates. The Correctional Petitioners‟ jurisdictional argument ignores this precedent. The absolute or near-absolute
insulation from federal scrutiny they seek, moreover, is entirely unprecedented, as illustrated by the wealth of federal interventions that affect
prison administration in other contexts. Here, the Commission appropriately exercised its congressionally mandated authority to begin the
process of providing long-awaited relief.

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CONCLUSION
For the foregoing reasons, amici respectfully request that the
Court confirm the Commission‟s jurisdiction to regulate ICS rates.
Respectfully submitted,
/s/ Steven H. Goldblatt
APPELLATE LITIGATION PROGRAM
GEORGETOWN UNIVERSITY LAW CENTER
111 F Street, NW, Suite 306
Washington, D.C. 20001
(202) 662-9555
goldblat@law.georgetown.edu
Counsel for Amici Curiae
Dated: July 28, 2014

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CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) and Fed. R. App. P. 29(d) because it
contains 3,472 words, excluding the parts of the brief exempted by Fed.
R. App. P. 32(a)(7)(B)(iii) and Circuit Rule 32(a)(1). The amici are also
in compliance with Circuit Rule 29(d), which generally requires that all
amici supporting a party file together unless a single filing is impracticable. There are three amicus briefs being filed supporting the Commission and in undersigned counsel‟s view, a combined filing was impossible and therefore not required by the rule. Compliance with Circuit
Rule 29(d) is discussed in detail in the motion for leave to file that accompanies this brief.
I further certify that the attached brief complies with the typeface
requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6), because it has been prepared in a proportionally spaced typeface using Microsoft Word 2007 14-point Century Schoolbook font.
Executed this 28th day of July, 2014.

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/s/ Steven H. Goldblatt
Steven H. Goldblatt
Counsel for Amicus Curiae
Appellate Litigation Program
Georgetown University Law Center

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CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the
Clerk of the Court for the United States Court of Appeals for the D.C.
Circuit by using the appellate CM/ECF system on July 28, 2014.
I certify that all parties in the case are registered CM/ECF users
and that service will be accomplished by the appellate CM/ECF system.
Executed this 28th day of July, 2014.
/s/ Steven H. Goldblatt
Steven H. Goldblatt
Counsel for Amicus Curiae
Appellate Litigation Program
Georgetown University Law Center