State of OK v. FCC, DC, States Mot to Intervene in Support of Plf, telephone rates, 2016
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USCA Case #16-1057 Document #1600691 Filed: 02/24/2016 Page 1 of 8 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT STATE OF OKLAHOMA, et al., Petitioners, v. Case No. 16-1057 (Consolidated with Case No. 15-1461) FEDERAL COMMUNICATIONS COMMISSION, et al., Respondents. MOTION TO INTERVENE IN SUPPORT OF PETITIONERS The States of Wisconsin, Nevada, Arkansas, Arizona, Louisiana, Missouri, Kansas, and Indiana (“Intervening States”) respectfully move to intervene in support of the Petitioner State of Oklahoma, Sheriff John Whetsel, and the Oklahoma Sheriffs’ Association (collectively referred to as “Oklahoma” in this motion) in Case No. 16-1057, which has been consolidated with Case No. 15-1461. Intervention is appropriate if the movants are “directly affected by” the agency action and the motion is “timely.” See Yakima Valley Cablevision, Inc. v. FCC, 794 F.2d 737, 744–45 (D.C. Cir. 1986). The USCA Case #16-1057 Document #1600691 Filed: 02/24/2016 Page 2 of 8 Intervening States should be permitted to intervene because they are directly affected by the agency action and the motion is timely. I. The Intervening States will be directly affected by the agency action. This case will review Respondent Federal Communications Commission’s final agency action entitled, In re Rates for Interstate Inmate Calling Services, Second Report and Order and Third Further Notice of Proposed Rulemaking, WC Docket No. 12-375, FCC 15-136 (Nov. 5, 2015) (“the Order”). The new regulations adopted in the Order were published in the Federal Register on December 18, 2015. 80 Fed. Reg. 79,136. Oklahoma challenged the Order under 28 U.S.C. § 2342(1), which provides this Court with jurisdiction over the case. The Intervening States own, operate, maintain, and manage state prisons, each with their own Inmate Calling System (“ICS”). Under the Order, prison ICS will be prohibited from charging more than $0.11/minute for each call. The Order also restricts certain fees and costs imposed by a prison ICS. The Order applies both to interstate and intrastate calls. The Intervening States will be directly affected by these new caps and restrictions. Prison ICS typically charge higher rates than -2- USCA Case #16-1057 Document #1600691 Filed: 02/24/2016 Page 3 of 8 $0.11/minute because of the unique circumstances presented by prison inmates using the telephone. State prisons incur substantial security-related costs for ICS, including costs incurred in monitoring calls (both recording and reviewing prison calls), costs for escorting prisoners to and from phones, costs for escorting phone repair technicians who need to maintain the system, and costs of continually updating ICS based on new technologies that may pose security risks to prisons. State prisons also incur costs in administering ICS, including the cost of responding to questions about the system from inmates and their families. The Intervening States’ arguments will complement those arguments presented by Oklahoma by highlighting other States’ experience with prison ICS, costs associated with ICS, and security-related concerns. The Intervening States will argue that the Order is arbitrary and capricious as it does not consider these costs and does not allow for reasonable cost recoupment by the States. The Intervening States will also argue that the Order is unconstitutional and not authorized by federal law, all in violation of 5 U.S.C. § 706(2)(A)–(B). -3- USCA Case #16-1057 II. Document #1600691 Filed: 02/24/2016 Page 4 of 8 The Intervening States’ motion is timely. A motion to intervene must be timely in order to prevent disruption of litigation and detriment to existing parties. See Roane v. Leonhart, 741 F.3d 147, 151 (D.C. Cir. 2014). Oklahoma filed the petition for review on January 25, 2016. This motion was therefore filed within 30 days after the petition, and is timely as permitted by Fed. R. App. Proc. 15(d). * * * * The Intervening States respectfully request that they be allowed to intervene in Case No. 16-1057, which has been consolidated with Case No. 15-1461, in support of Oklahoma. Dated this 24th day of February, 2016. -4- USCA Case #16-1057 Document #1600691 Filed: 02/24/2016 Page 5 of 8 Respectfully submitted, BRAD D. SCHIMEL Attorney General of Wisconsin ADAM PAUL LAXALT Attorney General of Nevada /s/ Misha Tseytlin MISHA TSEYTLIN Solicitor General State Bar #1102199 /s/ Lawrence VanDyke LAWRENCE VANDYKE Solicitor General State Bar #13643C _ DANIEL P. LENNINGTON Deputy Solicitor General State Bar #1088694 Wisconsin Department of Justice Post Office Box 7857 Madison, Wisconsin 53707-7857 (608) 267-9323 tseytlinm@doj.state.wi.us Attorneys for Intervenor State of Wisconsin _ Office of the Nevada Attorney General 100 N. Carson Street Carson City, Nevada 89701-4717 (775) 684-1100 LVanDyke@ag.nv.gov Attorneys for Intervenor State of Nevada LESLIE RUTLEDGE Attorney General of Arkansas MARK BRNOVICH Attorney General of Arizona /s/ Lee Rudofsky LEE RUDOFSKY Solicitor General State Bar #2015105 /s/ Dominic E. Draye DOMINIC E. DRAYE Deputy Solicitor General Arkansas Attorney General 323 Center Street, Suite 200 Little Rock, AR 72201 (501) 682-8090 lee.rudofsky@arkansasag.gov _ 1275 West Washington Phoenix, AZ 85007 (602) 542-5025 dominic.draye@azag.gov Attorneys for Intervenor State of Arizona Attorneys for Intervenor State of Arkansas -5- _ USCA Case #16-1057 Document #1600691 Filed: 02/24/2016 Page 6 of 8 JEFF LANDRY Attorney General of Louisiana CHRIS KOSTER Attorney General of Missouri /s/ David G. Sanders DAVID G. SANDERS /s/ J. Andrew Hirth J. Andrew Hirth Deputy General Counsel Mo. Bar. No. 57807 _ Assistant Attorney General State Bar #11696 Louisiana Department of Justice P.O. Box 94005 Baton Rouge, LA 70804-9005 (225)326-6357 sandersd@ag.state.la.us Attorneys for Intervenor State of Louisiana _ P.O. Box 899 207 W. High Street Jefferson City, MO 65102 Tel: (573) 751-0818 andy.hirth@ago.mo.gov Attorneys for Intervenor State of Missouri DEREK SCHMIDT Attorney General of Kansas GREGORY F. ZOELLER Attorney General of Indiana /s/ Jeffrey A. Chanay _ JEFFREY A. CHANAY Chief Deputy Attorney General Kansas Bar #12056 /s/ Thomas M. Fisher THOMAS M. FISHER Solicitor General State Bar #17949-49 Memorial Hall, 3rd Floor 120 SW 10th Avenue Topeka, KS 66612-1597 (785) 368-8435 Phone jeff.chanay@ag.ks.gov Office of the Indiana Attorney General 302 W. Washington Street IGC-South, Fifth Floor Indianapolis, Indiana 46204 (317) 232-6255 Tom.Fisher@atg.in.gov Attorneys for Intervenor State of Kansas Attorneys for Intervenor State of Indiana -6- _ USCA Case #16-1057 Document #1600691 Filed: 02/24/2016 Page 7 of 8 CERTIFICATE AS TO PARTIES, AMICI CURIAE, AND RELATED CASES Under Circuit Rules 27(a)(4) and 28(a)(1)(A), the movants state as follows: Parties, Intervenors, and Amici Petitioners: State of Oklahoma, Sheriff John Whetsel, and the Oklahoma Sheriffs’ Association Respondents: Federal Communication Commission and the United States of America. Intervenors: None at this time. Amici: None at this time. Related Cases The following cases are related and have been consolidated: 15-1461 (lead case), 15-1498, 16-1012, 16-1029, 16-1038, and 16-1046. -7- USCA Case #16-1057 Document #1600691 Filed: 02/24/2016 Page 8 of 8 CERTIFICATE OF SERVICE I hereby certify that on February 24, 2016, the foregoing Motion to Intervene in Support of Petitioners was served electronically through CM/ECF system to all registered attorneys in this case number. /s/ Misha Tseytlin MISHA TSEYTLIN -8- _