The Federal Communications Commission (FCC) is preparing for an October vote that the agency claims would reopen its historic 2024 ruling on incarcerated people’s communication services (IPCS). The agency is also due to face oral arguments against its decision earlier in October, and has been seeking ways to delay the litigation.
In July 2024, the FCC voted to adopt an unprecedented set of regulations lowering the prices of prison and jail phone calls, and capping video visit costs for the first time.The IPCS rates are set by private contractors that hold monopolies on the services they provide, and price-gouge prisoners and their families as they try to maintain contact.
Then, on June 30, Chairman Brendan Carr (R) announced that providers would not have to finish coming into compliance until April 2027, a year after the previous deadline, and strongly implied that the deadline may be extended indefinitely.
Advocates filed an application with the FCC calling for the agency to review and “promptly rescind” the suspension order, and in late August, the case was calendared for oral arguments to be heard October 7.
The FCC filed a motion to postpone those arguments until after a meeting it had scheduled for the end of October, when commissioners planned to vote on an IPCS order “that would moot a substantial portion of this litigation.” According to Communication Daily, the FCC does not normally publicize the topics of its upcoming meetings this way.
The agency went on to state that the meeting was expected to result in a reconsideration and further notice of proposed rulemaking—but did not provide further detail except to say that there was no need for the court to waste resources by moving forward with the oral arguments, “[n]or is there any urgency that would justify” doing so.
Public interest groups involved in the litigation opposed the motion to postpone, stating that whatever the FCC planned to do “cannot possibly moot the entire case,” and that issuing a new rule would take months, if indeed it materialized at all.
On September 15, the United States Court of Appeals for the First Circuit denied the FCC’s motion, telling the agency that the case will remain on the calendar for October 7. The most recent action is a final order issued September 19, which merely describes the Office of Management and Budget approving the data collection requirements, with providers instructed to file their first reports November 3; the deadline had previously been extended several times over the course of the year. In the meantime, thousands of public comments have poured in ahead of the October proceedings.
The FCC is designed to be led by five commissioners. Currently, there are three.
The FCC backpeddling on its historic vote has been attributed to the intense legal and political pressure from IPCS providers, corrections departments and law enforcement associations. But the move is largely an opportunistic one.
The FCC is designed to be led by five commissioners, appointed by the president of the United States for five-year terms. Currently, it has only three. Chairman Carr’s predecessor Jessica Rosenworcel (D) stepped down in January when President Donald Trump took office, as is customary for FCC chairs at the beginning of a new administration. Geoffrey Starks (D) and Nathan Simington (R) both resigned effective June 6, with the latter giving only two days’ notice. This briefly left the FCC with just two commissioners before Olivia Trusty (R) was confirmed later in June.
Rosenworcel, Starks, Simington and Commissioner Anna Gomez (D) had all voted to approve the IPCS order in 2024. Carr had given a partial approval, explaining that he was grateful the final order hadn’t “overcorrected” as much as earlier drafts had proposed, but that he still had misgivings about the rate structure.
“For one, with respect to the rates the FCC sets—particularly for smaller jails—it was not clear to me that they would offset the costs that some IPCS providers bear,” Carr stated in July 2024. “For another, the FCC’s decision excludes certain safety and security costs [long considered] part and parcel of the overall rate.”
A year later, the FCC’s Democratic majority is now a Republican majority; Carr is the new chairperson; and there is only one remaining commissioner who voted for the order in full. Carr announced the deadline waiver a week after Trusty was confirmed.
Smaller jails are the least profitable facilities for IPCS providers.
In addition to capping phone and video call prices, the IPCS order bans the deeply entrenched practice of kickbacks, also known as “site commissions.” This refers to incentivizing corrections departments to choose the service provider that promises them the biggest cut of the proceeds, and incentivizing service providers to maintain their profits by charging prisoners and their families higher rates. Corrections departments rely on kickbacks to fund a variety of institutional operations, including the safety and security measures Carr was referring to in his statement.
ViaPath Technologies (AKA Global Tel* Link) is apparently in direct communication with commissioners Carr and Trusty—not Gomez—and reminded their aides that the FCC should “consider all IPCS-related and ancillary costs as part of its re-evaluation to eliminate the unintended consequences [for] public safety and security.”
Smaller jails, meanwhile, are the least profitable facilities for IPCS providers. The arguments made by Securus, ViaPath and the other IPCS providers as to why it’s not feasible or safe to implement the price caps are obviously not in good faith, but there is also a real risk that if smaller facilities aren’t sufficiently profitable to them under the new price structure, they’d simply leave.
“It is in nobody’s interest for these providers to exit the market, or for smaller facilities to go unserved because the economics no longer make sense,” Carr continued in his July 2024 statement. “And undermining the investment-backed expectations of correctional facilities for their safety and security costs may create acute state budgetary pressures that could ultimately lead to a reduction in IPCS access or the loss of essential law-enforcement tools.”
The problem is not that IPCS are charging too much, and the solution is not that we only give them one year to start charging less, rather than two.
Eight states—including Massachusetts, California, Minnesota and New York, which have made prison phone calls free—submitted a filing in support of the October 7 court proceedings, noting that “easier and less expensive communication through official, monitored channels curbs illicit cellphone use within correctional facilities.” (Contraband cell phones are the preferred scapegoat for violence in jails and especially prisons; among their benefits is giving incarcerated people an alternative to the higher-priced phones they’re supposed to use, which is partly why IPCS providers and corrections departments put out so much propaganda against them.)
Progressive advocacy nonprofits Move On and Worth Rises submitted a petition with more than 10,000 signatures, urging the FCC to implement the regulations without delay in order to “honor the law, the will of Congress, and the basic right of people to stay connected.” A coalition of Democratic representatives wrote to Carr warning that “every additional year of delay prolongs the suffering of millions of Americans and perpetuates a system that profits off incarceration.”
All these are very valid statements. But none address what will happen to people in small jails if contractors cut their losses and there is no one to replace them, or the fact that implementing the regulations is still a perpetuation of the system that profits off incarceration.
Prison and jail security should obviously not be dependent on kickbacks from private contractors. Phone calls and other communication services should obviously not be paid for by people in custody and their families. The problem is not that IPCS are charging too much, and the solution is not that we only give them one year to start charging less, rather than two. The problem is that for as long as prisons and jails exist, their presiding governments should be paying for these things themselves.
In August, amid the volley of FCC legal filings, the New York State Department of Corrections and Community Supervision became the first state prison system to make phone calls free by negotiating directly with contractor Securus, rather than through legislation as happened in a small handful of other states. It means the state will cover the cost of Securus phone calls, rather than incarcerated people and their families. Meanwhile the Oklahoma Department of Corrections, citing the FCC extension, has already doubled the price of phone calls.
Image via Carter County TN Sheriff’s Office
