The Uphill Slide

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Phone Calls to the Incarcerated

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The cost of phone calls is shameful and affected our family as it does millions of others. It is not only the cost of the calls but the exorbitant processing fees charged for loading the account, which I once called usury when speaking to my son’s attorney. It is not usury, because it is not illegal. We had no choice in carriers or the ability to shop for better rates. Allegheny County Jail changed their provider for monitored phone calls from Securus to GTL sometime between September 2014 when Jacob was first arrested to July 2015 when he was convicted of three of the five charges. GTL was also the company that implemented the new visitor registration last year.

The cost is a burden to families and might be viewed as another level of punishment on the inmate and punishment to the family who can not afford the cost of calls. There are things that are important not only to the inmate but can have e a positive effect in the penal system. Keeping inmates in touch with their families is good not only for them but for the prisons and jails.

There will be a decrease in the price of calls that should be implemented in June for the Allegheny County Jail. Jacob shared with me weeks ago what he had read about the loss of $250,000 in revenue to the Westmoreland County Jail with this change. According to an article in the TribLive, the jail was receiving about 69% of the cost of phone calls (http://triblive.com/news/westmoreland/10216470-74/prison-calls-phone).  What will the jail do to cover that loss? Likely it will involve fees on inmates that will possibly carry over to families.

Here is the beginning of the October 22, 2015 news release from the FCC:

“Acting on its mandate to ensure that rates for phone calls are just, reasonable, and fair for all Americans, the FCC is working to rein in the excessive rates and egregious fees on phone calls paid by some of society’s most vulnerable: people trying to stay in touch with loved ones serving time in jail or prison (https://www.fcc.gov/consumers/guides/inmate-telephone-service).

The four letters and one oral argument from the FCC decision-makers are responses to these changes and worth reading for both agreement and dissension. The two dissenting arguments both address what they believe are unlawful actions of the FCC in mandating these changes. The opinion of Commissioner O’Rielly is that the FCC has overstepped its authority in this mandate and basically says it is a ‘social agenda’ that is not our problem or in our domain (FCC). He suggests this may make things worse for inmates and families by forcing out those companies who are unable to accept the loss in profit. He also suggested that the money (made by prisons and jails?) will be made up in some other way that may be equally burdensome to families.

The statement of Commissioner Pai touches briefly on his belief that the actions in this mandate are unlawful, but the main focus of the letter is the contraband cell phones entering prisons and jails. He related stories from his visit to a maximum security prison in Georgia where officials and officers from the Georgia Department of Corrections told him that correction officers had confiscated 8,305 illegal cell phones. They shared the stories of how some of those contraband phones were used in the commission of crimes. He added to this statement stories from other states of contraband cell phones.

According to the Georgia Department of Corrections website, they supervise approximately 52,000 prisoners, one of the largest populations of state prisoners in the United States. This figure then does not include the prisoners in federal lock-ups or jails in that state.

The statement of Commissioner Pai’s statement was not relevant in regards to this mandate. Certainly contraband cell phones are a problem that must be addressed by the vigilance of corrections officers.  These officers shared with Pai the variety of methods used to bring in this contraband. Pai obviously believes that this is a problem the FCC should be focusing upon, but I am not sure what his position is on the exorbitant cost of calls for families. In fact, though he said he felt the FCC actions were unlawful, was he also saying that giving some relief to families was unimportant or just outside the domain of the FCC? He said that jail is meant to ‘incapacitate’ its inhabitants or in other words to keep inmates from committing other crimes. Was he also saying that all inmates should pay for the actions of those few committing other crimes? It seemed that he was using this opportunity to urge the FCC on in their work to develop technology to block service to contraband cell phones rather than addressing the unlawful actions of the FCC or the question of the cost of calls.

“STATEMENT OF CHAIRMAN TOM WHEELER

Re:       Rates for Interstate Inmate Calling Services, WC Docket No. 12-375.

 As an agency whose core mission is to promote the public interest, the Commission routinely takes actions that impact the lives of ordinary Americans. But few issues have a more direct and meaningful impact on the lives of millions of American than inmate calling reform. With today’s action, we will provide material relief to nearly two million families with loved ones behind bars.

To be clear, this is not a niche issue impacting only the families of incarcerated Americans. As Dr. Martin Luther King famously wrote – fittingly in a Birmingham jail cell – “Injustice anywhere is a threat to justice everywhere.”

To portray this issue as a battle for justice and fairness may sound hyperbolic to some. To those people, I say, “Look at the law.” We have a statutory mandate to ensure that ICS rates are “just, reasonable, and fair.” Fighting for justice and fairness is our job. Today, we are getting the job done.

Inmate calling reform is not only the right thing to do, it’s also good policy.

Contact between inmates and their loved ones has been shown to reduce the rate of recidivism, but high inmate calling rates have made that contact unaffordable for many families, who often live in poverty.  By adopting tiered rate caps that apply to all interstate and intrastate ICS calls, and limiting and capping runaway ancillary service charges, this item addresses unaffordable ICS rates head on. At the same time, the new caps fully cover the enhanced security requirements of inmate calling and facilitate access to inmate calling for persons with communications disabilities, while allowing providers a reasonable return. This ensures that the rates for phone calls between inmates and their families are just, reasonable and fair all around.

Today’s actions also help to address a prime example of a market failure. Where, as here, market forces have not been able to discipline costs to consumers, we must shoulder the responsibility of promoting communications services that do not leave the most vulnerable of our population behind.

Perhaps the most important thing people need to understand about today’s reforms is that this would not have happened without the leadership of Commissioner Clyburn. This issue was largely ignored by this agency for a decade. She began championing this issue when she arrived as Commissioner in 2009, and when she got the gavel in 2013, she was determined to seize the opportunity to fast track real reform. From the first Order and Further Notice adopted by the Commission under her interim leadership, to the Second Further Notice adopted a year ago, to this item now, Commissioner Clyburn has been the undisputed leader on these issues, as much a champion of a just cause as I have seen.  This item is a testament to her strong leadership, the dedication of her staff, notably Rebekah Goodheart, the unflagging advocacy of the Wright Petitioners, as well as the truly tireless efforts of the ICS Team in the Wireline Competition Bureau and Office of General Counsel. “

“STATEMENT OF COMMISSIONER MIGNON CLYBURN

Re:       Rates for Interstate Inmate Calling Services, WC Docket No. 12-375.

South African President Nelson Mandela is known to have said, “that no one truly knows a nation until one has been inside its jails” and that “a nation should not be judged by how it treats its highest citizens, but its lowest ones.”

Today, our proud nation holds the regrettable distinction of having the highest rate of incarceration in the world, and with recidivism rates within five years of every inmate released topping 75%, a broad coalition can be heard calling for comprehensive criminal justice reform.  But what is often missing during these bi-partisan criminal justice reform discussions is how integral today’s decision is to the success or failure of these efforts.

Incarceration is a family matter, an economic matter, a societal matter.  The greatest impact of an inmate’s sentence is often on the loved ones who are left behind.

These families are shouldering incredible burdens, making unbelievable economic and personal sacrifices that impact their health, education and quality of life.  They face stigmas that are literally destroying communities.  And for too long we remained idle as families, friends, clergy, attorneys and coalitions pleaded for relief.

But October 22, 2015, marks the day, 14 long years after the court dismissed their lawsuit and referred the petitioners to this agency, when we answer the calls and uphold our statutory obligation to ensure that everyone pays just, reasonable and fair rates for all telephone calls.  I am extremely proud that the FCC is finally acting on behalf of the 2.7 million children who have been suffering unfairly and most often in silence.  No more excuses, no more justification for inaction that put other agency priorities over fair rates at the expense of these children’s well-being.  The only thing that was ever asked of us was to be in compliance with our rules and regulations so that families can make a simple call, hear the voice and express the love for a parent over the phone, without sinking further into an economic morass.

One consistent refrain I hear when we speak about this issue is – why should we care?  People are locked up for a reason.  Let’s throw away the key.  I do not care what price they pay.  They deserve everything they get.

The truth is that each of us is paying a heavy price for what is now a predatory, failed market regime.  None of us would consider ever paying $500 a month for a voice-only service where calls are dropped for seemingly no reason, where fees and commissions could be as high at 60% per call and, if we are not careful, where a four-minute call could cost us a whopping $54.  Truth be told, however, most of us in this room have the ability to pay those costs.  But, for the majority of those faced with these bills, high payments are their reality and they are making incredible sacrifices unimaginable to most of us.  This is untenable, egregious and unconscionable.

Two weeks ago, I met Jazlin Mendoza from New Mexico, whose grandparents have been forced to jeopardize her educational future by forgoing the purchase of a much-needed computer, printer and laptop in order to stay in touch with her father.  Young Ms. Mendoza’s family has spent $28,000 over the last 10 years so that she can spend a few minutes each month speaking to the father who was incarcerated when she was four years old.  She spoke, voice trembling, about being resentful of a person she loves very much because that line item in the family budget kept her in digital darkness.

And then there are grandparents, such as the late Mrs. Martha Wright, lead petitioner in the phone justice movement, who are sacrificing their health and well-being by forgoing needed medications in order to stay in touch with their incarcerated grandchildren who are increasingly hundreds of miles away from home.

We met Bethany Fraser back in 2013, who, along with hundreds of thousands of others, are forced to relocate, downsize and make difficult sacrifices in order to keep their children connected to their fathers.  In a nation as great as ours, there is no legitimate reason why anyone else should ever again be forced to make these levels of sacrifices, to stay connected, particularly those– who make up the majority in these cases –who can least afford it.  The system is inequitable, it has preyed on our most vulnerable for too long, families are being further torn apart, and the cycle of poverty is being perpetuated.

Studies consistently show that meaningful communication beyond prison walls helps to promote rehabilitation and reduce recidivism.

700,000 inmates are released every year and too many of them return to their communities as strangers, are less likely to successfully reassimilate and more likely to continue the cycle back to prison because studies estimate that only 38% of them are able to maintain “at least” regular monthly contact.  In addition to increased crime, crowded correctional facilities, more expensive prisons being built, and the judicial time required to prosecute additional crimes by repeater offenders, it costs an average of $31,000 per year to house each inmate.  We all are paying enormous costs.

Voting to endorse today’s reforms will eliminate the most egregious case of market failure I have ever seen in my 17 years as a state and federal regulator.  Adopting rate caps for all local and long distance calls from correctional facilities, eliminating and capping an endless array of fees, ensuring that every call made from a prison or jail has a rate that is just, reasonable and fair, and closing loopholes will make us truly compliant with those pillars so clearly laid out in the Communications Act.  Calls from any state or federal prison in this nation will soon be capped at 11 cents a minute, and, except for three capped fees, all other secret or oblique fees are done.

Many may ask why not go further and adopt rates like New Jersey at just 4.5 cents a minute or West Virginia of just over 3 cents a minute? My answer is two-fold: the FCC is creating a federal ceiling with rate caps, based on the filings of the majority of the industry.  And there is nothing stopping states that have yet to reform to follow the lead of New Jersey, New York, Ohio and others to further reduce fees, and I hope that with collective encouragement, this will happen soon.

And yes, it is true, I suffer from a degree of heartburn when it comes to the policies surrounding site commissions, but this too is an area where states must do their part and take a hard look at their site commission practices and how such payments impact prices, service and the reverberating impact on the community.

Change is never easy, but I am confident that today’s decision is rooted in the record and provides a reasonable transition path for all impacted parties.

Today’s vote will never make up for the inactions of the past, but it is my hope that the Order will finally bring relief to those who have waited for so long.

I want to thank the advocates, many of them are here today, for bringing this issue to my attention many years ago, particularly the original petitioners and their counsel, MAG-Net and their Campaign for Phone Justice, and, while there have been countless advocates, let me also thank the Human Rights Defense Center (HRDC), the Prison Policy Initiative, and the Leadership Conference on Human and Civil Rights who have been dedicated to this issue for over a decade.  You have remained steadfast in your advocacy and are providing the impetus for us as we tackle the issues in the Further Notice, including the video visitation regime.

Mr. Chairman, as I yield, allow me to thank you for making this issue a priority and dedicating the resources to reach today’s result.  And Commissioner Jessica Rosenworcel, we would not be here without your support in 2013, and for that and more, I thank you.

Finally, I would be remiss if it didn’t thank the dedicated team of the Wireline Competition Bureau including Matt DelNero, Madeleine Finley, Eric Ralph, Lynne Engledow, Pam Arluk, Gil Strobel, Rhonda Lien, David Zesiger, Don Sussman, Thom Parisi, Christine Sanquist, Doug Galbi, and Bakari Middleton, as well as the assistance from the Office of General Counsel, the Consumer and Governmental Affairs Bureau, and of course my legal advisor Rebekah Goodheart, who worked long and hard so that soon, millions of families will finally be able to afford to stay in touch.”

“STATEMENT OF COMMISSIONER JESSICA ROSENWORCEL

 Re:       Rates for Interstate Inmate Calling Services, WC Docket No. 12-375.

The United States is home to the largest incarcerated population in the world.  While we have less than five percent of the people on the planet, we are responsible for a quarter of its prisoners.  We currently have 2.2 million people housed in our prisons and jails.  There is no other country that comes close.

These staggering statistics are not the result of our nation being inherently more criminal.  They are the byproduct of a series of intentional policy choices that have increased the population of our prisons and jails nearly eight-fold since 1970.

This growth of our prison system comes at a sky-high cost.  Collectively we spend over a quarter of a trillion dollars a year on the criminal justice system. Yet the individual expense is in many ways greater—destroying potential, swelling despair, and diminishing possibilities for rehabilitation.  But perhaps the cruelest cost is the hardship these policies pose on the families of the incarcerated—and the 2.7 million children in this country who are growing up with a parent in prison.

This challenge is well beyond the authority of this Commission, but it is finally getting the notice it deserves.  There is now a bipartisan effort on Capitol Hill working to reexamine federal sentencing laws and mandatory minimums.  And just this week more than 130 police chiefs, prosecutors, and sheriffs joined the fray and added their voice to the call to reduce our nation’s incarceration rate.

But there is also something this Commission can do.  We can address the outrageous rates that too many families of prison inmates pay for phone service.  Inmates are often separated from their families by hundreds of miles, and families may lack the time and means to make regular visits.  Phone calls are the only way to stay connected.  But when the price of a single phone call can be as much as most of us spend for unlimited monthly plans, it is hard to stay in touch.  This is not just a strain on the household budget.  It harms the families and children of the incarcerated—and it harms all of us because regular contact with kin can reduce recidivism.

We have taken steps before to reduce the cost of these calls.  We continue on this course today.  We put in place firm caps to prevent unreasonable charges for inmate calls.  In addition, we take action to limit so-called ancillary service charges and prohibit flat-rate calling.  These practices may not only run afoul of the law, they can impose unfair costs on prisoners and their families.

The arc of history is long, but we are going to bend it toward justice.  And when we finally do we will owe credit to my colleague Commissioner Clyburn, who has been unwavering in her effort to right this wrong.  We will also need to credit Martha Wright, who passed away last year, but whose fight to stay in contact with her grandson brought this problem to our attention.  There is no better way to honor her legacy than to finally fix the criminal cost for too many families to simply stay in touch—and this effort has my full support.”

“ORAL DISSENTING STATEMENT OF COMMISSIONER AJIT PAI

Re:       Rates for Interstate Inmate Calling Services, WC Docket No. 12-375.

The Commission’s decision today is well-intentioned, and I commend the efforts of those working to reduce the rates for inmate calling services.  Unfortunately, I cannot support these particular regulations because I believe that they are unlawful.  As I will detail in my written statement, this Order exceeds the Commission’s legal authority and fails to comply with the Administrative Procedure Act.  This morning, however, I would like to focus attention on another pressing issue involving prisoners and phones: inmates’ use of contraband cellphones.

Last week, I visited a maximum-security prison in Jackson, Georgia to learn more about this problem.  To put it mildly, I was disturbed by what I heard.  Georgia Department of Corrections Commissioner Homer Bryson, Warden Bruce Chatman, and other corrections officers told me that contraband cellphones are flooding into Georgia prisons.  They are flown into institutions via drones.  They are thrown over prison fences stuffed into everything from footballs to dead cats.  They are smuggled into facilities within everything from underwear to legal papers.  Contraband cellphones have even made their way into the most secure part of the prison: death row.  This year alone, Georgia corrections officers have seized over 8,305 illicit cellphones, and the pace of confiscations is on the rise.

Those are only the contraband devices that are caught.  Those that aren’t caught are used by inmates to perpetrate a wide range of criminal activities.  For instance, prisoners use contraband cellphones to extort the family and friends of the incarcerated, putting inmates’ safety and lives at risk.  For example, the wife of one Georgia prisoner received a text demanding $1,000 from inmates in the same prison as her husband.  And when she couldn’t gather the money, she was texted an image of her husband with burns, broken fingers, and the word “RAT” carved into his forehead.  In another case out of Georgia, a woman received images on her phone of her incarcerated boyfriend being strangled with a shank held to his head.  She was told that unless she forked over $300, the beatings would continue.  She could only afford to send about half that amount.  Sadly, the assaults didn’t stop, and after a severe beating, he died.

The problems aren’t limited to any one state.  In Maryland, an inmate being held in the Baltimore City Detention Center on murder charges used a contraband cellphone to order the murder of a witness to his crime.  Shortly thereafter, a 15-year-old gang member shot the witness three times, killing him in the process.  An inmate in South Carolina orchestrated a “hit” on a prison guard through his contraband cellphone.  The guard was shot six times but miraculously survived.  And across the border in North Carolina, a high-ranking member of the Bloods street gang serving a life sentence used a contraband cellphone to mastermind the kidnapping of the father of the Assistant District Attorney who had prosecuted him.  During the abduction, the kidnappers and the inmate exchanged at least 123 calls and text messages as they discussed how to kill and bury the victim without a trace.  Fortunately, the FBI was able to rescue the victim and save his life.

During my prison visit, I also learned that inmates frequently conduct phone scams.  In one popular scheme, inmates pretend to be calling from the local sheriff’s office and tell the person on the other end of the line that there is a warrant for his or her arrest for failing to show up for jury duty.  They then indicate that unless the person receiving the phone call pays a hefty fine, he or she will go to jail.  Those who are fooled into paying up are then told to purchase prepaid debit cards, such as Green Dot MoneyPaks, and relay those cards’ serial numbers to the caller.  Inmates are then able to transfer money from those cards to their own accounts.  In one Georgia case, a 78-year-old man purchased $734 worth of cards at the behest of an inmate serving 30 years in jail for drug offenses.  The money ended up on the prepaid Visa card of someone dating the inmate’s brother.  The inmate then called his brother, who moved some of the money onto more prepaid cards and spent the rest at barbecue restaurants and convenience stores.  Unfortunately, stories like this are commonplace because prisoners across the country are using contraband cellphones to defraud vulnerable people on a daily basis.

When it comes to the use of contraband cellphones by prison inmates, the status quo is entirely unacceptable.  One reason we imprison criminals is to incapacitate them; that is, to prevent them from committing additional crimes.  But with contraband cellphones, prisons have become a base of operations for criminal enterprise.  While behind bars, inmates are running drug operations.  They are managing gang activities.  They are ordering hits.  They are running phone scams.

The time has come to end this crime wave.

The bad news is that it’s just not possible for corrections officers to keep all cellphones out of prisons.  Contraband has always made its way in, and it always will.  But the good news is that the FCC has a positive role to play.  In 2013, the Commission issued a Notice of Proposed Rulemaking that aimed to spur the development of technological solutions to combat the use of contraband wireless devices in correctional facilities.  The factual record we’ve developed has long since been complete.  And in the intervening two years, the problem has only become worse.  The message I took from Georgia—one I suspect most people around the country would deliver—is that the Commission needs to take further action, and soon, to protect the public.

Solving this problem won’t be easy.  There are both technological and legal obstacles to overcome.  But I’m convinced that we can make substantial progress if the FCC, wireless carriers, technology companies, and dedicated corrections officers like the ones I met in Georgia work together in good faith.  In the weeks and months ahead, I intend to work closely with all stakeholders to see if we can find common ground.  We owe it to all Americans—victims, witnesses, inmates, corrections officers, and the many others who have been harmed through the use of contraband cellphones—to get the job done.”

“DISSENTING Statement of Commissioner Michael O’Rielly

Re:       Rates for Interstate Inmate Calling Services, WC Docket No. 12-375.

When the Commission initiated the Second Further Notice last October, I observed that absent a compelling and actionable record on competition, the Commission was likely to head down a highly regulatory path that I would not have imagined possible based on the statute alone.  While we received some evidence of multiple providers operating in certain facilities, it was not enough to change the proposed course of action.  Therefore, the Commission today adopts detailed and excessive regulations—covering intrastate, interstate, and collect call rates, as well as ancillary fees—that far exceed our narrow legal authority.  I cannot support this approach.

Despite the intentions of supporters, it is highly probable that the end result of the changes in this item will lead to a worse situation for prisoners and convicts, to which I am only so sympathetic.  Any cost savings from inmate payphone calls will likely be extracted in some other form.  It is simply not the case that the item will not impact incarceration conditions or overall telephone service offerings within such facilities.  This notwithstanding, my main objections result from the starting point where all regulatory reviews must begin, the Commission’s authority to impose such a new regime.

First, I disagree that the Commission has authority under section 276 to impose a hyper-regulatory rate structure on prison payphone providers.  For those people actually involved, we remember that the provision was clearly designed to protect payphone providers that had been unable to receive fair compensation for their service from long distance carriers, or IXCs.  It was not meant to give the Commission authority to cap end-user rates.

The fact that providers voluntarily bid for and enter into contracts with correctional facilities establishes that they are fairly compensated and that section 276 is satisfied.  The assertions in the record that some prison payphone providers may be overcompensated as a result of these contracts could raise some legitimate policy concerns, but that is outside the scope of section 276.  Moreover, the allegations in the record that these rate caps could force certain providers to discontinue service to some facilities, if true, would undermine the provision’s express goal of promoting payphone deployment.

Second, since Congress addressed inmate calling, however briefly, in section 276—and intentionally chose not to address end-user rates—I do not believe that the Commission can fall back on the general “just and reasonable” language of section 201.  We’ve seen this maneuver in other Commission items, including Net Neutrality and various enforcement actions, and it needs to stop.  If section 201 were as powerful as the Commission seems to believe, then why did Congress spend so much effort enacting the provisions of the 1996 Act?  The Commission continues its mockery of the principles of legislative construction to achieve its end goals.

Third, I am appalled that the Commission would try to mash together bits and pieces of different provisions in an attempt to create a new unsubstantiated legal standard:  just, reasonable, and fair rates.  The Commission is governed by a statute, not an optional menu.  We don’t get to order a la carte and make substitutions at will.

Finally, I do not support the Commission’s attempt to further expand its jurisdiction by claiming that section 276 is technology neutral and seeking comment on regulating video calls.  Any authority we have under section 276 is limited to payphone service.  The fact the provision includes the term “inmate telephone service” does not give the FCC authority over non-payphone calls in correctional institutions.  Rather, “inmate telephone service” is a subset of payphone service that is provided in jails or prisons.  A video call is not a telephone service much less a payphone service and any decisions to the contrary would set a harmful precedent, not supported by the statute.  Skype, Facetime, Hangouts and other video calling apps should take note.

While there is no dispute that the prison payphone market as a whole does not seem to be functioning properly, we must respect the limits of our authority.  The proper place to deal with any issues would be the Congress, where I suspect there may be receptivity to address specific problems. But it is not our role to create imaginary authority to serve a social agenda.

Today’s item far exceeds the role that Congress assigned to the Commission.  I must respectfully dissent.

https://www.fcc.gov/document/fcc-takes-next-big-steps-reducing-inmate-calling-rates

https://www.fcc.gov/consumers/guides/inmate-telephone-service

http://triblive.com/news/westmoreland/10216470-74/prison-calls-phone

https://georgia.gov/agencies/georgia-department-corrections

 

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