Prison Phone Justice

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Nos. 24-8028, 24-1884, 24-1886, 24-1922
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 24-8028
IN RE: MCP 191
No. 24-1884
DIRECT ACTION FOR RIGHTS AND EQUALITY,
Petitioner,
v.
FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES,
Respondents,
SECURUS TECHNOLOGIES, LLC,
Intervenor.
(caption continued on next page)

On Petitions for Review of an Order of the
Federal Communications Commission
[PROOF] BRIEF FOR INTERVENOR
SECURUS TECHNOLOGIES, LLC

Michael H. Pryor
BROWNSTEIN HYATT FARBER
SCHRECK, LLP
1155 F Street, N.W., Suite 1200
Washington, D.C. 20004
(202) 389-4706
mpryor@bhfs.com

Scott H. Angstreich
Justin B. Berg
Daren G. Zhang
Jordan R.G. González
KELLOGG, HANSEN, TODD,
FIGEL & FREDERICK, P.L.L.C.
1615 M Street, N.W., Suite 400
Washington, D.C. 20036
(202) 326-7900
sangstreich@kellogghansen.com

Counsel for Intervenor Securus Technologies, LLC
April 21, 2025

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(caption, cont’d)

No. 24-1886
PENNSYLVANIA PRISON SOCIETY,
Petitioner,
v.
FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES,
Respondents,
SECURUS TECHNOLOGIES, LLC,
Intervenor.
No. 24-1922
CRIMINAL JUSTICE REFORM CLINIC,
Petitioner,
v.
FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES,
Respondents,
SECURUS TECHNOLOGIES, LLC,
Intervenor.

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CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, Intervenor Securus
Technologies, LLC (“Securus”) submits the following corporate disclosure
statement:
Securus is wholly owned by SCRS Holding Corporation (“SCRS”). SCRS
does not have publicly traded stock, and no entity having publicly traded stock
owns 10% or more of SCRS. Platinum Equity Capital Partners IV, L.P.
(“Platinum”) is the principal investor of SCRS. Platinum does not have publicly
traded stock, and no entity having publicly traded stock owns 10% or more of
Platinum.

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TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENT ......................................................... i
TABLE OF AUTHORITIES ................................................................................... iii
INTRODUCTION AND SUMMARY OF ARGUMENT ........................................1
ARGUMENT .............................................................................................................4
I.

The Public Interest Organizations’ Protective Petitions Should Be
Dismissed for Lack of Jurisdiction ..................................................................4

II.

The FCC Reasonably Included Communications Security Services
Costs in the Rate Caps .....................................................................................8

III.

The Public Interest Organizations’ Proposed Consumer Protection
Measures for Alternative Pricing Plans Would Eliminate Those
Plans from the Marketplace ...........................................................................12

CONCLUSION ........................................................................................................16
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES
Page
CASES
Banner Health v. Price, 867 F.3d 1323 (D.C. Cir. 2017) ........................................ 15
Consumer Elecs. Ass’n v. FCC, 347 F.3d 291 (D.C. Cir. 2003) ............................... 6
Council Tree Commc’ns, Inc. v. FCC, 503 F.3d 284 (3d Cir. 2007) ........................ 6
Craker v. DEA, 714 F.3d 17 (1st Cir. 2013) .............................................................. 7
FirsTier Mortg. Co. v. Inv. Mortg. Ins. Co., 498 U.S. 269 (1991) ........................ 7-8
Herrera-Molina v. Holder, 597 F.3d 128 (2d Cir. 2010) .......................................... 8
Hounmenou v. Holder, 691 F.3d 967 (8th Cir. 2012)................................................ 8
Jimenez-Morales v. U.S. Att’y Gen., 821 F.3d 1307 (11th Cir. 2016) ...................... 8
Khan v. Att’y Gen., 691 F.3d 488 (3d Cir. 2012) ...................................................... 8
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29 (1983) .......................................................................... 15
Sacks v. Rothberg, 845 F.2d 1098 (D.C. Cir. 1988) .................................................. 7
TeleSTAR, Inc. v. FCC, 888 F.2d 132 (D.C. Cir. 1989) ............................................ 7
Triangle Cayman Asset Co. v. LG & AC, Corp., 52 F.4th 24
(1st Cir. 2022) .................................................................................................. 7
U.S. Satellite Broad. Co. v. FCC, 740 F.2d 1177 (D.C. Cir. 1984) ..................15, 16
U.S. Telecom Ass’n v. FCC, 227 F.3d 450 (D.C. Cir. 2000) ................................... 11
Van Hollen, Jr. v. FEC, 811 F.3d 486 (D.C. Cir. 2016) .......................................... 15
W. Union Tel. Co. v. FCC, 773 F.2d 375 (D.C. Cir. 1985) ................................... 6, 7

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Waterway Commc’ns Sys., Inc. v. FCC, 851 F.2d 401
(D.C. Cir. 1988) ........................................................................................... 6, 7

STATUTES, REGULATIONS, AND RULES
Communications Assistance for Law Enforcement Act, Pub. L.
No. 103-414, 108 Stat. 4279 (1994) ......................................................3, 9, 11
Martha Wright-Reed Just and Reasonable Communications Act of
2022, Pub. L. No. 117-338, 136 Stat. 6156 ................................................. 1, 9
§ 3(b)(1) ......................................................................................................... 10
§ 3(b)(2) .....................................................................................................3, 10
28 U.S.C. § 2112(a)(1) ............................................................................................... 2
5th Cir. L.R. 15.1(b)................................................................................................... 5

ADMINISTRATIVE DECISIONS
Second Report and Order, Communications Assistance for Law
Enforcement Act, 15 FCC Rcd 7105 (1999).................................................. 11

OTHER AUTHORITIES
Letter from Rep. Hudson & Sen. Budd to Chairman Carr
(Apr. 2, 2025) ................................................................................................ 10

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INTRODUCTION AND SUMMARY OF ARGUMENT
Intervenor Securus Technologies, LLC (“Securus”) supports the goals of the
MWR Act,1 which if implemented properly will make incarcerated people’s
communications services (“IPCS”) more accessible, affordable, and sustainable,
while also funding safety and security measures necessary when incarcerated
persons use communications services and fairly compensating the companies that
provide IPCS. As Securus explained in its petitioner brief — and as thenCommissioner (now-Chairman) Carr recognized at the time — the FCC’s Order
went “too far.” Order at 486 (JA___). As he explained, the Order’s rate caps and
rules will “ultimately work against the interests of inmates, their families, IPCS
providers, state correctional facilities, and the public-safety officials who operate
them.” Id.
But three public interest organizations — Direct Action for Rights and
Equality (“DARE”), Pennsylvania Prison Society (“PPS”), and Criminal Justice
Reform Clinic (“CJRC”) (collectively, “Public Interest Organizations”) — argue
that the Order did not go far enough. They contend that the FCC should have
adopted even lower rate caps, by excluding from the rates the one major category
of safety and security measures the FCC included. And they argue, among other

1

Martha Wright-Reed Just and Reasonable Communications Act of 2022,
Pub. L. No. 117-338, 136 Stat. 6156 (“MWR Act”).

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things, that the FCC’s rules for alternative pricing plans should have included an
automatic refund mechanism that would make it economically irrational for IPCS
providers to offer such plans. We agree with the FCC that the Public Interest
Organizations’ petitions for review should be denied. We write separately to make
the following points.
To begin, the petitions for review that the Public Interest Organizations filed
after the Federal Register published the FCC’s new IPCS rules did not cure the
jurisdictional defect in the earlier, so-called “protective” petitions they filed to
trigger a venue lottery. As every court of appeals to confront the question has
concluded, a prematurely filed Hobbs Act petition for review is incurably
premature. No court of appeals has ever adopted the novel curing rule the Public
Interest Organizations urge on this Court. The Court should dismiss for lack of
jurisdiction those initial petitions for review.2
Turning to the merits, the FCC properly included in IPCS rates the
communications security services costs that IPCS providers incur. The Public
Interest Organizations would have the FCC exclude all safety and security costs
from IPCS rates, other than the negligible amount IPCS providers reported as the

2

Once dismissed for lack of jurisdiction, the Court should transfer these
cases to the Fifth Circuit, which is the court of appeals with venue over the
remaining petitions for review under 28 U.S.C. § 2112(a)(1). See Securus-Pay Tel
Br. 27-31.
2

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costs of complying with the Communications Assistance for Law Enforcement Act
(“CALEA”). Yet IPCS providers spent nearly $570 million in 2022 on safety and
security measures, making it “the single largest category of reported costs.” Order
¶ 352 (JA___); id. App. F tbl. 3 (JA___). And Congress made it mandatory for the
FCC to consider those costs in setting IPCS rates. See MWR Act § 3(b)(2). The
Public Interest Organizations’ suggestion that excluding more than 99.99% of
those costs complies with Congress’s directive shows the error in their argument.
The FCC also reasonably rejected the Public Interest Organizations’
proposed additional rules governing alternative plans that offer unlimited calling or
a set amount of usage for a flat rate. The record showed that Securus’ pilot
program offering discounted alternative pricing was a huge success. Incarcerated
persons and their families and friends urged its reinstatement when the pilot
program ended due to FCC rule changes. Under the Order, alternative plans must
have a monthly break-even point equal to, or less than, the per-minute rate cap —
with per-minute pricing remaining as an option — and consumers can cancel their
alternative pricing plan and revert to per-minute pricing at any time. The Public
Interest Organizations’ proposed mandatory “true down” rule would make
alternative plans economically irrational for providers. The FCC wisely did not
adopt that self-defeating rule.

3

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ARGUMENT
I.

The Public Interest Organizations’ Protective Petitions Should Be
Dismissed for Lack of Jurisdiction
Securus agrees with the FCC that the Public Interest Organizations’

“protective” petitions that caused the venue lottery were incurably premature and
should be dismissed for lack of jurisdiction. See FCC Br. 29, 106.
Each of the Public Interest Organizations’ initial petitions for review said the
filer would be aggrieved by a portion of the FCC’s Order that had not yet been
published in the Federal Register.3 The Public Interest Organizations say (at 52)
that they filed these “protective petitions” because Securus’ initial petition for
review — filed after the Federal Register published the dismissals of Securus’
petitions for waiver and clarification — “stat[ed] that it was seeking review of the
entire Order, including the as-yet unpublished provisions.” That is false.
Securus expressly sought review of only the “portion of the Order resolving
petitions for reconsideration, clarification, and waiver” that had been “published in
3

See DARE Pet. for Review at 2, Direct Action for Rights & Equality v.
FCC, No. 24-1814 (1st Cir. Sept. 5, 2024) (noting that DARE “does not claim to
be separately aggrieved by the limited portion of the Order published on August
26, 2024”); PPS Pet. for Review at 2, 4, Pa. Prison Soc’y v. FCC, No. 24-2647
(3d Cir. Sept. 5, 2024) (redocketed in this Court as No. 24-1861) (the “one portion
of the Order as to which PPS seeks review” — the FCC’s “determination
allow[ing] IPCS providers to recover certain safety and security costs in their
rates” — “ha[d] not been published in the Federal Register”); CJRC Pet. for
Review at 2-3, Crim. Just. Reform Clinic v. FCC, No. 24-5438 (9th Cir. Sept. 5,
2024) (redocketed in this Court as No. 24-1859) (same).
4

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the Federal Register.” Pet. for Review at 1, Securus Techs., LLC v. FCC, No. 2460454 (5th Cir. Aug. 30, 2024) (redocketed in this Court as No. 24-1860). Securus
limited its request for relief to a ruling that the FCC’s “denials of [Securus’]
clarification and waiver petitions” were unlawful. Id. at 2. Securus attached to its
petition for review the Federal Register publication of that limited portion of the
Order, while noting that the “remaining portions of the Order . . . ha[d] not yet
been published.” Id. at 2 n.1. Securus also attached the full FCC Order, which
included the then-unpublished portions, but did so because Fifth Circuit local rules
require petitioners to “[a]ttach a copy of the order . . . to be reviewed.” 5th Cir.
L.R. 15.1(b). Nowhere does Securus’ petition state — or even imply — that
Securus filed that petition for review to challenge then-unpublished portions of the
Order. The FCC was never confused about the limited scope of Securus’ initial
petition for review. See FCC Br. 27 (correctly describing the limited scope of
Securus’ petition).4 And though the Public Interest Organizations continue to feign
confusion, the only thing their premature petitions “protected” was their ability to
forum shop and deny Securus its home circuit and chosen forum.

4

But the agency is wrong to suggest that the dismissals of its waiver and
clarification petitions did not aggrieve Securus. Compare FCC Br. 106 n.28 with
Securus-Pay Tel Br. 58-59.
5

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As the FCC has explained, the Public Interest Organizations’ initial petitions
— filed before the Federal Register published the portion of the Order that they
claim aggrieved them — are incurably premature. See FCC Br. 29; FCC Resp. to
Show Cause Orders at 6, In re MCP 191, No. 24-8028 (1st Cir. Oct. 17, 2024)
(“Because [the Public Interest Petitioners] filed these petitions for review before
September 20, the petitions are incurably premature and should be dismissed for
lack of jurisdiction.”). Case after case agrees. Petitions for review of a rulemaking
filed before publication in the Federal Register are incurably premature. See
Council Tree Commc’ns, Inc. v. FCC, 503 F.3d 284, 288 (3d Cir. 2007) (holding
that petition for review filed “before . . . publi[cation] in the Federal Register” is
“incurably premature”); Consumer Elecs. Ass’n v. FCC, 347 F.3d 291, 296-97
(D.C. Cir. 2003) (same); W. Union Tel. Co. v. FCC, 773 F.2d 375, 378 (D.C. Cir.
1985) (same).
The Public Interest Organizations, however, assert (at 46-50) that their
second petitions for review — filed after the Federal Register published the rest of
the Order — cured the prematurity of their initial petitions. Wrong. None of the
Hobbs Act cases they cite reaches that result. Waterway Communications Systems,
Inc. v. FCC, 851 F.2d 401 (D.C. Cir. 1988), dismissed a premature petition for
review, see id. at 406. And what they quote (at 47) from that case as though it
were a holding — “an appeal taken prematurely effectively ripens and secures

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appellate jurisdiction when the [underlying] judgment becomes final” — is drawn
from a parenthetical that describes the rule in non-Hobbs Act cases. 851 F.2d at
406 (quoting Sacks v. Rothberg, 845 F.2d 1098, 1099 (D.C. Cir. 1988)). The D.C.
Circuit suggested in Waterway that Congress’s enactment of the lottery process
might “argue[] for some relaxation” of the Western Union rule that challenges filed
before a rulemaking is published in the Federal Register are incurably premature.
Id. But the Waterway court recognized that “Western Union remains the law of
this circuit.” Id. And it remains the law in Hobbs Act cases in the D.C. Circuit —
and every other circuit that has addressed the question — today.5
That is why the Public Interest Organizations rely (at 47-49) on non-Hobbs
Act cases, such as Craker v. DEA, 714 F.3d 17 (1st Cir. 2013). But in Craker, this
Court recognized that the Hobbs Act differs from other judicial review statutes, so
those other statutes’ treatment of premature petitions can differ as well. See id. at
24-26. Non-Hobbs Act cases thus offer no support for the Public Interest
Organizations’ novel cure rule for Hobbs Act cases.6

5

The only other Hobbs Act case the Public Interest Organizations cite also
rejects their position. In TeleSTAR, Inc. v. FCC, 888 F.2d 132 (D.C. Cir. 1989)
(per curiam), the D.C. Circuit noted that, while “final agency action can ripen an
issue for appellate review,” a “challenge to agency action” filed before finality
“is incurably premature,” and “subsequent action” will not “secure appellate
jurisdiction” over the prematurely filed petition, id. at 134 (emphases added).
6

The Public Interest Organizations also cite (at 47-48) non-Hobbs Act cases
involving appeals from a district court (Triangle Cayman Asset Co. and FirsTier
7

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Of the 28 parties to petition for review of the FCC’s Order, only these three
Public Interest Organizations violated the Hobbs Act’s requirements and filed
incurably premature petitions challenging portions of the Order before they were
published in the Federal Register. Their later-filed petitions for review did not
cure that prematurity. The Court should dismiss the initial petitions for review for
lack of jurisdiction.7
II.

The FCC Reasonably Included Communications Security Services
Costs in the Rate Caps
To prevent incarcerated persons from using calling services for improper

purposes, such as intimidating witnesses, ordering the murder of other incarcerated
individuals, or running drug operations, correctional agencies have long mandated
that IPCS providers include safety and security protections as part of their
communications services. IPCS providers thus built these measures into their
communications platforms, such as allowing calls only to certain numbers,
ensuring the identity of the person making the call, and enabling monitoring and
recording of calls for illicit behavior. Until the Order, the FCC authorized IPCS
providers to recover their costs of these measures through the rates they charge.

Mortgage Co.) and others involving the Immigration and Nationality Act’s judicial
review provision (Jimenez-Morales, Khan, Hounmenou, and Herrera-Molina). All
are inapposite.
7

That dismissal supports transfer of these cases to the Fifth Circuit for the
reasons stated in our opening brief. See Securus-Pay Tel Br. 27-31.
8

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The record shows that safety and security measures are the single largest
driver of the cost of IPCS offerings (nearly $570 million), and cost substantially
more than the underlying communications services (about $418 million). See
Order ¶ 352 (JA___); id. App. F tbl. 3 (JA___). Securus agrees with the FCC that
costs of communication security services should be included in the providers’
rates. See FCC Br. 61-64. Indeed, as Securus and Pay Tel (at 37-45) and the
States and sheriffs (at 21-36) explain, the FCC should have included the costs of
other safety and security measures in setting its rate caps.
Yet the Order excludes from the rates about two-thirds of providers’
reported safety and security costs and only included communications security costs
and de minimis CALEA costs. See Order App. I tbl. 6 (JA___-__). And of the
two included cost categories, communications security service costs account for
99.997 percent of the total amount, with CALEA compliance accounting for the
tiny remainder. See id. But the Public Interest Organizations are not satisfied:
they now seek to effectively exclude from the regulated rates the costs of all safety
and security measures, which is the opposite of Congress’s intent.
Including safety and security measures like communications security
services is fully consistent with the MWR Act. Congress made it mandatory for
the FCC, when “determining just and reasonable rates,” to “consider costs
associated with any safety and security measures necessary to provide” IPCS

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services. MWR Act § 3(b)(2). The mandatory language in § 3(b)(2) — “shall
consider” — contrasts with the permissive language — “may use” — in § 3(b)(1),
confirming Congress’s intent that IPCS rates pay for safety and security measures.
Congress would not have imposed that mandatory duty if it intended for IPCS rates
to cover none of those costs. The FCC agreed that § 3(b)(2) is evidence that
Congress “envision[ed]” that IPCS rates would pay for the costs of “features that
ensure that [IPCS] are available to incarcerated people and can be used safely.”
Order ¶ 367 (JA___).
Thus, accepting the Public Interest Organizations’ argument would mean
that the lower bound of just and reasonable IPCS rate would functionally exclude
100 percent of IPCS providers’ incurred costs of providing safety and security
measures. That cannot be the result Congress intended when it enacted § 3(b)(2),
as members of Congress have since noted. See Letter from Rep. Hudson & Sen.
Budd to Chairman Carr at 1 (Apr. 2, 2025) (stating that the Order’s exclusion of
safety and security costs “contradicts Congressional intent in the Martha WrightReed Act”).8

8

The Order is already having a negative effect on correctional facilities’
ability to pay for critical safety and security tools necessary to the safe provision of
IPCS. See Securus-Pay Tel Ex Parte Letter at 4-5, WC Docket No. 23-62 (Apr. 3,
2025), https://www.fcc.gov/ecfs/document/1040387339205/1. Eliminating all
safety and security costs from the rates would exacerbate these harms, endangering
facility and public safety.
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Finally, the Public Interest Organizations do not explain why they accept the
FCC’s explanation for including CALEA compliance costs. But surely the de
minimis amount — less than $5,400 — that IPCS providers reported as CALEA
compliance costs explains it. See Order App. I tbl. 6 (JA___-__). CALEA
requires providers of telecommunications services and makers of
telecommunications equipment to ensure that law enforcement agencies can,
pursuant to a court order or other lawful authorization, intercept phone calls. See
generally U.S. Telecom Ass’n v. FCC, 227 F.3d 450, 453-55 (D.C. Cir. 2000).
IPCS communications — with rare exceptions (such as calls between an
incarcerated person and counsel) — are all already available to law enforcement.
The costs of ensuring that law enforcement can listen in to, or listen to recordings
of, IPCS calls are thus part of the ordinary operations that prison and jail officials
require from IPCS providers. That is why providers included those costs in other
categories — which the FCC excluded — in responding to the FCC’s request for
data. See Order ¶ 387 & nn.1388, 1390 (JA___-__).9

9

On top of that, in 1999, the FCC excluded all payphone providers —
a category that includes IPCS providers — from its CALEA rules. See Second
Report and Order, Communications Assistance for Law Enforcement Act, 15 FCC
Rcd 7105, ¶ 25 (1999).
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III.

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The Public Interest Organizations’ Proposed Consumer Protection
Measures for Alternative Pricing Plans Would Eliminate Those Plans
from the Marketplace
The Order adopts rules that both require IPCS providers to always offer per-

minute pricing while also allowing them to offer alternative, flat-rated pricing
plans. Order ¶¶ 437-438 (JA___-__). Those rules require that the alternative plans
offer realistic calling options in light of the calling restrictions imposed by
correctional facilities, id. ¶ 441 & n.1591 (JA___); cannot have a commitment
period longer than one month, id. ¶ 442 (JA___); and cannot be combined with
non-regulated, non-IPCS services, id. ¶ 445 (JA___). In addition, the rules require
that IPCS providers let consumers cancel their alternative pricing plan and revert to
per-minute pricing at any time. Id. ¶¶ 460-461 (JA___-__). And to ensure that
alternative pricing plans do not circumvent the FCC’s rate caps, the FCC requires
the plans to have a monthly break-even point that does not exceed what would be
paid at per-minute rates. Id. ¶¶ 448-449 (JA___-__).
The Order allowed providers to offer alternative pricing plans because of
record evidence of Securus’ successful alternative pricing pilot programs. In
December 2020, Securus started offering several pilot alternative pricing plans,
which it developed through “consultations between Securus leadership and justiceinvolved families.” Securus Ex Parte Letter at 2 (May 13, 2021) (JA___); see
Order ¶ 432 & n.1561 (JA___). Securus’ programs offered a set number of calls at

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a discounted flat rate because focus groups indicated that consumers preferred this
option over buckets of minutes. See Securus Reply Comments at 8 (Mar. 3, 2023)
(JA___). Users raved about the pilot program plans, and the initial results were
highly encouraging: a program survey found that “80 percent of participants said
the program was important to them and 70 percent would recommend the plan to
others.” Securus Ex Parte Letter at 2 (May 13, 2021) (JA___). The plans provided
meaningful benefits to incarcerated persons and their friends and family, including
“significant savings,” “increased calling time,” and “budget predictability.”
Securus Ex Parte Letter, Attach. at 30 (Dec. 21, 2023) (JA___).
But Securus had to stop offering these plans when the FCC altered some
rules and effectively prohibited the plans’ continuation.10 After the plans were
terminated, however, consumers overwhelmingly asked Securus to reinstate the
plans, emphasizing their benefits. See Order ¶ 432 & n.1562 (JA___) (citing
record evidence). For example, subscribers and their friends and family wrote that
the plans “help to keep the costs down,” “made communication significantly more
cost effective,” and allowed for “longer . . . conversations about meaningful

10

See Securus Comments at 7 (Dec. 15, 2022) (JA___). In 2021, Securus
sought a waiver to continue offering those alternative plans. See Securus Waiver
Pet. (Aug. 30, 2021) (JA___-__). This is the same waiver petition that the FCC in
2024 dismissed as moot, see Order ¶¶ 604-607 (JA___-__), and that Securus
challenged in its initial petition for review, discussed above.
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topics.” Securus Waiver Pet. Comments at 5-8 (Jan. 7, 2022) (JA___-__); Securus
Comments at 8 (Dec. 15, 2022) (JA___). The new rules will allow Securus to
meet that demand for alternative pricing plans.
The Public Interest Organizations complain (at 37-43) that the FCC did not
also adopt a rule requiring IPCS providers to automatically refund a portion of the
flat-rate payment in months when an incarcerated person did not use all the
minutes necessary to reach the break-even point. That is, they argue that
incarcerated persons purchasing alternative plans should never pay more for
calling in a month than if they had chosen to pay for IPCS on a per-minute basis.
Adopting such a rule would make it economically irrational for Securus and
other IPCS providers to offer alternative plans. While payment of a flat rate for a
set number of calls per month offers IPCS providers administrative cost savings —
which they can pass through to incarcerated persons in the form of lower costs —
an automatic refund rule would eliminate those administrative cost savings. And
the IPCS provider would also need to factor the economic risk an automated refund
rules creates into the price of the plans. See Securus Comments at 13 (Dec. 15,
2022) (JA___). The rule the Public Interest Organizations urged would deprive
providers of the benefit of the bargain alternative pricing plans offer — lower rates
in exchange for a predictable revenue stream. See id.

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The FCC was not required to respond expressly to this self-defeating
proposal. See Public Interest Organizations Br. 42. An agency does not have to
respond to “every comment so long as it responds in a reasoned manner to
significant comments received.” U.S. Satellite Broad. Co. v. FCC, 740 F.2d 1177,
1188 (D.C. Cir. 1984). The FCC did so here, giving a lengthy explanation of its
decision to permit alternative pricing plans and of the rules it adopted to ensure
that such plans benefited both IPCS providers and incarcerated persons. See Order
¶¶ 427-471 (JA___-__). The FCC also explained that the many rules it imposed on
alternative pricing plans “sufficiently address the fundamental concerns raised in
the record,” including concerns that the plans will “circumvent” rate caps. Id.
¶¶ 448, 469 (JA___, ___).
Even if the FCC were required to respond expressly to the automatic refund
proposal, courts will “uphold a decision of less than ideal clarity if the agency’s
path may reasonably be discerned.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); see also Banner Health v.
Price, 867 F.3d 1323, 1356 (D.C. Cir. 2017) (per curiam) (court was “able to
discern HHS’s path” even though HHS “declined to explain the complexity of its
chosen formula relative to available alternatives”); Van Hollen, Jr. v. FEC, 811
F.3d 486, 497 (D.C. Cir. 2016) (although explanation “was not one of ‘ideal
clarity,’” the court “can reasonably discern the FEC’s analytical path”). The FCC

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found that alternative pricing plans “provide meaningful benefits to IPCS
consumers including, but not limited to, increased utilization of IPCS, with all of
its attendant benefits for reducing recidivism, and greater budgetary certainty for
IPCS consumers.” Order ¶¶ 428, 432-433 (JA___, ___-__). The FCC also
emphasized that consumers asked Securus to reinstate the plans after the pilot
program ended, confirming their benefits. Id. ¶ 432 (JA___). Those statements
provide a “clear implicit rejection” of a self-defeating automatic refund rule that
would have prevented IPCS providers from offering alternative pricing plans. U.S.
Satellite Broad. Co., 740 F.2d at 1188; see FCC Br. 99.
CONCLUSION
The Court should dismiss the Public Interest Organizations’ initial petitions
for review for lack of jurisdiction. If the Court does not transfer these cases to the
Fifth Circuit, it should deny the Public Interest Organizations’ supplemental
petitions for review.

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Respectfully submitted,
Michael H. Pryor
BROWNSTEIN HYATT FARBER
SCHRECK, LLP
1155 F Street, N.W., Suite 1200
Washington, D.C. 20004
(202) 389-4706
mpryor@bhfs.com

/s/ Scott H. Angstreich
Scott H. Angstreich
Justin B. Berg
Daren G. Zhang
Jordan R.G. González
KELLOGG, HANSEN, TODD,
FIGEL & FREDERICK, P.L.L.C.
1615 M Street, N.W., Suite 400
Washington, D.C. 20036
(202) 326-7900
sangstreich@kellogghansen.com
jberg@kellogghansen.com
dzhang@kellogghansen.com
jgonzalez@kellogghansen.com

Counsel for Intervenor Securus Technologies, LLC
April 21, 2025

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Certificate of Compliance With Type-Volume Limit
Certificate of Compliance With Type-Volume Limit,
Typeface Requirements, and Type-Style Requirements
1. This document complies with the word limit approved by the Court in its 12/18/24 Order (4,500)
because, excluding the parts of the document exempted by Fed. R. App. P. 32(f):

✔ this document contains 3,755 words, or
□
□ this brief uses a monospaced typeface and contains

lines of text.

2. This document 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:

✔ this document has been prepared in a proportionally spaced typeface using
□
in
Microsoft Word
Times New Roman, 14 point

, or

using
□ this document has been prepared in a monospaced typeface
with
.

(s) Scott H. Angstreich
Attorney for Securus Techs. LLC
Dated: 04/21/2025

Case: 24-8028

Document: 00118274799

Page: 25

Date Filed: 04/21/2025

Entry ID: 6715124

CERTIFICATE OF SERVICE
I hereby certify that, on April 21, 2025, I caused the foregoing brief to be
filed electronically with the Clerk of the Court through the Court’s CM/ECF
system and that a copy of the same will be served on all counsel of record through
the Court’s CM/ECF system.
/s/ Scott H. Angstreich
Scott H. Angstreich
Counsel for Intervenor Securus
Technologies, LLC