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Securus Technologies v. FCC, DC, Consolidated Opp to Motions for Stay, Telephone Rates, 2016

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In the

Respondents ,


No. 16-1321 (and
consolidated cases)


Andrew Jay Schwartzman
Drew Simshaw
Institute for Public Representation
Georgetown University Law Center
600 New Jersey Ave., NW, Suite 312
Washington, DC 20001
Counsel for Movant-Intervenors
October 13, 2016

TABLE OF CONTENTS ........................................................................................... i 
INTRODUCTION ..................................................................................................... 1 
ARGUMENT ............................................................................................................ 6 
I.  Staying the Order would exacerbate the substantial harm prisoners and their
families have been suffering for years. ................................................................. 6 
A.  ICS rates are exorbitant and prisoners and their families cannot afford to
pay them................................................................................................ 6 
B.  High ICS rates reduce inmate communication and cause concrete harm
to prisoners and their families. ............................................................. 8 
C.  Petitioners incorrectly argue that the Wright Petitioners will not be
harmed by a stay. ................................................................................ 12 
II.  Grant of a stay would be detrimental to the public interest. ......................... 13 
A.  The Order will help reduce recidivism and decrease costs within the
incarceration system. .......................................................................... 14 
B.  The Order will benefit prison welfare and prison security. ............... 16 
C.  The Order will reduce the burden on defense lawyers representing
incarcerated clients. ............................................................................ 17 
III.  Petitioners fail to show irreparable harm. ..................................................... 20 


Movant-Intervenors, the Wright Petitioners,1 respectfully submit this
opposition to the pending motions for stay in this proceeding.2
Maintaining ties with the outside world is vital not just for inmates but for
their families and loved ones, their counsel, and society. Telephone calls are the
most practical means for such communication, especially because prisoners are
often incarcerated far from home. But even as recent advances in technology and
increased consolidation have greatly reduced the cost of providing inmate calling
services (“ICS”), ICS providers continue to charge exorbitant prices. They can
charge these prices because they operate in a monopoly market. Invariably, only
one ICS provider, chosen by bid, serves each institution. Because the consumers
of ICS lack choice of providers, the market is wholly dysfunctional. This problem
is exacerbated by the fact that in many cases, ICS providers obtain their contracts
by agreeing to share their profits with the correctional institutions; thus,


Movant-Intervenors are a coalition of inmates, inmate family members, prison
reform groups and civil rights organizations which have sought FCC regulation of
inmate calling rates since their first rulemaking petition filed in 2003. They were
led by Martha Wright, whose grandson, Movant-Intervenor Ulandis Forte, was an
inmate at the time. Even though Ms. Wright died on January 18, 2015, the group
has been referred to as “the Wright Petitioners” or “Martha Wright, et al.”
throughout proceedings at the FCC and in this Court.
On September 16, 2016, Movant-Intervenors filed an uncontested Motion for
Leave to Intervene in No. 16-1321 “and any other cases with which this case has
been or may hereafter be consolidated.” As of the date of the filing of this
opposition, the Court has not acted upon the motion.

competition in this setting perversely increases ICS rates, which are often borne by
prisoners and their families.
After the Federal Communications Commission (“FCC”) adopted rules
addressing interstate ICS calling practices in 2013,3 a motions panel of this Court
partially stayed the new rules, but allowed interim rate caps for interstate calls to
go into effect.4 At the same time that it issued the interim rate caps, the
Commission initiated a rulemaking to consider whether to adopt permanent caps
and other regulations for both interstate and intrastate ICS calls. Based on this
record, the Commission adopted its 2015 Order that set interstate and intrastate
rate caps for ICS and allowed certain ancillary fees, but disallowed other ancillary
fees, absent a waiver.5 In response to motions by ICS petitioners, another motions


Rates for Interstate Inmate Calling Services, 28 FCCRcd 14107, 14111
(2013)(“2013 Order”).
Securus Technologies, Inc. v. FCC, et al, D.C. Cir., No. 13-1280 (D.C. Cir. Jan.
13, 2014).
Rates for Interstate Inmate Calling Services, 30 FCCRcd 12763
(2015)(“2015 Order”). ICS providers have developed a dizzying array of these
charges and markups, most of which are unrelated to any actual additional service
provided to users. The Commission stated that
Ancillary service charges reported in response to the Mandatory Data
Collection included an account close-out fee, account transfer fee, automated
information services, automated operator recharge fee, bill processing
charge for direct billed calls, bill processing fee, bill statement fee, biometric
service charge, carrier cost recovery fee, collect call bill statement fee,
collect call regulatory fee, collect interstate USF cost recovery fee,
continuous voice verification, credit card charge-back fee, credit card
processing fee, federal regulatory recovery fee, federal USF, federal USF
administration fee for LEC billed calls, federal USF administration fee for

panel of this Court granted a partial stay of the 2015 Order which stayed the
newly-adopted rate caps and one specific ancillary fee, but allowed the other
ancillary fee regulations to go into effect for both interstate and intrastate calls.6
The 2013 interim rate caps have remained in effect.
Petitions for Review of the 2015 Order are under review in No. 15-1461.
Briefing in that case will be completed on November 7, 2016.
On August 4, 2016, the FCC acted on a petition for reconsideration of the
2015 Order, issuing new, somewhat more permissive, rate caps to more properly
account for correctional facility costs.7

non-LEC billed calls, funding fee, funding fee from cashier's check deposit,
funding fee from credit/debit cards, funding fee from money order deposit,
funding fee from Western Union deposit, live operator recharge fee, live
prepaid account set-up fee, load fee, location validation, minimum payment
fee, monthly bill statement fee, payment fee—IVR/web, payment fee—live
operator, per call administrative fee for calls from county facilities, prepaid
accounts, prepaid deposit fees, processing fee, refund fee, regulatory
assessment fee, sales tax, state cost recovery fee, state regulatory cost
recovery fee for LEC-billed calls, state regulatory cost recovery fee for nonLEC billed calls, state USF, state USF administration fee for LEC billed
calls, technology, USF administrative fee, USF federal, USF federal (LEC
billed), validation recovery fee, victim information and notification everyday
(VINE), voice biometrics, web interface account set-up and recharge fee,
and wireless administration fee.
2015 Order, 30 FCCRcd at 12838 n.519.
See Order, Global Tel*Link v. FCC, Nos. 15-1461 et al., Doc. No. 1602581 (D.C.
Cir. Mar. 7, 2016) (Second Stay Order).
Rates for Interstate Inmate Calling Services, WC Docket No. 12-375, FCC 16102 (rel. Aug. 9, 2016)(Order).

Petitioners’ motions argue that they are likely to succeed on the merits and
that they face irreparable harm in the absence of such a stay. The Respondents’
opposition and the FCC’s decision denying requests for administrative stays8
persuasively address the merits and harm issues. However, under the familiar
four-part Virginia Petroleum standard, grant of a stay involves the equitable
balancing of four, not two, factors.9 The Petitioners’ focus on just two of these
factors does not acknowledge that “[m]ere injuries, however substantial, in terms
of money, time and energy necessarily expended in the absence of a stay, are not
enough.”10 Rather, Virginia Petroleum adopted a balancing test that
accommodates, rather than ignores, the possibility of harm to third parties and to
the public interest. Petitioners make only passing and desultory reference to these
two factors, each of which strongly tilts the balance towards denial of a stay.
With respect to harm to third parties, the Virginia Petroleum court asked
Would the issuance of a stay substantially harm other parties interested in
the proceedings? On this side of the coin, we must determine whether,
despite showings of probable success and irreparable injury on the part of
petitioner, the issuance of a stay would have a serious adverse effect on
other interested persons. Relief saving one claimant from irreparable injury,


Rates for Interstate Inmate Calling Services, WC Docket No. 12-375, DA 161119 (rel. Sep. 30, 2016)(Order Denying 2016 Stay Petitions).
Virginia Petroleum Jobbers Ass’n v. Federal Power Commission, 259 F.2d 921,
(1958)(Virginia Petroleum). See Washington Metro. Area Transit Comm’n v.
Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977).
Virginia Petroleum, 259 F.2d at 925.

at the expense of similar harm caused another, might not qualify as the
equitable judgment that a stay represents.11
As to the public interest factor, in language particularly relevant to this case, the
Court stressed that
In litigation involving the administration of regulatory statutes designed to
promote the public interest, this factor necessarily becomes crucial. The
interests of private litigants must give way to the realization of public
This opposition addresses the factors that the Petitioners have downplayed.
It shows that grant of a stay would impose severe harm on third parties, including
inmates, their families and their counsel. It also provides evidence that a stay
would cause grievous damage to the public interest because facilitating inmates’
contact with friends, families and counsel, among other things, reduces recidivism,
cuts the cost of incarceration and reduces the likelihood that inmates’ children will
enter the penal system. Finally, it briefly rebuts one element of the Petitioners’
argument about irreparable harm by presenting evidence that reduced ICS rates
generate such a substantial increase in call volume and that net revenues actually
increase when rates are cut.


Id (emphasis added).

I. Staying the Order would exacerbate the substantial harm prisoners and
their families have been suffering for years.
Petitioners argue that third parties “will not be materially harmed” if the
Order’s rate caps are stayed pending judicial review because the interim rates will
remain in effect.13 This argument is at odds with reality. Even the interim caps
have left prisoners continuing to pay unjust and unreasonable prices for ICS.
Millions of prisoners and their families have been waiting for comprehensive ICS
rate reform for over a decade. The Order gives those prisoners relief from the
monopolistic and predatory practices of the ICS providers. Staying the rule will
only further delay this relief.
A. ICS rates are exorbitant and prisoners and their families
cannot afford to pay them.
Incarceration is financially devastating for inmates and their families, a
disproportionate number of whom are already low-income.14 More than two-thirds


Securus Technologies Inc. Emergency Motion for Partial Stay of FCC Order 16102 Pending Review at 16 (Securus Motion). See Motion of Global Tel*Link for
Partial Stay Pending Judicial Review at 19 (GTL Motion); Motion of Telmate,
LLC for Stay Pending Judicial Review at 18 (Telmate Motion); State and Local
Government Petitioners’ Motion for Stay Pending Review at 19 (States’ Motion).
Letter from Human Rights Defense Center (HRDC)(Sept. 8, 2015). All
comments, letters, notices of ex parte presentations, and other documents
referenced in the record were filed in FCC Docket Number 12-375 unless
otherwise specified. All such documents are available on the Internet through the
FCC’s Electronic Comment Filing System.

of incarcerated people reported annual incomes of under $12,000 prior to arrest.15
While incarcerated, inmates earn an average of 93 cents per day.16 With such low
incomes, prisoners can rarely afford to pay ICS rates and their families are often
forced to use a substantial portion of their monthly incomes to maintain telephone
contact with their loved ones.17 One grandmother paid more than $1,000 a year to
talk to her grandson, who explained that “some months she had to choose between
paying the phone bill and being able to talk to me and paying for her medication,
which she needed to survive.”18
Rates for prison phone calls far exceed ordinary phone rates. One large
national telecommunications carrier offers home phone customers unlimited local
and long-distance calling in the United States for just $32.99 per month or less.19
Meanwhile, a single fifteen-minute ICS call can cost $20 or more.20 The FCC’s
record contains additional substantial evidence of high ICS rates.21


Letter from Legal Services for Prisoners with Children (Dec. 4, 2014).
Center of the Administration of Criminal Law Comments at 4-5 (Mar. 25, 2013)
(Center Comments).
See Eric Markowitz, Why Prison Phone Rates Keep Going Up Even Though The
FCC Regulated Them, Int’l Bus. Times (June 30, 2016),
Tracy Connor, Huge Step: FCC Slashes Cost of Prison Phone Calls, NBC News
(Oct. 22, 2015), p://
See AT&T Website,
See Letter from Deborah Aylor-Polisoto (Dec. 17, 2013).

B. High ICS rates reduce inmate communication and cause
concrete harm to prisoners and their families.
Difficulty in paying prison phone bills causes several harms. First, high ICS
rates force families to decide between necessities and speaking with incarcerated
family members. Some families have reported forgoing medical operations,
necessary medications,22 and food in order to cover the costs of calls.23 Others
reported losing their telephone service altogether because they were unable to pay
prison phone bills.24 Some are left with no choice but to cut off contact
altogether.25 An inmate seeking intrastate rate regulation in New Jersey told the
FCC that it is “at times impossible for me to stay in touch with my family.”26 He
stated that he had gone for months without speaking to his wife or three children,
and at one point lost contact with them for three years. He also emphasized that
the “prison’s rules and manuals [] say they promote family and community ties,”


See, e.g., Letter from Prison Policy Initiative (July 8, 2014)(describing how costs
of communicating reached $400/month, driving a family into debt); Letter from
HRDC (Oct. 4, 2015)(reporting that phone bills can exceed $700/month).
Center Comments at 6; Statement of Commissioner Clyburn, 30 FCCRcd at
2015 Order, 30 FCCRcd at 12767.
Center Comments at 6.
Id.; see also Letter from HRDC (Oct. 4, 2015)(citing Letter from Prison Legal
News (April 18, 2007)(Dkt. 96-128))(explaining that some families have to cut off
telephone contact with loved ones and sometimes bills are as high as $700 per
month)(“Letter from Prison Legal News”)).
Letter from Rasool McCrimmon (Dec. 26, 2014).

but that in practice such contact is simply unaffordable.27 The record is replete
with letters from parents, spouses, and prisoners describing the damage that high
ICS costs inflict on their health and relationships.28
Second, high ICS rates discourage inmates’ contact with their loved ones,
which particularly affects children. Over 2.7 million children have an incarcerated
parent,29 but only 53% of incarcerated parents in state prisons had direct phone
contact with their children during their confinement.30 The importance of the
parent-child relationship cannot be overstated. Alex Garcia, an inmate, wrote that
when he moved to a facility with no connection fees and lower per-minute charges,
he was able to call his daughter “before she heads for kindergarten [5min., $0.60],
after school [5min., $0.60], and give her a kiss good night [5min., $0.60].”31
Without opportunities to stay connected with their imprisoned parents,
children are more likely to have substance abuse problems, perform poorly in


See, e.g., Letter from David Holmes (Mar. 19, 2013)(wishing he could afford to
speak with his wife more than once a week, in the hopes of improving his
marriage); Letter from Ian Robinson (Mar. 11, 2013)(lamenting the strain placed
by high rates on his relationship with his daughter, who once asked him “how can I
love somebody I don’t know?”); Letter from Marteze Harris (Mar. 25,
2013)(noting that while “phone calls are our lifelines to sanity,” inmates cannot ask
their families to foot such “outrageous” bills).
Letter from Legal Services for Prisoners with Children (Dec. 4, 2014).
Comments of Vera Institute of Justice at 2 (Mar. 14, 2013) (“Vera Inst.
Letter from Alex Garcia (Mar. 21, 2013).

school, and engage in criminal conduct.32 These children also face a greater
likelihood of ending up homeless, in foster care, or in the juvenile justice system.33
As Commissioner Clyburn stated,
[i]f you were to ask [children’s] teachers, it is affecting their academic
performance. If you ask the school counselors, it affects their
behavior and attitudes. And if you were to speak with the guardians,
families and friends, it impacts their ability to adequately and
affordably care for these children.34
Obstructing parental communication is not only emotionally damaging, but
unnecessarily punishes those children for something they did not do.
In some states, such as New York, parents could lose parental rights for
failing to communicate with their child. New York Domestic Relations law
requires a parent to communicate with their child at least once every six months, or
lose her ability to refuse adoption of the child.35 High ICS rates could contribute to
this loss of rights. Recidivism is lower for people who maintain contact with
supportive family. 36 Infrequent communication with families can contribute to
feelings of isolation and complicate the re-entry process. M. Domingues, an

Center Comments at 11.
Vera Inst. Comments at 2-3.
Remarks of Commissioner Clyburn at Inmate Calling Workshop, July 10, 2013,
2015 Order, 30 FCCRcd at 12766-67, n.14; N.Y. Dom. Rel. §111(2).
See Nancy G. La Vigne, et al., Examining the Effect of Incarceration & InPrison Family Contact on Prisoners’ Family Relationships, 21 J. of Contemporary
Crim. Justice 314, 316 (2005)(“With remarkable consistency, studies have shown
that family contact during incarceration is associated with lower recidivism

inmate on death row who has watched hundreds of inmates cycle through his
facility, said
Inmates that have minimal contact with family tend to believe no one
gives a damn about them and therefore don’t care about themselves.
As they quit caring about themselves they quit caring about what they
do to others. They go home with that mentality and eventually commit
more crime.37
The Ohio Department of Rehabilitation and Correction noted when it
lowered intrastate ICS rates that telephone calls “are one of the primary means of
inmates maintaining connections with family,” and that such calls “positively
influ[ence] behavior in prison and the likelihood an offender will succeed upon
release from prison.”38 Family and close friends can provide transitional support,
which includes assisting inmates in finding jobs, housing and other opportunities
upon release.39 Former inmate Brian Nelson stated that he has “become an asset to
society” since his release, and credits his ability to stay in touch with family and
priests for his smooth transition back to society.40 Thus, maintaining these
relationships through frequent communication is crucial to post-release success.


Letter from M. Domingues (Mar. 1, 2013).
2015 Order, 30 FCCRcd at 12774.
Lorig Charkoudian, et al., The Role of Family and Pro-Social
Relationships in Reducing Recidivism, Corrections Today, 94 (Aug./Sept. 2012).
Letter from Prison Policy Initiative (June 20, 2014).

C. Petitioners incorrectly argue that the Wright Petitioners will
not be harmed by a stay.
Petitioner GTL argues that the Wright Petitioners “cannot claim to be
harmed by rates that comply with [the 2013 interim] caps, since they are nearly
identical to what [those parties] requested in the first place.”41 This is outrageously
It is true that in 2007, Wright Petitioners filed an Alternative Rulemaking
Proposal seeking interstate rate caps of $0.20 for debit calls and $0.25 for collect
calls with no per-call charge.42 However, those proposals were made based on rate
and cost information from 2006 and earlier,43 and without the type of evidentiary
record the FCC has since developed. Further, the proposal only covered a small
portion of ICS charges (interstate rates and per-call charges). Nine years later,
based on an extensive record, the FCC found that advances in technology and new
industry cost data supported lower interstate rate caps than the Wright Petitioners
originally proposed.44 This hardly means that Movant-Intervenors would not incur
harm by having to pay more than what the current record demonstrates to be just
and reasonable for interstate calls, and it certainly has no bearing on the harm
they would incur for intrastate calls.

GTL Motion at 19.
Alternative Rulemaking Proposal of Wright Petitioners, Dkt. 96-128 at 16 (Mar.
1, 2007).
Id. at 2.
2015 Order, 30 FCCRcd at 12769-70.

II. Grant of a stay would be detrimental to the public interest.
Petitioners off-handedly claim that the public interest favors a stay.45 This
could not be more wrong. In an amici curiae brief in Docket No. 15-1461 (States’
Brief), the State of Minnesota, et al. provided extensive evidence demonstrating
the important value and social benefit of lower ICS rates.46 In the brief, the States
explained that they “support the FCC’s 2015 Order because providing telephone
services to prison inmates at a reasonable cost is feasible, and it fosters public
safety, successful rehabilitation, reduction in recidivism, and improved outcomes
for offenders’ children and families.”47 Indeed, the entire record demonstrates the
harms to the public interest that unjust, unreasonable, and unfair ICS rates impose.
The Order caps intrastate calls (which account for 80% of calls to and from
correctional facilities) and lowers the cap on interstate rates. The Order will have
even more profound public interest benefits than the interim caps. Staying the
Order would only further delay these much-needed benefits.


GTL Motion at 20; Securus Motion at 16-17; Telmate Motion at 17-18; States’
Motion at 19.
Brief for the States of Minnesota, Illinois, Massachusetts, New Mexico, New
York, Washington, and Washington D.C., as Amici Curiae in Support of
Respondents, Global Tel*Link v. FCC, (Sept. 19, 2016)(No. 15-1461)(“States’
Id. at 3.

A. The Order will help reduce recidivism and decrease costs
within the incarceration system.
Lower ICS rates will help increase prisoner communication and therefore
ease their transition into society upon release and reduce the chance of recidivism.
As the States’ Brief explains, “the FCC’s Order promotes positive family and
societal relationships, which are important to successful rehabilitation of
offenders.”48 Ninety-five percent of the United States’ 2.2 million incarcerated
persons will one day return to society,49 but 75% of released inmates are rearrested within five years.50 Inmates are significantly less likely to relapse
following their release if they maintain contact with friends and family during their
As the States’ Brief points out, “prohibitive cost of telephone calls prevents
the maintenance of…important family ties.”52 Inmates who frequently
communicate with loved ones are more likely to maintain a stake in the welfare of
the community to which they will return. This increases their opportunity to obtain


See Amici States Brief at 3.
Letter from Former Attorneys General (Jan. 9. 2015)(Letter from Former AGs).
2015 Order, 30 FCCRcd at 12767 (citing U.S. Department of Justice, Recidivism
of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010 at 1
Id. at 12766-67.
States’ Brief at 11.

gainful employment and otherwise transition out of the criminal system.53 Fiftyone former Attorneys General commented that studies show that “people who
maintain supportive relationships with family members have better outcomes –
such as stable housing and employment – when they return to the community,”54
and that such former inmates “are more likely to succeed after their release.”55
Their contributions to society benefit the public.
Reducing recidivism will also save the criminal justice system millions of
dollars. The States’ Brief explains that “States have a significant interest in
breaking the cycle of recidivism” because “[r]educed recidivism means fewer
victims of crime and reduced public expense from incarceration,” and cites a Pew
Center on the States study which shows that “during the past two decades, annual
state and federal spending on corrections has increased threefold to about $52
billion.”56 It also demonstrated that “[d]uring that same period, corrections
spending doubled as a share of state funding,” and “now accounts for one of


Center Comments at 2 (citing Nancy La Vigne, Examining the Effect of
Incarceration and In-Prison Family Contact on Prisoners’ Family Relationships,
21 J. Contemp. Crim. Justice 314, 316 (2005)(showing the positive effects of
increased family contact)).
Letter from Former AGs (citing a 2011 study from the Vera Institute).
Letter from Former AGs (citing a 2012 study from the Vera Institute).
States’ Brief at 10 (citing Pew Center on the States, State of Recidivism, 5
(April 2011),

every14 general fund dollars, and one in every eight state employees works for a
corrections agency.”57
As mentioned above, studies show 75% of released inmates are re-arrested
within five years. Incarceration costs taxpayers $31,000 per year per inmate on
average.58 Reducing recidivism could save between $60 and $70 billion dollars in
detention costs per year, nationwide.59 The criminal justice system would save
more than $250 million if recidivism were reduced by even one percent.60 This
would create significant cost-savings for taxpayers, jails and prisons, and society.
B. The Order will benefit prison welfare and prison security.
Phone calls are a lifeline to the outside world for inmates. This
Communication can have a profound impact on the emotional well-being of
prisoners, thereby making prisons safer.61 As one commentator said:
I get to see my [imprisoned] loved one once in every six months or so,
and he doesn’t get any visitors apart from me, so calling daily helps
him retain his sanity. I think the connection he’s given to his family is
really important; there are so many times that he’s called really angry
at other inmates, saying that he just wanted to talk so that he can cool
down and not start a fight. If calls are made more affordable,
especially for indigent families, it may reduce prison violence as well

Id. Error! Main Document Only.(testimony of Amsani Yusli cited in Media Action
July 7, 2015 Ex Parte Letter, Attach. at 5).
2015 Order, 30 FCCRcd at 12767.
Transcript of Reforming ICS Rates Workshop at 126 (testimony of Alex
Friedmann, HRDC)(July 16, 2013),
Wright Petitioners’ Comments (Mar. 25, 2013) (Ex. C, Bazelon Decl. ¶48).
2015 Order, 30 FCCRcd at 12767-68.

as make the prisons a safer place for [corrections officers] to work
Lower ICS rates also reduce the demand for contraband cell phones.63
Using contraband cell phones not only undermines prison security, but can result in
increased incarceration time for inmates and increased costs to the state.64
C. The Order will reduce the burden on defense lawyers
representing incarcerated clients.
Denying the stay will reduce burdens on lawyers representing incarcerated
persons. Public defender offices can spend “more than $100,000 a year accepting
collect calls from prisoners.”65 High phone bills may also deter private lawyers
from representing incarcerated clients.66 Low ICS rates will allow lawyers
additional resources to more zealously represent their clients.

Petitioners have failed to show irreparable harm.

Respondents have thoroughly discussed in their opposition the lack of
irreparable harm to Petitioners. The Wright Petitioners wish to add a few
additional thoughts as to this question.


See Letter from Prison Policy Initiative (June 12, 2015)(attaching Amanda Seitz,
Phone Calls from Prison Cheaper, Dayton Daily News, April 1, 2015).
Center Comments at 2.
2013 Order, 28 FCCRcd at 14131.
See, e.g., 2015 Order, 30 FCCRcd at 12765, n.4 (describing an attorney who
paid $56 for a four-minute phone call with an inmate client in a Florida institution).

Petitioners claim that the intrastate and interstate rate caps in the Order will
result in the loss of revenue which will, in turn, “undermine critical correctional
and rehabilitative programs in jails and prisons—causing yet more irreparable
harm.”67 In its order denying Petitioners’ Stay Petitions, the FCC thoroughly
refuted these claims, stating that “unspecific and unsupported claims of potential
lost revenue” drawn from generalized statements and “conclusory affidavits from
executives of their respective companies” do not constitute irreparable harm.68
Furthermore, the FCC found that a potential loss of revenue alone does not entitle a
party to a stay of a regulation, particularly when the regulation in question is aimed
at curbing the ill-gotten monopoly ICS profits.69
Petitioners’ claims of irreparable harm are refuted by evidence drawn from
experience since the interim rate caps became effective. Evidence in the FCC’s
record establishes that increased call volume has fully offset the reduction in per
minute rates, so that interstate call revenue has actually increased. Praeses, a firm
that negotiates contracts for jails and prisons, reported that since the interim rate
reform, interstate call volume in facilities operated by its clients increased 76% and
revenue increased 12%; it expects a similar increase for intrastate calls after the


States’ Motion at 19. See Telmate Motion at 16; GTL Motion at 19; Securus
Motion at 14.
Order Denying 2016 Stay Petitions at ¶24.
See id. at ¶25.

rules go into effect.70 Other ICS providers report similar findings. ICSolutions
documented increases in call volume by as much as 150%, and increases in
revenue by approximately 30% when implementing lower rates.71 Similarly, in
February 2016, after displacing a competitor at Brazos County Jail in Texas, and
lowering rates to $0.16 per minute, Network Communications International
Corporation saw inmate calling increase 247%.72
Likewise, in an amicus curiae brief submitted to this Court in Docket No.
15-1461, the County of Santa Clara submitted data which demonstrated that the
County of Santa Clara and the City and County of San Francisco witnessed a
significant increase in inmate call activity after the implementation of the FCC’s
2013 Order reducing interstate call rates and their voluntary reduction of intrastate
call rates in 2014 and 2015.73 As one example shows, at a cost per minute of $1.36
in 2012, the average monthly number of interstate inmate calls was 579 in Santa
Clara. After the 2013 Order went into effect in February 2014 and the cost per
minute was lowered to 22 cents, the average monthly number of interstate calls
rose to 4,668 for 2014 and 7,007 in 2015. These changes not only allowed inmates
to spend about 50% more time talking to their loved ones, but also generated

2015 Order, 30 FCCRcd at 12792.
See Brief of Network Communications International Corporation, Global
Tel*Link v. FCC, at 7 (Sept. 29, 2016)(No. 15-1461).
Brief of County of Santa Clara and the City and County of San Francisco,
Global Tel*Link v. FCC, at 3 (Sept. 28, 2016)(No. 15-1461)(Santa Clara Brief).

increased revenue for the providers. For example, average intrastate calling
minutes increased from 149,252 per month in 2013, when the average rate was 46
cents per minute, to 300,023 minutes in the first part of 2016, after the rates were
reduced to 30 cents per minute. Gross revenue thus went from about $68,000 to
$90,000.74 Similarly, revenue from interstate calls nearly doubled between 2013
and 2015 when rates were reduced from $1.35 to 21 cents and average monthly
interstate call minutes increased from 5,088 to 73,319.75 Thus, ICS providers have
failed to show irreparable harm. 76
This Court should deny the stay motions and grant all such other relief as
may be just and proper.
Respectfully submitted,

October 13, 2016


/s/ Andrew Jay Schwartzman
Andrew Jay Schwartzman
Drew Simshaw
Counsel for Movant-Intervenors

Santa Clara Brief at 5.
Id. at 3.
Limitations on space preclude extensive discussion, but the record also
demonstrates that a large portion of correctional facility funds generated through
revenue sharing agreements with ICS companies purportedly used for “inmate
welfare,” are in fact used for employee salaries and benefits, facility maintenance
and equipment, or even the state’s general fund. See 2013 Order, 28 FCCRcd at
14125; 2015 Order, 30 FCCRcd at 12823.

I hereby certify that on October 13, 2016, a copy of the foregoing MovantIntervenor’s Joint Opposition to Motions for Stay Pending Judicial Review was
electronically filed with the Clerk of the Court using CM/ECF and was served on
counsel of record who have registered for such services as of October 13, 2016.

/s/ Andrew Jay Schwartzman
Andrew Jay Schwartzman
Drew Simshaw
Institute for Public Representation
Georgetown University Law Center
600 New Jersey Ave., NW
Washington, DC 20001
Counsel for Movant-Intervenors