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State of OK v. FCC, DC, States Mot to Intervene in Support of Plf, telephone rates, 2016

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USCA Case #16-1057

Document #1600691

Filed: 02/24/2016

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IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
STATE OF OKLAHOMA, et al.,
Petitioners,
v.

Case No. 16-1057
(Consolidated with Case No. 15-1461)

FEDERAL COMMUNICATIONS
COMMISSION, et al.,
Respondents.
MOTION TO INTERVENE IN SUPPORT OF PETITIONERS
The States of Wisconsin, Nevada, Arkansas, Arizona, Louisiana,
Missouri, Kansas, and Indiana (“Intervening States”) respectfully move
to intervene in support of the Petitioner State of Oklahoma, Sheriff
John Whetsel, and the Oklahoma Sheriffs’ Association (collectively
referred to as “Oklahoma” in this motion) in Case No. 16-1057, which
has been consolidated with Case No. 15-1461.
Intervention is appropriate if the movants are “directly affected
by” the agency action and the motion is “timely.” See Yakima Valley
Cablevision, Inc. v. FCC, 794 F.2d 737, 744–45 (D.C. Cir. 1986). The

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Intervening States should be permitted to intervene because they are
directly affected by the agency action and the motion is timely.
I.

The Intervening States will be directly affected by the
agency action.
This case will review Respondent Federal Communications

Commission’s final agency action entitled, In re Rates for Interstate
Inmate Calling Services, Second Report and Order and Third Further
Notice of Proposed Rulemaking, WC Docket No. 12-375, FCC 15-136
(Nov. 5, 2015) (“the Order”). The new regulations adopted in the Order
were published in the Federal Register on December 18, 2015.
80 Fed. Reg. 79,136. Oklahoma challenged the Order under 28 U.S.C.
§ 2342(1), which provides this Court with jurisdiction over the case.
The Intervening States own, operate, maintain, and manage state
prisons, each with their own Inmate Calling System (“ICS”). Under the
Order, prison ICS will be prohibited from charging more than
$0.11/minute for each call. The Order also restricts certain fees and
costs imposed by a prison ICS.

The Order applies both to interstate

and intrastate calls.
The Intervening States will be directly affected by these new caps
and restrictions.

Prison ICS typically charge higher rates than
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$0.11/minute because of the unique circumstances presented by prison
inmates using the telephone.

State prisons incur substantial

security-related costs for ICS, including costs incurred in monitoring
calls (both recording and reviewing prison calls), costs for escorting
prisoners to and from phones, costs for escorting phone repair
technicians who need to maintain the system, and costs of continually
updating ICS based on new technologies that may pose security risks to
prisons. State prisons also incur costs in administering ICS, including
the cost of responding to questions about the system from inmates and
their families.
The Intervening States’ arguments will complement those
arguments presented by Oklahoma by highlighting other States’
experience

with

prison

ICS,

costs

associated

with

ICS,

and

security-related concerns. The Intervening States will argue that the
Order is arbitrary and capricious as it does not consider these costs and
does not allow for reasonable cost recoupment by the States.

The

Intervening States will also argue that the Order is unconstitutional
and not authorized by federal law, all in violation of 5 U.S.C.
§ 706(2)(A)–(B).
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USCA Case #16-1057

II.

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The Intervening States’ motion is timely.
A motion to intervene must be timely in order to prevent

disruption of litigation and detriment to existing parties. See Roane v.
Leonhart, 741 F.3d 147, 151 (D.C. Cir. 2014).

Oklahoma filed the

petition for review on January 25, 2016. This motion was therefore
filed within 30 days after the petition, and is timely as permitted by
Fed. R. App. Proc. 15(d).
* * * *
The Intervening States respectfully request that they be allowed
to intervene in Case No. 16-1057, which has been consolidated with
Case No. 15-1461, in support of Oklahoma.
Dated this 24th day of February, 2016.

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Respectfully submitted,
BRAD D. SCHIMEL
Attorney General of Wisconsin

ADAM PAUL LAXALT
Attorney General of Nevada

/s/ Misha Tseytlin
MISHA TSEYTLIN
Solicitor General
State Bar #1102199

/s/ Lawrence VanDyke
LAWRENCE VANDYKE
Solicitor General
State Bar #13643C

_

DANIEL P. LENNINGTON
Deputy Solicitor General
State Bar #1088694
Wisconsin Department of Justice
Post Office Box 7857
Madison, Wisconsin 53707-7857
(608) 267-9323
tseytlinm@doj.state.wi.us
Attorneys for Intervenor
State of Wisconsin

_

Office of the Nevada Attorney
General
100 N. Carson Street
Carson City, Nevada 89701-4717
(775) 684-1100
LVanDyke@ag.nv.gov
Attorneys for Intervenor
State of Nevada

LESLIE RUTLEDGE
Attorney General of Arkansas

MARK BRNOVICH
Attorney General of Arizona

/s/ Lee Rudofsky
LEE RUDOFSKY
Solicitor General
State Bar #2015105

/s/ Dominic E. Draye
DOMINIC E. DRAYE
Deputy Solicitor General

Arkansas Attorney General
323 Center Street, Suite 200
Little Rock, AR 72201
(501) 682-8090
lee.rudofsky@arkansasag.gov

_

1275 West Washington
Phoenix, AZ 85007
(602) 542-5025
dominic.draye@azag.gov
Attorneys for Intervenor
State of Arizona

Attorneys for Intervenor
State of Arkansas
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JEFF LANDRY
Attorney General of Louisiana

CHRIS KOSTER
Attorney General of Missouri

/s/ David G. Sanders
DAVID G. SANDERS

/s/ J. Andrew Hirth
J. Andrew Hirth
Deputy General Counsel
Mo. Bar. No. 57807

_

Assistant Attorney General
State Bar #11696
Louisiana Department of Justice
P.O. Box 94005
Baton Rouge, LA 70804-9005
(225)326-6357
sandersd@ag.state.la.us
Attorneys for Intervenor
State of Louisiana

_

P.O. Box 899
207 W. High Street
Jefferson City, MO 65102
Tel: (573) 751-0818
andy.hirth@ago.mo.gov
Attorneys for Intervenor State of
Missouri

DEREK SCHMIDT
Attorney General of Kansas

GREGORY F. ZOELLER
Attorney General of Indiana

/s/ Jeffrey A. Chanay
_
JEFFREY A. CHANAY
Chief Deputy Attorney General
Kansas Bar #12056

/s/ Thomas M. Fisher
THOMAS M. FISHER
Solicitor General
State Bar #17949-49

Memorial Hall, 3rd Floor
120 SW 10th Avenue
Topeka, KS 66612-1597
(785) 368-8435 Phone
jeff.chanay@ag.ks.gov

Office of the Indiana Attorney
General
302 W. Washington Street
IGC-South, Fifth Floor
Indianapolis, Indiana 46204
(317) 232-6255
Tom.Fisher@atg.in.gov

Attorneys for Intervenor
State of Kansas

Attorneys for Intervenor
State of Indiana
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CERTIFICATE AS TO PARTIES, AMICI CURIAE,
AND RELATED CASES
Under Circuit Rules 27(a)(4) and 28(a)(1)(A), the movants state as
follows:
Parties, Intervenors, and Amici
Petitioners: State of Oklahoma, Sheriff John Whetsel, and the
Oklahoma Sheriffs’ Association
Respondents: Federal Communication Commission and the
United States of America.
Intervenors: None at this time.
Amici: None at this time.
Related Cases
The following cases are related and have been consolidated:
15-1461 (lead case), 15-1498, 16-1012, 16-1029, 16-1038, and 16-1046.

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CERTIFICATE OF SERVICE
I hereby certify that on February 24, 2016, the foregoing Motion to
Intervene

in

Support

of

Petitioners

was

served

electronically

through CM/ECF system to all registered attorneys in this case
number.

/s/ Misha Tseytlin
MISHA TSEYTLIN

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_