February 22, 2017–FCC acting General Counsel Brendan Carr has told four Democratic members of the House that “there are a number of cases where the FCC has decided not to defend an order in court,” as it recently did with several aspects of the Commission’s 2015 inmate calling service (ICS) order.
Mr. Carr was responding to a recent letter from Reps. Bobby Rush (D., Ill.), Elijah Cummings (D., Md.), and G.K. Butterfield (D., N.C.), and Del. Eleanor Holmes Norton (D., D.C.), in which they expressed concern about “recent press reports that Chairman Ajit Pai has decided not to defend, in whole, the prison phone rate order previously issued by the Federal Communication Commission” and request information related to that decision, including any “previous cases in which the FCC has declined to defend one of its own orders in whole or in part” (TRDaily, Feb. 8).
In his response to the lawmakers, Mr. Carr said that new FCC Chairman Ajit Pai “made clear his belief” when the agency adopted its first ICS order in 2013 over the dissent of then Commissioner Pai that “the agency ‘must take action to meet our duties under the law, not to mention our obligations of conscience.’”
However, Mr. Carr added, “the FCC’s well-intentioned efforts have not been fully consistent with the law. In particular, the FCC has attempted to cap rates for intrastate inmate calls in apparent violation of the clear limits Congress placed on the agency’s intrastate authority, and it failed to account for all record evidence.”
He said that at oral argument earlier this month, “agency counsel ably and vigorously defended the substantial portions of the Commission’s regulations at oral argument that are both lawful and have the support of a majority of the FCC’s current Commissioners,” such as capping interstate ICS rates and regulating ancillary fees.
Mr. Carr also noted that legislation sponsored by Rep. Rush — the Family Telephone Connection Protection Act — “would codify new, specific authority that the FCC could rely on regulate inmate calling rates.” He added, “The FCC would welcome the opportunity to provide technical assistance on the Family Telephone Connection Protection Act or any legislative solution, as you deem appropriate.”
The FCC informed the U.S. Court of Appeals for the District of Columbia Circuit just the week before the scheduled Feb. 6 oral argument in “Global Tel*Link et al. v. FCC” (case 15-1461 and consolidated cases) that the agency would no longer defend the 2015 order’s imposition of rate caps for intrastate inmate calling services (ICS) nor the argument made in the agency’s previously filed brief that the “the Commission lawfully considered industry-wide averages in setting the rate caps contained in the Order” (TRDaily, Jan. 31).
As Mr. Carr noted, at oral argument, FCC Deputy General Counsel David Gossett defended the order’s provisions regarding charges for ancillary services, such as fees for inmates to establish accounts with ICS providers and fees to make deposits to their accounts. Mr. Gossett argued that a court ruling on certain other provisions, such as the rates caps for interstate ICS calls, should be deferred because they were modified by a 2016 ICS order, which is also facing court challenges (TRDaily, Feb. 6). —Lynn Stanton, email@example.com