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HRDC staff quoted on DC court ruling on prison phone reforms

Governing, June 28, 2017.

With FCC Unable, Will States Make Prison Calls Affordable?

They're too expensive for many low-income families, but courts recently ruled that the federal government can’t regulate their cost. States still can.
BY  JUNE 29, 2017

A decades-long campaign to curb the price of prison phone calls was dealt a serious blow this month. On June 13, a federal court struck down 2015 federal regulations that would have limited the cost of intrastate calls.

In simpler terms, the court decided that the federal government can’t regulate what state prisons and county jails charge for calls made within state lines. The ruling voids the Federal Communications Commission's 11-cents-per-minute cap on intrastate calls.

Now, after years of pushing for action from the FCC, activist organizations like the Campaign for Prison Phone Justice must turn their attention to state and local governments -- but they aren't optimistic.

“[Price caps] might happen in a few states, but in most places we won’t see anything,” says Paul Wright, executive director of the Human Rights Defense Center, which houses the Campaign for Prison Phone Justice.

Advocates like Wright argue that the issue is crucial not just ethically but socially and economically for states and localities: Studies have shown that maintaining contact with family members reduces prisoner recidivism. Advocates also maintain that the high price of calls acts as yet another burden on an already overburdened population.

“The entire [prison phone] industry model is nothing more than a regressive tax on some of the poorest people in the country,” says Carrie Wilkinson, director of the Campaign for Prison Phone Justice.

Wilkinson says that, since their campaign began in 2011, some states have voluntarily lowered the price of calls. In Washington state, a 15-minute call from a prisoner used to cost up to $18 -- now, it costs just $1.65.

Still, some states continue to charge high prices (and were allowed to because the lawsuit put the FCC's 2015 cap on hold).

Arkansas, Connecticut, Kentucky and Maine all charge more than $4 for a 15-minute call, according to the campaign. Kentucky, the most expensive state in the country for prison phone calls, charges $5.70. That doesn’t sound like much, but daily calls can cost families up to $180 a month. If their loved one is incarcerated for a year, that's $2,160 -- an expense that more than half of Americans can't afford.

At the county level, "things are really a disaster,” says Wright.

According to data collected by the Prison Policy Initiative, hundreds of counties charge $15 to $18 for a 15-minute intrastate phone call, and at least three charge almost $25. Relatively few come close to the 11-cents-per-minute or $1.65-per-15 minutes cap imposed by the FCC’s now-vacated regulation.

The telecommunications companies that contract with prisons to offer these services (and thus receive profits from prisoners' phone calls) have defended the pricing, saying it’s needed to cover the expense of the monitoring technology. In an email to Governing, representatives from CenturyLink, one of the plaintiff's in the case, responded to the recent ruling:

“[The court] reached the correct ruling, which found the FCC, under former FCC Chairman Wheeler, acted beyond its authority on intrastate rates and acted unlawfully and unreasonably on other key elements of its rules governing inmate calling. CenturyLink looks forward to working with the FCC leadership and state and correctional authorities on lawful and reasonable ways to help address the complex problem of inmate calling services.”

But advocates like Wilkinson are skeptical that the cost of monitoring technology justifies the call prices. They believe the real reason for the high prices is the contracting process, which often offers jails and prisons the opportunity to collect part of the profits from prisoners' phone calls through "site commissions."

When considering which telecom companies to contract with, "[site] commission percentage is often the first thing on that list,” says Wilkinson. In many cases, the higher site commission a company offers, the more likely the prison is to contract with them, says Wilkinson. To offer bigger commissions, companies have to hike up prices. Prisons and jails, meanwhile, argue that they use those commissions to pay for rehabilitation programs or other beneficial amenities for prisoners.

Some state prison systems have already taken steps to cap prices or eliminate site commissions -- Mississippi, New Jersey and New York, for example. Even so, campaigning for price reductions on a state or county level will take an extraordinary amount of organization and resources, says Wright.

“I’ve had utilities commissioners in states tell me not to even waste my time [meeting with them],” he says.

He stresses, though, that governors and mayors have regulatory or executive powers they could use to fix this problem in some places. If major cities with large incarcerated populations, like Los Angeles, took it upon themselves to regulate prices, huge numbers of prisoners would feel the difference, even without a nationwide cap, he says.

Regardless, Wright believes that class-action litigation on behalf of prisoners and families will be the next “major frontier” on this issue.

“As people continue not finding relief within the regulatory or legislative process," he says, "litigation may wind up being a more equal playing field."