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The FCC’s legal battle over prison phones just took a weird turn

A years-long battle has been unfolding over the cost of phone calls from prison, but in the past week, the fight has taken a strange legal turn.

In 2015, the FCC moved in to cap what many consider to be exorbitant rates for inmate phone calls. Shortly thereafter, the agency was sued by the prison phone industry, which challenged the agency’s authority to set rates for calls within state lines.

The lawsuit has been advancing, but the presidential election brought a new administration to the White House. Last week, Ajit Pai, the new, Donald Trump-appointed Chairman of the FCC, said in a letter that the agency would no longer defend the agency’s in-state rate caps in court.

Although that would seem to suggest a legal win by default for the phone industry, that’s not the case. Instead, a hearing today continued as scheduled, with the FCC simply refusing to make its case. Other parties, however, continue to advocate for the caps in court, with the FCC on the sidelines.

“It’s harder than usual to figure out what’s going on,” says Georgetown law professor Andrew Schwartzman, who argued for the rate caps in front of the court today.

Before Pai was FCC Chairman, he was one of five commissioners at the agency, and dissented on the 3–2 vote to cap rates, arguing that the order exceeded the agency’s authority. When he was appointed chairman of the FCC, there was speculation he would use his new authority to shut down the lawsuit entirely.

The FCC’s current move turns the agency into a bystander at its own lawsuit. Today, the appeals court judges heard arguments about why the FCC’s order should stand — or be vacated — even as last week’s letter from the agency signals it won’t defend it. “I’m not at all sure, however, that the letter… doesn’t have legal significance,” one member of the three-judge panel said as the court heard arguments.

“There’s not a lot of precedent to deal with this kind of situation,” Schwartzman says.

The stakes remain high for inmates and their advocates, who say rates are still out of control. Last year, The Verge published an investigation into just how high these charges can be. “I really hope the FCC helps protect the families, because you see that virtually all the phone calls are in-state calls, those calls are not regulated,” says Peter Wagner, executive director of the Prison Policy Initiative.


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