New Law Significantly Expands the FCC’s Powers Over Inmate Calling Service Providers; Carceral Communications Equipment Manufacturers Are Also Impacted, and Continued Role of State Governments Remains Unclear

On January 5, 2023, President Biden signed into law the Martha Wright-Reed Just and Reasonable Communications Act of 2022 (the “Act”), which gives the Federal Communications Commission (“FCC” or the “Commission”) unprecedentedly broad powers over inmate calling services (“ICS”) providers. The Act empowers the FCC to regulate in-state inmate calling rates; previously, the Commission could cap the rates of carceral calls that crossed state borders only. The Act also amends existing law to require ICS and related equipment to comply with the Twenty-First Century Communications and Video Accessibility Act (“CVAA”), which requires covered products and services to be accessible to and usable by people with disabilities unless compliance is not achievable.

The FCC must promulgate implementing regulations within two years. In developing these regulations, the Commission will need to decide to what extent, if any, Congress intended to preempt state authority over ICS rates. There will be an opportunity for the public to comment on the proposed regulations before they are adopted.

Regulation of ICS Rates
The Act amends the federal Communications Act to require the FCC to ensure just and reasonable charges for “any audio or video communications service used by inmates for the purpose of communicating with individuals outside the correctional institution where the inmate is held, regardless of technology used,” but falls short of setting specific rates or caps, leaving those determinations to the Commission’s discretion. This means that all methods of inmate communication with anyone outside the correctional facility in which they are incarcerated are covered.

Although the FCC previously capped ICS rates for long distance calls, the Commission lacked legal authority to intervene when ICS providers charged exorbitant rates for local inmate calls. Moreover, while existing law required that rates be “fair,” an appellate court found that the fairness requirement applied to the rates paid by providers to each other, but not to rates billed to inmates. Now, however, the FCC will be able to regulate rates for all calls from all prisons, jails, and detention centers in the country.

State Regulation of ICS Rates
The language of the Act neither protects nor restricts the authority of state legislatures and state public utility commissions (“PUCs”) to regulate inmate calling rates at the state level, so the fate of continued state regulation of ICS rates rests with the FCC. One possibility is that the FCC will assert exclusive jurisdiction over all ICS rates, arguing that Congress gave the Commission implied authority to do so, thereby preempting existing state statutes and PUC rules and orders governing rates for in-state calls. Alternatively, the Commission may create minimum ICS rate limitations, but may take the position that states remain free to adopt more restrictive measures. Finally, the FCC could opt for a hybrid regulatory framework, incorporating some elements of both approaches.  Ultimately, we expect the FCC to limit state regulation of ICS in at least some ways.

Disability Access Obligations
Apart from giving the FCC more control over inmate calling rates, the Act amends the Communications Act’s definition of advanced communications services (“ACS”) to add “any audio or video communications service used by inmates for the purpose of communicating with individuals outside the correctional institution where the inmate is held, regardless of technology used.” As a result, since ACS are covered by the CVAA, ICS are now subject to the CVAA’s accessibility and usability requirements as well. For example, ICS providers and manufacturers of prison phones must maintain records of their efforts to comply with the CVAA and submit record-keeping compliance certifications and contact information to the FCC annually by April 1st in accordance with the Commission’s rules.

The CommLaw Group Can Help!
If you have any questions or concerns about the impact of the new law, please contact Jackie McHugh at (703) 714-1314 or jrm@commlawgroup.com. If you have any questions or concerns about your company’s disability access obligations, please contact Michal Nowicki at (703) 714-1311 or mjn@commlawgroup.com.

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