How the Martha Wright-Reed Act Moves Us Closer to Just and Reasonable Communications
Friday, January 27, 2023
How the Martha Wright-Reed Act Moves Us Closer to Just and Reasonable Communications
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Twenty years ago, Martha Wright was a grandmother struggling to afford calls to her grandson in a private prison. For many incarcerated people in the United States, exorbitant phone rates and fees make it consistently difficult to keep in touch with loved ones, lawyers, and others outside of prison. The Martha Wright-Reed Just and Reasonable Communications Act of 2022—signed by President Joe Biden on January 5, 2023—will ensure just and reasonable charges for telephone and advanced communications services in correctional and detention facilities across the country. The new law expands the Federal Communications Commission’s jurisdiction over different kinds of prison communications and the rates and fees associated with them. Here, we look at all that was done to make this law a reality and what it means for incarcerated people and their families.
Studies have long shown that phone calls, along with visitation, reduce the likelihood of recidivism for formerly incarcerated people. But phone calls are even more common than visitation, and have proved to have an even stronger effect on recidivism rates. Video calling and emerging technologies can enhance the positive effects of prison calls if made affordable. With the passage of the Martha Wright-Reed Just and Reasonable Communications Act of 2022, every incarcerated person in the United States will have the same right to future-proof, affordable, just and reasonable communications.
Inter, Intra, and Payphone Regulation
First, some legal background (from a non-lawyer).
The Communications Act of 1934 divides regulatory authority over interstate, intrastate, and international communications services between the FCC and the states. Section 2(a) of the Communications Act empowers the FCC to regulate “interstate and foreign communication by wire or radio.” This regulatory authority includes ensuring that “[a]ll charges, practices, classifications, and regulations for and in connection with” interstate or international communications services are “just and reasonable” in accordance with section 201(b) of the Communications Act. Section 201(b) also provides that “[t]he Commission may prescribe such rules and regulations as may be necessary in the public interest to carry out” these provisions.
Interstate phone calls are long-distance calls between states. Intrastate phone calls are local calls that do not cross state lines.
Section 276 of the Communications Act directs the FCC to prescribe regulations that ensure that payphone service providers, including inmate calling services providers, “are fairly compensated for each and every completed intrastate and interstate call using their payphone.” Although the Telecommunications Act of 1996 amended the Communications Act and “chang[ed] the FCC's authority with respect to some intrastate activities,” regarding section 276, the U.S. Court of Appeals for the District of Columbia Circuit has previously held that “the strictures of [section 2(b)] remain in force.” That court also concluded that section 276 does not authorize the FCC to determine “just and reasonable” rates for intrastate calls, and that the Commission's authority under that provision to ensure that providers “are fairly compensated” both for intrastate and interstate calls does not extend to establishing rate caps on intrastate services.
A Short History of a Long Movement
Over the last 22 years, the prison phone issue has waxed and waned at the Federal Communications Commission, as sometimes it was a high priority while at other times it was no priority at all. A few key moments along the way illustrate how we’ve arrived at the Martha Wright-Reed Just and Reasonable Communications Act of 2022.
Importantly, the Federal Communications Commission hasn’t been the only venue in the fight for prison phone justice. Martha Wright decided to sue the Corrections Corporation of America and challenge the monopoly system which enabled telecommunications companies in the private prison system to charge high rates for inmate call services. In Martha Wright v. Corrections Corporation of America, the plaintiffs, represented by the Center for Constitutional Rights, alleged that these exclusive deals and high rates violate the constitutional rights of the incarcerated.
Soon after the class action lawsuit was filed, United States District Judge Gladys Kessler referred the case back to the FCC following petitions by private prison and telephone companies. Not much action was taken by the FCC until 2012 when it released a Notice of Proposed Rulemaking about Wright’s petition. In 2013, the FCC voted on new regulations on interstate calls to and from prisons. The FCC adopted rule changes to bring high interstate inmate calling service (ICS) rates into compliance with the statutory mandate of being just, reasonable, and fair. This included rate caps for interstate calls to help bring rate relief to inmates and their friends and families who have historically been required to pay above-cost rates for interstate ICS. The FCC also published a Further Notice of Proposed Rulemaking seeking comment on further regulations, including expanding regulatory jurisdiction to intrastate ICS.
Following the 2013 decision, interstate prison and phone rates were capped at $0.21/minute for debit and prepaid calls, and $0.25/minute for collect calls. According to the United Church of Christ Media Justice Ministry, some prisons and jails charge almost $17 for a 15-minute local telephone call and some prison phone companies charge up to $8.20 for the first minute of a local call. These rates hurt families financially, making it more difficult to stay connected to loved ones and lowering chances of successful reentry when they are released from prison and return home.
In 2015, then-FCC Chairman Tom Wheeler and Commissioner Mignon Clyburn proposed to cap rates for all ICS calls while limiting or banning excessive fees through ancillary service charges. While regulations were issued by the FCC in October 2015, a federal court issued a partial stay in 2016 following immediate pushback from private prison and telephone companies. Intrastate rate caps and fees were put on hold.
Following the appointment of Ajit Pai to serve as Chairman of the FCC in 2017, the Commission stopped advocating for its intrastate ICS regulations in court. Although public advocates continued to fight for the rules, the DC Circuit court struck down the 2015 rate caps for intrastate calling, stating that the FCC has no authority to regulate intrastate ICS.
In February 2020, the FCC's Wireline Competition Bureau issued a public notice seeking to refresh the record on ancillary service charges. The FCC sought comment on any steps the agency should take to ensure that providers of interstate inmate calling services do not circumvent the Commission's ancillary service charge rules. The FCC also sought comment on whether the agency was able to regulate ancillary service charges for intrastate calls along with interstates ones in cases of mixed jurisdiction.
In response to the 2020 ICS Notice, the FCC received over 90 comments and reply comments and 9 economic studies. Filers included providers of calling services to incarcerated people, public interest groups and advocates for the incarcerated, telecommunications companies, organizations representing individuals who are deaf or hard of hearing, and providers of telecommunications relay services.
During this, the FCC used service providers' required annual reports to compare interstate ICS rate levels to intrastate ICS rate levels, and found that intrastate rates exceed interstate rates in 45 states. Thirty-three of those states allowed rates that were at least double the FCC interstate rate cap, and 27 allowed exorbitant "first-minute" intrastate call rates that could be more than 25 times that of an interstate call.
Later in 2020, the FCC issued a Further Notice of Proposed Rulemaking about prison phone call reform and the extent of the FCC's jurisdiction. The FCC proposed to lower the interstate rate caps to $0.14 per minute for debit, prepaid, and collect calls from prisons and $0.16 per minute for debit, prepaid, and collect calls from jails. In so doing, the FCC used a methodology that addresses the flaws underlying the Commission's 2015 and 2016 rate caps (which used industry-wide averages to set rate caps) to ensure that ICS providers are fairly compensated for each and every completed interstate call. The FCC also stated that ancillary services charges could not practically be separated between interstate and intrastate jurisdictions except in select cases, and that inmate calling services providers are generally prohibited from imposing any ancillary service charges other than those permitted by the Commission’s rules and providers are generally prohibited from imposing charges in excess of the FCC's applicable ancillary service fee caps.
Soon after, in 2021, the FCC officially lowered the interim rate caps on interstate inmate calling services to $0.12 per minute for all prisons and $0.14 for jails with average daily populations of 1,000 or more, providing financial relief to the vast majority of incarcerated people. The agency also established caps on international calling services rates for the first time at all prison and jail facilities, among further actions. Alongside this, the FCC stated that ICS under mixed jurisdiction must not exceed federally-prescribed rates or charges.
The FCC acted to ensure access to communications services for incarcerated people with disabilities in September 2022, requiring inmate calling services providers to provide access to all relay services eligible for Telecommunications Relay Services fund support in any correctional facility that is located where broadband is available and is part of a correctional system with 50 or more incarcerated people.
How the New Law Changes the Game
Now that the Martha Wright-Reed Just and Reasonable Communications Act is law, inmate calling services will change in a number of ways. The FCC will finally have regulatory authority over the rates and fees charged for both interstate and intrastate services. The law also expands the definition of the communications technologies in question. As used in the new law,
[T]he term “payphone service” means the provision of public or semi-public pay telephones, the provision of inmate telephone service and advanced communications services … in correctional institutions, and any ancillary services.
Under the Martha Wright-Reed Act, the new Section 276 of the Communications Act of 1934 (47 U.S.C. 276) is amended to say, in subsection (b)(1)(A)—:
“The Commission shall take all actions necessary (including any reconsideration) to prescribe regulations that…establish a compensation plan to ensure that all payphone service providers are fairly compensated, and all rates and charges are just and reasonable, for completed intrastate and interstate communications using their payphone or other calling device, except that emergency calls and telecommunications relay service calls for hearing disabled individuals shall not be subjected to such compensation.”
Because of this law, rates and charges for prison phone services must officially be just and reasonable for both intra- and interstate communications. The law also adds other calling devices to expand the technologies covered by payphone services. More specifically, the Martha Wright-Reed Act specifies advanced communication services as:
“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 the technology used.”
Video calling rates are much higher than phone rates because they have previously been unregulated by the FCC. Some jails and companies have even attempted to substitute video calling for in-person visitation. Under this legislation, video calling is protected under FCC jurisdiction and will be made more affordable for incarcerated people.
In January 2023, FCC Chairwoman Jessica Rosenworcel said the FCC expects to release a rulemaking on the implementation of the Martha Wright-Reed Act in the first quarter of 2023. The Federal Communications Commission cannot promulgate any new regulations under the Martha Wright-Reed Act for 18 months, but has a six-month window to do so after the initial 18-month period.
The Martha Wright-Reed Just and Reasonable Communications Act of 2022 was passed with the help of numerous civic advocates and legislators, all of which can be viewed here. Additional statements of support are included here.
- Advancing Internet For All (National Telecommunications and Information Administration)
- FCC Asks Consumers to Share Their Broadband Access Experiences (Federal Communications Commission)
- FCC Improving Support for Digital Health in Rural America (Federal Communications Commission)
- February 2023 Open Meeting Agenda (Federal Communications Commission)
Weekend Reads (resist tl;dr)
- Affordable Broadband: FCC Could Improve Performance Goals and Measures, Consumer Outreach, and Fraud Risk Management (GAO)
- Broadband Funding: Stronger Management of Performance and Fraud Risk Needed for Tribal and Public-Private Partnership Grants (GAO)
- NTIA Launches Inquiry on how Data Practices Affect Civil Rights (National Telecommunications and Information Administration)
- State of Digital Inequity: Civil Society Perspectives on Barriers to Progress in our Digitizing World (Connect Humanity)
ICYMI from Benton
- Understanding and Driving Enrollment in the Affordable Connectivity Program
- American Rescue Plan Helping North Carolina Complete Access to Broadband
- Hold The Hallelujahs
- What States Need to Know About Federal BEAD Funding for High-Speed Internet Expansion
Jan 31—The State of U.S. Broadband in 2022: Reassessing the Whole Picture (Information Technology & Innovation Foundation)
Jan 31––Navigating the Political and Technology Landscape to Maximize Broadband Investments (Fiber Broadband Association)
Feb 7—Expanding Digital and Media Ownership Opportunities for Women and Minorities (FCC)
Feb 7—Updating Washington's Public Works Board Broadband Program (Washington State Department of Commerce)
Feb 7—What Will It Take for Congress to Pass Bipartisan Privacy Legislation? (Information Technology & Innovation Foundation)
Feb 13—NACo Broadband Local Coordination Summit (National Association of Counties)
Feb 15—Get a BEAD on Broadband Funding (telecompetitor)
Feb 16—February 2023 Open Federal Communications Commission Meeting
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