When the Pai FCC Abandons the Public Interest, Who You Gonna Call?

On February 6, 2017, Andrew Jay Schwartzman – the Benton Senior Counselor at the Public Interest Communications Law Project at Georgetown University Law Center's Institute for Public Representation – appeared before the U.S. Court of Appeals for the D.C. Circuit in an unusual role. The Federal Communications Commission was scheduled to defend its rules to lower the predatory prices inmates and their families pay to make prison phone calls. But with new FCC leadership in place, the FCC decided to not defend the rules, thus abdicating to Schwartzman the protection of the public interest.

Well over a decade ago, DC resident Martha Wright filed a petition with the FCC asking the agency to review the high costs families must pay to speak with their incarcerated loved ones. At the time, she was paying more than $100 a month to call her grandson, who was locked up in Arizona. (In many states, a 15-minute interstate phone call can reach more than $17!) A group of prisoners, former prisoners, family members, lawyers, non-profits and social justice organizations, referred to as “the Wright Petitioners,” joined her and led the Inmate Calling Service (ICS) reform effort. These include the DC Prisoners’ Project of the Washington Lawyers Committee for Civil Rights and Urban Affairs, Citizens United for Rehabilitation of Errants (“CURE”), the Prison Policy Initiative, Human Rights Defense Center, United Church of Christ, and the Campaign for Prison Phone Justice. The latter group is a coalition of grassroots groups led by MAGNet, Working Narratives and Prison Legal News.

For all of us, the debate concerns the ability of inmates to turn their lives around after they pay their debt to society. You see, the financial strain of high Inmate Calling Service rates jeopardizes prisoners’ successful reintegration back into their communities. Why? The exorbitant costs reduce familial contact, leading to feelings of resentment and isolation. And that increases the chances of recidivism.

Now new technology and consolidation in the ICS industry have reduced ICS providers’ costs, but the changes are not reflected in customers’ bills. Since 2013, the FCC has been working on making sure these cost reductions are passed on to inmates and their families, but strong push back from phone companies providing ICS, as well as state and local governments that benefit from “site commission” kickbacks, has resulted in appeals, delaying implementation of FCC-mandated rate changes and many of the most important reliefs from those ancillary fees.

Republican FCC Commissioner Ajit Pai, who is now Chairman, dissented to some parts of the FCC’s 2015 decision adopting rate caps, most particularly the enforcement of regulation on intrastate (within one state) calls. He and his Republican colleague, Commissioner Michael O’Reilly, instructed the agency’s lawyers not to defend those parts of the decision in court. Enter Andrew Jay Schwartzman.

Schwartzman, who led the Media Access Project for 34 years, is recognized by many as the “dean” of public interest communications attorneys. For nearly four decades, he has been a leader in promoting civil rights and civil liberties in media and telecommunications.

Schwartzman’s work is supported by a unique partnership of Georgetown University Law Center, Benton, The Alphawood Foundation, the Ford Foundation, the Media Democracy Fund, Laura and John Arnold, and Participant Media. These funders have supported Schwartzman’s vital public interest work to not only fight the high cost of prison phone rates but also to:

  • Uphold an unencumbered, open Internet,
  • Reform and modernize the Lifeline program to include subsidies for low-income Americans for broadband service,
  • Increase transparency in political ad spending through access to online public files,
  • Make telecommunications accessible for people with disabilities,
  • Fight consolidation of media ownership,
  • Protect online privacy, particularly for children, and
  • Stop surveillance of people of color.

The partners have long recognized the vital importance of Schwartzman’s legal advocacy. Over the last few years, it has led to great, positive change for the American people. But February 6 highlights all the more why we need to support Schwartzman’s work.

As the sole Democrat on the FCC, Commissioner Mignon Clyburn said,

Today we took yet another step towards #PhoneJustice … I am grateful to the individuals who argued on behalf of justice for the inmates, their families and their legal representatives, and am confident that the court grasped the nuance of the legal arguments. Regardless of how the Court rules, I will continue to press forward to ensure that inmates and their families receive just, reasonable, and fair phone rates. Justice demands it, and so do I.

At a time when the Republican-led FCC abandons its role as the public’s advocate and will not defend rules aimed at helping our most vulnerable people, only someone like Andrew Jay Schwartzman – whose commitment transcends politics and elections – can be the voice of the public interest.

By Adrianne B. Furniss.