FCC backs away from key provision of rules limiting prison phone-call rates

In a letter to the U.S. Court of Appeals for the D.C. Circuit, attorneys for the FCC said the agency would no longer defend in court a key provision of the commission's rules capping the cost of in-state phone calls for prisoners.

USCA Case #15-1461

Document #1658521

Filed: 01/31/2017

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Federal Communications Commission
Washington, D.C. 20554
January 31, 2017

Mark J. Langer, Clerk
United States Court of Appeals
for the District of Columbia Circuit
333 Constitution Avenue, NW Room 5523
Washington, DC 20001
Re: Global Tel*Link, et al., No. 15-1461 & consolidated cases
Dear Mr. Langer
As the Court is aware, argument is set in these cases on February 6. I will be
presenting the Commissionas argument in this matter.
The Order under review was adopted by a 3-2 vote on October 22, 2015.
Since then, there have been significant changes in the composition of the
Commission. In particular, two commissioners who voted for the Order recently
have left the Commission (Commissioner Rosenworcel on January 3, 2017, and
Chairman Wheeler on January 20, 2017). On January 23, 2017, Commissioner Pai
was designated FCC Chairman.
As a result of these changes in membership, the two Commissioners who
dissented from the Order under reviewaon the grounds that, in specific respects, it
exceeds the agencyas lawful authorityanow comprise a majority of the
Commission. See Dissenting statement of Commissioner Pai; see also Dissenting
statement of Commissioner OaRielly.
In particular, a majority of the current Commission does not believe that the
agency has the authority to cap intrastate rates under section 276 of the Act. I am
therefore informing the parties and the Court that we are abandoning, and I am not
authorized to defend at argument, the contentionacontained in Section I of our
briefathat the Commission has the authority to cap intrastate rates for inmate
calling services.
If the Court reaches the issue, we are also abandoning, and I am also not
authorized to defend, the argument (contained in a portion of section III.B of the

USCA Case #15-1461

Document #1658521

Filed: 01/31/2017

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brief) that the Commission lawfully considered industry-wide averages in setting
the rate caps contained in the Order.
I will continue to defend at oral argument the significant remaining portions
of the Order pursuant to the brief respondents filed in these cases.
Given that the governmentas position at argument has changed, the
Commission has ceded ten minutes of its allotted argument time to Mr.
Schwartzman, counsel for the aWright Petitionera intervenors, who will be
prepared to defend all aspects of the Order.

Respectfully submitted,
/s/ David M. Gossett
David M. Gossett
Deputy General Counsel
cc: counsel of record per ECF

USCA Case #15-1461

Document #1658521

Filed: 01/31/2017

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IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
GLOBAL TEL*LINK, et al.,
Petitioners,
v.
FEDERAL COMMUNICATIONS COMMISSION
and UNITED STATES OF AMERICA,
Respondents.

)
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) No. 15-1461 and
) consolidated cases
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CERTIFICATE OF SERVICE
I, David M. Gossett, hereby certify that on January 31, 2017, I electronically
filed the foregoing Letter with the Clerk of the Court for the United States Court of
Appeals for the D.C. Circuit by using the CM/ECF system. Participants in the case
who are registered CM/ECF users will be served by the CM/ECF system.

/s/ David M. Gossett
David M. Gossett
Deputy General Counsel
Federal Communications Commission