The FCC Capped Rates on Prison Phone Calls, Here’s What Needs to Happen Next

After more than 20 years of tireless advocacy by incarcerated people, their families, and their allies including EPIC, the FCC finally imposed meaningful caps on how much prison telecommunications companies can charge for prison phone and video calls. Rate caps and a ban on site commissions will help create a less corrupt and fairer market for prison telecoms. But we need much more aggressive regulation before incarcerated people, their loved ones, and their lawyers have reliable, affordable, and private communications. 

Inmates and Their Loved Ones Deserve Accessible, High-Quality Communications

To start, we need to know precisely what a just and compassionate prison telecommunications system would look like. Communication into jails, prisons, immigration detention centers, and secured mental health facilities (going forward we will refer to all these locations collectively as prisons unless we specify otherwise, but we do not wish to erase the distinctions between them) has remarkable benefits for inmates, their families, and society. In short, more communication leads to: better legal representation and fewer wrongful convictions, lower recidivism rates, increased well-being for children and families of inmates, better mental health for inmates, and in the long run safer and more transparent jails and prisons. Here are the key metrics any truly good prison phone system needs to meet:

• Prison telecommunications need to actually work
  • We live in the 21^st century where reliable phone calls, videoconferencing and email are ubiquitous, there is no excuse for substandard services in prisons
  • Telecommunications accounts and messages should move with inmates when they are transferred between facilities
• No one should be denied connection with their loved one or lawyer because of the cost of a phone call.
  • Calls should be cheap, and all inmates/families should receive a meaningful minimum amount of call time
  • Calls to and from lawyers should be free.
• Inmates should be guaranteed access to communication, regardless of status
  • All inmates should have regular, reliable call time regardless of lockdowns, solitary confinement or conditions of confinement
  • Prisons need to provide enough phones and enough hours of access that all inmates can regularly speak with their loved ones and lawyers
• People with disabilities should receive equal access to communications
  • Prisons and phone companies should provide free TRS services like speech-to-text transcription, reliable video for ASL, translators etc.
• Any surveillance must be limited to what prisons genuinely need to ensure safety
  • Conversations with lawyers, in any format, must be completely private
• Inmates have a right to receive original, physical mail and in-person visitation
  • Digital communications should never be used as a justification for limiting other forms of connection.  – A video visit is no substitute for an in-person visit
• E-messaging should be regulated, cheap, and functionally equivalent to email. 

The Martha Wright Reed Act Directs the FCC to Make Prison Phone Calls Cheaper

The Federal Communications Commission voted to enact regulations implementing the Martha Wright-Reed Just and Reasonable Communications Act. The new rules effectively halve the cost of phone and video calls to jails, prisons, and immigration detention centers. Incarcerated people, their friends, and families will save more than $500 million per year. 

Based on comments from EPIC and other advocates, the Commission adopted recommendations to: only charge inmates and their families for services that are “used and useful” to them, prohibit site commissions (kickbacks to jails that raise the cost of calls), cap the maximum allowable charges for voice and video calls, and guarantee free Telecommunications Relay Services for persons with disabilities.

This is a victory for consumers as it reduces costs, simplifies pricing, requires greater disclosures to consumers about their full options for paying for services, and strengthens accessibility requirements for incarcerated people with disabilities. Importantly, it also prohibits prison phone providers from charging inmates and their loved ones for the cost of their own surveillance, including biometric surveillance, as these represent discretionary needs of the facility and are not “used and useful” to the consumer making the phone or video call.

We Need to Limit Surveillance of Prison Communications

Policy Recommendation: introduce legislation and advance lawsuits that limit access to prison phone call data to prison administration, not police, prosecutors, or third parties.

Although the FCC has banned prison phone companies from charging customers for the costs associated with surveilling prison phone calls, there are no meaningful limits on how companies and prisons can spy on inmates and their loved ones. The carceral system and unethical companies have exploited a legitimate need for a limited amount of surveillance in prisons and loopholes in Fourth Amendment privacy rights to build a system of mass surveillance that harms millions of Americans. Prison phone calls, mail, and messages are regularly scanned by faulty algorithms, recorded forever in massive databases accessible beyond prison walls, and sold for profit. The upshot of this system has been uncountable harms to inmates, their loved ones, and often unrelated people swept up in the system. Today pay-for-access databases are used for warrantless surveillance, egregious breaches of attorney-client privilege, and stalking. 

To fix this system we need one simple rule: prison administrators should be able to view inmates’ communications enough for them to meet immediate safety and security needs at the prison and no one else should have access to those communications. Putting that rule into practice requires a little more detail: all inmate communications should be visible to prison authorities only for a limited amount of time, perhaps 3-6 months. And prisons should be limited in what tools they can use to analyze prison communications: AI and biometric call scanning, and flawed risk analysis tools  have no place in a safety-based prison telecoms system.

Second, inmates need secure and private communication with their lawyers, regardless of how they choose to communicate. Prison phone companies have failed egregiously to protect attorney-client privilege on phone calls. Companies routinely set up attorney registration programs that are impossible to use. Even if the system works, companies still fail to segregate and protect attorney calls. Today, there are no such protections for videoconferencing or e-messaging. If an inmate wants to message their lawyer, they do so knowing that the jail and likely prosecutors will be able to read those messages. There is no reason that prison phone companies could not provide secure, encrypted messaging between attorneys and clients. Indeed, many apps today offer both encrypted and unencrypted messaging options.

There Is No Just and Reasonable Rate for Poor Quality Services

Policy Recommendation: The FTC and FCC should both penalize prison phone companies that fail to meet minimum acceptable standards for dropped calls, call quality, and refunds.

Right now, prison phone and video calls just do not work very well. And the Martha Wright Reed Act does not direct the FCC to punish prison phone companies for poor call quality, intermittent service, and bad technological design. The FCC is just beginning to investigate call quality.^[1] Call quality in prisons is egregiously bad, and it has not gotten any better as technology has improved, if anything it’s gotten worse in the last few years. The FCC and FTC can both work to force companies to provide quality services.

Calls out of jails and prisons regularly drop, either before the call starts or in the middle of a call. This poor-quality service has terrible impacts on inmates. Often access to phones inside jails and prisons is extremely limited, inmates might get only one or two calls per day, or even one call per week. When an inmate’s call is dropped, that is a lost change to talk to a partner, child, a long-time friend, or even their lawyer. 

The switch to tablet-based phone calls has directly reduced call quality in many jails and prisons. Tablets are not equipped with handsets and are often placed in loud and crowded rec-rooms. That means inmates do not get privacy from guards or other inmates when making calls on tablets. Poorly placed tablets reduce call quality.

The psychological toll of faulty communication systems is tremendous. People in jails are isolated and often lack the basic information on their legal cases. This leads to confusion and anguish exacerbated by phone systems that barely work. The result is unnecessary precarity. After you hear the despair in someone’s voice because they don’t understand why they are in jail and can’t talk to their lawyer or loved ones, you can never un-hear it. 

The FCC and FTC Must Regulate E-Messaging 

Policy Recommendation: Congress should bolster the FCC’s authority with an amendment to the Martha Wright Reed Act, directing the agency to enact rate caps on E-messages. The FTC should act now to address double-charging schemes and other exploitative behaviors.

Today, electronic messaging to and from inmates is expensive, faulty, and exploitative. That needs to change. The Martha Wright Reed Act carved out E-Messaging from the new rate caps. Congress should direct both the FCC and the FTC to aggressively investigate and regulate E-Messaging to prevent a repeat of the disastrous prison phone marketplace. 

E-messaging functions as a hybrid of texting and email. Inmates and their loved ones have to pay by the message and message length is often capped at 2,500 characters. Messages are hard to view and often inmates are charged by the minute to use the tablet to read incoming messages. Ultimately, the cost of sending E-Messages is grossly disproportionate to the cost of providing that service. E-messaging is a cash cow for prison phone companies.

With rates capped on phone and video calls, prison phone companies are going to look for other ways to exploit inmates and their families to maximize profits. E-messaging is an easy target because it is so beneficial and convenient that the companies will have tremendous ability to price-gouge. The FCC has the authority to regulate E-Messaging as part of its mandate to regulate prison telecommunications. And the FTC has the authority to regulate unfair and deceptive practices. Egregiously high rates, unwarranted delays, and double-charging for services all fall under the FTC’s “unfairness” authority. There is plenty of work for both agencies to rein in unjust and exploitative pricing and poor-quality services. 

Alternative Pricing Schemes Are A Serious Risk to Consumers

The FCC’s Martha Wright Reed Act implementation gave prison phone companies something they have wanted for a long time, the option to sell “alternative pricing schemes”. These schemes are either bundles for a package of set-duration calls on a prison phone or videoconferencing account, or a monthly unlimited plan. Prison phone billing would look a lot more like a regular wireless plan. While that sounds good in concept, the Martha Wright Reed Act’s rate caps only apply to per-minute services, so companies may look to alternative pricing plans to further gouge consumers.

Companies could try to exploit alternative pricing schemes in two ways. First, they could simply charge more for bundles of calls than the rate caps allow, and hope to avoid getting caught. When call prices can vary prison-by-prison, there is a lot of room for small violations to slip through the cracks. This type of behavior is prohibited by the FCC’s new rules under the Martha Wright Reed Act, but it offers a tempting route for companies to wholly evade the FCC’s new regulations. The FCC can easily police this kind of price gouging. The agency could simply compare the cost of bundled call plans to the rate caps and ensure that consumers are getting a fair shake. Policing bundled plans would require extra time and attention from the FCC, but it wouldn’t take the agency outside of its’ normal practices.

However, phone companies could also maximize profit from alternative pricing schemes by decreasing the quality and availability of service. Inmates and their families may end up paying for calls that they can’t actually use. For bundled plans, where people pay-per-call, companies could gouge consumers with calls that drop early. Companies would be stealing back time and forcing the consumer to buy more calls to make up for drops. And similar concerns exist with unlimited plans. Inmates often have restricted access to phones, making it possible for companies to charge them for useless unlimited plans. Some jails and prisons operate with planned lockdowns to account for understaffing or otherwise cut costs. These lockdown schemes have denied inmates regular phone access. Inmates in solitary confinement or so-called mental-health units also often lose phone access. It is unfair to charge inmates and their families for calls that they functionally cannot use. 

This more opaque form of price gouging would be very difficult for the FCC to effectively regulate. Prison telecoms already have notoriously bad customer service and refund policies. For years they stole funds from unused accountsinstead of returning that money to consumers. And the FCC would have no way to tell beforehand if people are being bilked. From a birds-eye view bundles and unlimited plans will often look like a great deal. Instead, the FCC would be stuck going jail-to-jail and prison-to-prison trying to determine whether consumers were getting their money’s worth. The tradeoff might be there if unlimited plans offered a good enough value, and the FCC is willing to investigate aggressively. 

But in an industry of known bad actors, there is bound to be abuse. 

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^[1] FCC IPCS Martha Wright Reed Act Implementation, FCC 24-75 at pp. 573, 613-16, https://docs.fcc.gov/public/attachments/FCC-24-75A1.pdf.