NORTH CAROLINA JOURNAL OF LAW & TECHNOLOGY
VOLUME 8, ISSUE 1: FALL 2006
THE BIG DISCONNECT:
WILL ANYONE ANSWER THE CALL TO LOWER
EXCESSIVE PRISONER TELEPHONE RATES?
Ben Iddings1
As the American prison population has exploded in the last
quarter century, the prison telephone industry has grown into a
billion-dollar market. Telecommunications companies are granted
statewide prison monopolies that subject prisoners’ loved ones to
grossly inequitable telephone charges. As a result, many families
become saddled with outrageously high phone bills. Phone
companies defend these rates as necessary to cover government
required security-enhancing technology.
However, evidence
indicates that these excessive rates are a product of the generous
commissions companies pay to states, in exchange for exclusive
service contracts. This Comment analyzes current telephone
policies in several state prison systems, discussing the relative
strengths and shortcomings of each policy. This Comment will
also discuss and critique potential legislative, regulatory, and
judicial approaches to addressing the problem.

1

J.D. Candidate, University of North Carolina School of Law, 2008. The
author would like to thank Jack Jirak and everyone at the North Carolina Journal
of Law & Technology for all their hard work in getting this issue ready for
publication. Special thanks to Peter Wagner, Executive Director of Prison
Policy Initiative; Frank Krogh, Morrison & Foerster LLP; and Paul Wright,
Editor of Prison Legal News.

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“We must not exaggerate the distance between ‘us,’ the lawful
ones, the respectable ones, and the prison and jail population; for
such exaggeration will make it too easy for us to deny that
population the rudiments of humane consideration.”2
—Chief Judge Richard Posner
I. INTRODUCTION
On Christmas Day Missouri resident Janet Logan talked to her
husband on the phone for nearly two hours. MCI charged her
$49.80 for the call. Her entire phone bill that month was $724.24.3
Rae Walton, who lives just outside New York City, has a grandson
upstate serving a fifteen-year sentence on an assault charge.
“When the phone bill comes, I look at it and weep . . . [a]nd then I
pay the bill because I don’t want to jeopardize the line of
Texas resident Janie Canino has a son
communication.”4
incarcerated in Louisiana and is forced to “struggle to keep food on
the table and pay the phone bill.”5 While on spring break, Karen
Wilson’s eighteen-year-old son was convicted of felony tampering
with evidence for swallowing a misdemeanor amount of
marijuana. During her son’s first ten months in Panama City’s Bay
2

Johnson v. Phelan, 69 F.3d 144, 152 (7th Cir. 1995) (Posner, C.J.,
dissenting).
3
C.D. Stelzer, Communication Shakedown, RIVERFRONT TIMES, July 21,
1999, http://www.riverfronttimes.com/Issues/1999-07-21/news/news_full.html
(on file with the North Carolina Journal of Law & Technology). The 250-mile
round trip visit to Algoa Correctional Center, where her husband is serving time,
takes Janet Logan eleven hours. Id.
4
Zachary R. Dowdy, Families Seek Cheaper Calls from Cells, NEWSDAY,
Aug. 26, 2005, at A40.
5
Brennan Center For Justice, FCC Urged To Lower Phone Rates for Prison
Inmates (Mar. 10, 2004), http://www.brennancenter.org/presscenter/releases_
2004/pressrelease_2004_0310.html (on file with the North Carolina Journal of
Law & Technology).
See also IMPLEMENTATION OF PAY TEL.
RECLASSIFICATION & COMPENSATION PROVISIONS OF THE TELECOMM. ACT OF
1996, Comments of the Ad Hoc Coalition for the Right to Communicate
Regarding Petition for Rulemaking or, in the alternative, Petition to Address
Referral Issues in Pending Rulemaking, Appendix A, FCC Docket No. 96-128
(Mar. 10, 2004), available at http://www.brennancenter.org/programs/cj/
coalition_fcc_comments.pdf (on file with the North Carolina Journal of Law &
Technology).

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County Jail,6 Ms. Wilson was billed $7,000 for phone calls from
her son.7
Inmates in many state prisons are only permitted to make
expensive collect calls using the services of companies with
exclusive contracts with their state’s prison system.8 These
monopolies have naturally resulted in exorbitant rates. A fifteenminute collect call from a state prison to a different area of the
6

While this Comment focuses on excessive collect call rates from state
prisons, similar problems exist in many county and local jails. See, e.g.,
Arsberry v. Illinois, 244 F.3d 558, 565 (7th Cir. 2001) (“[T]he very high price
charged anyone who wants to talk to an inmate over the phone is greatly in
excess of any additional cost to the phone companies or the prisons and jails of
allowing inmates to make collect calls.”). Bay County Jail is owned by
Corrections Corporation of American (CCA), a private entity which operates a
number of county jails and state prisons all over the country. See Corrections
Corporation of America, Facility List, http://www.correctionscorp.com/
facilitylist.cfm (last visited Oct. 12, 2006) (on file with the North Carolina
Journal of Law & Technology). CCA has been subject to a number of
challenges for excessive collect call rates. See, e.g., Wright v. Corr. Corp. of
Am., No. 00-293 (D.D.C. Aug. 22, 2001) (dismissing plaintiffs’ claims and
referring matter to the Federal Communications Commission).
7
New York Campaign for Telephone Justice, Family Stories,
http://www.telephonejustice.org/family_stories (last visited Oct. 20, 2006) (on
file with the North Carolina Journal of Law & Technology).
8
See, e.g., Justin Carver, An Efficiency Analysis of Contracts for the Provision
of Telephone Services to Prisons, 54 FED. COMM. L.J. 391, 392 (2002) (“One of
the more lucrative segments of this industry is the telephone market. In the
prison context, the state contracts with a private entity, and the private entity
provides services to the prisoners and also to the state. To the extent that the
services are provided to the prisoners, the relationship resembles a third party
beneficiary contract. Due to the perverse financial incentives and the political
climate surrounding prisons and prisoners, however, neither the state nor the
private entity acts in the best interests of the consumers in particular or of
society in general.”); see also John Sullivan, New York State Earns Top Dollar
From Collect Calls by Its Inmates, N.Y. TIMES, Nov. 30, 1999, at A1 (“New
York State is reaping financial bonanza from collect telephone calls from prison
inmates to relatives . . . . [The] state made $21 million from collect phone calls
in 1998 . . . one of [the] highest totals in country.”); Celeste Fremon, Crime Pays
. . . The Phone Company and the State, L.A. WEEKLY, June 20, 2001, at 32
(“Inmate calls operate on a collect-only basis, and are administered exclusively
by the vendors who’ve won contracts with the state—currently, MCI WorldCom
and Verizon. The collect calls they administer under their present contract are
among the most expensive phone calls in the world.”).

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same state can be as high as $17.77.9 In effect, these collusive
arrangements between private phone companies and state prison
systems encourage price gouging. “In exchange for exclusive
contracts guaranteeing a steady high volume of expensive collect
calls, states receive commissions ranging from eighteen to sixty
percent—i.e., kickbacks—from their prison phone service
providers.”10
Over the course of the last two decades, a number of factors
have combined to produce this exceptional species of legal
inequity for which the traditional avenues of recourse to justice
seem utterly ineffective. To date, little scholarship has been
devoted to the unfair rates charged for collect calls made from
prisons.11 In fact, only three law journals have published articles
9

The Campaign to Promote Equitable Telephone Charges, Current Status by
State, http://www.etccampaign.com/etc/current_status.php [hereinafter eTc—
Current Status] (showing the rates for each state where Washington and Arizona
both have the highest) (last visited Oct. 20, 2006) (on file with the North
Carolina Journal of Law & Technology). See also Nicholas H. Weil, Dialing
While Incarcerated:
Calling for Uniformity Among Prison Telephone
Regulations, 19 WASH. U. J.L. & POL’Y 427, 429 n.7 (2005) (“I may get two to
three collect calls a week from inmates. One month, my collect calls from
prisoners was [sic] over $500 a month. . . . It’s cheaper to call Africa or
Europe.”) (quoting JOINT COMM’N ON PRISON CONSTR. & OPERATIONS, CAL.
LEGISLATURE, Pub. No. 1150-S, PAYPHONES IN PRISON FACILITIES 47 (2001–
02) (statement of Pastor Andrew Robinson-Gaither, Faith United Methodist
Community Church, L.A.)).
10
Madeleine Severin, Is There a Winning Argument Against Excessive Rates
For Collect Calls From Prisoners?, 25 CARDOZO L. REV. 1469, 1469 (2004)
(citing Justice Council, Comm. on Corr., Fla. H.R., Maintaining Family Contact
When a Family Member Goes to Prison: An Examination of State Policies on
Mail, Visiting, and Telephone Access 28 (1998), http://www.fcc.state.fl.us/
fcc/reports/family.pdf). While there has been little legal scholarship written on
this topic, Madeleine Severin’s article does a great job making up for that fact.
In her comprehensive article on the subject, Severin examines all the legal
arguments that have been used to attack high prison collect call rates, as well as
the doctrines and counterarguments that judges have used in continuing to allow
these high rates. This Comment builds heavily upon her exhaustive study.
11
See, e.g., Steven J. Jackson, Ex-Communication: Competition and
Collusion in the U.S. Prison Telephone Industry, 22 CRITICAL STUD. IN MEDIA
COMM. 263, 263 (Oct. 2005) (“The prison communication industries occupy a
large and significant blind spot within the literature of critical communication
scholarship and the social sciences more generally.”).

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on the subject.12 The most comprehensive of these law journal
articles, written by Madeleine Severin and published in a 2004
issue of the Cardozo Law Review, analyzes a number of recent
challenges to excessive prison collect call rates.13 In examining the
rulings of numerous courts, Severin correctly notes that challenges
to prison phone rates face an uphill battle given current Supreme
Court jurisprudence.14
However, Severin’s conclusion that
legislation is more effective than litigation in reducing rates15 is not
supported by a thorough examination of the impact that recent state
legislation—even well-intentioned state legislation—has had on
telephone rates. Severin is justified in being doubtful about the
chances of any court victories in the near future, but her conclusion
that “legislation is a more appropriate way to provide relief to call
recipients, and would almost certainly be more effective than
further litigation,”16 does not take into account the “negative
political leverage” of prisoners and their families, the widely
12

See Carver, supra note 8; Severin, supra note 10; Weil, supra note 9.
See Severin, supra note 10, at 1469.
14
Id. at 1514–23. So far, courts have rejected all constitutional challenges to
high inmate collect call rates. See Severin, supra note 10, at 1514 (relying on
principles consistent with the Supreme Court’s “legitimate penological interests”
standard set forth in Turner v. Safley, 482 U.S. 78, 89 (1987), and used today to
determine the constitutionality of prison regulations); see also Weil, supra note
9, at 442 (citing Overton v. Bazzetta, 539 U.S. 126 (2003); Shaw v. Murphy,
532 U.S. 223 (2001); Abigail E. Robinson, Comment, Treating the Sex Offender
at Any Cost: Fifth Amendment Privilege Against Compelled Self-Incrimination
in the Prison Context, 42 WASHBURN L.J. 725, 737–38 (2003)).
Courts are very deferential to decisions made by state correctional institutions.
Under Safley and its progeny, “when a prison regulation impinges on inmates’
constitutional rights, the regulation is valid if it is reasonably related to
legitimate penological interests.” Safley, 482 U.S. at 89. Safley delineates a
four-part framework for analyzing the constitutionality of a particular prison
regulation. See id. However, defendants usually win constitutional challenges
to prison conditions based on the first “legitimate penological interests” prong of
Safley. See, e.g., Pargo v. Elliott, 894 F. Supp. 1243, 1252 (S.D. Iowa 1995),
aff’d, 69 F.3d 280 (8th Cir. 1995) (quoting Klinger v. Dep’t of Corr., 31 F.3d
727, 733 (8th Cir. 1994)) (“[I]nter-prison program comparison ‘results in
precisely the type of federal court interference with and ‘micro-management’ of
prisons that Turner [v. Safley] condemned.’”).
15
Severin, supra note 10, at 1528.
16
Id. at 1532.
13

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varied political climates in individual states, and the sheer
enormity of state laws and institutional habits that must be altered
in order to effect such change.17
This Comment will examine the various legal issues
surrounding unjust prison phone rates and forecast possible
avenues to change. Part II will give a brief background of the
prison telephone industry. It will demonstrate how excessive
phone rates harm the families of prisoners as well as society at
large. Part III will explain how rapidly evolving technological
tools have significantly altered the framework of the issue. This
section will also include a discussion about how state kickbacks,
rather than telephone system technology and maintenance costs,
are largely to blame for the unjust rates. Part IV will highlight
both the best and the worst prison phone policies in the nation and
will also shed light on the unfortunate fact that state legislation is
an ineffective means of lowering inmate phone rates. Part V will
examine the efforts made to rectify the problem at the federal
regulatory level, calling attention to an ongoing proceeding before
the Federal Communications Commission and the overall effect
these proceedings are likely to have on the problem. Finally, Part
VI will weigh the likelihood of any future legal victories given the
major obstacles that court challenges now face. It will also explore
the indirect, yet important role that litigation can play in helping a
reform movement gain favorable publicity and mobilize political
support.

17

Alec C. Ewald, An “Agenda for Demolition”: The Fallacy and the Danger
of the “Subversive Voting” Argument for Felony Disenfranchisement, 36
COLUM. HUM. RTS. L. REV. 109, 141 (2004) (citing Alexander Keyssar, THE
RIGHT TO VOTE: THE CONTESTED HISTORY OF DEMOCRACY IN THE UNITED
STATES 308 (2000)); see also Regina Austin, “The Shame of It All”: Stigma
and the Political Disenfranchisement of Formerly Convicted and Incarcerated
Persons, 36 COLUM. HUM. RTS. L. REV. 173, 180 (2004) (“[T]he stigma of
incarceration . . . [is] not reserved for offenders; as recent empirical and
ethnographic research confirms, the families of convicted and incarcerated
persons experience a significant stigma as well.”).

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II. BACKGROUND
A. The Rise of the Prison Telephone Industry
Beginning in the 1980s, the prisoner population in the United
States expanded rapidly, ballooning from less than 320,000 in
1980 to nearly 1.47 million by 2003.18 “Expanded to include
individuals serving time on parole or probation, the total
population under state supervision by 2003 had reached 6.9
million, or approximately 3.2% of the adult U.S. population.”19 As
the prison population has grown, incarceration of adult offenders
has become big business in the United States.20 The provision of
telephone services to this expanding prison population represents a
significant business opportunity. “By the 1990s, the prison
telephone sector had grown into a billion-dollar market.
Businesses—and states—wanted a piece of the action.”21
18

Jackson, supra note 11, at 266.
Id. (citation omitted).
20
Eric Schlosser, The Prison-Industrial Complex, THE ATLANTIC MONTHLY,
Dec. 1998, at 51, 63–64. In his Atlantic Monthly article, Eric Schlosser exposes
the role of the profit motive in our nation’s recent prison boom:
One clear sign that corrections has become a big business as well as a
form of government service is the emergence of a trade newspaper
devoted to the latest trends in the prison and jail marketplace.
Correctional Building News has become the Variety of the prison
world, widely read by correctional officials, investors, and companies
with something to sell. Eli Gage, its publisher, . . . believes that
despite recent declines in violent crime, national spending on
corrections will continue to grow at an annual rate of five to [ten]
percent.
Id. at 64.
21
Jackson, supra note 11, at 267; see also Schlosser, supra note 20, at 63.
The black-and-white photograph shows an inmate leaning out of a
prison cell, scowling at the camera, his face partially hidden in the
shadows. ‘HOW HE GOT IN IS YOUR BUSINESS,’ the ad copy
begins. ‘HOW HE GETS OUT IS OURS.’ The photo is on the cover
of a glossy brochure promoting AT&T’s prison telephone service,
which is called The Authority. Bell South has a similar service, called
MAX, advertised with a photo of a heavy steel chain dangling from a
telephone receiver in place of a cord. The ad promises ‘long distance
service that lets inmates go only so far. . . .’ It is estimated that inmate
calls generate a billion dollars or more in revenues each year. The
19

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As many public law scholars have pointed out, there is
“something fundamentally unjust about families of prisoners being
charged outrageous prices solely because they accept collect calls
from people in prison.”22 As early as 1996, the American
Correctional Association (ACA), a group of leaders in the
correctional profession, passed a resolution opposing high collect
call rates in prisons, noting that “[c]orrectional agencies should
discourage profiteering on tariffs placed on phone calls which are
far in excess of the actual cost of the call, and which could
discourage or hinder family or community contacts.”23 Nine years
later, the American Bar Association adopted recommendations
urging that the “lowest possible rates” be made available for
prisoners and their families.24
In addition to being “deeply objectionable on both ethical and
social policy grounds,”25 excessive rates are inefficient,
anticompetitive, and contrary to the principles of a free market
economy.26
University of Michigan School of Information
Professor Stephen J. Jackson has noted that:

business has become so lucrative that MCI installed its inmate phone
service, Maximum Security, throughout the California prison system at
no charge. As part of the deal it also offered the California Department
of Corrections a 32 percent share of all the revenues from inmates’
phone calls. MCI Maximum Security adds a $3.00 surcharge to every
call. When free enterprise intersects with a captive market, abuses are
bound to occur. MCI Maximum Security and North American
Intelecom have both been caught overcharging for calls made by
inmates and in one state MCI was adding an additional minute to every
call.
Schlosser, supra note 20, at 63.
22
Severin, supra note 10, at 1535.
23
A.B.A., CRIM. JUST. SEC., REPORT WITH RECOMMENDATION TO THE A.B.A.
HOUSE OF DELEGATES 3 n.6 (2005), http://www.abanet.org/crimjust/policy/
am05115b.pdf (quoting AM. CORR. ASS’N, OCT. 1996 RESOLUTION ON
EXCESSIVE PHONE TARIFFS, (1996)) (last visited Nov. 4, 2006) (on file with the
North Carolina Journal of Law & Technology).
24
Id. at 1.
25
Jackson, supra note 11, at 276.
26
See generally Carver, supra note 8.

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Whatever their merits in the larger telecom world, incentives to
competition within the prison telephone industry have proven
fundamentally perverse. Armed with a uniquely effective monopoly
sourcing power, county, state, and federal officials have entered into
what amounts to profit-sharing agreements with telephone service
providers, exchanging exclusive service rights for large commissions
paid back into state funds. Under such conditions, the incentives of
price competition have worked in precisely the opposite direction, with
companies offering the highest bids (in terms of rates and
commissions) routinely awarded contracts, the costs of which are
passed on to the (literally) captive market.27

However, courts have been reluctant to intervene,28 and
“legislators wanting to appear tough on crime” have been hesitant
to be perceived as advocating for inmates and their families—a
demographic of minimal political influence.29 Few in government
believe that these high rates make good policy, but only a small
number of government officials—and, so far, no judges—have
been willing to make concrete changes. Not only are courts
reluctant to interfere with state prison policy and the setting of
telephone rates,30 but far too often state legislators and corrections
officials have been unable and unwilling to give up the money they
receive from commission kickbacks.31

27

Jackson, supra note 11, at 269.
See Severin, supra note 10, at 1471 n.10 (“Courts have not, to date, granted
relief in any of the twenty-two cases challenging prison phone rates addressed in
this Note.”).
29
Id. at 1533.
30
See, e.g., Arsberry v. Illinois, 244 F.3d 558, 562 (7th Cir. 2001) (noting that
telephone rate-setting is “a task [courts] are inherently unsuited to perform.”).
31
Ryan McNeil, Phone Costs for Inmates Examined, THE OKLAHOMAN, Dec.
1, 2003, at 1A, 3A.
[Prison telephone] contracts are worth less than $1 million to the state
general fund but about $2 million for the prison system.
‘I don’t know if the Legislature is willing to make up the difference,’
said state Corrections Department spokesman Jerry Massie, who said
commissions from phone calls staved off three furlough days for 4,600
employees. ‘The income we got certainly helped us out with a tough
fiscal year.’
Id.
28

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B. Whom Do Excessive Rates Harm?
1. Families
The families of prisoners experience a great deal of strain and
isolation as a result of incarceration. For many prisoners,
particularly the illiterate,32 phone calls provide a vital link to the
support structures of family and friends. Access to phones is even
more necessary because prisons are “often located in remote,
sparsely-populated towns” and that some “states save money by
transferring their inmates to prisons in other states.”33 In 2001,
over 1.5 million children in the U.S. had at least one incarcerated
parent.34 One out of every forty American children has a parent in
prison.35 A majority of the 100,000 plus36 women incarcerated in
U.S. jails and prisons are mothers of minor children.37 Sixty-five
percent of women in state prisons are mothers of minor children
32

Illiteracy rates are especially high in our nation’s prisons. See, e.g., Oregon
Literacy, Inc., The Lowdown on Literacy, http://www.oregonliteracy.org/about
literacy/stats.php (“Seven in [ten] prisoners preformed [sic] in the lowest two
literacy levels.”) (last visited Oct. 31, 2006) (on file with the North Carolina
Journal of Law & Technology).
33
Severin, supra note 10, at 1474 (“Currently, 500 Connecticut inmates are
incarcerated in Virginia and 1,400 Hawaiian inmates are incarcerated in
Oklahoma and Arizona prisons; in all, eleven states ‘export large numbers of
their inmates—a total of about 8,700’ of them—to other states.”) (citing
Associated Press, 11 States Export Inmates, Adding to Families’ Anguish, NEW
HAVEN REG., Jan. 18, 2004, at B10).
34
Carolyn Kleiner, Breaking the Cycle: Can the Children of Convicts Learn
Not to Be Like Their Parents?, U.S. NEWS & WORLD REP., Apr. 29, 2002, at 48,
available at http://www.usnews.com/usnews/culture/articles/020429/archive
_020689.htm.
35
See Family and Corrections Network, Children of Prisoners Library,
Introduction to Children of Prisoners, http://www.fcnetwork.org/cpl/CPL101Introduction.html (last visited Oct. 31, 2006) (on file with the North Carolina
Journal of Law & Technology).
36
CORR. ASS’N OF N.Y., WOMEN IN PRISON PROJECT, WOMEN IN PRISON
FACT SHEET, http://www.correctionalassociation.org/WIPP/publications/Women
_in_Prison_Fact_Sheet_2006.pdf (last visited Nov. 4, 2005) (on file with the
North Carolina Journal of Law & Technology).
37
U.S. DEP’T OF JUSTICE, NCJ 182335, BUREAU OF JUSTICE STATISTICS
SPECIAL REPORT: INCARCERATED PARENTS AND THEIR CHILDREN 2 (2000),
http://www.ojp.usdoj.gov/bjs/pub/pdf/iptc.pdf (last visited Oct. 27, 2006) (on
file with the North Carolina Journal of Law & Technology).

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and expect to resume their parenting role upon their release.38
Reasonable and fair access to telephone services is vitally
important to maintaining these familial connections.
2. Society at Large
However, families of the incarcerated are not the only parties
with an interest in more affordable prison phone rates; society as a
whole benefits when prisoners are granted open lines of
communication with their loved ones.39 A number of “recidivism
and community impact studies, some of which were used to justify
the introduction of prison calling in the first place[,] . . . have
found that a powerful predictor of re-offending is the failure to
maintain family and community contact while incarcerated.”40 In
allowing prison phone rates to remain prohibitively high,
policymakers effectively ignore such important recidivism
research. Every year, 680,000 prisoners are released back into the
general population.41 The ability of prisoners to keep in touch with
38

WOMEN’S PRISON ASSOCIATION (WPA), WPA FOCUS ON WOMEN AND
JUSTICE (2003), http://www.wpaonline.org/pdf/Focus_October2003.pdf (last
visited Oct. 30, 2006) (on file with the North Carolina Journal of Law &
Technology).
39
See, e.g., Jackson, supra note 11, at 272.
[A] reliable way of increasing the likelihood that prisoners will reoffend is to break all ties with the outside world and then place them
back on the street years later, with little reentry support . . . .
[N]umerous scholars have pointed to the wider social costs associated
with the disruption of family and community contact, in the form of
weakened parent/child relations and more general damage to
community social networks and authority structures. . . . [These costs
are borne] in the long run by society as a whole, through downstream
costs in policing, educational decline, and future costs passed through
the juvenile and adult correctional systems. To support a policy and
pricing regime that encourages precisely this outcome would seem to
amount to a staggeringly short-sighted piece of public policy.
Id. (citations omitted).
40
Jackson, supra note 11, at 272 (citations omitted). “Until the early 1970s,
inmates of the state and federal prison systems were limited to one collect call
every three months, granted at the discretion of correctional officials in response
to a formal petition process.” Id. at 267.
41
U.S. DEP’T OF LABOR, MANAGEMENT THAT MAXIMIZES THE MISSION: U.S.
DEP’T OF LABOR REPORT TO EMPLOYEES 16 (2006), http://www.dol.gov/

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loved ones impacts their ability to find support and a sense of
belonging while incarcerated. Research has shown that policies
that “facilitate and strengthen family connections during
incarceration” can “reduce the strain of parental separation, reduce
recidivism rates, and increase the likelihood of successful reentry.”42 The Federal Bureau of Prisons explicitly acknowledges
this fact in their telephone policy for federal prisoners:
“[t]elephone privileges are a supplemental means of maintaining
community and family ties that will contribute to an inmate’s
personal development . . . [and are] a valuable tool in the overall
correctional process.”43 Accordingly, reasonable prison phone
rates benefit the larger society as well as prisoners and their
families.44

dol/pma/2006report.pdf (last visited Oct. 27, 2006) (on file with the North
Carolina Journal of Law & Technology).
42
RE-ENTRY POLICY COUNCIL, REPORT OF THE RE-ENTRY POLICY COUNCIL
192 (2005), http://www.reentrypolicy.org/reentry/Download_the_Report_in_
PDF_Format.aspx (follow “Part Two, Chapter B: Prison- and Jail-Based
Programming” hyperlink) (citing Creasie Finney Hairston, Family Ties During
Imprisonment: Do They Influence Future Criminal Activity?, 52 FED.
PROBATION 48–52 (1998)) (last visited Oct. 27, 2006) (on file with the North
Carolina Journal of Law & Technology).
43
FED. BUREAU OF PRISONS, U.S. DEP’T OF JUSTICE, PROGRAM STATEMENT
NO. 5264.07, TELEPHONE REGULATIONS FOR INMATES 1 (Feb. 2, 2002),
http://www.bop.gov/DataSource/execute/dsPolicyLoc (follow “Browse Series”
hyperlink beside “Inmate and Custody Management”; then follow “Telephone
Regulations for Inmates” hyperlink) (on file with the North Carolina Journal of
Law & Technology).
44
See, e.g., Federal Offender Reentry and Protecting Children from Criminal
Recidivists: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland
Security of the H. Comm. on the Judiciary, 108th Cong. 7 (2004) (statement of
Rep. Portman) (“First and foremost, offender reentry is about preventing crime
and keeping our communities safe.”).

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III. COSTS ASSOCIATED WITH PRISON TELEPHONE SYSTEMS
A. Prison Telephone Technology
States and telecommunications companies justify their rates
based on the high costs of technology associated with the “extra
security measures phone companies must provide.”45 However,
prison telephone systems and the related security measures have
become less costly than—and are not considerably different
from—other telephone technologies widely used by the general
public.46 A comparison of rates offered by different prison systems
demonstrates that kickbacks, as opposed to the technological costs
associated with the telephone systems themselves, are responsible
for exorbitant long-distance rates. For instance, all federal

45

Severin, supra note 10, at 1475–76 (citing Ordinary Tariff Filing of MCI
WorldCom Communications to Change Maximum Sec. Rate Plan for N.Y. State
Dep’t of Corr. from a Mileage-Sensitive Structure for IntraLATA and
InterLATA to a Flat Rate Structure, No. 03-C-1058, 2003 N.Y. Pub. Util.
Comm’n LEXIS 616, at 35 (N.Y. Pub. Serv. Comm’n, Oct. 30, 2003)).
46
Severin, supra note 10, at 1476 (citing OFF. OF PERFORMANCE
EVALUATIONS, IDAHO LEG., INMATE COLLECT CALL RATES AND TELEPHONE
ACCESS: OPPORTUNITIES TO ADDRESS HIGH PHONE RATES 3 & n.6 (2001),
http://www.legislature.idaho.gov/ope/publications/reports/r0101.pdf (noting that
“officials with the Public Utilities Commission told us that phone carriers may
apply a fully-assisted operator rate for all inmate phone calls because of the
system’s added security features, even though all calls are processed with a
highly automated operator system”)).

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prisons,47 and some state prisons,48 offer “debit calling options as
an alternative to more expensive collect calls.”49
“Until 1984, the fledgling inmate telephone market remained
the exclusive purview of AT&T, and rates for operator-assisted
47

Id. at 1475 (citing FED. BUREAU OF PRISONS REPORT: STATE OF THE
BUREAU (2001)).
48
Id. (citing 28 VT. STAT. ANN. tit. 28, § 802a(c) (2003)). According to the
Campaign to Promote Equitable Telephone Charges, thirteen states now offer
the option of less expensive phone debit card calling: Colorado, Kansas,
Maryland, Minnesota, Nebraska, New Mexico, North Dakota, Oregon,
Pennsylvania, South Carolina, South Dakota, Tennessee, and Vermont. See The
Campaign to Promote Equitable Telephone Charges, A National Perspective on
Prison Telephone Systems, http://www.etccampaign.com/etc/national.php
[hereinafter eTc—National Perspective] (last visited Oct. 20, 2006) (on file with
the North Carolina Journal of Law & Technology).
49
Jackson, supra note 11, at 274. See also Wright Petition, infra note 54, at
*75 (“In summary, a debit card system can meet all of the same penological
requirements as a collect system.”).
In fact, when the Federal Bureau of Prisons first adopted their debit calling
system, some prisoners found it more restrictive than the older collect-call
system. See, e.g., Washington v. Reno, 35 F.3d 1093, 1095 (6th Cir. 1994).
The previous collect-call system used in the prisons allowed inmates to
make unlimited calls within the disciplinary restrictions of the penal
institution. By contrast, the new ITS system in effect at the time of the
district court proceedings afforded the inmates the opportunity to
purchase direct-dial phone credits at the prison commissary only once a
week and limited calls to conversations with individuals named on a
list of people approved by correction officials.
Id.
Furthermore, the Court of Appeals for the Sixth Circuit found that it was
inappropriate for federal prisons to use prison commissary funds “to finance the
purchase, installation, or operation of the [new debit phone] system to the extent
that those funds are primarily used to support the security function of the penal
institutions.” Id. at 1104.
Debit calls from prison are less costly to provide than collect calls. See, e.g.,
Wright Petition, infra note 54, at *26 (“[T]he cost of the long distance segment
would be still lower if only debit card or debit account service were provided.”)
(citing Billed Party Preference for InterLATA 0+ Calls, 13 F.C.C.R. 6122, 6156
(1998), modified, 16 F.C.C.R. 22314 (2001)). However, it is important to note
that debit cards do not guarantee lower rates because prisons are still free to
charge exorbitant rates for these services. See, e.g., eTc—Current Status, supra
note 9 (showing that Virginia’s debit rates are just as expensive as their collect
call rates).

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collect calling—the only form of service available to inmates—
kept pace with those for similar services.”50 It was only after the
1984 break-up of AT&T and the subsequent opening of the market
to other providers that companies started putting together service
packages specifically designed for prisons.51 MCI and Sprint were
on the forefront of this industry, but newcomers like Pay-Tel were
able to get a foothold by advertising services that would “best take
advantage of pending regulatory changes to enhance revenues and
increase our clients’ commissions.”52
Initially, the “special security requirements applicable to
inmate calls”53 generally involved live operators listening in on
telephone conversations.54 Today, technological advances allow
prison phone systems to automatically monitor and record all calls
without operator assistance; authorities are also able to later
analyze conversations using a computer interface.55 In addition,
these technologies prevent prisoners from calling phone numbers
that have not been pre-approved, thus minimizing opportunities for
criminal activity.56

50

Jackson, supra note 11, at 268.
See id.
52
Id. at 268–69 (citation omitted).
53
Billed Party Preference for InterLATA 0+ Calls, Second Report and Order
and Order on Reconsideration, 13 F.C.C.R. 6122, 6156, CC Docket No. 92-77
(1998).
54
See, e.g., Petition for Rulemaking Filed Regarding Issues Related to Inmate
Calling Services Pleading Cycle Established, 2003 FCC LEXIS 7261 at *57–58,
CC Docket No. 96-128, (Dec. 31, 2003) [hereinafter Wright Petition] (“For
many years . . . . only a live operator could satisfy the basic penological
requirement. . . . Live operators are no longer needed to meet this
requirement.”).
55
Id. at *55.
56
Id. at *56. Prison phone systems have four basic components: (1) a
switching platform which allows other information to be sent through phone
lines such as caller ID information; (2) a recording storage system; (3) a master
control system, which allows authorities to access the switching platform to
intervene in calls, calling patterns, etc.; and (4) software programming which
allows prison officials to easily interface with master control systems (different
software packages are available from different companies that meet different
needs). Id. at *54–56.
51

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Recently, technological advances have decreased the costs
associated with providing such security systems. Currently, “[t]he
technology and degree of human supervision . . . does not seem
appreciably different from the technology that makes caller I.D.
feasible, or the technology that makes it possible to block 900numbers from residential phones.”57
In today’s digital age, computer software and hardware have
become more advanced and less expensive with each passing
year.58 For instance, many corporations, especially those in
service-oriented industries, routinely make digital records of all
customer service telephone calls.59 In fact, there is an entire
industry, Customer Relation Management (CRM), that delivers
services technologically similar to that of a modern prison phone
system.60 Such technology appears to be capable of providing all
the functions of a prison telephone system at a minimal cost.61
57

Severin, supra note 10, at 1476 (citing OFF. OF PERFORMANCE
EVALUATIONS, IDAHO LEG., INMATE COLLECT CALL RATES AND TELEPHONE
ACCESS: OPPORTUNITIES TO ADDRESS HIGH PHONE RATES 3 & n.6 (2001),
http://www.legislature.idaho.gov/ope/publications/reports/r0101.pdf).
58
See Wright Petition, supra note 54, at *54 (“The size and cost of the storage
devices that can be used for [prison telephone systems] have drastically
decreased over time, and the cost continues to decline as digital storage
techniques improve year after year, with a seeming doubling in storage capacity
per dollar every 18 months or so.”).
59
See, e.g., CRM Today, Witness Systems Strengthens Leadership Position in
IP Recording (July 12, 2006), http://www.crm2day.com/news/crm/119288.php
(on file with the North Carolina Journal of Law & Technology).
60
See id. (“‘Witness Systems’ Impact 360 IP Recording solution allows
customers to record, notify and store calls for both quality and compliance
purposes. Further, the solution can scale down to single channel recording to
meet the needs of individuals or smaller businesses, and scale up to [meet] the
full-time recording requirements . . . .”).
61
See id. (“‘As a fully scalable and cost-effective solution, Impact 360 IP
Recording can meet the needs of organisations [sic] of all types and sizes.’”).
See also CRM Advocate, Witness Systems Delivers Enhancements, Drives
Down Total Cost of Ownership for IP Recording (July 25, 2006),
http://www.realmarket.com/news/witness072506.html (“Also new to Impact 360
IP Recording is tripled channel capacity, which results in fewer servers required
and therefore a lower total cost of ownership.”) (on file with the North Carolina
Journal of Law & Technology). AirGATE, AirGATE Develops VoIP System
for Inmate Telephones (Dec. 8, 2005), http://www.airgatetech.com/InTheNews/

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B. Commissions Drive the Prices More Than Operation Costs
Despite these technological advances,62 prison phone rates have
remained high, even increasing in some instances.63 MCI stated
that their high rates are based on “the added expense of providing
telephone service to prisons,”64 but the evidence belies such an
assertion.65
Large commissions paid back to state governments often
contribute to high phone rates.66 For instance, the Federal Bureau
of Prisons, which does not accept a commission from phone
providers, provides direct-dial, out-of-state debit calls at $0.17 per

PressReleases/Press_120805.DOC (“AirGATE Technologies, Inc., a wholly
owned subsidiary of the X-Change Corporation (OTCBB:XCHC), has
developed a VoIP add-on module for telephones in correctional facilities.
Inmates make over 1,000,000 collect phone calls per day, and VoIP can provide
greater efficiency and reduce costs.”) (on file with the North Carolina Journal of
Law & Technology).
62
See A. Michael Froomkin, The Death of Privacy?, 52 STAN. L. REV. 1461,
1463 (2000) (“[B]oth the state and the private sector now enjoy unprecedented
abilities to collect personal data, and that technological developments suggest
that costs of data collection and surveillance will decrease, while the quantity
and quality of data will increase.”).
63
See, e.g., Excessive Telephone Fees, NCPLS ACCESS (Newsletter of N.C.
Prisoner Legal Services, Inc., Raleigh, N.C.), June 2006, at 9, available at
http://www.ncpls.org/Access/june06.pdf (“[F]rom 1997 through 2000, AT&T
raised its interstate long distance inmate service rates 57%.”) (last visited Oct.
20, 2006) (on file with the North Carolina Journal of Law & Technology).
64
Stelzer, supra note 3 (“‘Rates are based on the cost of providing the service
to the state,’ says Greg Blankenship, a spokesman for MCI in McLean, Va. ‘I
might also point out that the rates charged for inmate calls are competitive with
operator-assisted collect calls paid by consumers at the corner pay phone.’”).
65
See infra Parts IV(A)–(C).
66
See, e.g., JUSTICE COUNCIL, COMM. ON CORR., FLA. H.R., MAINTAINING
FAMILY CONTACT WHEN A FAMILY MEMBER GOES TO PRISON: AN
EXAMINATION OF STATE POLICIES ON MAIL, VISITING, AND TELEPHONE ACCESS
28 (1998), http://www.fcc.state.fl.us/fcc/reports/family.pdf (“In fact, 11 of the
12 states with the largest correctional populations receive a commission from
telephone contracts, ranging from 18%–60%. Only one of these 12 states,
Texas, reported receiving no commission money, predominately because
inmates in Texas may only make one call every 90 days.”) (last visited Oct. 31,
2006) (on file with North Carolina Journal of Law & Technology).

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minute.67 Similarly, the Nebraska Department of Corrections,
which also does not accept commissions, provides out-of-state
debit calling at $0.16 per minute.68 By contrast, the contract that
MCI has with Arkansas prisons sets the interstate long distance
rate at $0.89 per minute in addition to a $3.95 connection fee.69
Interestingly, MCI offers the same service to Missouri prisons for
only $0.45 per minute, plus a $2.45 surcharge.70 The reason for the
disparities is clear: Missouri’s Department of Corrections stopped
accepting commissions on prison telephone charges in 1999.71

67

See IMPLEMENTATION OF PAY TEL. RECLASSIFICATION & COMPENSATION
PROVISIONS OF THE TELECOMM. ACT OF 1996, Comments of the Ad Hoc
Coalition for the Right to Communicate Regarding Petition for Rulemaking or,
in the alternative, Petition to Address Referral Issues in Pending Rulemaking,
Appendix A, FCC Docket No. 96-128 at 11 (Mar. 10, 2004), available at
http://www.brennancenter.org/programs/cj/coalition_fcc_comments.pdf (citing
U.S. Dep’t of Justice, Fed. Bureau of Prisons, Memorandum For All Inst.
Controllers All Trust Fund Supervisors, from Michael A. Atwood, Chief, Trust
Fund Branch, Trust Fund Message Number 18-02 (Feb. 8, 2002) at 2) (on file
with North Carolina Journal of Law & Technology).
68
The Campaign to Promote Equitable Telephone Charges: More About eTc,
http://www.etccampaign.com/etc/more.php [hereinafter eTc—More About] (last
visited Oct. 27, 2006) (on file with the North Carolina Journal of Law &
Technology).
69
Doug Smith, Government Finds New Ways to Provide Services: Private
Enterprise Finds New Ways to Make a Profit, ARK. TIMES, June 16, 2005, at A1,
available at http://www.arktimes.com/Articles/ArticleViewer.aspx?ArticleID
=60808a91-3f4d-4884-aa2b-d094d2b6e266 (on file with the North Carolina
Journal of Law & Technology).
70
IOWA LEGISLATIVE FISCAL BUREAU, ISSUE REVIEW, DEP’T OF CORR.: TEL.
REBATE FUND 4 (2001), http://www.legis.state.ia.us/lsadocs/issreview/2001/
ir218b.pdf (last visited Oct. 30, 2006) (on file with the North Carolina Journal of
Law & Technology).
71
Id.

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IV. COMPARISON OF SELECTED STATES’ PRISON PHONE RATES72
A. States with Relatively Low Prison Telephone Rates
Prison phone legislation tends to be unpopular and very hard to
pass.73 Even when they do become law, they do not significantly
reduce excessive rates.74 The following examples demonstrate that
most affordable rates have little to do with state legislatures.
1. Nebraska
Nebraska has the country’s most inexpensive prisoner phone
rates.75 A fifteen-minute local collect call costs $1.00 and a
fifteen-minute out-of-state collect call costs $3.75.76 Prisoners also
have the option to make calls through an even more inexpensive
direct-dial debit account system.77 These low rates result from
administrative policy decisions regarding the role of family and
community contact play in the rehabilitation process.78 The
Nebraska Department of Corrections has chosen not to accept
commissions in order to make prison telephone calls as affordable
as possible.79

72

Statistics provided by the Campaign to Promote Equitable Telephone
Charges. See eTc—National Perspective, supra note 48. Because rates were
last updated in August 2005, precise rankings may be slightly different at
present. See eTc—More About, supra note 68. Rankings should, therefore, be
construed as ballpark figures for policy analysis purposes.
73
See infra Parts IV(A), (B).
74
See infra Parts IV(A), (B).
75
eTc—National Perspective, supra note 48.
76
eTc—Current Status, supra note 9.
77
See id.
78
See, e.g., NEB. ADMIN. CODE § 81-8 (2005), available at http://www.sos.
state.ne.us/business/regsearch/Rules/Law_Enforcement_and_Criminal_Justice/T
itle-81/Chapter-8.pdf (“It is the policy of the State of Nebraska that all detention
facilities shall, to the best of their ability, offer a range of rehabilitative services
and programs of benefit to the inmates to assist in their successful reintegration
into the community.”) (last visited Oct. 31, 2006).
79
IOWA LEGISLATIVE FISCAL BUREAU, ISSUE REVIEW, DEP’T OF CORRS.: TEL.
REBATE FUND 4 (2001), http://www.legis.state.ia.us/lsadocs/IssReview/2001/
IR218B.pdf (last visited Oct. 30, 2006) (on file with the North Carolina Journal
of Law & Technology).

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2. Washington, D.C.
Correctional institutions run by the nation’s capital charge a
flat rate for all local and long-distance calls ($3.00 for fifteen
minutes).80 While the rates are somewhat expensive for local calls,
D.C.’s out-of-state rates are even cheaper than Nebraska’s. The
rates in D.C. are governed by a local statute that prevents prisons
from charging a commission on collect calls and thus represents a
rare legislative success.81 However, D.C.’s law making body—
which is arguably more similar to a city council than a state
legislature—is almost entirely governed by a single party.82 As
such, this legislation should be viewed as an anomaly.
3. West Virginia
West Virginia’s Division of Corrections (DOC) has also made
affordable prison phone rates an institutional priority. The DOC
code requires that “[t]elephone facilities shall be provided to
permit reasonable and equitable access to all inmates.”83
Accordingly, state corrections officials selected a service provider,
Global Tel*Link, which agreed to a contract giving prisoners and
their families the third lowest collect-call rates in the country.84
4. New Hampshire
New Hampshire provides inmates with the fourth lowest
collect-call rate schedules in the country.85 However, the rates in
New Hampshire are not a result of state legislation. In fact, state
legislators have been unwilling to consider whether the rates were
problematic. A 2001 bill seeking to establish “a committee to
80

eTc—Current Status, supra note 9.
D.C. CODE § 24-263.01 (2006).
82
DCWatch, Carol Schwartz-Biographical Data, http://www.dcwatch.com/
archives/election98/schwartz-1.htm (last visited Oct. 27, 2006) (on file with the
North Carolina Journal of Law & Technology). See also Lori Montgomery,
D.C. GOP Chooses a Gay Chairman, THE WASH. POST, Dec. 16, 2004, at T2,
available at http://www.washingpost.com/wp-dyn/articles/A1638-2004Dec15.
html (“Added at-large council member Carol Schwartz [is] the only Republican
on the 13-member D.C. Council . . . .”).
83
W. VA. CODE R. § 95-2-17.11.1 (2006).
84
eTc—National Perspective, supra note 48.
85
Id.
81

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study the cost of telephone calls from state prison inmates to their
families” failed to gain support.86
The State Division of Plant and Property Management is
responsible for the state’s low rates. Although New Hampshire
does receive some of the telephone revenue, the Division of Plant
and Property Management has refused to accept commissions in
excess of 20% and, as a matter of policy, will not contract with
service providers that charge inmates over $0.21 per minute.87
Interestingly, New Hampshire’s service provider, Public
Communications Service (PCS), charges inmates in New Mexico,
a state that has successfully enacted legislation on prisoner collectcall rates,88 over twice the amount of money for a fifteen-minute
collect call.89 Such a difference demonstrates that state legislation
is not an effective means of providing relief to recipients of collect
calls from state correctional facilities.
5. Missouri
Missouri’s rates are the fifth lowest in the United States.90
Missouri was able to provide such low rates without any state
legislation or new regulations.91 After learning about the collectcall kickbacks their state was receiving during an appropriations
hearing, Missouri Democratic Senator Wayne Goode and
86

H.R. 1418, 2d Sess. (N.H. 2001).
NEW HAMPSHIRE DIVISION OF PLANT AND PROPERTY MANAGEMENT,
BUREAU OF PURCHASE AND PROPERTY, PROPOSAL FOR INMATE AND PAY
TELEPHONE SERVICES, GENERAL TERMS AND CONDITIONS FOR PROPOSAL,
Proposal No. 523, Attachment A § 3, § 1 (Mar. 15, 2003), available at
http://admin.state.nh.us/purchasing/rfp_523_06.pdf (on file with the North
Carolina Journal of Law & Technology).
88
N.M. STAT. ANN. § 33-14-1 (2003) (providing that prison telephone
contracts shall be awarded to the lowest bidder “that meets the correctional
facility’s or jail’s technical and functional requirements for services,” and
prohibiting commissions “based upon amounts billed by the telecommunications
provider for telephone calls made by inmates”).
89
eTc—Current Status, supra note 9 (showing that a fifteen-minute out-ofstate collect call costs $4.30 in New Hampshire and $10.50 in New Mexico).
90
eTc—National Perspective, supra note 48.
91
Prison Talk, A Proposal to Address the Cost of Collect Phone Calls,
http://www.prisontalk.com/forums/showthread.php?t=5614 (last visited Oct. 27,
2006) (on file with the North Carolina Journal of Law & Technology).
87

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Republican Senator Larry Rohrbach agreed that the practice must
end.92 After two bills failed to gain support,93 the two Senators
worked together to pressure the State Department of Corrections to
forgo revenue-producing commissions and renegotiate a contract
with the service provider that would allow inmates to “maintain
contacts with their families at a reasonable cost.”94
6. Kentucky
In 1999, a claim was filed against the State of Kentucky and
several phone companies alleging violations of both the Sherman
Anti-Trust Act and 42 U.S.C. § 1983.95 Plaintiffs’ claims were
eventually dismissed, partly based on the “filed-rate” doctrine.96
“The ‘filed-rate’ doctrine is a way in which courts intervene to bar
suits against unregulated utilities, so that purchasers will be fully
informed of the consequences of their purchases.”97 However,
“[i]n response to complaints of Plaintiffs, the [Kentucky Public
Service Commission] began reviewing the reasonableness of
inmate telephone rates.”98 As a result of its investigation, the
Kentucky Public Service Commission “reduced the surcharge to
$1.50.”99 Today, thanks in large part to the publicity garnered by

92

Id.
See Stelzer, supra note 3 (“Missouri Sen. Larry Rohrbach . . . sponsored a
failed bill that would have prohibited the state from profiting from its prisonpay-phone contract. Another ill-fated bill, sponsored by Rep. Charles Quincy
Troupe (D-St. Louis), would have allocated the state’s share of the profits to
prison education programs.”).
94
See Prison Talk, supra note 91; see also Stelzer, supra note 3.
95
Daleure v. Kentucky, 119 F. Supp. 2d 683, 685 (W.D. Ky. 2000), rev’d,
269 F.3d 540 (6th Cir. 2001).
96
Id. at 542.
97
64 AM. JUR. 2d Public Utilities § 62.
98
Daleure, 119 F. Supp. 2d at 686 n.8.
99
See id. at 686 n.5. See also In the Matter of: Establishment of an Operator
Surcharge Rate for Collect Telephone Calls from Confinement Facilities, Case
No. 378, Commonwealth of Ky. Pub. Serv. Comm’n (filed Oct. 2, 2000), 2000
Ky. Pub. Util. Comm’n LEXIS 14.
93

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the lawsuit,100 Kentucky inmates enjoy the country’s sixth lowest
collect-call rate structure.101
7. North Dakota
After negotiating a contract with service provider Evercom that
allows for both debit and collect calls, North Dakota prisons have
the seventh most affordable rates.102 Fifteen minutes of interstate
long-distance costs $5.10 with a debit card and $6.06 when calling
collect.103
These rates are consistent with North Dakota
Department of Corrections and Rehabilitation policies that afford
prisoners “reasonable and equitable” telephone access.104
8. Wisconsin
Wisconsin Administrative Code governing
Department of Corrections provides that:

the

State

The department shall encourage communication between an inmate and
an inmate’s family, friends, government officials, courts, and people
concerned with the welfare of the inmate. Communication fosters
reintegration into the community and the maintenance of family ties. It
helps to motivate the inmate and thus contributes to morale and to the
security of the inmate and staff.105

In keeping with this value, the Wisconsin Department of
Corrections “caps prison telephone rates at $1.25 for the
connection fee and $0.22 for each additional minute.”106 Thus,
collect-calls from Wisconsin state prisons are approximately the
eighth lowest in the nation.107
100

See generally Daleure, 119 F. Supp. at 689 (“[T]he [Kentucky Public
Service Commission] has held the rates at issue in this case ‘unjust and
unreasonable’ and set new ‘reasonable’ rates.”).
101
eTc—National Perspective, supra note 48.
102
eTc—Current Status, supra note 9.
103
Id.
104
See, e.g., Southwest Multi-County Correction Center, Policies and
Procedures Manual, Dickinson Adult Detention Center at 1 (Sept. 22, 2004),
http://www.state.nd.us/docr/central_office/POLICIES/Mail_Tele_Visiting/Telep
hones-F.doc (on file with the North Carolina Journal of Law & Technology).
105
WIS. ADMIN. CODE DOC § 309.56 (2006).
106
Michael Rigby, CCA Closes Oklahoma Prison, Settles Tax Lawsuit Over
Ohio Prison, 15 PRISON LEGAL NEWS 3, 14 (Mar. 2004), http://www.
prisonlegalnews.org/Members/issues/PDF/03pln04.pdf.
107
eTc—National Perspective, supra note 48.

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Excluding Washington, D.C.—a special case—legislation has
played no role in the implementation of the aforementioned
telephone rates. State prison systems with more affordable rates,
such as the Wisconsin Department of Corrections, were able to
establish reasonable long-distance policies without relying on the
passage of relevant statutes.
B. States with Much Higher Rates
According to the Campaign to Promote Equitable Telephone
Charges, the following eight states have the most expensive inmate
telephone rates: Washington, Montana, Arizona, Kansas, New
Jersey, Arkansas, Oklahoma, and Oregon.108 Out-of-state collect
calls cost over $1.00 per minute in all but one of these states.109
The lack of legislative activity and the failure of proposed
legislation in these states supports the argument that state
legislatures have simply not been an ineffective forum for bringing
about a change to this issue. The fact that bills addressing this
problem have been introduced in only three states110 suggests a
striking lack of political will among legislators to seek reform. In
fact, Washington is the only one among these states to have
successfully enacted legislation.111 Yet, it is telling how little
Washington’s statute has done to reduce rates: interstate longdistance calls still cost prisoners over a dollar per minute.112

108
109

Id.
Id.

See also Jennifer McKee, Inmates Calls Cost Top Dollar,
MISSOULIAN, Nov. 25, 2004, available at http://www.missoulian.com/articles/
2004/11/29/news/mtregional/news02.txt.
110
See, e.g., A.B. 168, 210th Sess. (N.J. 2002); H.B. 2425, 49th Leg., 2d Sess.
(Okla. 2004); S.B. 6352, 58th Leg., Reg. Sess. (Wash. 2004).
111
S.B. 6352, 58th Leg., Reg. Sess. (Wash. 2004).
112
Associated Press, Cell Calls (the Prison Kind) Soon Will Be Less Costly,
SEATTLE TIMES, Apr. 18, 2006, at B4.

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1. New Jersey
Legislation considered in New Jersey focused on reducing the
state’s dependence on phone commissions rather than providing
relief for prisoners’ families.113 The bill that was drafted would
have directed the state’s annual prison long-distance commissions,
totaling over $5 million into a victim’s compensation fund, but the
bill garnered little support and died in committee.114 State
legislators in Washington appear to be unwilling to give up the
revenue stream provided by kickbacks, even for the benefit of
crime victims.
2. Oklahoma
In Oklahoma, a number of prison telephone bills have failed,
once again illustrating major hurdles involved in addressing this
problem through legislation. Oklahoma state legislator Judy
McIntyre introduced two bills seeking to lower inmate longdistance rates and end the state’s practice of receiving
commissions from prison phone service providers.115 Both bills
languished in committee.116
Oklahoma State Representative Ron Kirby also introduced two
bills during the 2003 and 2004 State House sessions.117 Though
both bills failed, it is unclear whether their passage would have
provided any relief.118 Kirby’s bills, introduced after McIntyre’s
House Bill, had two fundamental flaws. First, the bills lacked
specific “language to reduce the profit taken by [the Oklahoma
Department of Corrections] and phone companies.”119 Second, the
bills required that all prisons update their phone systems to include
new technological advances such as “[f]ingerprint identification of
113

A.B. 168, 210th Sess. (N.J. 2002).
Id.
115
H.B. 1552, 49th Leg., 1st Sess. (Okla. 2003); S.B. 393, 50th Leg., 1st Sess.
(Okla. 2005).
116
H.B. 1552, 49th Leg., 1st Sess. (Okla. 2003); S.B. 393, 50th Leg., 1st Sess.
(Okla. 2005).
117
H.B. 1590, 49th Leg., 1st Sess. (Okla. 2003); H.B. 2425, 49th Leg., 2d
Sess. (Okla. 2004).
118
Opinion, Phone Legislation Misses Mark, OKLAHOMAN, Oct. 22, 2003, at
A14.
119
Id.
114

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the inmate placing the telephone call” and “[p]eriodic photographs
of the inmate during the telephone conversation for identity
verification.”120 Although Kirby claimed to have introduced his
legislation to combat “outrageous” phone bills,121 his bills ensured
“the state a profit of at least $2 million annually” and failed to
make any provision for these additional costs.122
3. Washington
In January 2004, eight state Senators introduced Washington
State Senate Bill 6352, which sought to update the state’s prison
phone systems and allow “offender families to select a low-cost
option to communicate with inmates.”123 The bill contained
explicit language about its intent:
The legislature finds that the current telephone service for offender
calls from department of corrections facilities is based on outdated
technology that provides neither the most secure nor the most
accountable system available and is provided at a high cost to the
offenders’ families. The legislature, in budget provisions, has required
the secretary of corrections to investigate other systems as offender
telephone service contracts came due for renewal. The legislature now
finds that the current statute prevents the secretary of corrections from
using systems that provide greater security, more offender
accountability, and lower costs. Therefore, the legislature intends to
remove this barrier while retaining the intent of the statute to provide
safe, accountable, and affordable telephone services.124

Unlike the majority of prison telephone reform bills, Senate Bill
6352 was quickly passed by both the House and the Senate, and
was immediately signed into law by the Governor.125
Families of inmates initially celebrated the bill’s passage, but
other than giving inmates a new direct-dial, debit-account option, it
120

H.B. 1590, 49th Leg., 1st Sess. (Okla. 2003); H.B. 2425, 49th Leg., 2d
Sess. (Okla. 2004).
121
Ryan McNeil, Phone Costs for Inmates Examined, OKLAHOMAN, Dec. 1,
2003, at A1.
122
Lynn Powell, Bill Won’t Cut Inmate Phone Rates, OKLAHOMAN, Mar. 25,
2004, at A10.
123
S.B. 6352, 58th Leg., Reg. Sess. (Wash. 2004).
124
Id.
125
WASH. REV. CODE § 9.73.095 (2004); S.B. 6352, 58th Leg., Reg. Sess.
(Wash. 2004).

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has had little positive impact on many families’ phone bills.126 In
addition, disagreements between competing phone companies,
contract disputes, and other related legal wrangling127 prevented the
state from offering debit telephone calls for over two years.128
Furthermore, Washington’s new telephone contract with FSH
Communications guarantees the state even more in annual
commissions: $5.1 million—as opposed to the $3.8 million—
received each year under the old contract with AT&T prior to the
passage of Senate Bill 6352.129
Before the enactment of Washington’s new prison telephone
legislation, the state had the highest inmate collect call rates in the
country; recipients were charged $17.77 for a fifteen-minute, outof-state call.130 Today, even under the new legislation, many
families still incur exorbitantly high phone bills.131 Although instate long-distance rates have been reduced, local calls are even
more expensive than before, and out-of-state collect calls are now
only slightly lower at $17.41 for a fifteen-minute call.132 Given
that inmates with family members in other states have fewer
126

Richard Roesler, Cheaper Prison Calls on Hold; Families Struggle to Stay
in Touch Amid Contract Snafu, SPOKESMAN REV. (Spokane, WA), July 23,
2005, at B1.
127
Id. Washington’s contract renegotiations had numerous irregularities:
When the bids came in, corrections officials told a California company,
Public Communications Services Inc., that it was ‘the apparent
successful vendor.’ It was a contract worth $132 million, according to
court documents filed later by PCS. The company said it would charge
half of what AT&T has been charging . . . . Within a week of notifying
PCS, however, the state received a complaint from AT&T, which had
held the state prison contract since 1991. The Department of
Corrections then decided that it hadn’t had the authority to issue such a
large telecommunications bid, and that the state Department of
Information Services should have done it instead . . . . Corrections told
PCS that it wasn’t the bid winner. PCS sued . . . . Corrections is about
to re-issue a request for proposals. Essentially, the process is starting
all over again.
Id.
128
Associated Press, supra note 112, at B4.
129
Id.
130
eTc—Current Status, supra note 9.
131
Associated Press, supra note 112, at B4.
132
Id.

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opportunities for visits and are most in need of relief, the overall
effect of Washington’s legislation has been disappointing.
C. State Legislation Will Not Reduce Excessive Rates
After analyzing four statutes, Severin’s 2004 Cardozo Law
Review note reasoned that state legislation would be more
effective than litigation in reducing excessive prison telephone
rates.133 While legislatures technically have the power to reduce
rates, it is not politically realistic to expect other states to follow
the lead of Vermont and Washington D.C. Thus far, the majority
of bills seeking to remedy the problem—including the one and
only federal bill ever introduced on prison phone rates134—have
died in committee.135 Furthermore, the passage of such bills does
not guarantee reduced phone rates.
Vermont’s legislature, for example, has been praised for
“providing substantial relief for prison phone call recipient[s] . . .
and should serve as a model to all states where call recipients are
forced to pay exorbitant and unjust rates for calls from their
incarcerated family members and friends.”136 Vermont’s law has
been celebrated for requiring the state to provide “the lowest
reasonable cost to inmates, to their families, and to others
communicating with inmates.”137 Despite the language of this
lauded statute, Vermont does not have the lowest rates in the
133

Severin, supra note 10, at 1532.
Telephone Correction Protection Act of 2005, H.R. 4466, 109th Cong.
(2005). In December, 2005, Congressman Bobby Rush (D-Ill.) introduced the
Family Telephone Correction Protection Act of 2005, challenging high prison
phone rates. Id. The bill, which sought to “end this shameful practice by
requiring the Federal Communications Commission to set fair rates for interstate
phone calls made from prison,” garnered only five co-sponsors and appears to
have died in the Subcommittee on Telecommunications and the Internet. Id.;
see, e.g., Editorial, Keeping in Touch with a Parent in Prison, N.Y. TIMES, Jan.
14, 2006, at A14.
135
See, e.g., A.B. 168, 210th Sess. (N.J. 2002); H.B. 7784, Reg. Sess. (R.I.
2004).
136
Severin, supra note 10, at 1529 (citing VT. STAT. ANN. tit. 28, 802a
(2006)).
137
eTc—More About, supra note 58 (citing VT. STAT. ANN. tit. 28, 802a
(2006)).
134

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country. Thirteen other states have more affordable rates than
Vermont, where an out-of-state, fifteen-minute collect call costs
$10.75.138
Other statutes, such as the one enacted in Washington, have
failed to affect a significant reduction in out-of-state long-distance
rates.139 Unfortunately, Washington is not alone in its passage of
purely symbolic legislation. Virginia passed House Bill 1765,140
codified at § 53.1-1.1 of the Virginia Code, which called for a
reduction in phone rates for prisoners. The legislation provided for
the adoption of a new debit calling system with “the lowest
available rates” for inmates and their families.141 Nevertheless,
many inmates’ families have complained that their phone bills
have gone up under the state’s new contract with MCI.142
Although legislation has failed to alleviate the problem, more
indirect means of reform have succeeded in lowering rates. By
pressuring their department of corrections, two state Senators from
Missouri were able to negotiate lower rates for prisoners without
having to enact any new laws or regulations.143 The Missouri
senators, one left-leaning and one conservative, should be
commended for having the courage to stick up for a politically
unpopular group. In states like Nebraska, West Virginia, North
Dakota, and Wisconsin, the decision to offer lower rates came
about as a result of concern for rehabilitation and good corrections
policy. West Virginia corrections policy emphasizes equity and
reasonableness.144 Other corrections agencies, like Nebraska and
Wisconsin, stress the importance of communication with family

138

eTc—Current Status, supra note 9.
See supra notes 123–32 and accompanying text.
140
H.B. 1765, 2004 Leg., Reg. Sess. (Va. 2005).
141
VA. CODE ANN. § 53.1–1.1 (2006).
142
MEETING MINUTES, COMMONWEALTH OF VA. BD. OF CORRECTIONS 1–2
(Mar. 15, 2006), http://www.vadoc.state.va.us/about/board/minutes/32006mins.
doc (“[F]amilies claim they are now paying more money under the new contract
than they did with the old.”) (on file with the North Carolina Journal of Law &
Technology).
143
See supra notes 91–95 and accompanying text.
144
See, e.g., W. VA. CODE R. § 95-2–17.11.1 (2006).
139

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and community as an integral part of the rehabilitation process.145
These facts seem to indicate that enlightened corrections
departments are better suited to bring about reform than are wellintentioned state legislators. Unfortunately the policies in these
states are the exception, rather than the rule. While some
corrections departments acknowledge the ethical and rehabilitative
reasons for maintaining affordable phone rates in prison, many
have found a reason to look the other way.
D. Prison Systems That Are Gouging Families Need Reform146
State corrections agencies’ willingness to participate in price
gouging is evidence of the general trend away from viewing
rehabilitation as the goal of incarceration.147 Excessive prison
telephone rates are caused by deeper institutional defects.148
145

See supra notes 76–80 and accompanying text; see also supra notes 105–
07 and accompanying text.
146
See, e.g., Tom Stacy & Kim Dayton, The Underfederalization of Crime, 6
CORNELL J. L. & PUB. POL’Y 247, 292 (1997) (“The widespread complaints . . .
that state prisons are under funded and overcrowded . . . and that urban areas
now receive substantial federal funding for their criminal justice systems can be
seen as evidence . . . . that, left to their own devices, states devote insufficient
resources to combating crime in poor communities.”).
147
See, e.g., Mark J. Heyrman, Mass Incarceration: Perspectives on U.S.
Imprisonment: Mental Illness in Prisons and Jails, 7 U. CHI. L. SCH.
ROUNDTABLE 113, 118 (2000) (“For a period of time, which largely ended
during the 1970’s, one of the goals of incarceration was to make available to
criminals an array of social services which would reduce the likelihood that they
would re-offend upon release. Very little rehabilitation occurs or is intended to
occur in any United States prison today.”).
148
See, e.g., TESTIMONY OF MARY L. LIVERS, PH.D., DEPUTY SEC’Y OF
OPERATIONS, MD. DEP’T OF PUB. SAFETY & CORR. SERVICES, TO THE COMM’N
FOR SAFETY & ABUSE IN AMERICA’S PRISONS (Nov. 2, 2005), http://www.
prisoncommission.org/statements/livers.pdf (“Effecting change is hard for most
of us just in everyday life situations. It is particularly hard in correctional
settings.”) (on file with the North Carolina Journal of Law & Technology). In
her testimony to the Commission for Safety and Abuse in America’s Prisons,
Mary Livers notes that specific institutional flaws contribute to many of the
problems common to the modern American state correctional agencies. Id. at 8–
10. She contends that they are especially resistant to change because they
(1) lack transparency; (2) tend to be secretive; (3) lack adequate funding, staff,
and programs needed to do “the science of changing criminal behavior”; and
(4) have directors serving short tenures tied to the election cycle. Id.

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Accordingly, the problem requires some degree of institutional
reform.
V. FEDERAL REGULATORY REFORM
A. FCC Intervention
The Federal Communications Commission (FCC) has the
authority to lower excessive rates through federal regulation, but as
of yet they have declined to take action.149 Critics of the FCC
believe that the Commission is susceptible to pressure from the
communications industry,150 and thus, unwilling to limit such a
profitable practice. Since November 2003, the FCC has been
“examining long-distance telephone service rates imposed on
inmates and their families in an ongoing proceeding regarding the
provision of inmate payphone service.”151 While the agency’s
failure to act is disappointing, the possibility of administrative
action has not been eliminated. Proponents of reform have had
close to three years to file comments demanding regulation. These
advocates have used the FCC proceedings to create an extensive
record detailing the injustice of the situation.
149

In 1998, the FCC declined to dictate specific price controls or rate
benchmarks, to implement billed party preferences, or to grant all operator
services providers (“OSPs”) access to the calling card validation databases of all
carriers. Instead, the Commission addressed exorbitant OSP charges for calls
from public phones and other aggregator locations such as payphones, hotels,
hospitals, and educational institutions seeking to ensure “better informed
consumers, foster a more competitive marketplace, and better serve the public
interest.” Second Report and Order, 13 F.C.C.R. 6122, 6123 (1998) [hereinafter
0+Second Report].
150
See, e.g., Cass R. Sunstein, Paradoxes of the Regulatory State, 57 U. CHI.
L. REV. 407, 427 (1990) (citation omitted); see also id. at 426–427 (stating that
“[t]he independent agencies have generally been highly susceptible to the
political pressure of well-organized private groups—perhaps even more
susceptible, on balance, than executive agencies”).
151
The FCC’s examination of the issue began when a group of prison inmates
and non-inmates filed the Wright Petition. The petitioners there asked that the
FCC “initiate a notice and comment rulemaking proceeding to consider
precluding exclusive service arrangements and other restrictions on inmate
calling options.” FCC, CC Docket No. 96-128, Public Notice, DA 03-4027
(Dec. 31, 2003).

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Under the separation of powers doctrine, Congress and state
legislatures are typically responsible for fact finding.152 However,
these bodies have failed to investigate the issue adequately, and
many courts have refused to reach the merits of challenges to
excessive prison phone rates.153 As a result, telephone companies
have largely avoided having to defend their practices in a public
forum.
The FCC proceeding has finally forced telephone
companies to publicly account for exorbitant rates.
B. Legal Background
Congress has granted the FCC exclusive authority to enforce
47 U.S.C. § 201, which provides that “practices, classifications,
and regulations for and in connection with such [interstate wire]
communications service, shall be just and reasonable, and any such
charge, practice, classification, or regulation that is unjust or
unreasonable is hereby declared to be unlawful.”154
Under § 201(b), the FCC can take steps to regulate common
carriers if their long-distance telephone rates are unjust and
unreasonable by prescribing “such rules and regulations as may be
necessary in the public interest to carry out the provisions of this
Act.”155

152

See, e.g., Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195 (1997) (“We
owe Congress’ findings deference in part because the institution is far better
equipped than the judiciary to amass and evaluate the vast amounts of data
bearing upon legislative questions.”) (internal quotations omitted); Metro
Broad., Inc. v. FCC, 497 U.S. 547, 572 (1990) (“The ‘special attribute [of
Congress] . . . lies in its broader mission to investigate and consider all facts and
opinions that may be relevant to the resolution of an issue.’”) (quoting Fullilove
v. Klutznick, 448 U.S. 448, 502–03 (1980)).
153
Severin, supra note 10, at 1482–83 (citations omitted) (“Courts, however,
tend to dismiss these challenges for reasons based on judicially-created doctrines
and statutory bars [such as lack of jurisdiction to rule on utility rates], rather
than on the merits.”); see also id. at 1483 n.57 (“This tendency of courts to
dismiss prison phone rate challenges for lack of jurisdiction would not be as
remarkable if it was doctrinally inevitable, but in the Arsberry case . . . the court
persuasively argued it is not.”) (citing Arsberry v. Illinois, 244 F.3d 558 (2001)).
154
47 U.S.C. § 201(b) (2000).
155
Id.

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In 1998, responding to complaints about excessive prison
telephone rates, the FCC considered for the first time whether to
establish benchmark rates on inmate calling services.156 The
commission acknowledged that “the recipients of collect calls from
inmates . . . require additional safeguards to avoid being charged
excessive rates from a monopoly provider.”157 The FCC used their
§ 201(b) authority to order interstate long-distance providers to
orally disclose billing rates to inmate call recipients before asking
them to accept the charges.158 However, the Commission stopped
short of setting rate caps, reasoning that benchmarks would
interfere with market forces that would, in theory, drive rates down
automatically.159 Eight years later, it is clear that the posited
market forces have failed to bring down prices and that the time
has come for the FCC to intervene.
C. The Wright Petition
Federal courts have all too often refused to decide telephone
rate challenges on their merits, holding that they lack jurisdiction
to review interstate long-distance rates and that such questions are
a matter for the FCC.160 In Wright v. Corrections Corporation of
America, a D.C. district court dismissed plaintiffs’ claims and
referred the matter to the FCC, finding that “Congress has given
the FCC explicit statutory authority to regulate inmate payphone
services.”161 Accordingly, on November 3, 2003, plaintiffs filed
the Wright Petition with the FCC, seeking regulatory lowering of

156

See 0+Second Report, supra note 149.
Id.
158
Id.
159
Id. at 6141–42 (“We believe that the imposition of price controls or
benchmarks upon the entire industry, in order to curtail rate gouging by some
carriers and aggregators, would be overly regulatory and could even stifle rate
competition.”).
160
See, e.g., Wright v. Corr. Corp. of Am., C.A. No. 00-293 (D.D.C. Aug. 22,
2001) (dismissing plaintiffs’ claims under doctrine of primary jurisdiction). See
also Valdez v. State, 54 P.3d 71, 75 (2002) (dismissing plaintiffs’ claims under
primary jurisdiction).
161
Wright Petition, supra note 54, at *10–11.
157

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prison telephone rates.162 Specifically, the Wright Petition requests
that the FCC:
[P]rohibit exclusive inmate calling service agreements and collect callonly restrictions[,] . . . permit multiple long distance carriers to
interconnect with prison telephone systems[,] . . . require inmate
service providers to offer debit card or debit account service as an
alternative to collect calling services[,] and establish a benchmark
access fee.163

At the time of this article, nearly three years after the initial
filing of the Wright Petition, the FCC has still not ruled on the
matter. Nevertheless, the petition’s meticulous itemization of
technical and financial matters affecting prison telephone systems
is powerful evidence for parties rebutting the assertion that security
costs justify the inflated telephone rates.164
D. The Dawson Affidavit
In addition to highlighting the Federal Bureau of Prisons’
success in its use of a direct-dial debit system,165 the Wright
Petition goes several steps further by attacking the “assumption
that security and other penological considerations justify these
practices.”166 Much of the information in the petition is provided
162

Id. at *11.
Id.
164
See Wright Petition, supra note 54, at *44–120. See also Jackson, supra
note 11, at 274.
[T]he 388-page Wright petition called upon the Commission to redress
the issue of excessive charges by requiring competition in inmate
telephone service provision, along with debit calling options as an
alternative to more expensive collect calls. Citing the experience of the
Federal Bureau of Prisons with debit-based calling systems, together
with affidavits from industry security experts attesting to the technical
feasibility of a secure-yet-competitive inmate calling market, the
Wright petition asks the Commission to reverse its traditional position
of deferential non-action to protect the public interest with nonexorbitant inmate calling rates.
Id. (citation omitted).
165
See, e.g., Wright Petition, supra note 54, at *71–72 (“For example, the
federal prison system has had a debit product for prisoners for many years. . . .
Given a choice, many of these called parties would much rather establish a
personal debit fund if the calls could be cheaper.”).
166
Id. at *8.
163

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by Douglas A. Dawson, a telecommunications expert for the
petitioners.167 In a seventy-eight-page affidavit attached to the
Wright Petition, Dawson:
a) describe[s] the history and development of telephone systems—both
generally as well as specifically for prison systems; b) discuss[es] the
various penological requirements that must be satisfied by a prison
calling system; c) discuss[es] specifically the current payment methods
that are used with prison calling systems; d) demonstrate[s] that there
are no justifications for prison administrators not to allow debit card or
debit account calling or for inmate service providers not to offer debit
card or debit account calling; and e) demonstrate[s] the feasibility and
reasonableness of opening inmate calling services to competition, so
that inmates have a choice of carriers.168

Dawson explains that “each separate penological requirement
for prison telephone switching systems has only been made
possible, and thus really created, in response to changes in
technology.”169 When the technological components of today’s
prison phone system were first introduced, they were more
expensive than they are today. However, the price of these
components has “dropped drastically over the last few years” and
current trends will continue to “lower the cost[s] . . . even further
in the near future.”170 To support his assertions, Dawson provides
detailed cost analysis charts showing that prison phone systems
can be provided for considerably less than the price prison
telephone providers typically charge.171
Dawson concludes that long-distance rates cost service
providers approximately “[$]0.139 to $0.155 per minute before
profit and taxes,”172 while a pure debit system “could be provided
167

Id. at *44. The Wright Petition contains an affidavit containing over
seventy pages of Douglas A. Dawson’s written testimony. Douglas A. Dawson
is the President of CCG Consulting, Inc., a firm providing services “for over 250
communications companies, which include local exchange carriers (‘LECs’),
competitive LECs (‘CLECs’), cable TV providers, electric utilities, wireless
providers, paging companies, municipalities and other governments and
interexchange carriers.”
168
Id. at *42–43.
169
Id. at *56–57.
170
Id. at *83–84.
171
Id. at *86–120.
172
Id. at *119.

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at much lower rates.”173 Predictably, major prison phone service
providers like MCI and Sprint criticized the Dawson Affidavit, but
their attacks relied primarily on the argument that the rates are
“reasonably related to legitimate penological interests . . . .”174
Though many service providers criticized Dawson’s cost estimates
“none of them provided contrary estimates,” with the exception of
MCI, which attempted “to prove costs at $0.65 per minute, a
number that nobody in this industry can take seriously.”175 If it
truly costs MCI $0.65—before tax and profits—to provide a state
prisoner with one minute of long-distance, then competitor AT&T
must actually lose money to provide interstate long-distance to
Nebraska prisons for $0.16 per minute, after tax and profits.176
The FCC has yet to act on any of the issues raised in the
Wright Petition. However, as this article was being written,
Wright’s attorneys were contemplating filing an alternative
rulemaking proposal offering further evidence that inmates can be
offered secure and penologically sound long-distance service at
much lower cost.177

173

Wright Petition, supra note 54, at *119.
See In the Matter of: Implementation of Pay Telephone Reclassification
and Compensation Provisions of the Telecommunications Act of 1996, Reply
Comments of MCI, FCC Docket No. 96-128, at 3 (filed Apr. 21, 2004)
(“[C]ourts have repeatedly upheld the authority of prison officials to further
security concerns when they make decisions on telecommunications services for
inmates.”) (on file with the North Carolina Journal of Law & Technology); see
also Jackson, supra note 11, at 274 (“[B]oth MCI and AT&T responded to the
Wright [P]etition on ostensibly jurisdictional and security grounds, arguing that
the FCC should maintain its traditional pattern of deference vis-à-vis the
penological discretion and contractual freedoms of state departments of
correction . . . .”).
175
In the Matter of: Implementation of Pay Telephone Reclassification and
Compensation Provisions of the Telecommunications Act of 1996, Reply
Declaration of Douglas A. Dawson, FCC Docket No. 96-128 (filed Apr. 21,
2004).
176
eTc—More About, supra note 68.
177
Telephone Interview with Frank Krogh, Morrison & Foerster, L.L.P. (Oct.
5, 2006).
174

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VI. THE BENEFITS OF LITIGATION
Court challenges to excessive prison telephone rates have
consistently failed to provide relief, and future legal victories are
unlikely given current Supreme Court jurisprudence.178
Furthermore, courts tend to dismiss excessive phone rate
challenges “for reasons based on judicially-created doctrines and
statutory bars, rather than on the merits.”179 Nevertheless, litigation
can play a role in “an effective political strategy for achieving . . .
reform.”180
A. Federal Judicial Policymaking
In the 1960s and 1970s, “federal court judges played a critical
policymaking role in prison reform litigation.”181 Just as critics of
mandatory school desegregation have argued that Brown v. Board
of Education182 actually created more racial animus because of the
widespread resentment towards such federal intervention,
opponents of federally mandated prison reform have criticized the
178

Severin, supra note 10, at 1514–23.
Severin notes that “prison phone service providers are nearly always
shielded from antitrust liability by either filed rate doctrine, state action doctrine,
and/or the doctrine of primary jurisdiction.” Id. at 1503. Primary jurisdiction,
for example, “allows a court to defer to a regulatory agency [—in this case, the
FCC—] when faced with an issue that is within the agency’s area of expertise.”
Id., at 1479 n.41. See, e.g., Arsberry v. Illinois, 244 F.3d 558, 567 (7th Cir.
App., 2001) (dismissing plaintiffs’ equal protection claim based on doctrine of
primary jurisdiction).
In Arsberry v. Illinois, 244 F.3d at 562, Judge Posner noted that courts
typically use such doctrines to avoid rate-setting, “a task [courts] are inherently
unsuited to perform.” Judge Posner also found excessive prison phone rates do
not implicate antitrust laws. Id. at 566 (“States and other public agencies do not
violate the antitrust laws by charging fees or taxes that exploit the monopoly of
force that is the definition of government. They have to get revenue somehow,
and the ‘somehow’ is not the business of the federal courts unless a specific
federal right is infringed.”).
180
Jules Lobel, Courts as a Forum for Protest, 52 UCLA L. REV. 477, 486
(2004) (citation omitted).
181
Neal Devins, I Love You, Big Brother, 87 CAL. L. REV. 1283, 1285 (1999)
(reviewing Malcolm Feeley & Edward Rubin, JUDICIAL POLICY MAKING AND
THE MODERN STATE: HOW THE COURTS REFORMED AMERICA’S PRISONS
(1998)).
182
347 U.S. 483 (1954).
179

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court’s active role in past prison reform movements.183 Some even
contend that the involvement of federal courts in state prison
reform contributed to the backlash that led to the Prison Litigation
Reform Act (PLRA),184 legislation that severely limits “the court’s
power to, among other things, appoint special masters, approve
consent decrees, and maintain jurisdiction over prison reform
litigation.”185 Even though the PLRA has sharply reduced the
amount of prison reform litigation and federal intervention, courts
are still willing to mandate systemic change in certain limited
situations.186 In 2003, for example, a federal district court ordered
the New York State Department of Correctional Services
(NYDOCS) to stop categorizing the Nation of Islam as an official
security threat group and held that NYDOCS could no longer ban
all Nation of Islam literature.187 In addition, there have been a
number of post-PLRA cases in which federal courts have
mandated state prison policy reform with regard to prison health
and mental health care.188
The time has come for federal intervention into state prison
policies that allow excessive prison phone rates. The past failure
of legislation shows that states are not likely to solve this problem
on their own.

183

Devins, supra note 181, at 1294–95.
Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat.
1321–66 (1995).
185
Devins, supra note 181, at 1295 n.37.
186
See generally Margo Schlanger, Civil Rights Injunctions Over Time: A
Case Study of Jail and Prison, 81 N.Y.U. L. REV. 550 (2006).
187
Marria v. Broaddus, No. 97 Civ. 8297, 2003 U.S. Dist. LEXIS 13329
(S.D.N.Y. July 31, 2003).
188
See, e.g., Ruiz v. Johnson, 37 F. Supp. 2d 855, 915 (S.D. Tex. 1999), rev’d
and remanded by, 243 F.3d 941 (5th Cir. 2001), on remand, 154 F. Supp. 2d 975
(S.D. Tex. 2001) (ordering oversight of the Texas prison system due to
egregious treatment of prisoners with mental and physical health problems);
Madrid v. Gomez, 889 F. Supp. 1146, 1205 (N.D. Cal. 1995) (ordering oversight
of California prisons due to poor health care).
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B. Walton v. New York State Department of Correctional Services
A recent New York case also provides reason for finding some
hope in the courts. Supporters of the New York Campaign for
Telephone Justice and other advocates for equitable telephone rates
have been hopeful189 about the recent decision of New York’s
highest court to grant plaintiff’s motion for leave to appeal the
intermediate court’s decision in Walton v. New York Department of
Correction Services.190 The plaintiffs, recipients of prisoners’
collect calls—mainly family members—seek to enjoin the State
from collecting the 57.5% commission provided in their contract
with MCI.191 Plaintiffs’ claims were dismissed by the lower court
based on a ruling that they missed the four-month statute of
limitations appropriate to their particular constitutional claims.192
In the Walton proceedings to date, defendants NYDOCS and
MCI have made familiar arguments. The State claimed that
plaintiffs were barred by the filed rate doctrine,193 while MCI
claimed that their high rates and regular 57.5% commission
payments to the NYDOCS were a “[s]tandard and [l]egitimate
[c]ost of [p]roviding [t]elephone [p]ayphone [s]ervices,”194 and that
“commissions of 20–63% to prison authorities are customary.”195

189

New York Campaign for Telephone Justice, What’s New?, July 10, 2006,
http://www.telephonejustice.org/about/whats_new_content.asp?ID=21
[hereinafter Telephone Justice—What’s New] (on file with the North Carolina
Journal of Law & Technology).
190
Walton v. N.Y. Dep’t of Corr. Servs., 853 N.E.2d 244 (2006).
191
Walton v. N.Y. Dep’t of Corr. Servs., 25 A.D.3d 999, 1000 (N.Y. App.
Div. 2006).
192
Walton, 25 A.D.3d at 1001 (citing Matter of Fed’n of Mental Health Ctrs.
v. DeBuono, 275 A.D.2d 557, 559–60, 712 N.Y.S.2d 667, 669–70 (2000)).
193
Reply Brief for Plaintiffs-Appellants at 9, Walton v. N.Y. Dep’t. of Corr.
Servs., available at http://www.ccr-ny.org/v2/legal/justice/docs/Walton_
Appeal_Pltf_Reply_Brief102505.pdf.
194
Brief of Respondent-Appellee at 4, MCI, Walton v. N.Y. Dep’t of Corr.
Servs, available at http://www.ccr-ny.org/v2/legal/justice/docs/walton_MCI
appeal%20brief.pdf.
195
Id. (citing Implementation of the Pay Telephone Reclassification and
Compensation Provisions of the Telecommunications Act of 1996, 17 F.C.C.R.
3248, 3252–53 & n.34 (2002)).

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Plaintiffs’ claims, on the other hand, represent a combination
of the last five years’ most persuasive arguments challenging high
collect call rates. In addition to free speech, equal protection, and
due process claims,196 plaintiffs make a compelling argument that
the NYDOCS “surcharge is an unlawful tax, levied only against
them, though used for the general public good, without proper
legislative authorization.”197 They also argue that because the
NYDOCS “unlawfully takes their property without just
compensation,” the kickback portion of the high rates violate the
New York State Constitution’s takings clause.198 New York Citybased nonprofit, the Center for Constitutional Rights, “expects the
appeal to be heard sometime this Fall, 2006.”199
C. Litigation as an Effective Political Strategy
Litigation often has the ability to rally support and crystallize
public opinion around an issue. “[R]eformers must recognize the
importance of continuing efforts to influence public opinion,”200
and litigation is often a good way to do so:

196

Walton, 25 A.D.3d at 1000.
Reply Brief for Plaintiffs-Appellants, supra note 193, at 15–16 (“Taxes
may not be imposed in absence of affirmative legislative action.”). Similar
arguments were made in Fair v. Sprint Payphone Services, Inc., 148 F. Supp. 2d
622 (D.S.C. 2001), Alexander v. Cottey, No. 49A02-0301-CV-32, 2004 Ind.
App. LEXIS 10 (Ind. Ct. App. Jan. 13, 2004), and Valdez v. New Mexico, 54
P.3d 71 (N.M. 2002).
198
Reply Brief for Plaintiffs-Appellants, supra note 193, at 17 (“Because the
surcharge is without authorization in law, is appropriated from a discrete
segment of the populace, and is applied toward the general public good, it
violates the State takings clause.”) Similar arguments were made in Fair v.
Sprint Payphone Services, Inc., 148 F. Supp. 2d 622 (D.S.C. 2001) and Valdez
v. New Mexico, 54 P.3d 71 (N.M. 2002). This argument in particular is
relatively untested. See Severin, supra note 10, at 1524.
199
Telephone Justice—What’s New, supra note 189.
200
Joseph S. Patt, School Finance Battles: Survey Says? It’s All Just a
Change in Attitudes, 34 HARV. C.R.-C.L. L. REV. 547, 575 (1999).
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The efficacy of lawsuits in generating publicity has been well
documented. Social scientists have observed ‘that litigation is one of
the most effective ways to win publicity for a cause.’ Public interest
litigators and organizations have come to view litigation as a vehicle
for attracting the media. Reflecting this recognition, it is now a
common practice to announce a pending or filed public interest lawsuit
at a press conference. Often, litigation attracts the media’s attention in
a way that nothing else does.201

As compared to a state-house floor, a courtroom often holds
more promise for an underdog up against a powerful foe, such as
MCI or the State of New York. Groups like the New York
Campaign for Telephone Justice, established by the Center for
Constitutional Rights, the Fifth Avenue Committee’s Prison
Families Community Forum, and Prison Families of New York,
Inc., have been effective in rallying support around the Walton
case.202 Visitors to its website can read all the Walton briefs and
opinions to date.203 In addition, the organization has a bulletin
board where persons with loved ones in prison can post stories
about their experiences with unfair prison phone rates as well as
share information on petitions and boycotts.204
Political Science Professor Richard Gambitta has written about
the effects of litigation on public opinion.205 Gambitta studied the
impact of San Antonio Independent School District v. Rodriguez,206
a case challenging the constitutionality of using local property
taxes to finance school districts because it produced vast inequities
between schools in rich and poor neighborhoods.207 Gambitta
201

Lobel, supra note 180, at 487 (citations omitted).
New York Campaign for Telephone Justice, About the Campaign,
http://www.telephonejustice.org/about/ (last visited Oct. 30, 2006) (on file with
North Carolina Journal of Law & Technology).
203
New York Campaign for Telephone Justice, Legal Cases,
http://www.telephonejustice.org/about/legal_cases.asp (last visited Nov. 4,
2006) (on file with North Carolina Journal of Law & Technology).
204
New York Campaign for Telephone Justice, Family Stories,
http://www.telephonejustice.org/family_stories/ (last visited Oct. 20, 2006) (on
file with North Carolina Journal of Law & Technology).
205
Lobel, supra note 180, at 488 (citing RICHARD A.L. GAMBITTA,
GOVERNING THROUGH COURTS 259 (1981) [hereinafter GAMBITTA]).
206
San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1 (1973).
207
Lobel, supra note 180, at 488 (citing GAMBITTA).
202

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concluded that even though the plaintiffs lost their case, they
succeeded in making equitable school funding a higher priority for
policymakers all over the country.208 Thus, even when plaintiffs
lose, litigation “can recast the nature of a debate,” and “facilitate
debates that otherwise may not occur, thus setting in motion, at
times, the process of policy change.”209 By publicizing the
problem and highlighting its injustice, court challenges to
excessive prison phone rates play a similarly important role in
pushing for reform in this area.
VII.

CONCLUSION

A. The General Trend Toward Privatization
The trend in government is to increasingly rely on private
corporations to provide services and programs once presumed to
be governmental tasks.210 Legal scholars such as Columbia Law
Professor Gillian Metzger have noted:
Privatization holds the potential to yield more efficient and innovative
government programs, by allowing the government to harness private
expertise, flexibility, and market competition to its advantage. Yet
privatization can also lead to abuse and exploitation, because the
financial incentives of private companies and organizations often run
counter to the public interest and the interests of program
participants.211

This is not to suggest that government should provide its prisoners
with phone service directly; rather, it is to suggest that the
pervasiveness of usurious telephone rates among state prison
systems should serve as a warning to policymakers. As private
entities take over the responsibility for providing more programs
and services—welfare programs, health care, public education, and
criminal rehabilitation—government officials must be mindful that
efficiency and innovation do not necessarily follow and the
potential for abuses always exists in such business arrangements.
208

Id.
Id.
210
See, e.g., Gillian E. Metzger, Privatization as Delegation, 103 COLUM. L.
REV. 1367, 1394 (2003) (“[P]rivatization often accompanies an expansion in
government responsibilities.”).
211
See id. at 1408 (citations omitted).
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When the well-being of the country’s poorest, most vulnerable
citizens is entrusted to private corporations, policymakers must be
certain that government contracts ensure adequate accountability,
oversight, and regulatory flexibility.212
B. The Need for Multiple Challenges on Multiple Fronts
The problem of excessive prison phone rates has persisted for
too long because the providers of phone services have the
resources necessary to withstand repeated legal and political
challenges. On the other side of the issue are those who have
found traditional avenues of recourse elusive, ineffective, or both.
Under such circumstances, the most promising route to successful
reform is to continue to wage the battle on multiple fronts, using
the various avenues of legal recourse to galvanize support and
generate momentum behind this important issue.
In an environment where being “tough on crime” is the default
position of most politicians, it comes as no surprise that even wellintentioned state legislation has proven so futile in bringing
resolution to this issue. Indeed, in the rare cases where states have
successfully enacted statutes, they have provided shockingly little
relief to prisoners’ loved ones. Furthermore, given the courts’
deference to state prison management decisions, successful court
challenges also face a steep uphill battle.
So far, telecommunications companies and state prisons with
which they do business have been successful in warding off
various phone-rate challenges. While telecom companies claim
that their high rates are a direct result of costly security technology,
they fail to acknowledge that technological advances have resulted
in more affordable methods of providing the required security
measures and that these cheaper technologies have made it
possible to offer more affordable rates. Further, overhead and
operational costs do not explain why the cost of the same services
212

See id. at 1436 (“Close oversight is particularly important when market
failure or abuse of power is most likely: where providers hold a monopoly on
provision of particular services; the services at issue are complex . . . ;
competitive pressures are minimized by . . . lack of information; and recipients
are relatively powerless.”).

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vary wildly from state to state. Due to a lack of legislative
investigation and the frequent dismissal of court challenges, phone
companies have largely avoided having to publicly justify their
rates with facts and figures.
The evidence indicates that large commissions are the true
culprits behind high prison phone rates.213 Most states receive
commissions ranging from 18% to 60% from their prison phone
service provider.214 Furthermore, the very method by which these
government contracts are awarded virtually guarantees the practice
of price gouging. A phone company that offers a larger
commission to the state government will naturally seek to recoup
this cost by passing it on to the consumer—in this case, prisoners
and their families. While questions about technology and
legitimate penological interests are relevant, telecom companies
have also been allowed to cloud the issue and make it easier for
policymakers to ignore the fundamental injustice of forcing
prisoners and their families to bear the extra costs that result from
alliances between prison phone service providers and state
governments.
Some states, recognizing the injustice of these arrangements,
have elected to significantly limit commissions. Other states have
gone so far as to refuse this kind of revenue altogether.215 By and
large, decisions like this are a result of administrative policies that
make equity and rehabilitation a priority. Nebraska’s phone rate
policy, for example, is not the result of a statute or court order. As
a matter of corrections policy, administrators in states with
affordable phone rates recognize that a prisoner’s contact with
family and community is an important part of the rehabilitation
process. As such, their telephone contracts are consistent with
their rehabilitation policy. While such examples are encouraging,
the reform is piecemeal. Comprehensive, uniform reform is still a
long way off, and change must be pursued through every possible
avenue.
213

See supra Parts III(B), IV(A)–(C).
Severin, supra note 10, at 1469.
215
See, e.g., supra Part IV(A)(1)–(2) (showing that Nebraska and
Washington, D.C. do not accept commissions).
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The most direct path to uniform affordable phone rates for
prisoners across the country is the challenge currently before the
FCC. On the other hand, if the plaintiffs in Walton win their case
before New York’s highest court, their victory would only directly
impact phone rates in that state, at least in the short term. While
neither challenge appears likely to succeed, they can help build
support for this issue. The FCC proceedings have given opponents
ample opportunity to document the most egregious examples of
excessive prison telephone rates. This record might ultimately
prove most useful in turning the tide against the
telecommunication companies that engage in such practices. In
addition, the New York court challenge is a good opportunity to
rally support and garner media attention. Ultimately, public
opinion will determine whether there is sufficient political will to
precipitate change.
To gain more traction with the public, one fact must be
emphasized above all others: excessive phone rates affect society
as a whole. In addition to having a direct, measurable impact on
prisoners and their families, they impede re-entry and encourage
recidivism, which impacts public safety everywhere. The more the
public hears about family members like Janet Logan in Missouri,
who was forced to spend over $700 to talk to her husband over the
holidays, the more likely they will be spurred to act by the
fundamental injustice of excessive prison phone rates.
It is no sin to be kin, yet families of the incarcerated are
penalized for their natural efforts to maintain healthy, normal
relationships with their loved ones behind bars. Although the
contact provided by prison telephones takes place at the level of a
whisper or a lonely goodnight, these brief exchanges build real
connections, just as they do for family members separated by
divorce or war. The people walking out the front door of our
prisons every day need these connections to help them successfully
transition back into society. Absent a uniform solution at the
federal level, any success—whether it occurs in a state legislature,
in a state department of correction, or a court room—is one more
call for affordable phone rates for prisoners’ families. A chorus of
challenges is needed to achieve widespread change. Reform must
be pursued through every possible avenue until justice is done.