After a decade of legal wrangling, change is finally coming to prison phone rates. At last week’s open meeting, the Federal Communications Commission (FCC) adopted a Notice of Proposed Rulemaking (NPRM) to begin regulating the charges incarcerated people must pay to call their families. Although significant work remains to be done, this decision represents an important step toward restoring the dignity of a vulnerable population. It also represents a rare triumph of the political process, reflecting a dialogue among the various branches of government using the traditional lawmaking procedure to achieve lasting results.

The inmate calling market exhibits many unique characteristics that have long evoked concern among policymakers. Unlike traditional communications markets, incarcerated people are not free to choose from a menu of providers. Inmates are captive customers, required to use the service chosen by the state, whose interests do not necessarily align with those of the incarcerated. Unsurprisingly, this agent problem can distort the market for inmate telephone service. As noted recently by the Wall Street Journal, two companies dominate most of the market for prison service. Prison calling rates can be extraordinarily high: One study estimates that a 15-minute call averages $3, and the FCC suggests this could be as high as $24.80.

Reducing the cost of inmate calling services was a passion project of former FCC Chairwoman Mignon Clyburn—and for good reason. Not only is it humane to facilitate inmate communication with their loved ones, but it’s also good policy: Studies show that inmates who have regular contact with their family while incarcerated are more likely to succeed after their release and exhibit lower recidivism rates.

In 2012, the commission capped rates for interstate calling services for incarcerated populations, and in 2015, it extended those rules to intrastate rates as well. But this latter move was a step too far under the commission’s existing authority. Under the Communications Act, intrastate rates are the prerogative of the states, not the FCC. In Global Tel*Link v. FCC, the DC Circuit ruled that the agency lacked the power to cap intrastate rates. The court also invalidated the agency’s methodology to set those caps, explaining that industry-wide rate caps violated the statutory requirement that providers be “fairly compensated” for “each and every” completed call.

Over the next five years, the political branches worked to overcome the obstacles cited by the court. On January 5, 2023, President Joe Biden signed the Martha Wright-Reed Act, which amended the Communications Act to allow the commission to regulate intrastate inmate calling services. In response to the court’s criticism, the act deleted the “each and every” call requirement, thus permitting the agency to set rates using industry-wide average costs. But Congress required the commission’s rate-making to consider the costs of safety and security measures necessary to provide inmate service.

Last week’s FCC NPRM appropriately seeks comment as to the effect of this amendment. It seeks input regarding the effect of deleting the “each and every” call language and how that interacts with the act’s requirement that providers be fairly compensated and that rates be “just and reasonable.” The commission is likely correct that this change gives it additional flexibility to set rates based on average costs. But Congress provided important input by indicating specific costs that must be included in the agency’s rate-making process. The NPRM represents the agency’s first step toward writing new rules to replace those struck down in 2017.

It’s tempting to view this saga as a repudiation of judicial interference in important agency business. One could argue that the court derailed the FCC’s quest for justice for inmates and that Congress drafted the Martha Wright-Reed Act specifically to remove the legal obstacles to the agency’s agenda.

But that dialogue between branches illustrates how our messy legal process can achieve better and more legitimate outcomes. Most agreed that the FCC had identified an important problem. The dispute was about whether it had the authority to solve it. The court highlighted the gap in legal authority, and Congress and the president acted to fill that gap, in the process answering important political questions about whether and how the agency should intervene in this sphere.

The Martha Wright-Reed Act did not restore the FCC to status quo ante. The agency is now on firm statutory ground, with guidance from the political branches regarding how to proceed. The resulting rules will have greater legitimacy, having been endorsed by bipartisan support of our elected officials—and, by extension, of the people they represent. In an area of increasing political dysfunction, this small story is a triumph of the traditional lawmaking process and provides a model of how agencies, courts, and Congress could and should work together to achieve lasting solutions to even larger policy challenges.

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