FCC Denies, 4-1, ICS Provider Objections to Giving Sensitive Data to Pay Tel Outside Counsel

The FCC rejected inmate calling service providers' objections to allowing the outside counsel of competitor Pay Tel Communications to view their commercially sensitive information pursuant a protective order in the ICS rulemaking. In an order Monday in docket 12-375, the commission denied a Securus application for review of an October 2014 Wireline Bureau order that sided with Pay Tel's request. The company's outside counsel didn't get access to the Securus data during the review, the agency said. The FCC also denied similar objections filed by Global Tel*Link and Telmate. The ICS providers said Pay Tel's outside counsel was too close to the rival company. But the FCC ordered the ICS providers to give Pay Tel's outside counsel access to the data within 10 business days. "Consistent with the general restrictions of a protective order, Pay Tel is entitled to have the representation it desires, and its outside counsel is entitled to have access to all the information it needs to zealously represent its client. Having found that Pay Tel’s outside counsel are not engaged in competitive decision-making and are eligible to review information under the Protective Order, we reject the Objectors’ arguments to prevent them from doing so," the commission said. The ICS rulemaking resulted in a November order restricting ICS rates and fees along with a Further NPRM seeking comment on more possible changes. The FCC said access to the confidential information was still at issue because of the new proceeding and legal challenges to the November order in the U.S. Court of Appeals for the D.C. Circuit, which Monday stayed agency rate caps and one set of ancillary fee limits (see 1603070055). Commissioner Mike O'Rielly dissented from Monday's order, saying in a statement the FCC hadn't adequately considered the objections of Global Tel*Link, Securus and Telmate. Commissioner Ajit Pai didn't dissent but issued a statement criticizing the FCC comments about Pay Tel's rights to zealous representation and other things. "It's a little late for such high-minded rhetoric," he said. "How was Pay Tel’s outside counsel supposed to 'zealously represent its client' or 'meaningfully participate' in this rulemaking with 'one hand [tied] behind counsels’ backs'? The Order offers no answer. Nor does it offer any reason for the long delay in adjudicating this dispute. Although I support today’s order -- the proverb 'better late than never' comes to mind -- I am disturbed that we may have deprived a party of its administrative rights through inaction. That’s unacceptable and yet another troubling sign that the FCC’s processes are in desperate need of reform."