Communications Assistance for Law Enforcement Act

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CC Docket No. 97-213, FCC 98-282]

Communications Assistance for Law Enforcement Act

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: This Further Notice of Proposed Rulemaking (Further NPRM)

addresses alleged deficiencies in industry-developed technical

requirements for wireline, cellular and broadband Personal

Communications Services (PCS) carriers to comply with the assistance

capability requirements prescribed by the Communications Assistance for

Law Enforcement Act of 1994 (CALEA, or the Act). The Act authorizes the

Commission to establish, by rule, technical requirements or standards

that meet the assistance capability requirements, if industry or

standards setting organizations have failed to set such standards, or

if any party believes that an industry standard is deficient.

DATES: Comments are due December 14, 1998; reply comments are due

January 13, 1999.

FOR FURTHER INFORMATION CONTACT: Rodney Small, Office of Engineering

and Technology, (202) 418-2452.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's

Further Notice of Proposed Rulemaking, CC Docket 97-213, FCC 98-282,

adopted October 22, 1998, and released November 5, 1998. The full text

of this Commission decision is available for inspection and copying

during normal business hours in the FCC Reference Center (Room CY-

C404), 445 Twelfth Street, S.W., Washington, D.C., and also may be

purchased from the Commission's duplication contractor, International

Transcription Service, (202) 857-3800, 1231 20th Street, N.W.,

Washington, D.C. 20036.

Summary of the Further Notice of Proposed Rulemaking

1. The Further NPRM addresses alleged deficiencies in industry-

developed technical requirements for wireline, cellular, and broadband

PCS carriers to comply with the assistance capability requirements

prescribed by CALEA. Industry developed these technical requirements in

an attempt to satisfy the ``safe harbor'' provision of the Act, which

permits telecommunications carriers to be found in compliance with

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CALEA if carriers comply with publicly available technical requirements

adopted by an industry association or standard-setting organization, or

by the Commission. The Act authorizes the Commission to establish, by

rule, technical requirements or standards that meet the assistance

capability requirements, if industry or standards-setting organizations

have failed to set such standards, or if any party believes that an

industry standard is deficient. The Commission has received four

petitions for rulemaking asking us to establish such requirements or

standards pursuant to our statutory authority under the Act. In

addition, in response to a Public Notice the Commission's Wireless

Telecommunications Bureau and Office of Engineering and Technology

released on April 20, 1998, we have received numerous comments

disputing whether certain specific technical requirements are necessary

to comply with CALEA.

2. In light of petitioners' claims that the interim standard

adopted by industry is deficient with regard to particular technical

requirements it currently includes, this Further NPRM analyzes those

specific requirements and reaches tentative conclusions regarding which

of them meet the definitions of CALEA Section 103. The Further NPRM

also seeks comment on a range of issues associated with the

Commission's obligations under the Act. In addition, we seek comment on

what role, if any, we can or should play in assisting

telecommunications carriers other than wireline, cellular, and

broadband PCS carriers to set standards for, or to achieve compliance

with, CALEA's requirements.

3. Since 1970, telecommunications carriers have been required to

cooperate with law enforcement agencies in conducting electronic

surveillance. Recent advances in technology, however, most notably the

introduction of digital transmission and processing techniques and the

proliferation of wireless services, have hampered the law enforcement

community's ability to conduct lawfully authorized surveillance. CALEA

was enacted in 1994 to address such problems, and to ensure that law

enforcement surveillance efforts would not be unintentionally thwarted

by the development and deployment of new telecommunications

technologies and services. At the same time, however, Congress

recognized the need to protect privacy interests within the context of

court-authorized electronic surveillance. In defining the terms and

requirements of the Act, therefore, Congress sought to balance three

important policies: ``(1) to preserve a narrowly focused capability for

law enforcement agencies to carry out properly authorized intercepts;

(2) to protect privacy in the face of increasingly powerful and

personally revealing technologies; and (3) to avoid impeding the

development of new communications services and technologies.'' Based on

these considerations, Congress envisioned that the requirements of

CALEA would serve as ``both a floor and a ceiling,'' defining the

minimum capabilities that should be provided to law enforcement, while

also establishing limits as to what can be provided.

4. CALEA directs carriers to ensure that their equipment,

facilities, and services are capable of meeting certain requirements to

assist law enforcement in carrying out lawfully authorized electronic

surveillance. To accomplish this, the Act sets out general assistance

capability requirements that telecommunications carriers must meet, and

defines the obligations of the industry, the law enforcement community,

and the Commission in developing the technical requirements or

standards necessary to meet these requirements. To date, industry and

the law enforcement community, although they have reached agreement on

many issues, disagree on whether certain specific features and/or

technical requirements must be provided by carriers to comply with the

Act's assistance capability requirements. Consequently, as authorized

by the Act, representatives of industry, law enforcement, and the

privacy community have petitioned the Commission to establish such

technical requirements or standards. In this Further NPRM, therefore,

we consider whether certain specific technical requirements are

necessary for wireline, cellular and broadband PCS carriers to meet

CALEA's assistance capability requirements. Below we discuss the

relevant provisions of the Act.

CALEA Assistance Capability Requirements

5. The basic requirements for meeting CALEA's mandates are

contained in Section 103, which establishes four general ``assistance

capability requirements'' that carriers must meet to achieve

compliance. Specifically, Section 103 requires a telecommunications

carrier to:

(a) [E]nsure that its equipment, facilities, or services that

provide a customer or subscriber with the ability to originate,

terminate, or direct communications are capable of--

(1) Expeditiously isolating and enabling the government,

pursuant to a court order or other lawful authorization, to

intercept, to the exclusion of any other communications, all wire

and electronic communications carried by the carrier within a

service area to or from equipment, facilities, or services of a

subscriber of such carrier concurrently with their transmission to

or from the subscriber's equipment, facility, or service, or at such

later time as may be acceptable to the government;

(2) Expeditiously isolating and enabling the government,

pursuant to a court order or other lawful authorization, to access

call-identifying information that is reasonably available to the

carrier--

(A) Before, during, or immediately after the transmission of a

wire or electronic communication (or at such later time as may be

acceptable to the government); and

(B) In a manner that allows it to be associated with the

communication to which it pertains,

except that, with regard to information acquired solely pursuant to

the authority for pen registers and trap and trace devices (as

defined in section 3127 of title 18, United States Code), such call-

identifying information shall not include any information that may

disclose the physical location of the subscriber (except to the

extent that the location may be determined from the telephone

number);

(3) Delivering intercepted communications and call-identifying

information to the government, pursuant to a court order or other

lawful authorization, in a format such that they may be transmitted

by means of equipment, facilities, or services procured by the

government to a location other than the premises of the carrier; and

(4) Facilitating authorized communications interceptions and

access to call-identifying information unobtrusively and with a

minimum of interference with any subscriber's telecommunications

service and in a manner that protects--

(A) The privacy and security of communications and call-

identifying information not authorized to be intercepted; and

(B) Information regarding the government's interception of

communications and access to call-identifying information.

6. CALEA does not specify how these four assistance capability

requirements are to be met. Rather, it states only that

telecommunications carriers, in consultation with manufacturers and

telecommunications support service providers, must ensure that the

carriers' equipment, facilities, and services comply with the

requirements. Manufacturers and telecommunications support service

providers are subject to a ``cooperation'' requirement, i.e., they are

required to make available to carriers the features and modifications

necessary for carriers to comply with the requirements ``on a

reasonably timely basis and at a reasonable charge.'' Additionally, the

Attorney General of the United States must consult with appropriate

industry associations and

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standards-setting organizations; with representatives of users of

telecommunications equipment, facilities, and services; and with state

utility commissions ``to ensure the efficient and industry-wide

implementation of the assistance capability requirements.''

7. Section 107(a)(2) of CALEA contains a ``safe harbor'' provision,

stating that ``[a] telecommunications carrier shall be found to be in

compliance with the assistance capability requirements under Section

103, and a manufacturer of telecommunications transmission or switching

equipment or a provider of telecommunications support services shall be

found to be in compliance with section 106, if the carrier,

manufacturer, or support service provider is in compliance with

publicly available technical requirements or standards adopted by an

industry association or standard-setting organization, or by the

Commission under subsection (b), to meet the requirements of Section

103.'' Thus, the Act envisions that an industry association or a

standards-setting organization would set applicable standards.

Individual carriers, however, are free to choose any technical solution

that meets the assistance capability requirements of CALEA, whether

based on an industry standard or not. Carriers, therefore, have some

degree of flexibility in deciding how they will comply with CALEA's

Section 103 requirements. CALEA specifically states, however, that the

absence of industry standards does not relieve a carrier of its

obligation to comply with the assistance capability requirements.

8. In addition to the safe harbor provision, section 107 also

defines certain Commission responsibilities under the Act.

Specifically, upon petition, section 107(b) authorizes the Commission

to establish, by rule, technical requirements or standards necessary

for implementing Section 103. Section 107(b) provides that a petition

may be filed with the Commission (1) if industry associations or

standard-setting organizations fail to issue technical requirements or

standards, or (2) if a government agency or any other person believes

that requirements or standards that were issued are deficient.

9. Section 107(b) specifies five factors that the Commission must

consider as part of its efforts to establish technical requirements or

standards to meet the assistance capability requirements of Section

103. Such technical requirements or standards must:

Meet the assistance capability requirements of Section 103

by cost-effective methods;

Protect the privacy and security of communications not

authorized to be intercepted;

Minimize the cost of such compliance on residential

ratepayers;

Serve the policy of the United States to encourage the

provision of new technologies and services to the public; and

Provide a reasonable time and conditions for compliance

with and the transition to any new standard, including defining the

obligations of telecommunications carriers under Section 103 during any

transition period.

10. Section 107(c) authorizes the Commission to extend the

compliance date for telecommunications carriers' equipment, facilities,

and services. On September 11, 1998, the Commission exercised its

authority under section 107(c) by extending the deadline for compliance

with Section 103 requirements from October 25, 1998 to June 30, 2000.

This extension applies to all telecommunications carriers proposing to

install or deploy, or having installed or deployed, any equipment,

facility or service prior to the effective date of Section 103, for

that part of the carrier's business on which the new equipment,

facility or service is used.

Development of Industry Interim Standard J-STD-025

11. Since early 1995, Subcommittee TR45.2 of the Telecommunications

Industry Association (TIA) has been working to develop an industry

standard that would satisfy the assistance capability requirements of

Section 103 for wireline, cellular, and broadband PCS carriers. The

standards-setting effort has included participation by industry and law

enforcement. In 1996, the Subcommittee received from the Federal Bureau

of Investigation (FBI) a document known as the Electronic Surveillance

Interface (ESI). The ESI was law enforcement's recommendation for the

logical and physical interfaces between a wireline, cellular, or

broadband PCS carrier's network and a law enforcement agency's

electronic surveillance collection facility. The ESI was developed at

the request of industry to describe law enforcement's vision and

recommendations for the interface. The ESI defined the requirements for

the delivery of both call content and call-identifying information to a

law enforcement agency (LEA).

12. By the spring of 1997, TIA developed a final draft of a

proposed CALEA industry standard. The draft standard defined services

and features to support lawfully authorized electronic surveillance and

the interfaces to deliver authorized intercepted communications and

call-identifying information to a LEA. Specifically, the draft standard

defined the intercept function in terms of five broad categories:

access, delivery, service provider administration, collection, and law

enforcement administration. This standard was submitted for balloting

to all participants in the standards-setting process under procedures

of the American National Standards Institute (ANSI). The law

enforcement community unanimously opposed adoption of this standard,

and it was voted down. The FBI, on behalf of this community, attached a

lengthy critique of the draft standard to its ballot, including

specific recommendations for changes.

13. The FBI's objections to the draft standard centered around a

list of technical capabilities that it contended are necessary to meet

CALEA's requirements, but that were not included in the industry

interim standard. The FBI's list, which has come to be known as the

``punch list,'' originally contained 11 items, and now contains nine

items. Specifically, the FBI's punch list identifies the following

capabilities it believes must be provided under CALEA:

(1) Content of subject-initiated conference calls--Would enable law

enforcement to access the content of conference calls supported by the

subject's service (including the call content of parties on hold).

(2) Party hold, join, drop--Messages would be sent to law

enforcement that identify the active parties of a call. Specifically,

on a conference call, these messages would indicate whether a party is

on hold, has joined or has been dropped from the conference call.

(3) Subject-initiated dialing and signaling information--Access to

all dialing and signaling information available from the subject would

inform law enforcement of a subject's use of features (such as the use

of flash-hook and other feature keys).

(4) In-band and out-of-band signaling (notification message)--A

message would be sent to law enforcement whenever a subject's service

sends a tone or other network message to the subject or associate

(e.g., notification that a line is ringing or busy).

(5) Timing information--Information necessary to correlate call-

identifying information with the call content of a communications

interception.

(6) Surveillance status--Message that would verify that an

interception is still functioning on the appropriate subject.

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(7) Continuity check tone (c-tone)--Electronic signal that would

alert law enforcement if the facility used for delivery of call content

interception has failed or lost continuity.

(8) Feature status--Would affirmatively notify law enforcement of

any changes in features to which a subject subscribes.

(9) Dialed digit extraction--Information would include those digits

dialed by a subject after the initial call setup is completed.

14. After the close of balloting, Subcommittee TR45.2 held a number

of meetings and made changes to the draft industry standard, including

a number of changes recommended by the FBI. However, based on the

concerns discussed below, none of the FBI punch list items were added

to the industry standard. The Subcommittee recommended that the revised

standard be considered as a joint TIA/Committee T1 Interim Standard and

reballoted under TIA procedures rather than ANSI's. An interim

standard, however, is valid for a period of only three years and is

considered by ANSI as a ``trial use.'' TIA adopted the recommendations,

and the revised draft standard was submitted for voting in the fall of

1997. Because no law enforcement agencies are members of the TIA or

Committee T1, however, only industry entities were eligible to cast

ballots.

15. The industry unanimously approved the draft standard as

fulfilling the requirements mandated by CALEA. In December 1997, the

TIA and Committee T1, sponsored by the Alliance for Telecommunications

Industry Solutions, announced the joint publication of interim standard

J-STD-025, Lawfully Authorized Electronic Surveillance (J-STD-025,

interim standard, or industry interim standard). This standard defines

services and features required to support lawfully authorized

electronic surveillance and specifies interfaces necessary to deliver

intercepted communications and call-identifying information to a LEA.

TIA stated that compliance with J-STD-025 satisfies the ``safe harbor''

provisions of CALEA.

Petitions for Rulemaking

16. In July 1997, before the industry interim standard was

released, the Cellular Telecommunications Industry Association (CTIA)

filed a petition for rulemaking on behalf of its members requesting

that the Commission establish a standard to implement the requirements

of Section 103, pursuant to the Commission's authority under section

107(b). CTIA contended that the standards setting process was

deadlocked, and that it was unlikely that a standard would be developed

in the near future. CTIA attached to its petition the draft industry

standard that ultimately became J-STD-025, and argued that this draft

standard met the functional requirements of CALEA in their entirety.

17. In August 1997, comments on the CTIA petition were filed

jointly by the Center for Democracy and Technology (CDT) and the

Electronic Frontier Foundation (EFF). CDT/EFF generally supported

CTIA's request to adopt the proposed industry standard; however, they

recommended the deletion of provisions relating to subject location and

packet-mode information. In March 1998, following adoption of the

industry interim standard, DoJ/FBI jointly filed a motion to dismiss

CTIA's Petition for Rulemaking on the grounds that the December 1997

adoption of the interim standard rendered CTIA's petition moot. As

discussed below, we agree, and dismiss CTIA's July 1997 Petition for

Rulemaking.

18. On March 26, 1998, CDT filed a petition for rulemaking,

requesting that the Commission intervene in the implementation of

CALEA. CDT reiterated the position it and EFF had enunciated in August

1997, arguing that J-STD-025 goes too far in permitting location

information capabilities and fails to protect the privacy of packet-

mode communications. CDT further argued that the additional

surveillance enhancements sought by the FBI in the punch list are not

required under CALEA. CDT stated that the telecommunications industry

and the FBI had failed to agree on a plan for preserving a narrowly-

focused surveillance capability that would protect privacy and,

further, were now mired in an argument over designing additional

surveillance features into the nation's telecommunications system.

Finally, CDT stated that compliance with J-STD-025 was not reasonably

achievable and requested that the Commission indefinitely delay

implementation of CALEA while a more narrowly-focused standard

consistent with the intent of CALEA is developed.

19. On March 27, 1998, DoJ and the FBI jointly filed a petition for

expedited rulemaking, asking the Commission to correct deficiencies in

the industry standard by establishing additional technical standards

that meet the requirements of CALEA. DoJ/FBI claim that the interim

standard adopted by industry is deficient because: (1) It does not

ensure that law enforcement will be able to receive all of the

communications content and call-identifying information that carriers

are obligated to deliver under CALEA; and, (2) it fails to ensure that

information will be delivered in a timely manner. DoJ/FBI set forth, as

a proposed rule, the features (i.e., the punch list items) they believe

should be added to the interim standard to correct its deficiencies.

DoJ/FBI request that the Commission leave the industry interim standard

in effect pending the issuance of a final decision.

20. On April 2, 1998, TIA filed a petition for rulemaking, asking

the Commission to resolve the dispute as to whether the interim

standard is overinclusive or underinclusive. TIA requested that we: (1)

Immediately announce suspension of enforcement of CALEA until we make

our determination of a permanent standard; (2) establish a reasonable

compliance schedule of at least 24 months to implement the permanent

standard; (3) undertake an expedited schedule for establishing a

permanent standard; and (4) remand any further technical

standardization work to TIA Subcommittee TR45.2.

21. On April 20, 1998, the Commission's Wireless Telecommunications

Bureau and Office of Engineering and Technology released a Public

Notice in this proceeding soliciting comment on the above petitions, as

well as soliciting comment on whether the October 25, 1998 deadline for

compliance with CALEA's capability requirements should be extended. The

Public Notice also requested specific comment on the scope of the

assistance capability requirements necessary to satisfy the obligations

imposed by CALEA. In particular, the Public Notice requested analyses

of whether the technical requirements discussed in the petitions from

CDT and from DoJ/FBI are necessary for carriers to meet CALEA's Section

103 requirements. Finally, the Public Notice requested comment on

remanding any additional standards development to TIA Subcommittee

TR45.2.

22. A number of parties petitioned the Commission to extend the

October 25, 1998 deadline for complying with the core features of

CALEA, and on September 11, 1998, the Commission released a Memorandum

Opinion and Order (Extension Order) granting such an extension until

June 30, 2000. Pursuant to our authority under section 107(c) of CALEA,

we determined that compliance with the assistance capability

requirements of Section 103 was not reasonably achievable by any

telecommunications carrier through the application of available

technology by CALEA's compliance deadline of

[[Page 63643]]

October 25, 1998. Therefore, we granted a blanket extension of CALEA's

compliance deadline until June 30, 2000, for all telecommunications

carriers similarly situated to the petitioners, i.e., those carriers

proposing to install or deploy, or having installed or deployed, any

equipment, facility or service prior to the effective date of Section

103, for that part of the carrier's business on which the new

equipment, facility or service is used.

Authority and Approach

23. Section 107(b) of CALEA empowers the Commission to establish,

by rule, technical requirements or standards to meet the assistance

capability requirements of Section 103. Additionally, section 301(a) of

CALEA states that ``[t]he Commission shall prescribe such rules as are

necessary to implement the requirements of [CALEA].''

24. In fulfilling our obligations under CALEA, our evaluation in

this proceeding will closely follow the plain language of the Act.

Pursuant to our statutory authority, we will separately examine the two

contested features of the J-STD-025 standard (i.e., the location

information and packet-mode features opposed by CDT) and the punch list

items sought by the FBI, to determine whether each meet the mandates of

Section 103.

25. As an initial matter, we will first determine whether the

specific item we are evaluating meets the assistance capability

requirements set forth in Section 103(a)(1)-(4). In doing so, we

propose to interpret these provisions narrowly. As noted above, we look

to the plain language, its context, and, if necessary, any legislative

history that assists in ascertaining Congressional intent.

Specifically, we explore below the intent of Congress' use of the terms

``equipment, facilities or services'' in Section 103(a)(1) as it

relates to the content of subject-initiated conference calls. We also

seek to interpret Section 103(a)(2)'s provision that call-identifying

information must be provided to a LEA only if that information is

``reasonably available'' to a telecommunications carrier. In this

regard, we tentatively conclude that before we can make a determination

whether a specific technical requirement meets the mandates of Section

103's assistance capability requirements, the Commission must determine

whether the information to be provided to a LEA under Section 103(a)(2)

is reasonably available to the carrier. The Act does not specify how

the term ``reasonably available'' should be defined or interpreted, and

the Act's legislative history offers little additional guidance. We

therefore request comment on what factors the Commission should use in

determining whether the information to be provided to a LEA under

Section 103(a)(2) is reasonably available.

26. Specifically, we request comment on how cost should be

considered in our determination of reasonable availability. Further, we

note that carriers use a variety of system architectures and different

types of equipment, leading us to believe that reasonable availability

is also likely to vary from carrier to carrier. Commenters should

discuss how the Commission can evaluate whether a particular technical

requirement is reasonably available in these circumstances and discuss

how the application or interpretation of these terms in Section

103(a)(2) is similar to or different from the application or

interpretation of ``reasonably achievable'' in section 109(b), and the

factors listed there.

27. We also ask commenters to evaluate the type of information that

has been traditionally available under pen register and trap-and-trace

authorizations, and whether the provision of such information to LEAs,

in light of the statutory definitions of ``pen register'' and ``trap

and trace device'', and judicial interpretations of them, provide

guidance or represent possible factors for determining ``reasonable

availability.''

28. Finally, we also invite comment on whether and, if so, under

what circumstances and to what extent, information that does not

qualify as call-identifying information under Section 102(2) or

otherwise is not ``reasonably available'' under Section 103(a)(2), may

nevertheless qualify as call content information under Section

103(a)(1) and the definitions of ``wire and electronic communications''

in 18 U.S.C. Sec. 2510(1), (12). Commenters should take into account

that the provisions of Section 103(a)(1) do not include a criterion of

``reasonable availability.''

29. If we conclude that the item in question constitutes a

technical requirement that meets the Section 103 assistance capability

requirements, we will then proceed to analyze each of the factors

identified by section 107(b) and seek comment on whether a particular

technical requirement: (1) Meets the assistance capability requirements

of Section 103 by cost-effective methods; (2) protects the privacy and

security of communications not authorized to be intercepted; (3)

minimizes the cost of such compliance on residential ratepayers; and,

(4) serves the policy of the United States to encourage the provision

of new technologies and services to the public. Additionally, section

107(b)(5) requires the Commission to provide a reasonable time and

conditions for compliance with and the transition to any new standard,

including defining the obligations of telecommunications carriers under

Section 103 during any transition period. Thus, we will also seek

comment on issues bearing on our section 107(b)(5) determinations. If,

on the other hand, we tentatively conclude that a specific technical

requirement falls outside of the parameters of the assistance

capability requirements established by Section 103, we will seek

comment on our tentative conclusion, and request that commenters

responding to this conclusion provide support for their agreement or

disagreement by thoroughly analyzing the section 107(b) factors

mentioned above.

30. We emphasize that, because CALEA specifically requires us to

consider the section 107(b) factors, commenters are strongly encouraged

to provide us with information as detailed and specific as possible.

For sections 107(b)(1) and (3), for example, we seek detailed comment

regarding the costs of adding a feature to a telecommunications

carrier's network and on what, if any, impact of such costs will have

on residential ratepayers. Commenters should consider the costs to

manufacturers in developing the equipment or software needed to

implement the technical requirement, as well as the cost to carriers to

install and deploy such equipment. Commenters should be specific as to

which entities would incur the cost of adding particular features;

e.g., manufacturers, local exchange carriers (LECs), interexchange

carriers (IXCs), or commercial mobile radio service (CMRS) providers,

etc. Commenters should also be specific as to what costs would be

incurred for hardware, as opposed to software upgrades to carriers'

networks, and whether some of these upgrades would have other uses in

the networks. If costs are likely to be passed on to residential

ratepayers, those costs should be identified, as well as specific

mechanisms that could be used to minimize such costs.

31. Under section 107(b)(2), if a party believes that a proposed

technical requirement would not protect the privacy and security of

communications not authorized to be intercepted, we request comment on

modifications or alternative technical requirements that would enable

Section 103's capability requirements to be met. In addition, we

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seek detailed information on whether our determination that a

particular feature must be provided under CALEA will encourage or

discourage the provision of new technologies and services to the

public. Will the implementation of a particular technical requirement

constrain a carrier's ability to develop new services or technologies?

Commenters should provide a projected timeline for each technical

requirement, identifying the time needed to develop, test, and deploy

it. Additionally, commenters should address the extent to which the

capacity requirements of section 104 should affect our determinations

under section 107(b). Finally, we ask for comment on any conditions

necessary for compliance and any specific obligations that should be

imposed on telecommunications carriers during the transition to a new

standard.

32. We note that the tentative conclusions we reach in this Further

NPRM focus on the technical requirements that the petitioners have

asked us to address in their petitions pending before us; i.e., the two

contested features of J-STD-025 and the nine punch list items. In

making our tentative decision, we recognize that CALEA requires

carriers to ensure that their networks can provide the capabilities

defined in Section 103, but does not mandate use of, or adherence to,

any particular standard. In other words, compliance with the industry

standard is voluntary, not compulsory. As a result, carriers are free

to develop CALEA solutions in any manner they choose. Thus, a carrier

may choose to utilize an industry standard as a safe harbor, or they

may choose to implement other solutions that meet the capability

requirements of Section 103. However, in order for an adopted industry

standard to satisfy the safe harbor provision of section 107(a), it

must incorporate all of the technical requirements that we ultimately

determine meet the assistance capability requirements of Section 103.

33. We note further that this proceeding does not involve any

attempt to interpret statutes other than CALEA or define the scope of

authorizations needed by LEAs to intercept or obtain call content or

call-identifying information. Rather, this proceeding is limited to

determining, as a safe harbor, what capabilities each carrier must

provide if and when presented with a proper authorization or court

order to expeditiously provide LEAs access to call content and call-

identifying information.

34. We believe that industry is in the best position to determine

how to implement these technical requirements most effectively and

efficiently. Standards-setting organizations, manufacturers, and/or

individual telecommunications carriers should develop the technical

requirements consistent with our ultimate determinations reached in

this proceeding. We tentatively conclude that it would then be

appropriate for industry, in consultation with the law enforcement

community, to develop a final ``safe harbor'' standard for CALEA

compliance. We seek comment on this conclusion.

35. Finally, we also note that manufacturers and carriers are free

to develop and deploy additional features and capabilities, beyond

those required by CALEA, in efforts to assist law enforcement agencies

in conducting lawfully-authorized electronic surveillance. Such

capabilities, however, will not be subject to any of CALEA's

obligations, including cost recovery, and will not affect any party's

obligations under CALEA in any way. Thus, nothing in the instant

Further NPRM should be construed as limiting or proposing to limit

telecommunications manufacturers, carriers or support service

providers' ability to negotiate with law enforcement agencies to add

additional capabilities to the carrier's systems, nor to define a

maximum level of capabilities available to law enforcement under the

applicable provisions of law. We now turn to a discussion of whether we

should reexamine the uncontested portions of J-STD-025 as part of our

section 107(b) inquiry.

Industry Interim Standard J-STD-025

36. The industry interim standard, J-STD-025, which applies only to

wireline, cellular, and broadband PCS carriers, specifies that

telecommunications carriers are to provide LEAs with two

telecommunications channels to perform electronic surveillance--call

content channels (CCCs) and call data channels (CDCs). J-STD-025

defines the five functions of the intercept architecture to be used.

Those functions are:

Access--Provides the LEA with the ability to isolate the

subject's call content or call-identifying information accurately and

unobtrusively. The access function helps to prevent the unauthorized

access, manipulation, and disclosure of intercept controls, call

content, and call-identifying information.

Delivery--Accepts call content and call-identifying

information from the access function and delivers it to one or more LEA

collection functions. Ensures that the call content and call-

identifying information that are delivered are authorized for a

particular LEA, and thus also prevents the unauthorized access,

manipulation, and disclosure of intercept controls, call content, and

call-identifying information.

Collection--Receives and processes call content and call-

identifying information for the subject. (This function is the

responsibility of the LEA.)

Service Provider Administration--Controls the carrier's

electronic surveillance functions. (This function is beyond the scope

of the interim standard.)

Law Enforcement Administration--Controls the LEA

electronic surveillance functions. (This function is the responsibility

of the LEA, and is also beyond the scope of the interim standard.)

37. In seeking to fulfill our obligations under the Act, the

Commission acknowledges the immense time and effort both industry and

government representatives have put into the development of CALEA

standards. We also appreciate the input and involvement of privacy

organizations in this proceeding. We further note that the Act

expresses a preference for industry to set CALEA standards, in

consultation with the Attorney General, and that the Act's legislative

history also reveals that Congress envisioned that industry would have

primary responsibility in defining standards. Consequently, we believe

that the most efficient and effective method for ensuring that CALEA

can be implemented as soon as possible is to build on the work that has

been done to date.

38. We therefore do not intend to reexamine any of the uncontested

technical requirements of the J-STD-025 standard. Instead, we will make

determinations only regarding whether each of the location information

and packet-mode provisions currently included within J-STD-025, and the

nine punch list items that are currently not included, meet the

assistance capability requirements of Section 103. We base this

approach on the fact that the issues raised in the petitions and

comments filed in this proceeding focus solely on the location

information and packet-mode provisions of J-STD-025 and the nine punch

list items sought by the FBI. Accordingly, these features will be

evaluated separately. We further note that no party has raised any

specific challenges to J-STD-025 other than with respect to these

issues, and we have not been presented with any

[[Page 63645]]

compelling reason to reexamine the entire standard. We tentatively

conclude that by limiting our inquiry to only these specific technical

issues, we will better enable manufacturers and carriers to build on

the extensive work already completed or in process, and permit them to

deploy CALEA solutions on a more expedited basis. Accordingly, the

uncontested technical requirements are beyond the scope of this

proceeding.

39. In establishing technical requirements or standards, section

107(b)(5) requires the Commission to provide a ``reasonable time'' for

carriers to comply with and/or transition to any new standards and to

define the obligations of telecommunications carriers under Section 103

during any transition period. We previously concluded in our decision

under section 107(c) that telecommunications carriers must have

installed CALEA-compliant equipment and facilities based on the

``core'' features of J-STD-025 by June 30, 2000. A footnote in that

decision indicated that the ``core'' of J-STD-025 excludes both the

location information feature and the packet-mode feature. We now

clarify those findings as follows. J-STD-025 represents an attempt by

industry to develop a standard that carriers may choose to adopt

voluntarily as a means to comply with CALEA's ``safe harbor'' provision

set forth in section 107(a). We further recognize that the statute

leaves carriers with the discretion to choose to comply with CALEA by

other means. We emphasize that in requiring carriers to comply with the

core features of J-STD-025 by June 30, 2000, we did not intend for the

Extension Order to alter the substantive requirements of CALEA. Rather,

we meant only to extend the deadline for compliance. Thus, we now

clarify our Extension Order by requiring that by June 30, 2000,

carriers must either have installed the core features of J-STD-025 to

take advantage of the ``safe harbor'' provision of section 107(a) of

CALEA or have otherwise developed an individual solution and installed

capabilities that meet the assistance capability requirements of

Section 103. We believe that this approach is more consistent with the

language of the statute and the legislative history on this point. In

addition, we now propose to modify footnote 139 of the Extension Order

to include the location information feature as part of the core of J-

STD-025 which, if chosen by carriers as a means to qualify for the

``safe harbor,'' must be implemented by the June 30, 2000 deadline.

40. As detailed in the Extension Order, an extension until June 30,

2000, provides sufficient time for manufacturers to produce CALEA

compliant equipment based on the core features of J-STD-025 or to

develop individual network solutions and provides telecommunications

carriers sufficient time to purchase, test and install such equipment

throughout their networks. We further recognize that the additional

``non-core'' technical requirements we propose to be adopted in this

rulemaking may require additional time for manufacturers to design and

develop these capabilities and for telecommunications carriers to

incorporate them into their networks. Thus, we will consider

establishing another deadline or an implementation schedule for

telecommunications carriers to comply with any new technical

requirements we ultimately adopt in the instant proceeding. We seek

comment on this proposal. Specifically, we ask carriers and

manufacturers to supply us with timelines that detail how they plan to

develop and deploy the additional technical requirements noted herein.

Location Information

41. J-STD-025 includes a ``location'' parameter that would identify

the location of a subject's ``mobile terminal'' whenever this

information is reasonably available at the intercept access point and

its delivery to law enforcement is legally authorized. Location

information would be available to the LEA irrespective of whether a

call content channel or a call data channel was employed.

42. We tentatively conclude that location information is call-

identifying information under CALEA. The Act states that call-

identifying information is ``dialing or signaling information that

identifies the origin, direction, destination, or termination of each

communication generated or received by a subscriber by means of any

equipment, facility, or service of a telecommunications carrier.'' We

believe, that location information identifies the ``origin'' or

``destination'' of a communication and thus is covered by CALEA.

43. We also observe that in the wireline environment, irrespective

of the precise nature of law enforcement's surveillance authorization,

LEAs have been able to obtain location information routinely from the

telephone number because the telephone number corresponds with

location. With the telephone number, location information is available

from a LEA's own 911/Enhanced 911 (E911) database or from the telephone

company's electronic records, such as the Loop Maintenance Operating

System (LMOS).

44. We note, however, that the location feature as it currently

appears in J-STD-025 is unclear. In particular, we note that this

feature refers to the identification of the location of a subject's

``mobile terminal,'' but does not specifically state whether it is the

precise location of the mobile terminal or handset that is intended, or

simply the location of the cell site to which the terminal or handset

is connected. Also unstated in J-STD-025 is whether continuous location

tracking is intended to be provided, or only the location at the

beginning and termination of the call.

45. In view of the above analysis, we tentatively affirm that

location information should be construed to mean cell site location at

the beginning and termination of a call. We seek comment on these

proposals and, as required by section 107(b), on the other factors that

we must consider in establishing a technical requirement or standard.

We note that location information is already included in J-STD-025, the

interim standard adopted by industry, and was opposed solely by the

privacy groups. Therefore, we request comment in particular on whether

our proposal raises issues regarding the protection of privacy and

security of communications which are not authorized to be intercepted.

Since the location information feature was included by industry in J-

STD-025, we find that the June 30, 2000 CALEA compliance deadline is

also sufficient for development and implementation of compliant

equipment that includes this feature.

46. Finally, we tentatively conclude that location information is

reasonably available to telecommunications carriers, because this

technical requirement was developed by industry and is included in the

interim standard. However, we request comment on how the Commission

should decide or interpret the term ``reasonably available'' in the

context of the proposed location information requirement. For example,

it appears that location information is already available through the

wireless carriers' billing, hand-off and system use features.

Additionally, wireless carriers will be required to have a location

information capability as part of their E911 obligations. We seek

comment as to whether the location information feature in these other

contexts can be used to address the needs of law enforcement under

CALEA. We request comment on any other issues that may impact our

determination as to whether the location information that would be

[[Page 63646]]

required to be provided to a LEA is reasonably available to carriers.

47. Commenters should also note CALEA's express statement that

``with regard to information acquired solely pursuant to the authority

for pen registers and trap and trace devices (as defined in section

3127 of title 18, United States Code), . . . call-identifying

information shall not include any information that may disclose the

physical location of the subscriber (except to the extent that the

location may be determined from the telephone number).'' We agree with

DoJ/FBI that this provision does not exclude location information from

the category of ``call-identifying information,'' but simply imposes

upon law enforcement an authorization requirement different from that

minimally necessary for use of pen registers and trap and trace

devices. We seek comment on this issue.

Packet-Mode

48. J-STD-025 provides for LEA access to call-identifying

information and the interception of wire and electronic

telecommunications, regardless of whether the telecommunications are

carried in circuit-mode or in packet-mode. It further states that the

``call-identifying information associated with the circuit-mode content

surveillance is provided on the [call data channel],'' but does not

specifically address whether call-identifying information, if any,

associated with packet-mode surveillance must be provided over a call

data channel.

49. Packet data and packet-switching technology are potentially

usable for both information services and telecommunications services.

We first observe that Section 103(b)(2)(A) of CALEA expressly excludes

``information services'' from its assistance capability requirements.

Thus, packet data and packet-switching technology is subject to these

requirements only to the extent it is used to provide

telecommunications services, and not for information services. Packet-

mode telecommunications services are expected to grow rapidly in the

near future. J-STD-025 appears to be appropriately limited to apply

only to ``telecommunications services'' as defined by the Commission.

Second, we observe that CALEA requires telecommunications carriers to

provide information to the LEA ``in a manner that protects . . . the

privacy and security of communications . . . not authorized to be

intercepted.'' This mandate would seem to be violated if the carrier

were to give the LEA both call-identifying and call content information

when only the former were authorized. Under those circumstances, the

LEA would be receiving call content information without having the

requisite authorization.

50. The record before us, however, is not sufficiently developed to

support a proposal of any particular CALEA technical requirements for

packet-mode telecommunications. Additional analysis is needed. We are

aware that packet-mode technology is rapidly changing, and that

different technologies may require differing CALEA solutions. We do not

believe that the record sufficiently addresses packet technologies and

the problems that they may present for CALEA purposes. While it is

premature to impose any particular technical requirements for packet-

mode telecommunications at this time, it is appropriate to ask for a

full range of comment on this issue.

51. In seeking to develop a full record, we first set forth an

analytical framework we believe will prove useful for evaluating the

issue of setting CALEA technical requirements for packet-mode

telecommunications. First, we advise commenters to consider the

difference between connection-oriented and connectionless packet-mode

services, and also between permanent virtual circuits, which have no

per-call information, and switched virtual circuits. With these

distinctions in mind, we request that commenters provide detailed

comments regarding whether and, if so, how the statutory requirements

of Section 103(a) of CALEA apply to packet-mode telecommunications. We

request comment on what constitutes the equivalent of ``call-

identifying information'' for packet-mode telecommunications services

within the context of CALEA. Will packet-mode call-identifying

information (or its equivalent) be reasonably available to carriers

and, thus, subject to the provisions of Section 103(a)(2) of CALEA? How

could packet-mode call content and call-identifying information (or its

equivalent) be separated for delivery to law enforcement in compliance

with CALEA?

52. In addition, we seek comment on the other section 107(b)

factors that we must consider in establishing technical requirements.

Specifically, we seek comment on any cost-effective methods for

incorporating CALEA packet-mode requirements into a telecommunications

carrier's system, and whether or not this can be accomplished in a

manner that minimizes costs to residential ratepayers. Further, we

request additional comment on whether the inclusion of packet-mode

technical requirements to meet the assistnace capability requirements

envisioned by Section 103 raises issues regarding the protection of

privacy and security of communications which are not authorized to be

intercepted. Additionally, we solicit comment on whether the inclusion

of such technical requirements would have a positive or negative effect

on the provision of new technologies and services to the public.

Commenters are also asked to provide detailed information regarding the

amount of time and conditions that they believe will be necessary to

successfully develop and deploy packet-mode technical requirements in

telecommunications systems. Finally, we recognize that packet-mode

issues are complex, and that relative to the other issues under

consideration herein, additional time may be required to resolve them.

Content of Subject-initiated Conference Calls

53. This capability would permit the LEA to monitor the content of

conversations connected via conference call set up by the facilities

under surveillance. Surveillance of all portions of a conference call

would continue, even if any party to the call utilized services such as

hold, call waiting, or three-way calling. For example, if anyone

involved in a conference call were placed on hold, all remaining

conversations would continue to be available to the LEA for monitoring.

The ability to monitor would continue even after the subject drops off

the conference call.

54. We tentatively conclude that the provision of the content of

subject-initiated conference calls is a technical requirement that

meets the assistance capability requirements of Section 103. With

appropriate lawful authorization, the LEA is entitled to ``intercept,

to the exclusion of any other communications, all wire and electronic

communications carried by the carrier within a service area to or from

equipment, facilities, or services of a subscriber.'' TIA asserts that

we must first determine whether a conference call capability would

unduly expand Title III's concept of ``facilities'' before deciding

whether such a capability is required under CALEA. We note, however,

that the plan language of CALEA's Section 103 includes the terms

``equipment'' and ``services'', in addition to ``facilities'' thus,

extending LEAs entitlement to access the ``services and equipment'', as

well as the ``facilities'', of a subscriber. According to the

legislative history, ``conference calling'' is one of the ``features

and

[[Page 63647]]

services'' that is covered by CALEA. We seek comment on this proposal.

We also seek comment as to how the Commission should define or

interpret Section 103's use of the phrase ``equipment, facilities, or

services'' in the context of subscriber-initiated conference calls.

55. We recognize that not all carriers' system architecture is the

same. Some carriers, for example, may have systems that support

continuation of conference calls after the subscriber drops off the

call, while others may not. For those network configurations in which,

when a subscriber drops off a conference call, the call nevertheless

remains routed through the subscriber's ``equipment, facilities, or

services,'' we tentatively interpret CALEA as requiring the carrier to

continue to provide the LEA the call content of the remaining parties,

pursuant to court order or other lawful authorization. For those

configurations, however, in which, when the subscriber drops off the

call, the call is either disconnected or rerouted, and the ``equipment,

facilities, or services of a subscriber'' are no longer used to

maintain the conference call, we tentatively conclude that CALEA does

not require the carrier to provide the LEA access to the call content

of the remaining parties. Moreover, in some cases where the call is re-

routed, the content of the call may no longer be classifiable as

``communications carried by the carrier within a service area''

pursuant to Section 103(a)(1) and (d). Thus, under such circumstances,

CALEA would not require the carrier to modify its system architecture

in order to support this particular technical requirement. We seek

comment on this tentative conclusion. Commenters should address how

Sections 103(a)(1) and (d) should be interpreted in this context. Also,

we tentatively conclude that CALEA does not extend to conversations

between a participant of the conference call other than the subject and

any person with whom the participant speaks on an alternative line

(e.g., when A, the subjects, is on a conference call with B and C, we

tentatively conclude that C's conversation with D on call waiting is

beyond CALEA's requirements. We also seek comment on this tentative

conclusion.

56. Additionally, we seek comment on the section 107(b) factors

that we must consider in establishing a technical requirement or

standard. Are there cost-effective methods of incorporating access to

conference call content into a telecommunications carrier's system? Can

it be accomplished in a manner that minimizes costs to residential

ratepayers? Further, we request comment on whether this proposal raises

issues regarding the protection of privacy and security of

communications which are not authorized to be intercepted.

Additionally, we solicit comment on whether the inclusion of this

technical requirement within the assistance capability requirements

envisioned by Section 103 would positively or negatively affect the

provision of new technologies and services to the public. Would, for

example, networks have to be redesigned in such a way as to preclude

certain new technologies or services? Finally, commenters are asked to

provide detailed information regarding the amount of time and

conditions that they believe will be necessary to successfully develop

and deploy this technical requirement in telecommunications systems.

Party Hold, Join, Drop on Conference Calls

57. This item also involves features designed to aid a LEA in the

interception of conference calls. This feature would permit the LEA to

receive from the telecommunications carrier messages identifying the

parties to a conversation at all times. The party hold message would be

provided whenever one or more parties are placed on hold. The party

join message would report the addition of a party to an active call or

the reactivation of a held call. The party drop message would report

when any party to a call is released or disconnects and the call

continues with two or more other parties.

58. We tentatively conclude that party hold/join/drop information

falls within CALEA's definition of ``call-identifying information''

because it is ``signaling information that identifies the origin,

direction, destination, or termination of each communication generated

or received'' by the subject. For example, party join information

appears to identify the origin of a communication; party drop, the

termination of a communication; and party hold, the temporary origin,

temporary termination, or re-direction of a communication. This

capability also appears to be necessary to enable the LEA to isolate

call-identifying and content information because, without it, the LEA

would be unable to determine who is talking to whom, and, more

accurately, to focus on the subject's role in the conversation.

Further, by isolating the call-identifying information in this manner,

the LEA can ascertain and isolate third parties who are not privy to

the communications involving the subject, thereby furthering the

minimization concept.

59. Accordingly, we propose that provision of party hold/join/drop

information, if reasonably available to the carrier, is a technical

requirement that meets the assistance capability requirements of

Section 103. We base this conclusion on the statutory language found in

Sections 103(a)(2) and 102(2). We note, however, that LEA access to

this information would be required only in those cases where the

carrier's facilities, equipment or services are involved in providing

the service; in other words, when a network signal is generated. To the

extent that customer premises equipment (CPE) is used to provide such

features, we tentatively conclude that party hold/join/drop information

could not be made available to the LEA since no network signal would be

generated. For example, many telephone sets have a ``hold'' button that

does not signal the network--thus, from the carrier's point of view,

the call's status is unchanged. We seek comment on this tentative

conclusion. We also seek comment on TIA's assertion that party/hold/

join drop information is already substantially available to the LEA

and, if so, whether it is or needs to be provided in real time.

60. We seek comment on our proposal and, as required by section

107(b), on the other factors that we must consider in establishing a

technical requirement or standard. Are there cost-effective methods of

incorporating a party hold/join/drop capability into a

telecommunications carrier's system? Can it be accomplished in a manner

that minimizes costs to residential ratepayers? Further, we request

comment on whether this proposal raises issues regarding the protection

of privacy and security of communications which are not authorized to

be intercepted. Additionally, we solicit comment on whether the

inclusion of this technical requirement within the assistance

capability requirements envisioned by Section 103 would positively or

negatively affect the provision of new technologies and services to the

public. Further, commenters are asked to provide detailed information

regarding the amount of time and conditions that they believe will be

necessary to successfully develop and deploy this technical requirement

in telecommunications systems.

Subject-initiated Dialing and Signaling Information

61. This capability would permit the LEA to be informed when a

subject using the facilities under surveillance

[[Page 63648]]

uses services such as call forwarding, call waiting, call hold, three-

way calling. DoJ/FBI requests this information for each communication

initiated by the subject. This capability would require the

telecommunications carrier to deliver a message to the LEA, informing

the LEA that the subject has invoked a feature which would place a

party on hold, transfer a call, forward a call, or add/remove a party

to a call.

62. We tentatively conclude that subject-initiated dialing and

signaling information fits within the definition of call-identifying

information contained in section 102(2) of CALEA. For example, call-

forwarding signaling information identifies the direction and

destination of a call, and call-waiting signaling information

identifies the origin and termination of each communication. We request

comment on whether remote operation of these features should affect our

tentative conclusion. For example, a subject may be able to change some

aspects of his/her service from a pay telephone, as well as from the

subject's telephone.

63. We also tentatively conclude that access to subject-initiated

dialing and signaling information may be necessary in order for the LEA

to isolate and correlate call-identifying and call content information.

Knowing what features a subject is using will ensure that the LEA

receives information ``in a manner that allows it to be associated with

the communication to which it pertains.'' For example, without knowing

that a subject has switched over to a call on call-waiting, the LEA may

not be able to associate the call-identifying information with the call

content to which it pertains and thus could be more likely to mistake

one call for another. Once again, to the extent CPE is used to perform

any of the functions described here, and no network signal is

generated, that information will not be reasonably available to a

carrier, and thus, should not be required to be provided.

64. We observe that signaling data indicating that the subject is

accessing his/her voice mail is properly classified as ``call-

identifying information.'' The contents of the voice mail fall outside

the scope of CALEA. This is because voice mail ``permits a customer to

retrieve stored information from . . . information storage

facilities,'' and CALEA does not apply to information services. The

requirement we propose below is consistent with this distinction

because it provides only the call identifying information and is not

capable of providing voice content.

65. Accordingly, we propose to include information on subject-

initiated dialing and signaling that is reasonably available to the

carrier as a technical requirement necessary to meet the assistance

capability requirements of Section 103. We base our conclusion

regarding subject-initiated dialing and signaling information that is

reasonably available to the carrier on the statutory language found in

Section 103(a)(2). We seek comment on this proposal and, as required by

section 107(b), on the other factors that we must consider in

establishing a technical requirement or standard. Are there cost-

effective methods of providing subject-initiated dialing and signaling

information? Can this requirement be accomplished in a manner that

minimizes costs to residential ratepayers? Further, we request comment

on whether this proposal or tentative conclusion raises issues

regarding the protection of privacy and security of communications

which are not authorized to be intercepted. Additionally, we solicit

comment on whether the inclusion of this technical requirement within

the assistance capability requirements envisioned by Section 103 would

positively or negatively affect the provision of new technologies and

services to the public. Commenters are asked to provide detailed

information regarding the amount of time and conditions that they

believe will be necessary to successfully develop and deploy this

technical requirement in telecommunications systems. In addition,

excluding those CPE-controlled features noted above, and consistent

with our proposed ruling regarding voice mail as noted above, we

request comment on whether information required to provide LEAs with

subject-initiated dialing and signaling activity is reasonably

available to carriers. Finally, we recognize that some commenters

assert that at least portions of this technical requirement may be

provided through other features of J-STD-025. We request comment on the

accuracy of these contentions. Commenters should demonstrate clearly

how the features required are provided, or not provided, elsewhere in

J-STD-025.

In-band and Out-of-band Signaling

66. This technical requirement would allow a telecommunications

carrier to send a notification message to the LEA when any network

message (ringing, busy, call waiting signal, message light, etc.) is

sent to a subject using facilities under surveillance. For example, if

someone leaves a voice mail message on the subject's phone, the

notification to the LEA would indicate the type of message notification

sent to the subject (such as the phone's message light, audio signal,

text message, etc.). For calls the subject originates, a notification

message would also indicate whether the subject ended a call when the

line was ringing, busy (a busy line or busy trunk), or before the

network could complete the call.

67. We believe that certain types of in-band and out-of-band

signaling information, such as notification that a voice mail message

has been received by a subject, constitute call-identifying information

under CALEA; while there may be other types of in-band and out-of-band

signaling information that would constitute call content information

and thus would raise questions as to under what authority they should

be provided to the LEA. However, for purposes of this proceeding, we do

not address such questions of whether or what type of authorization

LEAs would need to access such information. This is up to the judicial

branch. Unless necessary to establish technical standards under CALEA's

safe harbor, it is not our intention to specifically decide whether

certain types of in-band or out-of-band signaling is either call

content or call-identifying information since CALEA requires carrier

have the ability to provide access to both. We request comment on what

types of in-band and out-of-band signaling should constitute a

technical requirement necessary to meet the assistance capability

requirements envisioned by Section 103.

68. Also, in the event that we ultimately determine that in-band

and out-of-band signaling is a technical requirement necessary to meet

the assistance capability requirements under Section 103, we request

comment on whether there are cost-effective methods of providing in-

band and out-of-band signaling to a LEA. Can this requirement be

accomplished in a manner that minimizes costs to residential

ratepayers? Further, we request comment on whether this requirement

raises issues regarding the protection of privacy and security of

communications which are not authorized to be intercepted.

Additionally, we solicit comment on whether the inclusion of this

technical requirement within the assistance capability requirements

envisioned by Section 103 would positively or negatively affect the

provision of new technologies and services to the public. Commenters

are asked to provide detailed information regarding the amount of time

and conditions that they believe will be necessary to successfully

develop and deploy this technical

[[Page 63649]]

requirement in telecommunications systems.

Timing Information

69. In those cases where the LEA has obtained authorization to

intercept both content and call-identifying information, this

capability would require that a telecommunications carrier send call

timing information to the LEA so that the LEA could associate the call-

identifying information with the actual content of the call. There

would be two elements to this capability:

(1) Each call-identifying message (answer message, party join

message, party drop message, etc.) would be time stamped within a

specific amount of time from when the event triggering the message

occurred in the intercept access point. This time-stamp would allow the

LEA to associate the message to the call content information (i.e., the

conversation).

(2) A carrier would be required to send the message to the LEA

within a defined amount of time from the event to permit the LEA to

associate the number dialed to the conversation.

70. We tentatively conclude that time stamp information fits within

the definition of call-identifying information contained within section

102(2) of CALEA and will allow such information ``to be associated with

the communication to which it pertains.'' We propose to include timing

information that is reasonably available to the carrier as a technical

requirement necessary to meet the assistance capability requirements of

Section 103(a). We seek comment on this proposal. We base this

conclusion on the statutory language found in Section 103(a)(2), and on

our tentative conclusion that such information falls within the

definition of call-identifying information in section 102(2). A time

stamp permits identification of a given call from a series of calls

made within a short timeframe, and is necessary to allow a LEA to

associate call-identifying information with the communication to which

it pertains. We note, however, that CALEA does not impose a specific

timing requirement on carriers. Rather, it states that carriers must

``expeditiously'' isolate and enable the government to access call-

identifying information ``before, during, or immediately after the

transmission of a wire or electronic communication (or at such later

time as may be acceptable to the government); and in a manner that

allows it to be associated with the communication to which it

pertains.'' Therefore, we seek comment on what is a reasonable amount

of time to require the carriers to deliver the time stamped message to

the LEA. We note that DoJ/FBI have requested delivery within 3 seconds

of the beginning of the event and with an accuracy of 100 milliseconds.

Commenters should address whether this is a reasonable time frame, and

whether there are any technical barriers to implementing such a

requirement. Commenters proposing an alternative time frame should also

address technical feasibility and how such a time frame will satisfy

the requirements of the statute.

71. In addition, we seek comment, as required by section 107(b), on

the factors that we must consider in establishing a technical

requirement. Are there cost-effective methods of providing timing

information to a LEA? Can this requirement be accomplished in a manner

that minimizes costs to residential ratepayers? Further, we request

comment on whether this proposal raises issues regarding the protection

of privacy and security of communications which are not authorized to

be intercepted. Additionally, we solicit comment on whether the

inclusion of this technical requirement within the assistance

capability requirements envisioned by Section 103 would positively or

negatively affect the provision of new technologies and services to the

public. Commenters are asked to provide detailed information regarding

the amount of time and conditions that they believe will be necessary

to successfully develop and deploy this technical requirement in

telecommunications systems.

Surveillance Status

72. This capability would require the telecommunications carrier to

send information to the LEA to verify that a wiretap has been

established and is still functioning correctly. This information could

include the date, time, and location of the wiretap; identification of

the subscriber whose facilities are under surveillance; and

identification of all voice channels that are connected to the

subscriber. This information would be transmitted to the LEA when the

wiretap is activated, updated or deactivated, as well as periodically

(varying from once every hour to once every 24 hours).

73. CALEA requires carriers to ensure that authorized wiretaps can

be performed in an expeditious manner, and we believe that a

surveillance status message could assist carriers and LEAs in

determining the status of such wiretaps. We tentatively conclude,

however, that a surveillance status message does not fall within any of

the provisions of Section 103. We do not believe that it is call-

identifying information as defined by CALEA, since the information such

a feature would provide is unrelated to any particular call. Nor does a

surveillance status message appear to be required under Section

103(a)(1), since it is not necessary to intercept either wire or

electronic communications carried on a carrier's system. Nor are we

persuaded by the FBI's interpretation that a surveillance status

message is required by CALEA's direction that a carrier ``shall

ensure'' that its system is capable of meeting the Section 103(a)

requirements. Rather, we note that the Act expressly states: ``a

telecommunications carrier shall ensure that its equipment, facilities,

or services . . . are capable of'' intercepting communications and

allowing LEA access to call-identifying information. We interpret the

plain language of the statute to mandate compliance with the capability

requirements of Section 103(a), but not to require that such capability

be proven or verified on a continual basis.

74. Thus, we tentatively conclude that the surveillance status

punch list item is not an assistance capability requirement under

Section 103. However, we invite comment as to how, generally, carriers

intend to ensure that wiretaps remain operational. How, specifically,

would ``human intervention'' be exercised? For example, do carriers

plan to periodically check the circuit manually and notify the LEA that

the wiretap remains operational? Further, to the extent commenters

continue to believe that an automated surveillance status message is

necessary to implement the requirements of Section 103, we seek comment

on the 107(b) factors that the Commission must evaluate under CALEA. In

what manner could such a feature be provided? Are there cost effective

methods of providing surveillance status information to a LEA? Can this

requirement be accomplished in a manner that minimizes costs to

residential ratepayers? Could such provision of surveillance status

messages compromise the privacy and security of communications not

authorized to be intercepted? Would the provision of such information

constrain a carrier's ability to develop and deploy new technologies

and services? What period of time would be required to develop and

deploy such a feature? And, to the extent that this information were to

fall under the definition of call-identifying information, is it

reasonably available to carriers?

[[Page 63650]]

Continuity Check Tone

75. This technical requirement would require that, in cases where a

LEA has obtained authority to intercept wire or electronic

communications, a C-tone or dial tone be placed on the call content

channel received by the LEA from the telecommunications carrier until a

user of the facilities under surveillance initiates or receives a call.

At that point, the tone would be turned off, indicating to the LEA that

the target facilities were in use. This capability would permit

correlation between the time a call is initiated and the time the

connection is established. The C-tone would also verify that the

connection between the carrier's switch and the LEA is in working

order.

76. As with the case of surveillance status messages, we believe

that continuity tone could assist the LEA in determining the status of

a wiretap, but that this technical requirement is not necessary to meet

the mandates of Section 103(a). Similar to our reasoning regarding

surveillance status messages, we do not believe that a continuity tone

falls within CALEA's definition of call-identifying information, nor

does it appear to be required under Section 103(a)(1), since it is not

necessary to intercept either wire or electronic communications carried

on a carrier's system. Furthermore, as explained above, the plain

language of the statute mandates compliance with the capability

requirements of Section 103(a), but does not require that such

capability be proven or verified on a continual basis. Thus, we

tentatively conclude that the continuity tone punch list item is not an

assistance capability requirement under Section 103.

77. However, to the extent commenters continue to believe such a

technical requirement is necessary to implement the requirements of

Section 103, we seek comment on the 107(b) factors that the Commission

must evaluate under CALEA. In what manner could such a feature be

provided? Are there cost effective methods of providing a continuity

tone to a LEA? Can this requirement be accomplished in a manner that

minimizes costs to residential ratepayers? Could provision of a

continuity tone somehow compromise the privacy and security of

communications not authorized to be intercepted? For example, could

such a tone be detected by the subscriber whose facilities are under

surveillance? Would the provision of such information constrain a

carrier's ability to develop and deploy new technologies and services?

And finally, what period of time would be required to develop and

deploy such a feature?

Feature Status

78. This technical requirement would require a carrier to notify

the LEA when specific subscription-based calling services are added to

or deleted from the facilities under surveillance, including when the

subject modifies capabilities remotely through another phone or through

an operator. Examples of such services are call waiting, call hold,

three-way calling, conference calling, and call return. Also, the

carrier would be required to notify the LEA if the telephone number of

the facilities under surveillance was changed or service was

disconnected.

79. Similar to surveillance status messages and continuity tones,

we believe that feature status messages could be useful to a LEA, but

that provision of these messages from a carrier to a LEA is not

required to meet the mandates of Section 103(a). First, we believe it

is clear that feature status messages do not constitute call-

identifying information because they do not pertain to the actual

placement or receipt of individual calls. Further, feature status

messages do not appear to be required under Section 103(a)(1) because

they are not necessary to intercept either wire or electronic

communications carried on a carrier's system. Rather, they would simply

aid a LEA in determining how much capacity is required to implement and

maintain effective electronic surveillance of a target facility,

information that could be useful in assuring that an interception is

fully effectuated and the intercepted material delivered as authorized.

However, as noted by AT&T, the information that would be provided by

feature status messages can be provided by other means, such as a

subpoena to the carrier. In any event, we reiterate our view that the

plain language of the Act mandates compliance with the assistance

capability requirements of Section 103(a), but does not require

carriers to implement any specific quality control capabilities to

assist law enforcement. Thus, we tentatively conclude that the feature

status punch list item does not meet the assistance capability

requirements of Section 103.

80. We note, however, that at least some of the information that

would be provided by feature status messages--for example, a change to

the phone number of the facilities under surveillance--must be provided

to the LEA expeditiously if electronic surveillance is to be effective.

We request comment on whether this information can be provided in such

an expeditious manner by other means. We also request comment on any

other aspects or interpretations of a feature status capability that

might cause at least some portion of this feature to meet the

assistance capability requirements of Section 103. To the extent

commenters believe that such a capability is necessary to implement the

requirements of Section 103, we seek a particularized description of

such a capability and comment on the 107(b) factors that the Commission

must evaluate under CALEA. In what manner could such a capability be

provided? Are there cost effective methods of providing feature status

messages to a LEA? Can this requirement be accomplished in a manner

that minimizes costs to residential ratepayers? Could provision of

feature status messages to a LEA compromise the privacy and security of

communications not authorized to be intercepted? Would the provision of

such information constrain a carrier's ability to develop and deploy

new technologies and services? And finally, what period of time would

be required to develop and deploy such a capability?

Dialed Digit Extraction

81. This capability would require the telecommunications carrier to

provide to the LEA on the call data channel any digits dialed by the

subject after connecting to another carrier's service (also known as

``post-cut-through digits''). One example of such dialing and signaling

would occur when the subject dials an 800 number to access a long

distance carrier. After connecting to the long distance carrier through

the 800 number, the subject then dials the telephone number that is the

ultimate destination of the call.

82. We tentatively conclude that post-cut-through digits

representing all telephone numbers needed to route a call, for example,

from the subscriber's telephone through its LEC, then through IXC and

other networks, and ultimately to the intended party are call-

identifying information. We seek additional comment on whether such

call-identifying information is reasonably available to the carrier

originating the call. Currently, the second set of numbers a subject

dials (the final destination of the call) apparently is transmitted

over the CCC (the content portion of the connection) and not over the

CDC (a separate signaling channel). This method of transmission raises

two primary questions: (1) Since the post-cut-through digits are

provided on the content portion of the connection,

[[Page 63651]]

should those numbers be considered content for purposes of CALEA?; and

(2) Technically, how can such post-cut-through digits be extracted from

the content channel and delivered to a LEA by a carrier? We seek

comment on whether originating, intermediate, or terminating carriers

can deliver such call-identifying information by cost-effective means.

We are also aware of the concerns expressed by industry and privacy

advocates that this dialed digit extraction feature could prove to be

inordinately expensive to design, build, and incorporate into telephone

network infrastructures. The record established thus far does not

reflect any specific cost estimates but does raise the possibility that

there may be newly available, less expensive solutions for this

feature, although it is not clear if such solutions have the capability

of separating post-cut-through call-identifying digits from those

dialed to perform other functions. We seek comment on this proposal

and, as required by section 107(b), on the other factors that we must

consider in establishing a technical requirement. Can it be

accomplished in a manner that minimizes costs to residential

ratepayers? Additionally, we solicit comment on whether our proposal

would positively or negatively affect the provision of new technologies

and services to the public. Commenters are asked to provide detailed

information regarding the amount of time and conditions that they

believe will be necessary to successfully develop and deploy this

technical requirement in telecommunications systems. Finally, we

request detailed comment on how the privacy and security of

communications that are not authorized to be intercepted can be

protected. In particular, we request comment on whether and how such

call-identifying information can be distinguished from digits dialed to

perform other functions (e.g., to input a credit card number or to

access information services after the call reaches its final

destination in the PSTN).

Disposition of J-STD-025

83. We believe that the technical requirements proposed herein can

be most efficiently implemented by permitting Subcommittee TR45.2 of

the TIA to develop the necessary specifications in accord with our

determinations. We note that CALEA contemplates that standards will be

developed either ``by an industry association or standard-setting

organization, or by the Commission.'' We note that LEAs, carriers, and

manufacturers are voting members of the Subcommittee. While we could

undertake this task, we believe that the Subcommittee already has the

experience and resources in place to resolve these issues more quickly.

Both law enforcement agencies and telecommunications manufacturers and

carriers participate on the Subcommittee. The Subcommittee worked

diligently over a period of several years to craft J-STD-025 and both

LEAs and privacy groups agree with--or, at least do not raise any

specific objections to--the vast majority of the features of that

standard. A Commission-based standard-setting activity would

necessarily have to rely heavily on the Subcommittee to modify J-STD-

025 in any event, and thus would very likely take longer than industry-

based processes to develop a final safe harbor standard. Our decision

to rely on industry to develop the final technical specifications

reflects our commitment to achieve a CALEA solution as expeditiously as

possible.

84. Accordingly, we expect TIA to undertake the task of modifying

J-STD-025 to be consistent with the technical requirements we

ultimately adopt in this proceeding. Further, we expect the TIA to

complete any such modifications to J-STD-025 within 180 days of release

of the Report and Order in this proceeding. While this is an ambitious

schedule, we believe it is achievable because the TIA has been

examining CALEA technical standards issues for several years, and the

modifications to J-STD-025 are likely to be relatively limited. In

fact, all of the technical requirements that we have identified for

modification were previously considered in detail by TIA Subcommittee

TR45.2. We note that any telecommunications carrier conforming with the

revised standard will be considered to have complied with CALEA's safe

harbor provisions under section 107(a)(2). We consider 180 days a

sufficient time period for industry to adopt revised technical

standards compliant with CALEA and we believe that industry will be

able to comply with the core requirements of J-STD-025 (excluding the

packet-mode feature) by June 30, 2000. Therefore, we do not plan to

extend the CALEA compliance deadline for the core J-STD-025

requirements beyond that date, except in the case of individual

extenuating circumstances, to which the criteria of section 107(c) of

CALEA would apply. Based on comments received in response to this

Further NPRM, we will set a separate deadline for compliance with the

additional technical requirements that we determine CALEA mandates. We

seek comment on these tentative findings and conclusions.

Other Technologies and Systems

85. We seek comment on what role, if any, the Commission can or

should play in assisting those telecommunications carriers not covered

by J-STD-025 to set standards for, or to achieve compliance with,

CALEA's requirements. Insofar as such carriers argue that CALEA

contemplates multiple or different standards for services such as

paging, digital dispatch and wireless data, we seek comment regarding

how our determinations regarding J-STD-025, the FBI's punch list items,

and location and packet-mode information will affect the requirements

and standards already adopted or currently being established by these

other industry segments. For example, can the Commission's

determinations in this rulemaking proceeding be adapted to these other

technologies? Further, we request comment on if and how we should

consider the impact of the technical requirements we ultimately adopt

in this proceeding on these other technologies and services.

Other Matters

86. As previously discussed, in March 1998 CDT submitted a petition

for rulemaking to the Commission. In its petition, CDT requests relief

from the Commission under section 109 (as well as section 107) of

CALEA. CDT argues that ``compliance with CALEA is not reasonably

achievable with respect to equipment, facilities, and services deployed

after January 1, 1995, for the simple reason that carriers have had to

make changes to their systems not knowing what was required to comply

with CALEA.'' Lack of a CALEA standard, or a dispute about the CALEA

standard, however, is not grounds for a rulemaking under section 109.

Rather, a section 109 determination by the Commission presupposes that

the final requirements that must be met by telecommunications carriers

under Section 103 are in place. Those requirements, however, are still

in dispute. Accordingly, we are herein dismissing without prejudice

that portion of CDT's petition that relies on section 109.

87. Also, as previously discussed, in July 1997 CTIA filed a

petition for rulemaking requesting that the Commission establish a

standard to implement the mandates of Section 103, and in March 1998

DoJ/FBI submitted a motion to dismiss that petition on the grounds that

the December 1997 adoption of J-STD-025 rendered CTIA's petition moot.

CTIA agrees with DoJ/FBI

[[Page 63652]]

that its petition is moot, both because the adoption of the industry

interim standard supersedes its request for the Commission to establish

a CALEA standard by rule and because its request in its petition to

extend the CALEA compliance deadline has been addressed in this

proceeding. We agree. Accordingly, we herein dismiss as moot CTIA's

July 16, 1997 Petition for Rulemaking.

Initial Regulatory Flexibility Analysis

88. As required by the Regulatory Flexibility Act (RFA), the

Commission has prepared an Initial Regulatory Flexibility Analysis

(IRFA) of the expected significant economic impact on small entities by

the policies and rules suggested in this Communications Assistance for

Law Enforcement Act, Further Notice of Proposed Rulemaking (CALEA

Further NPRM). Written public comments are requested on the IRFA.

Comments must be identified as responses to the IRFA and must be filed

by the deadlines for comments on the CALEA Further NPRM provided above

on the first page, in the heading. The Secretary shall send a copy of

the CALEA Further NPRM, including the IRFA, to the Chief Counsel for

Advocacy of the Small Business Administration (SBA) in accordance with

paragraph 603(a).

Need for and Objectives of the Proposed Rules

89. This Further Notice of Proposed Rulemaking responds to the

legislative mandate contained in the Communications Assistance for Law

Enforcement Act, Pub. L. No. 103-414, 108 Stat. 4279 (1994) (codified

as amended in sections of 18 U.S.C. and 47 U.S.C.).

Legal Basis

90. The proposed action is authorized under the Communications

Assistance for Law Enforcement Act, Public Law 103-414, 108 Stat. 4279

(1994) (codified as amended in scattered sections of 18 U.S.C. and 47

U.S.C.). The proposed action is also authorized by sections 1, 4, 201,

202, 204, 205, 218, 229, 332, 403 and 503 of the Communications Act of

1934, as amended, 47 U.S.C. sections 151, 154, 201-205, 218, 229, 301,

303, 312, 332, 403, 501 and 503.

Description and Estimate of the Number of Small Entities To Which

the Proposed Rules Will Apply

91. The proposals set forth in this proceeding may have a

significant economic impact on a substantial number of small telephone

companies identified by the SBA. We seek comment on the obligations of

a telecommunications carrier for the purpose of complying with CALEA.

92. The RFA generally defines ``small entity'' as having the same

meaning as the term ``small business,'' ``small organization,'' and

``small governmental jurisdiction'' and the same meaning as the term

``small business concern'' under the Small Business Act, unless the

Commission has developed one or more definitions that are appropriate

to its activities. Under the Small Business Act, a ``small business

concern'' is one that: (1) is independently owned and operated; (2) is

not dominant in its field of operation; and (3) meets any additional

criteria established by the Small Business Administration (SBA). The

SBA has defined a small business for Standard Industrial Classification

(SIC) categories 4812 (Radiotelephone Communications) and 4813

(Telephone Communications, Except Radiotelephone) to be small entities

when they have fewer than 1,500 employees. We first discuss generally

the total number of small telephone companies falling within both of

those SIC categories. Then, we discuss the number of small businesses

within the two subcategories, and attempt to refine further those

estimates to correspond with the categories of telephone companies that

are commonly used under our rules.

93. Telephone Companies (SIC 483). Consistent with our prior

practice, we shall continue to exclude small incumbent LECs from the

definition of a small entity for the purpose of this IRFA.

Nevertheless, as mentioned above, we include small incumbent LECs in

our IRFA. Accordingly, our use of the terms ``small entities'' and

``small businesses'' does not encompass ``small incumbent LECs.'' We

use the term ``small incumbent LECs'' to refer to any incumbent LECs

that arguably might be defined by SBA as ``small business concerns.''

94. Total Number of Telephone Companies Affected. Many of the

decisions and rules adopted herein may have a significant effect on a

substantial number of the small telephone companies identified by SBA.

The United States Bureau of the Census (the Census Bureau) reports

that, at the end of 1992, there were 3,497 firms engaged in providing

telephone services, as defined therein, for at least one year. This

number contains a variety of different categories of carriers,

including local exchange carriers, interexchange carriers, competitive

access providers, cellular carriers, mobile service carriers, operator

service providers, pay telephone operators, PCS providers, covered SMR

providers, and resellers. Some of these providers--for example, all SMR

providers--are not covered by this Further NPRM, and it seems certain

that some of the 3,497 telephone service firms may not qualify as small

entities or small incumbent LECs because they are not ``independently

owned and operated.'' For example, a PCS provider that is affiliated

with an interexchange carrier having more than 1,500 employees would

not meet the definition of a small business. It seems reasonable to

conclude, therefore, that fewer than 3,497 telephone service firms are

small entity telephone service firms or small incumbent LECs that may

be affected by this Further NPRM.

95. Wireline Carriers and Service Providers. SBA has developed a

definition of small entities for telephone communications companies

other than radiotelephone (wireless) companies. The Census Bureau

reports that there were 2,321 such telephone companies in operation for

at least one year at the end of 1992. According to SBA's definition, a

small business telephone company other than a radiotelephone company is

one employing fewer than 1,500 persons. All but 26 of the 2,321 non-

radiotelephone companies listed by the Census Bureau were reported to

have fewer than 1,000 employees. Thus, even if all 26 of those

companies had more than 1,500 employees, there would still be 2,295

non-radiotelephone companies that might qualify as small entities or

small incumbent LECs. Although it seems certain that some of these

carriers are not independently owned and operated, we are unable at

this time to estimate with greater precision the number of wireline

carriers and service providers that would qualify as small business

concerns under SBA's definition. Consequently, we estimate that there

are fewer than 2,295 small entity telephone communications companies

other than radiotelephone companies that may be affected by the

decisions and rules recommended for adoption in this NPRM.

96. Local Exchange Carriers. Neither the Commission nor SBA has

developed a definition of small providers of local exchange services

(LECs). The closest applicable definition under SBA rules is for

telephone communications companies other than radiotelephone (wireless)

companies. The most reliable source of information regarding the number

of LECs nationwide of which we are aware appears to be the data that we

collect annually in connection with the Telecommunications Relay

Service (TARS). According to our most recent data, 1,347 companies

reported that

[[Page 63653]]

they were engaged in the provision of local exchange services. Although

it seems certain that some of these carriers are not independently

owned and operated, or have more than 1,500 employees, we are unable at

this time to estimate with greater precision the number of LECs that

would qualify as small business concerns under SBA's definition.

Consequently, we estimate that there are fewer than 1,347 small

incumbent LECs that may be affected by the decisions and rules

recommended for adoption in this NPRM.

97. Interexchange Carriers. Neither the Commission nor SBA has

developed a definition of small entities specifically applicable to

providers of interexchange services (IXCs). The closest applicable

definition under SBA rules is for telephone communications companies

other than radiotelephone (wireless) companies. The most reliable

source of information regarding the number of IXCs nationwide of which

we are aware appears to be the data that we collect annually in

connection with TARS. According to our most recent data, 130 companies

reported that they were engaged in the provision of interexchange

services. Although it seems certain that some of these carriers are not

independently owned and operated, or have more than 1,500 employees, we

are unable at this time to estimate with greater precision the number

of IXCs that would qualify as small business concerns under SBA's

definition. Consequently, we estimate that there are fewer than 130

small entity IXCs that may be affected by the decisions and rules

recommended for adoption in this NPRM.

98. Competitive Access Providers. Neither the Commission nor SBA

has developed a definition of small entities specifically applicable to

providers of competitive access services (CAPs). The closest applicable

definition under SBA rules is for telephone communications companies

other than radiotelephone (wireless) companies. The most reliable

source of information regarding the number of CAPs nationwide of which

we are aware appears to be the data that we collect annually in

connection with the TARS. According to our most recent data, 57

companies reported that they were engaged in the provision of

competitive access services. Although it seems certain that some of

these carriers are not independently owned and operated, or have more

than 1,500 employees, we are unable at this time to estimate with

greater precision the number of CAPs that would qualify as small

business concerns under SBA's definition. Consequently, we estimate

that there are fewer than 57 small entity CAPs that may be affected by

the decisions and rules recommended for adoption in this NPRM.

99. Operator Service Providers. Neither the Commission nor SBA has

developed a definition of small entities specifically applicable to

providers of operator services. The closest applicable definition under

SBA rules is for telephone communications companies other than

radiotelephone (wireless) companies. The most reliable source of

information regarding the number of operator service providers

nationwide of which we are aware appears to be the data that we collect

annually in connection with the TARS. According to our most recent

data, 25 companies reported that they were engaged in the provision of

operator services. Although it seems certain that some of these

companies are not independently owned and operated, or have more than

1,500 employees, we are unable at this time to estimate with greater

precision the number of operator service providers that would qualify

as small business concerns under SBA's definition. Consequently, we

estimate that there are fewer than 25 small entity operator service

providers that may be affected by the decisions and rules recommended

for adoption in this NPRM.

100. Wireless (Radiotelephone) Carriers. SBA has developed a

definition of small entities for radiotelephone (wireless) companies.

The Census Bureau reports that there were 1,176 such companies in

operation for at least one year at the end of 1992. According to SBA's

definition, a small business radiotelephone company is one employing

fewer than 1,500 persons. The Census Bureau also reported that 1,164 of

those radiotelephone companies had fewer than 1,000 employees. Thus,

even if all of the remaining 12 companies had more than 1,500

employees, there would still be 1,164 radiotelephone companies that

might qualify as small entities if they are independently owned are

operated. Although it seems certain that some of these carriers are not

independently owned and operated, we are unable at this time to

estimate with greater precision the number of radiotelephone carriers

and service providers that would qualify as small business concerns

under SBA's definition. Consequently, we estimate that there are fewer

than 1,164 small entity radiotelephone companies that may be affected

by the decisions and rules recommended for adoption in this NPRM.

101. Cellular and Mobile Service Carriers: In an effort to further

refine our calculation of the number of radiotelephone companies

affected by the rules adopted herein, we consider the categories of

radiotelephone carriers, Cellular Service Carriers and Mobile Service

Carriers. Neither the Commission nor the SBA has developed a definition

of small entities specifically applicable to Cellular Service Carriers

and to Mobile Service Carriers. The closest applicable definition under

SBA rules for both services is for telephone companies other than

radiotelephone (wireless) companies. The most reliable source of

information regarding the number of Cellular Service Carriers and

Mobile Service Carriers nationwide of which we are aware appears to be

the data that we collect annually in connection with the TARS.

According to our most recent data, 792 companies reported that they are

engaged in the provision of cellular services and 117 companies

reported that they are engaged in the provision of mobile services.

Although it seems certain that some of these carriers are not

independently owned and operated, or have more than 1,500 employees, we

are unable at this time to estimate with greater precision the number

of Cellular Service Carriers and Mobile Service Carriers that would

qualify as small business concerns under SBA's definition.

Consequently, we estimate that there are fewer than 792 small entity

Cellular Service Carriers and fewer than 138 small entity Mobile

Service Carriers that might be affected by the actions and rules

adopted in this NPRM.

102. Broadband PCS Licensees. The broadband PCS spectrum is divided

into six frequency blocks designated A through F, and the Commission

has held auctions for each block. The Commission defined ``small

entity'' for Blocks C and F as an entity that has average gross

revenues of less than $40 million in the three previous calendar years.

For Block F, an additional classification for ``very small business''

was added, and is defined as an entity that, together with its

affiliates, has average gross revenues of not more than $15 million for

the preceding three calendar years. These regulations defining ``small

entity'' in the context of broadband PCS auctions have been approved by

SBA. No small businesses within the SBA-approved definition bid

successfully for licenses in Blocks A and B. There were 90 winning

bidders that qualified as small entities in the Block C auctions. A

total of 93 small and very small business bidders won approximately 40%

of the 1,479 licenses for Blocks D, E, and F. However,

[[Page 63654]]

licenses for Blocks C through F have not been awarded fully, therefore

there are few, if any, small businesses currently providing PCS

services. Based on this information, we conclude that the number of

small broadband PCS licenses will include the 90 winning C Block

bidders and the 93 qualifying bidders in the D, E, and F blocks, for a

total of 183 small PCS providers as defined by the SBA and the

Commissioner's auction rules.

103. Resellers. Neither the Commission nor SBA has developed a

definition of small entities specifically applicable to resellers. The

closest applicable definition under SBA rules is for all telephone

communications companies. The most reliable source of information

regarding the number of resellers nationwide of which we are aware

appears to be the data that we collect annually in connection with the

TARS. According to our most recent data, 260 companies reported that

they were engaged in the resale of telephone services. Although it

seems certain that some of these carriers are not independently owned

and operated, or have more than 1,500 employees, we are unable at this

time to estimate with greater precision the number of resellers that

would qualify as small business concerns under SBA's definition.

Consequently, we estimate that there are fewer than 260 small entity

resellers that may be affected by the decisions and rules recommended

for adoption in this NPRM.

Description of Projected Reporting, Recordkeeping and Other

Compliance Requirements

104. The rules proposed in the NPRM require telecommunications

carriers to establish policies and procedures governing the conduct of

officers and employees who are engaged in surveillance activity. Those

proposed rules require telecommunications carriers to maintain records

of all interceptions of communications and call identification

information. Further, those proposed rules require telecommunications

carriers classified as Class A companies pursuant to 47 U.S.C.

Sec. 32.11 to file individually with the Commission a statement of its

processes and procedures used to comply with the systems security rules

promulgated by the Commission. Telecommunications carriers classified

as Class B companies pursuant to 47 U.S.C. Sec. 32.11 may elect to

either file a statement describing their security processes and

procedures or to certify that they observe procedures consistent with

the security rules promulgated by the Commission.

105. We tentatively conclude that a substantial number of

telecommunications carriers, who have been subjected to demands from

law enforcement personnel to provide lawful interceptions and call-

identifying information for a period time preceding CALEA, already have

in place practices for proper employee conduct and recordkeeping. We

seek comment on this tentative conclusion. As a practical matter,

telecommunications carriers need these practices to protect themselves

from suit by persons who claim they were the victims of illegal

surveillance. By providing general guidance regarding the conduct of

carrier personnel and the content of records in this Further NPRM, the

Commission permits telecommunications carriers to use their existing

practices to the maximum extent possible. Thus, we tentatively conclude

that the additional cost to most telecommunications carriers for

conforming to the Commission regulations contained in this Further

NPRM, should be minimal. We seek comment on this tentative conclusion.

Significant Alternatives to Proposed Rules Which Minimize

Significant Economic Impact on Small Entities and Accomplish Stated

Objectives

106. As we noted in Part I of this IRFA, supra, the need for the

proposed regulations is mandated by Federal legislation. The

legislation is specific on the content of employee conduct and

recordkeeping regulations for telecommunications carriers, which

removes from Commission discretion the consideration of alternative

employee conduct and recordkeeping regulations for smaller

telecommunications carriers. The legislation, however, provides for

Commission discretion to formulate compliance reporting requirements

for telecommunications carriers that favor smaller telecommunications

carriers, and in the NPRM the Commission exercised that discretion by

proposing rules that allow smaller carriers the option to file a

certification of compliance with the Commission instead of a statement

of the policies, processes and procedures they use to comply with the

CALEA regulations.

Federal Rules That May Overlap, Duplicate, or Conflict With the

Proposed Rules

107. As we noted in Part I of this IRFA, supra, the need for the

proposed regulations is mandated by Federal legislation. The purpose of

CALEA was to empower and require the Federal Communications Commission

and the Department of Justice to craft regulations pursuant to specific

statutory instructions. Because there were no other Federal Rules in

existence before CALEA was enacted, there are no duplicate Federal

Rules. In addition, there are no overlapping, duplicating, or

conflicting Federal Rules to the Federal Rules proposed in this

proceeding.

Ordering Clauses

108. Accordingly, pursuant to sections 1, 4, 229, 301, 303, and 332

of the Communications Act of 1934, as amended, and 107(b) of the

Communications Assistance for Law Enforcement Act, 47 U.S.C. sections

151, 154, 229, 301, 303, 332, and 1006(b), it is ordered that this

Further Notice of Proposed Rulemaking is hereby adopted. It is further

ordered that the Petition for Rulemaking filed by the Cellular

Telecommunications Industry Association on July 16, 1997 is dismissed

as moot. It is further ordered that the Petition for Rulemaking filed

by the Center for Democracy and Technology is dismissed without

prejudice to the extent the petition seeks relief under section 109 of

CALEA, 47 U.S.C. section 1008. It is further ordered that the

Commission shall send a copy of this Further Notice of Proposed

Rulemaking, including the Initial Regulatory Flexibility Analysis, to

the Chief Counsel for Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Part 64

Communications common carriers.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

[FR Doc. 98-30552 Filed 11-13-98; 8:45 am]

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