Implementation of Section 104 of the Communications Assistance for Law Enforcement Act

SUMMARY: The FBI is providing the Final Notice of the requirements for

actual and maximum capacity for the interception of the content of

communications and call-identifying information that telecommunications

carriers may be required to effect to support law enforcement's

electronic surveillance needs, as mandated in section 104 of the

Communications Assistance for Law Enforcement Act (CALEA) (Public Law

103-414, 47 U.S.C. 1001-1010). On October 16, 1995, the FBI published

an Initial Notice of Capacity for comment (60 FR 53643); and on

November 9, 1995, the comment period was extended until January 16,

1996. After reviewing the comments received, the FBI published the

Second Notice of Capacity on January 14, 1997, for comment (62 FR

1902). Comments were accepted on the Second Notice of Capacity through

March 15, 1997. After reviewing the comments received, the FBI is

issuing this Final Notice of Capacity.

DATES: Effective Date: March 12, 1998.

Compliance Dates:

1. Carrier Statement Submission Compliance: September 8, 1998.

2. Capacity Compliance: March 12, 2001.

FOR FURTHER INFORMATION: Contact the CALEA Implementation Section,

Federal Bureau of Investigation (FBI), P.O. Box 220450, Chantilly,

Virginia 20153-0450 or call (800) 551-0336. Please refer to your

question as a capacity notice question. The FBI has made this Final

Notice of Capacity, as well as its associated appendixes, available on

its Internet homepage (http://www.fbi.gov).

I. Background

A. Purpose of CALEA

On October 25, 1994, President Clinton signed into law the

Communications Assistance for Law Enforcement Act (CALEA). Its

objective is to make clear a telecommunications carrier's duty to

cooperate with law enforcement with regard to electronic surveillance-

related interceptions for law enforcement purposes. (For purposes of

this notice, the word ``interception'' is used to refer to either the

interception of call content or call-identifying information.) CALEA

was enacted to preserve law enforcement's ability, pursuant to court

order or other lawful authorization, to access call content and call-

identifying information, including information from pen register and

traps and traces, in an ever-changing telecommunications environment.

On February 24, 1995, the Attorney General delegated management and

administration responsibilities of CALEA to the FBI (see 28 CFR

0.85(o)). The FBI is implementing CALEA on behalf of all Federal,

State, and local law enforcement.

In 1968, when Congress statutorily authorized court-ordered

electronic surveillance, there were no technological limitations on the

number of interceptions that could be conducted. However, the onset of

new and advanced technologies has begun to erode the ability of the

telecommunications industry to support law enforcement's interception

needs. In an effort to preserve the ability to conduct interceptions,

which is a vital investigative tool, the Congress determined that

technological solutions must be employed, thereby necessitating greater

levels of assistance from telecommunications carriers.

The intent of CALEA is to define and clarify the level of technical

assistance required from telecommunications carriers. CALEA does not

alter or expand law enforcement's fundamental statutory authority to

intercept communications. It simply seeks to ensure that, after law

enforcement obtains legal authority, telecommunications carriers will

have the necessary technical ability to fulfill their statutory

obligation to accommodate requests for assistance.

B. Capacity Notice Mandate

Because many future interceptions will be effected through

equipment controlled by telecommunications carriers, CALEA obligates

the Attorney General to provide carriers with information they will

need (a) to be capable of accommodating the actual number of

simultaneous interceptions law enforcement might conduct as of October

25, 1998, and (b) to size and design their networks to accommodate the

maximum number of simultaneous interceptions that law enforcement might

conduct after October 25, 1998. (Although actual and maximum capacity

determinations represent estimates for October 25, 1998, and

thereafter, telecommunications carrier compliance with capacity

requirements is, by terms of CALEA, required 3 years after the

effective date of this Final Notice of Capacity.) These two information

elements are referred to in CALEA as ``actual'' and ``maximum''

capacity requirements. In accordance with section 104 of CALEA, the

FBI, which has been delegated CALEA implementation responsibilities

from the Attorney General, on behalf of Federal, State and local law

enforcement, must provide notice of estimated future actual and maximum

capacity requirements. The statute defines these requirements as

follows:

For actual capacity: The actual number of communication

interceptions, pen registers, and trap and trace devices,

representing a portion of the maximum capacity, that the Attorney

General estimates that government agencies authorized to conduct

electronic surveillance may conduct and use simultaneously by the

date that is 4 years after the date of enactment of CALEA.

For maximum capacity: The maximum capacity required to

accommodate all of the communication interceptions, pen registers,

and trap and trace devices that the Attorney General estimates that

government agencies authorized to conduct electronic surveillance

may conduct and use simultaneously after the date that is 4 years

after the date of enactment of CALEA.

Although CALEA requires the Attorney General to estimate the actual

number of communication interceptions, pen registers, and trap and

trace interceptions that may be required simultaneously by the date

that is four years after the date of enactment of CALEA (or three years

after the effective date of this Final Notice of Capacity, whichever is

longer) and thereafter, the estimates should not be interpreted as

constituting the number of interceptions that law enforcement intends

to, or is planning to, conduct. The number of interceptions that will

actually be needed will be determined by active authorized law

enforcement investigations which require interception efforts.

Under CALEA, telecommunications carriers are required to have an

actual capacity available for immediate use on the date that is 3 years

after the effective date of this Final Notice of Capacity. Maximum

capacity, on the other hand, is a capacity level that

telecommunications carriers must be able to accommodate

``expeditiously'' if law enforcement needs an increase in the future.

The time frame for ``expeditious'' expansion to maximum capacity was

not specified in CALEA. However, law enforcement typically maintains

ongoing liaison with telecommunications carriers serving their areas.

Such liaison will facilitate the needed technical capability and

capacity to be prearranged, thereby ensuring that the interception can

begin

[[Page 12219]]

as soon as the lawful authorization is received. Such liaison is

critical because electronic surveillance interceptions are by their

very nature time sensitive. Law enforcement considers 5 business days

from a telecommunications carrier's receipt of a court order to be a

reasonable period of time within which to permit an incremental

expansion up to the maximum capacity. This time frame is based on past

practice as to the time typically involved under existing procedures

used by law enforcement and telecommunications carriers to make

technical interception arrangements.

The term ``expeditious,'' as used herein, applies to section 104

capacity requirements regarding incremental expansion up to the maximum

capacity. It should not be confused with ``expeditious access'' to call

content and call-identifying information as used in section 103 of

CALEA, which pertains to the assistance capability requirements.

Law enforcement has interpreted the maximum capacity chiefly as a

requirement that telecommunications carriers will follow to determine a

capacity ceiling. This ceiling is intended to provide

telecommunications carriers with a stable framework for cost-

effectively designing future capacity into their networks. It also

would provide room for accommodating future interception-related

``worst-case scenarios.'' Establishing the maximum capacity will allow

telecommunications carriers to assist law enforcement during serious,

unpredictable emergencies requiring unusual levels of interception.

Consistent with CALEA, this Final Notice of Capacity identifies the

number of simultaneous interceptions that a telecommunications carrier

should be able to accommodate in a given geographic area as of the date

that is 3 years after the effective date of this Final Notice of

Capacity and thereafter. An ``interception'' relates to accessing and

delivering all communications (call content) or call-identifying

information associated with the telecommunications service of the

subject specified in a court order or other lawful authorization. The

telecommunications service targeted for interception includes all of

the services and features associated with the subject's wireline/

wireless telephone number, or as otherwise specified in the court order

or lawful authorization.

For a call content-based ``interception'', a carrier is responsible

for accessing and delivering all communications and call-identifying

information supported by the subject's telecommunications service. This

is the case regardless of the advanced services or features to which

the subject subscribes (e.g., call forwarding used to redirect a call);

and notwithstanding that the subject may be engaged in more than one

communication (e.g., a subject is engaged in a voice telephone call and

simultaneously sends a fax or data transmission, or a subject is

engaged with several (different) parties in a conference call and

simultaneously communicates with a non-conferenced party). For

interceptions of call-identifying information (e.g., pen registers and

trap and trace device-based interceptions), a carrier is responsible

for accessing and delivering all call-identifying information related

to the communications that is generated or received by the subject,

regardless of the advanced services or features to which the subject

subscribes.

The fact that a subject utilizes advanced services and features as

part of his/her telecommunications service or is capable of sending or

receiving more than one communication simultaneously does not mean that

carrier access and delivery of each constitutes a separate

interception. Consequently, telecommunications carriers need to ensure

that, regardless of their solutions (which may be varied), the solution

permits access and delivery of all of the communications or call-

identifying information for each interception as specified by the

interception order. Because of this circumstance, and because CALEA

forbids the Government from dictating solutions, law enforcement will

be available to consult and work with carriers as they develop

solutions.

In some instances a telecommunications carrier may be able to meet

the assistance capability requirements without modifying its equipment,

facilities, or services. As a practical matter, conventional methods of

effectuating interceptions of call content and call-identifying

information, such as loop extender technologies, may meet the

requirements of CALEA for some subjects of court-ordered interceptions,

depending on the types of services and features to which the subject

subscribes. Telecommunications carriers that presently meet these

requirements under the circumstances described above will be in

compliance until their equipment, facilities, or services are replaced

or significantly upgraded or otherwise undergo major modification.

Furthermore, telecommunications carriers that cannot meet the

assistance capability requirements may still be considered to be in

compliance if the Government does not agree to reimburse such carriers

for modifications to equipment, facilities, and services installed or

deployed on or before January 1, 1995. Such carriers will continue to

be in compliance with CALEA until such time as their equipment,

facilities, or services are significantly upgraded, replaced, or

otherwise undergo major modification.

C. Initial Notice of Capacity

On October 16, 1995, law enforcement's proposed estimated future

actual and maximum capacity requirements were presented in an Initial

Notice of Capacity published in the Federal Register as mandated by

section 104 of CALEA. On November 9, 1995 the industry comment period

was extended until January 16, 1996. The Initial Notice and the

comments on it were summarized in Section V of the Second Notice of

Capacity, published in the Federal Register on January 14, 1997 (62 FR

1902).

D. Second Notice of Capacity

Following the release of the Initial Notice of Capacity, law

enforcement consulted with telecommunications industry representatives,

privacy advocates, and other interested parties to receive feedback on

the method used to express estimated future actual and maximum capacity

requirements. This consultative process assisted law enforcement in

understanding the challenges facing the industry and others in applying

the capacity requirements. After deliberation, law enforcement refined

its approach of defining capacity requirements and issued a Second

Notice of Capacity, published in the Federal Register on January 14,

1997 (62 FR 1902) to more fully articulate estimated future actual and

maximum capacity requirements. Comments on the Second Notice of

Capacity were accepted through March 15, 1997. The comments and the

responses to the comments filed regarding the Second Notice of Capacity

are summarized in Section VII of this notice. After the publication of

the Second Notice of Capacity, law enforcement received comments and

recommendations from telecommunications industry representatives,

privacy advocates, and other interested parties on the method used to

express future actual and maximum capacity requirements.

E. Final Notice of Capacity

This Final Notice of Capacity is being issued after careful

consideration of the submitted comments to the Second Notice of

Capacity. During a pre-publication review, the Government

[[Page 12220]]

determined that for some purposes this Final Notice of Capacity had the

force and effect of a rule, therefore certain administrative and

regulatory requirements needed to be met prior to publication. This

notice fulfills the obligations of the Attorney General under section

104(a)(1) of CALEA. As mandated by section 104(d), telecommunications

carriers have 180 days after the effective date of this Final Notice of

Capacity to submit a Carrier Statement to the Government identifying

any of their systems or services that do not have the interception

capacity set forth in this Final Notice of Capacity to accommodate

CALEA's section 103 requirements.

CALEA applies to all telecommunications carriers as defined in

section 102(8). Capacity notices will eventually be issued covering all

telecommunications carriers. However, this Final Notice of Capacity

should be viewed as the first phase applicable to telecommunications

carriers offering services that are of most immediate concern to law

enforcement--that is, those telecommunications carriers offering local

exchange services and certain commercial mobile radio services,

specifically cellular service and personal communications service

(PCS). For the purpose of this notice, PCS is considered a service

operating in the licensed portion of the 2 GHz band of the

electromagnetic spectrum, from 1850 MHz to 1990 MHz. Telecommunications

carriers offering local exchange services are referred to hereafter in

this notice as ``wireline'' carriers, and telecommunications carriers

offering cellular and PCS services are referred to as ``wireless''

carriers.

Generally speaking, resellers of telecommunications services

(``resellers'') lease some portion of a host carrier's facilities which

allows the transmission or switching of wireline, wireless or other

electronic communications. Resellers holding themselves out for hire to

the public in the provision of telecommunications services subjects

resellers, as telecommunication carriers under CALEA, to the

obligations of CALEA. For purposes of this Notice of Capacity, law

enforcement believes that a reseller and its host carrier can be

treated collectively, as a single entity, given their common

utilization of network equipment, facilities, and services to which

CALEA addresses itself. This Notice of Capacity does not address

resellers' and host carriers' independent obligations to ensure

compliance with other provisions within CALEA.

The exclusion from this notice of certain other telecommunications

carriers that have services deployed currently or anticipate deploying

services in the near term does not exempt them from any obligations

under CALEA. Law enforcement will consult with these other

telecommunications carriers before applicable capacity requirements are

established and subsequent notices are issued. Law enforcement looks

forward to consulting with these other telecommunications carriers to

develop a reasonable method for characterizing capacity requirements

for them.

II. Applicable Administrative Procedures and Executive Orders

A. Small Business Regulatory Enforcement Fairness Act of 1996

The Final Notice of Capacity is not a major rule as defined by the

Small Business Regulatory Enforcement Fairness Act of 1996

(SBREFA),1 based upon an assessment that this Final Notice

of Capacity will not have an annual effect on the economy of

$100,000,000 or more; will not cause a major increase in costs or

prices; and will not result in a significant adverse effect on

competition, employment, investment, productivity, and innovation, or

on the ability of United States-based companies to compete with

foreign-based companies in domestic and export markets.

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\1\ See Subtitle II of the Contract with America Advancement Act

of 1996, Pub. L. No. 104-121, 110 Stat. 847 (1996).

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B. Executive Order 12612

The Final Notice of Capacity will not have a substantial direct

effect on the States, on the relationship between the Federal

Government and the States, or on the distribution of power and

responsibilities among the various levels of government. Therefore, in

accordance with Executive Order 12612, it has been determined that this

notice does not create sufficient federalism implications to warrant

the preparation of a Federalism Assessment.

C. Information Collection

The Final Notice of Capacity contains no information collection or

recordkeeping requirements under the Paperwork Reduction Act of 1995

(44 U.S.C. 3501 et seq.). Section V of this notice details the

information collection requirement associated with the Carrier

Statement to be submitted by carriers.

D. Executive Order 12988

The Final Notice of Capacity meets the applicable standards set

forth in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil

Justice Reform.

E. Executive Order 12866

This Final Notice of Capacity has been drafted and reviewed in

accordance with Executive Order 12866, Sec. 1(b), Principles of

Regulation. It has been determined that this notice is not a

``significant regulatory action'' under Executive Order 12866,

Sec. 3(f), Regulatory Planning and Review and, in particular, that this

notice will neither have an annual economic impact on the economy in

excess of $100,000,000, nor will it economically impact State and local

governments.2 Although not required by Executive Order

12866, this notice has been informally reviewed by the Office of

Management and Budget (OMB).

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\2\ H. Rep. No. 103-827, 103d Cong., 2d Sess., reprinted in 1994

U.S.C.C.A.N. 3489, 3505, Page 34.

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Economic Assessment

Using a per intercept cost of $460,3 the only cost

estimate provided by the industry, the FBI estimates that industry

compliance will not exceed $28,926,667 in any one year and will cost a

total of $86,780,000 over a three year period. Law enforcement

estimates that the time frame for capacity to be deployed is three

years. If the time is greater than three years then the annual costs

will decrease. Total estimated costs are apportioned as follows:

$71,300,000 for local exchange carriers and $15,480,000 for commercial

radio, cellular and PCS service providers based on the wireline and

wireless capacity requirements published in the appendixes of this

Final Notice of Capacity. Furthermore, it should be noted that carrier

capacity compliance costs for equipment, facilities or services

identified on a Carrier Statement, to be submitted within 180 days of

the effective date of this Final Notice of Capacity, may be eligible

for Government reimbursement. Until the Attorney General agrees to

reimburse a carrier for such modifications, that carrier's equipment,

facilities or services shall be considered compliant with this Final

Notice of Capacity.4 Capacity costs associated with any

equipment, facilities or

[[Page 12221]]

services deployed after the Carrier Statement period of 180 days

following the effective date of this Final Notice of Capacity will not

be eligible for reimbursement.

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\3\ Among all the comments to both the Initial Notice of

Capacity and the Second Notice of Capacity, GTE, in its comments to

the Second Notice of Capacity, was the only respondent to provide

estimated capacity costs. The cost of $460 per intercept is based on

the following criteria: (a) each intercept would require the

necessary hardware to provide law enforcement with two channels, (b)

the equipment used to meet the capacity requirements would be

dedicated solely for law enforcement use, and (c) the $460

represents an average cost of intercept equipment and could vary

between $453 and $470.

\4\ CALEA, Section 104(e).

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F. Unfunded Mandates Reform Act of 1995

A Government analysis of the Unfunded Mandates Reform Act (UMRA)

has determined this Final Notice of Capacity will not result in the

expenditure by State, local or tribal governments, in the aggregate, or

by the private sector, of $100,000,000 or more in any one year, and it

will not significantly or uniquely affect small governments. Therefore,

no actions are necessary under the provisions of the Unfunded Mandates

Reform Act of 1995 (UMRA). Even so, the FBI has voluntarily abided by

the tenets of the UMRA throughout this final notice.

G. Regulatory Flexibility Act--Final Regulatory Flexibility Analysis

(FRFA)

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq., as

amended) requires that an Initial Regulatory Flexibility Analysis

(IRFA) be prepared and published with all proposed rules. Earlier

analysis by the Government did not indicate that the Initial Notice of

Capacity satisfied the criteria set forth in Section 603(a) of the RFA,

requiring completion of an IRFA. However, upon review of comments

submitted in response to both the Initial and Second Notices of

Capacity, and upon further consideration by DOJ's Office of Policy

Development, it has been determined that this Final Notice of Capacity

does fall within the scope of the RFA. Therefore, the following Final

Regulatory Flexibility Analysis (FRFA) has been completed in accordance

with the requirements of Section 604 of the RFA.

Need for and Objectives of This Final Notice

The Final Notice of Capacity implements section 104(a) of the

Communications Assistance for Law Enforcement Act (CALEA) (Public Law

103-414), which requires the Attorney General to publish notice of the

estimated future actual and maximum capacity requirements that

telecommunications carriers may be required to effect in support of

electronic surveillance. The capacity requirements serve as a means to

preserve law enforcement's ability, pursuant to court order or other

lawful authorization, to access call content and call-identifying

information in an ever-changing telecommunications environment.

Description and Estimate of the Number of Small Entities To Which the

Final Notice Will Apply

The Regulatory Flexibility Act defines small entity as having the

same meaning as the terms small organization, small government

jurisdiction, and small business concern. Of these definitions of small

entity, this Final Notice of Capacity is applicable only to small

business concerns.\5\ The Small Business Act (15 U.S.C. 632) defines a

small business concern as 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). More specifically, small business concerns within

Standard Industrial Classification (SIC) categories 4812

(Radiotelephone Communications) and 4813 (Telephone Communications,

Except Radio Telephone) are defined by the SBA as those having 1,500 or

fewer employees. The statutory and SBA definitions of ``small business

concern'' were used for purposes of this FRFA analysis.

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\5\ Actual and maximum capacity requirements apply to all

telecommunications carriers as defined in section 102(8) of CALEA.

This Final Notice of Capacity, however, is intended to apply only to

providers of local exchange service, commercial mobile radio

service, cellular service, and personal communications services

(PCS).

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Total Number of Telephone Companies Affected. The capacity

requirements presented herein may have a significant effect on a

minimal number of telephone companies defined as small businesses by

the SBA. The U.S. Bureau of the Census (the Census Bureau) reports

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

telephone services for at least 1 year.\6\ This number contains a

variety of different categories of providers, including local exchange

carriers (LEC), interexchange carriers, competitive access providers,

cellular carriers, mobile service carriers, and PCS providers. Some of

those 3,497 telephone service firms may not qualify as small business

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

owned and operated.'' 7 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 concern.

Consequently, the FBI estimates that fewer than 3,497 telephone service

firms would qualify as small business concerns and be affected by this

Final Notice of Capacity.

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\6\ United States Department of Commerce, Bureau of the Census,

1992 Census of Transportation, Communications, and Utilities:

Establishment and Firm Size, at Firm Size 1-123 (indicating only the

number of such firms engaged in providing telephone service and not

the size of such firms) (1995) (1992 Census).

\7\ 15 U.S.C. Sec. 632(a)(1).

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Wireline Carriers and Service Providers. The SBA has developed a

definition of small business concerns that are telecommunications

companies other than radiotelephone (wireless) companies (Telephone

Communications, Except Radiotelephone). The Census Bureau reports that

2,321 such telephone companies were in operation for at least 1 year at

the end of 1992.\8\ Employing the SBA's definition, a small business

telephone company other than a radiotelephone company is one with 1,500

or fewer employees.\9\ Of the 2,321 non-radiotelephone companies listed

by the Census Bureau, 2,295 were reported to have fewer than 1,000

employees. Thus, at least 2,295 non-radiotelephone companies might

qualify as small entities or small incumbent LECs based on employment

statistics. Since it is certain that some of these carriers are not

independently owned and operated, this figure overstates the actual

number of non-radiotelephone companies that would constitute small

business concerns under the SBA's definition. Consequently, the FBI

estimates that there are fewer than 2,295 small entity telephone

communications companies (other than radiotelephone companies) that may

be affected by this Final Notice of Capacity.

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\8\ 1992 Census, supra, at Firm Size 1-123.

\9\ 13 CFR Sec. 121.201, SIC 4812.

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Local Exchange Carriers. Neither the FCC nor the SBA has developed

a definition of small providers of local exchange services. The closest

applicable definition under SBA rules is that of telephone

communications companies other than radiotelephone (wireless)

companies.\10\ The most reliable source of information regarding the

number of LECs nationwide, of which the FBI is aware, appears to be the

data that the FCC collects annually in connection with the TRS

Worksheet.\11\ According to most recent data, 1,347 companies reported

that they were engaged in the provision of local exchange services.\12\

As some of these carriers have more than 1,500 employees, the FBI is

unable to estimate with greater precision the number of LECs that would

qualify as small business concerns under the SBA's

[[Page 12222]]

definition. Consequently, the FBI estimates that there are fewer than

1,347 small incumbent LECs that may be affected by this Final Notice of

Capacity.

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\10\ 13 CFR Sec. 121.201, SIC 4813.

\11\Federal Communications Commission, Industry Analysis

Division, Telecommunications Industry Revenue: TRS Fund Worksheet

Data, (Average Total Telecommunications Revenue Reported by Class of

Carrier) (Dec. 1996) (TRS Worksheet).

\12\ TRS Worksheet at Tbl. 1.

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Competitive Access Providers. Neither the FCC nor the SBA has

developed a definition specifically applicable to small entities that

are providers of competitive access services (CAPs). The closest

applicable definition under the SBA rules is that of telephone

communications companies other than radiotelephone (wireless)

companies.\13\ The most reliable source of information regarding the

number of CAPs nationwide, of which the FBI is aware, is the data the

FCC collects annually in connection with the TRS Worksheet. According

to most recent data, 57 companies reported that they were engaged in

the provision of competitive access services.\14\ The FBI has no

information on the number of carriers that are independently owned and

operated, nor on those that have 1,500 or fewer employees and thus is

unable to estimate with greater precision the number of CAPs that would

qualify as small business concerns under the SBA's definition.

Consequently, the FBI estimates that there are fewer than 57 small

entity CAPs that may be affected by this Final Notice of Capacity.

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\13\ 13 CFR Sec. 121.201, SIC 4813.

\14\ TRS Worksheet at Tbl. 1.

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Radiotelephone (Wireless) Carriers. The SBA has developed a

definition of small business concerns for radiotelephone (wireless)

companies. The Census Bureau reports that there were 1,176 wireless

companies in operation for at least 1 year at the end of 1992.\15\

According to the SBA's definition, a small business radiotelephone

company is one employing 1,500 or fewer persons.\16\ The Census Bureau

also reported that 1,164 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 business concerns if

independently owned and operated. Because of the lack of information on

the number of carriers that are independently owned and operated, the

FBI is unable to estimate with greater precision the number of

radiotelephone carriers and service providers that would qualify as

small business concerns under the SBA's definition. Consequently, the

FBI estimates that there are fewer than 1,164 small business concerns

considered radiotelephone companies that may be affected by this Final

Notice of Capacity.

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\15\ 1992 Census at Firm Size 1-123.

\16\ 13 CFR Sec. 121.201, SIC 4812.

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Cellular Service Carriers. Neither the FCC nor the SBA has

developed a definition of small entities specifically applicable to

providers of cellular services. The closest applicable definition under

the SBA rules is that of radiotelephone (wireless) companies (SIC

4812). The most reliable source of information regarding the number of

cellular service carriers nationwide, of which the FBI is aware, is the

data the FCC collects annually in connection with the TRS Worksheet.

According to most recent data, 792 companies reported that they were

engaged in the provision of cellular services.\17\ The FBI has no

information on the number of carriers that are independently owned and

operated, nor on those that employ 1,500 or fewer persons, and thus is

unable to estimate with greater precision the number of cellular

service carriers that would qualify as small business concerns under

the SBA's definition. Consequently, the FBI estimates that there are

fewer than 792 small entity cellular carriers that may be affected by

this Final Notice of Capacity.

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\17\ TRS Worksheet at Tbl. 1.

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Broadband Personal Communications Service (PCS) Licensees. The

broadband PCS spectrum is divided into six frequency blocks designated

A through F and the FCC has held auctions for each block. The FCC has

defined small entity in the auctions for C and F Blocks as an entity

that earned average gross revenues of less than $40 million in the

three previous calendar years.\18\ For F Block, an additional

classification of very small business was added and is defined as an

entity that, together with its affiliates, earned average gross

revenues of not more than $15 million for the preceding three calendar

years.\19\ These regulations, defining small entity in the context of

broadband PCS C Block auctions, have been approved by the SBA. No small

businesses within the SBA-approved definition bid successfully for

licenses in A and B Blocks. There were 90 winning bidders that

qualified as small entities in the C Block auctions. A total of 93

small and very small business bidders won approximately 40 percent of

the 1,479 licenses for D, E, and F Blocks. However, licenses for C, D,

E, and F Blocks have not been awarded fully; therefore few, if any,

small businesses currently provide PCS services. Based on this

information, the FBI concludes that the number of small broadband PCS

licensees will include the 90 winning 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 FCC's auction rules.

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\18\ See Amendment of Parts 20 and 24 of the FCC's Rules--

Broadband PCS Competitive Bidding and the Commercial Mobile Radio

Service Spectrum Cap, Report and Order, 11 FCC Rcd 7824 (1996).

\19\ See Amendment of Parts 20 and 24 of the FCC's Rules--

Broadband PCS Competitive Bidding and the Commercial Mobile Radio

Service Spectrum Cap, Report and Order, 11 FCC Rcd 7824 (1996).

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Rural Radiotelephone Service. The FCC has not adopted a definition

of small business specific to Rural Radiotelephone Service, which is

defined in Section 22.99 of the FCC's Rules.\20\ A subset of Rural

Radiotelephone Service is basic exchange telephone radio systems

(BETRS).\21\ Accordingly, the FBI will use the SBA's definition

applicable to radiotelephone companies, i.e., an entity employing 1,500

or fewer persons. There are approximately 1,000 Rural Radiotelephone

Service licensees; the FBI estimates that a large majority of them may

qualify as small entities under the SBA's definition.\22\

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\20\ 47 CFR Sec. 22.99.

\21\ See 47 CFR Secs. 22.757--22.759.

\22\ 13 CFR Sec. 121.201, SIC 4812.

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Reporting, Recordkeeping, and Other Compliance Requirements

The Final Notice of Capacity does not impose reporting or record

keeping requirements \23\ on the entities to which it applies. It does,

however, administer compliance requirements, as defined in Appendixes A

through D of this notice.

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\23\ To the extent that CALEA compliance may entail reporting

and recordkeeping requirements, those issues are separate from the

capacity requirements covered in this Final Notice of Capacity and

are the subject of a pending proceeding before the FCC.

(Communications Assistance for Law Enforcement Act, CC Docket No.

97-213, released October 10, 1997).

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Summary and Analysis of Significant Issues Raised by Public Comments

On October 16, 1995, the FBI published an Initial Notice of

Capacity for comment (60 FR 53643). On November 9, 1995 the industry

comment period was extended until January 16, 1996. After reviewing

comments in response to the Initial Notice of Capacity, the FBI

published a Second Notice of Capacity (62 FR 1902). Comments on the

Second Notice of Capacity were accepted from January 14, 1997, through

March 15, 1997. Upon review of comments submitted in response to both

the Initial and Second Notices of Capacity, it was determined that

issues and sentiments specific to small entities were not only

represented, but also shared by industry as a whole. A detailed summary

of comments is presented in Section VII of

[[Page 12223]]

the notice. Those of particular interest to small entities are reviewed

below.

Burden on small companies. Small business commenters or

organizations representing small business interests expressed concern

that projected capacity requirements pose a disparate economic burden

on small telecommunications carriers that serve areas in which a single

historical incident involving a large of number of simultaneous

interceptions occurred. Commenters were also concerned that the

methodology used to develop the projected capacity requirements relies

far too heavily on unusually high historical incidents and ignores

routine levels of interception activity over time. One commenter stated

that ``a carrier serving a small town, with 1,000 access lines, could

have a greater capacity burden than NYNEX in New York City if the small

carrier had experienced a single incident of major criminal activity 15

years ago.'' 24 As stated in Section III of the Notice

(Methodology for Projecting Capacity Requirements), law enforcement's

capacity requirements were estimated by considering historical

surveillance statistics and industry survey data. Furthermore, as the

notice explains, historical intercept activity was measured for the

period January 1993 through March 1995. Any intercept activity before

that time was not considered and, therefore, is not an influential

factor in estimating current capacity requirements. However, taking

into consideration that intercept activity may have occurred before or

after the data collection period, a historic capacity requirement of

one is used as the basis for estimating actual and maximum capacity

requirements for those geographic areas with no reported interceptions

during the survey period.

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\24\ Comments of Cellular Mobile Systems of St. Cloud General

Partnership, LLP, in response to the Second Notice of Capacity

Requirements and Request for Comments; Feb. 13, 1997; Page 2.

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Small business commenters or organizations representing small

business interests stated that historical intercept activity should not

be the only factor considered to derive capacity requirements;

carriers' market size and number of subscribers should also be

considered.\25\ As indicated in Section III of the Notice, no

conclusive correlation exists between the variables ``location of

criminal activity'' and ``carrier size.'' Although some large carriers

may serve high crime regions and, likewise, some small carriers low

crime regions, no causal relationship exists. Consequently, law

enforcement's historical analysis of electronic surveillance activity

was based on geographic location and the actual occurrence of

surveillance interceptions. Again, available data does not indicate

that a statistically valid relationship exists between law enforcement

capacity requirements and carrier size, whether size is determined by

subscriber lines, geographic boundaries, or any other measure.

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\25\ Cellular Mobile Systems of St. Cloud, Teleport

Communications Group, NTCA, OPASTCO, PCIA, in response to the Second

Notice of Capacity Requirements and Request for Comments; Feb. 13,

1997.

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Steps Taken To Minimize Burdens on Small Entities

The FBI's guiding principle in the development of this Final Notice

of Capacity was to allow the maximum range of compliance options to

carriers based on configurations of their respective networks. The rule

was crafted to require a minimal level of estimated capacity that

allows law enforcement to effectively meet public safety needs. CALEA's

mandate, which requires that this Final Notice of Capacity identify

actual and maximum capacity requirements, allows carriers to configure

their systems to accommodate the lower level of capacity (actual),

while only requiring that they be able to expeditiously expand to the

upper limit (maximum) should the need arise.

Within this framework, the FBI sought and incorporated industry

input at all stages of the rulemaking process. Initially, the FBI met

with telecommunications carriers and associations, including the United

States Telephone Association (USTA), the Electronic Communications

Service Provider (ECSP) Committee, the Organization for the Promotion

and Advancement of Small Telecommunications Companies (OPASTCO), the

Cellular Telephone Industry Association (CTIA), the National Telephone

Cooperative Association (NTCA) and the Personal Communications Industry

Association (PCIA), in order to explain the CALEA capacity requirements

and to solicit questions, comments, and opinions from the industry.

Using industry input from these meetings, the FBI drafted the Initial

Notice of Capacity. While the Initial Notice of Capacity was being

developed, the FBI continued to meet with industry to discuss concepts

and solicit industry consultation. During these stages, the FBI

continued to meet with representatives of both wireline and wireless

carriers. The FBI presented to the ECSP Committee the draft methodology

of the Initial Notice of Capacity and an explanation of such concepts

as the applicability of actual and maximum requirements to individual

switches. In addition to carrier representatives, ECSP Committee

membership included representatives of various associations, including

CTIA, NECA, OPASTCO, PCIA and USTA. Again, the FBI solicited comments

and issued an open invitation to meet with anyone who wished to further

discuss the Initial Notice of Capacity. This same consultative

procedure was followed during the development of the subsequent Second

Notice of Capacity. Once the Second Notice of Capacity was published,

the FBI met again with the ECSP committee, as well as with various

individual carriers and associations both before and after its

publication to provide supplemental explanations of the Second Notice

of Capacity and to solicit comments and extend an invitation to discuss

the notice further. The FBI maintained an ongoing dialogue with the

telecommunications industry with regard to the Initial and Second

Notices of Capacity through meetings and in response to comments.

In addition to industry input, the FBI solicited advice from a

number of other government entities including the Department of

Justice, the FCC, the OMB, and the SBA, as well as state and local law

enforcement.\26\

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\26\ The FBI had a continuous dialogue with members of federal,

state, and local law enforcement between June 1995 and September

1997.

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The FBI recognizes that some small telecommunications carriers

(small entities) offering service in certain geographic areas with

significant intercept activity may be obligated to afford significant

interception capacity. At the same time, the FBI also recognizes that

the capacity requirements represent a critical means of safeguarding

the public and, consequently, any exemption or relaxation from

compliance would not be without cost. Therefore, to ensure that small

entities are not unduly burdened, the FBI is developing a process

whereby small entities may petition the Attorney General for

reconsideration of their respective capacity requirements. The petition

evaluation process will include consideration of a carrier's size,

dynamics of the region in which the carrier operates, historical

intercept activity, and law enforcement's electronic surveillance

needs.

The FBI is also drafting a Small Business Compliance Guide (Guide)

as required by SBREFA (5 U.S.C. Sections 801-808). The Guide will be

provided to the SBA and various industry associations representing the

interests of

[[Page 12224]]

small entities. It will also be available upon request from the FBI.

The Guide will identify an FBI small business liaison to assist small

carriers with rule application.

In conclusion, the FBI believes this Final Notice of Capacity is

fair and reasonable. The FBI remains committed to assisting small

entities in attaining compliance. The FBI intends not only to maintain

dialogue with industry representatives and the SBA's Office of Advocacy

while developing the Small Business Compliance Guide, but also to

ensure that small entities are provided the necessary information and

assistance to attain compliance in the least burdensome and most cost

effective manner possible.

III. Methodology for Projecting Capacity Requirements

A. Overview

The CALEA mandate set forth in section 104 obligates the Attorney

General to estimate future interception capacity requirements and marks

the first time that: (a) Information has been required to be provided

to telecommunications carriers in order for them to design future

networks with reference to the amount of potential future interception

activity that may occur, and (b) the entire law enforcement community

has been required to project its collective future potential needs for

interception. This mandate has generated legitimate concern in the law

enforcement community because telephone technology historically placed

no constraints on the number of court-ordered interceptions that could

be effected. If not implemented carefully, an under-scoping of capacity

requirements under CALEA would have the unintended effect of

restricting the technical ability to conduct interceptions authorized

in court orders. If future interception needs are understated, law

enforcement's investigative abilities will be hampered and, more

importantly, public safety will be jeopardized.

Capacity notice provisions were included in CALEA to ensure that

law enforcement's future interception needs in a geographic area would

be articulated so that telecommunications carriers would be put on

notice as to their obligations, in terms of how many interceptions they

would need to be able to effect. These provisions also present a means

for telecommunications carriers to better understand the nature and

extent of their existing statutory obligations to accommodate law

enforcement's interception needs. (Because law enforcement requirements

for all types of interceptions are a function of authorized

investigations, the estimated number that may be required in the future

cannot be zero because that would imply that there is a county or

market service area where an interception would not be conducted or

would never be required. See Section G ``Establishing Threshold

Capacity Requirements'' for further discussion on how minimum threshold

interception capacities are estimated.) To establish capacity

requirements that would meet law enforcement's future potential

interception needs, law enforcement used a rigorous methodology.

Objectives of the methodology used to establish capacity requirements

are to ensure that future interception capacity requirements would (a)

Be rationally grounded, and based on historical interception activity,

(b) ensure that public safety is not compromised, (c) provide

telecommunications carriers with a degree of certainty regarding law

enforcement's potential interception needs over a reasonable period of

time, (d) be based on well-recognized geographic areas affected, and

(e) not dictate a solution to the industry.

The methodology consisted of these steps:

Collecting information on historical interception activity

Determining geographic areas for identifying capacity

requirements

Deriving a basis for determining capacity requirements for

wireline carriers

Deriving a basis for determining capacity requirements for

wireless carriers

Deriving growth factors for projecting future capacity

requirements from historical information

Establishing threshold capacity requirements.

B. Collecting Information on Historical Interception Activity

To comply with CALEA's mandate to project future capacity needs,

law enforcement believed it was essential to first establish a

historical baseline of interception activity from which future

interception needs could be projected. This effort entailed a detailed

review and analysis of the available information on recent federal,

state, and local law enforcement interceptions throughout the United

States. Such information had never before been collected in a single

repository. Amassing this detailed and extremely sensitive information

required an unprecedented and time-consuming effort. It involved

identifying sources from which accurate information could be retrieved

efficiently. The information required included the numbers of all types

of interceptions (communications, pen register, and trap and trace)

performed by federal, state, and local law enforcement agencies, in

terms of the actual number of telephone lines intercepted at each

locality. (For purposes of this notice, the word ``line'' refers to the

transmission path from a subscriber's terminal to the network via a

wireline or wireless medium.)

The Wiretap Report, published annually by the Administrative Office

of the United States Courts, was a valuable source of historical

information on criminal Title III (call content) court orders; however,

it did not identify the actual number of interception lines associated

with each court order or, more importantly, the vastly greater number

of lines associated with call-identifying information interceptions

(e.g., from pen registers and traps and traces) that have been

performed by all law enforcement agencies. Even though law enforcement

used information on the number of court orders reported in the Wiretap

Report for forecasting purposes as described later in this section, the

report did not contain the necessary line-related information needed to

identify the level of past interceptions for establishing a historical

baseline of activity.

To obtain line-related information regarding past simultaneous

interceptions, records of interception activity were acquired from

telecommunications carriers as well as law enforcement officials, and

from the federal and state Clerks of Court offices (the official

repositories for all interception court orders) through a survey. The

objective of the survey effort was to determine the numbers of all

types of interceptions (communications, pen register, and trap and

trace) conducted between January 1, 1993, and March 1, 1995, for all

geographic areas. Highly sensitive information pertaining to each

interception was collected, including interception start/end dates and

area code and exchange. The time period of January 1, 1993 to March 1,

1995 was chosen to obtain recent interception information that was

reasonably retrievable given the time constraint imposed by CALEA with

regard to publishing a Notice of Capacity.

Approximately 1,500 telecommunications carriers, representing

nearly all wireline and cellular telephone companies (as of March

1995), were requested to provide information identifying where and how

many interceptions had occurred within their networks during the survey

period.

[[Page 12225]]

Records were submitted by approximately 66 percent of the

telecommunications carriers surveyed. To ensure receipt of information

from a comprehensive representation of the telecommunications industry,

law enforcement worked closely with telecommunications carriers serving

large markets or unique geographic areas. Such carriers included the

Regional Bell Operating Companies (RBOC), GTE, and the largest

providers of cellular service.

Sensitive interception records maintained under seal within the

Clerks of Court offices were acquired through two separate efforts.

Federal court order information was collected under special court

orders directing the unsealing of this information for the limited

purpose of issuing capacity notices required under section 104 of

CALEA. State and local law enforcement records were collected with the

assistance of the offices of the State Attorney Generals, District

Attorneys, and state-wide prosecutors. This effort resulted in the

collection of information on all federal law enforcement interception

activity for the period surveyed and information on interceptions by

state and local law enforcement from most states. (Some states' laws do

not authorize the conduct of all types of interceptions, e.g., call

content interceptions, and other states do not maintain retrievable

records of all historical interception activity.)

C. Determining Geographic Areas for Identifying Capacity Requirements

Section 104(a)(2)(B) of CALEA requires law enforcement to identify,

to the maximum extent practicable, the capacity needed at ``specific

geographic locations.'' In addressing this mandate, law enforcement

decided that using point-specific sites, such as switch locations, city

blocks, or neighborhoods, would not be appropriate because it would not

properly take into account movement in criminal activity and could lead

to the compromise of sensitive investigations. Also, law enforcement

believed that any geographic designation used should not be subject to

frequent change, should relate to discernible and officially recognized

geographic territorial boundaries, and should be commonly understood by

the affected parties.

It was also considered essential that the geographic designations

be ones that: (a) Historically have not been affected by regulatory

changes in the telecommunications marketplace, (b) would allow

flexibility for telecommunications carriers in developing solutions,

and (c) would not be affected by changes in the configurations of

telecommunications networks.

Law enforcement concluded that, for wireline carriers, county

boundaries or their equivalent best met the criteria above and should

be used to define the geographic locations for projecting future

capacity requirements. (For purposes of this notice, the term

``county'' includes boroughs and parishes, as well as the District of

Columbia and a few independent cities in Missouri, Maryland, Nevada,

and Virginia that are not part of any county. U.S. territories such as

American Samoa, Guam, the Mariana Islands, Puerto Rico, and the U.S.

Virgin Islands are treated similarly.) Further, using the geographic

designation of a county in this way was deemed appropriate because it

is used by both telecommunications carriers and law enforcement.

Telecommunications carriers pay county taxes and fees and are affected

by county regulations. Likewise, law enforcement's legal territorial

jurisdictions frequently are drawn based on county boundaries, and

resources for law enforcement are often allocated on a county basis.

For wireless carriers, individual county boundaries were not

considered to be a feasible geographic designation for identifying

capacity requirements. Instead, law enforcement determined that

wireless market service areas--Metropolitan Statistical Areas (MSA),

Rural Statistical Areas (RSA), Major Trading Areas (MTA), and Basic

Trading Areas (BTA)--would be more appropriate geographic designations.

Although wireless market service areas comprise sets of counties,

market service areas best take into account the greater inherent

mobility of wireless subscribers. Furthermore, what is most important

is that historical information on wireless interceptions could only be

associated with market service areas.

The approach selected--using counties for wireline carriers and

market service areas for wireless carriers--was also responsive to

comments on the Initial Notice of Capacity urging that the two types of

telecommunications carriers be treated separately; thus, different

geographic designations should appropriately apply.

D. Deriving a Basis for Determining Capacity Requirements for Wireline

Carriers

Having established the county as the appropriate geographic area

for identifying capacity requirements for wireline carriers, law

enforcement had to decide on a basis for determining capacity

requirements for each county. Section 104(a)(2)(A) of CALEA stated that

the capacity requirements could be based on type of equipment, type of

service, number of subscribers, type or size of carrier, or nature of

service area, but allowed the use of ``any other measure.'' Law

enforcement chose to use the historical interception activity

associated with telecommunications equipment located within a county as

the most logical basis for making determinations about projected

capacity requirements in a county.

Each wireline interception reported during the historical period

surveyed (January 1, 1993, to March 1, 1995) was associated with a

telecommunications switch, based on its area code and exchange

(frequently referred to as its ``NPA/NXX code''), as found in the April

1995 version of the Local Exchange Routing Guide (LERG) published by

Bellcore. The LERG contains information on the switching systems and

exchanges of wireline carriers and is considered to be an authoritative

source by the telecommunications industry. Thereafter,

telecommunications switches were associated to counties by using the

vertical and horizontal coordinates marking the switch's physical

location.

CALEA also required that capacity requirements be expressed in

terms of ``simultaneous'' interceptions. Law enforcement chose to

consider interceptions occurring on the same day, rather than at

exactly the same moment, as being simultaneous.27 This time

frame was logical from a law enforcement perspective, because

interception court orders are authorized for a certain number of days

as opposed to some other unit of time. Additionally, the time frame of

one day was compatible with the historical data that was recorded only

in days.

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\27\ Through the survey, the FBI was able to accurately discern

the number of interceptions that were authorized simultaneously for

any given day. As might well have been expected, it was impossible

for the FBI to discern the number of interceptions that were

effected simultaneously down to the hour, minute, or second.

---------------------------------------------------------------------------

The daily interception activity of each switch in a county was

examined, and the single day with the most interceptions during the

period surveyed was used to identify the switch's highest number of

simultaneous interceptions. Thereafter, the highest number of

simultaneous interceptions identified for each switch in the county was

totaled to produce a historical baseline for the county. Law

enforcement believed that this approach provided a reasonable

representation of

[[Page 12226]]

past interception needs for the geographic area during the period

surveyed. This approach also avoided the problems that would be

inherent in trying to specify capacity requirements for interceptions

on a site-specific or equipment-specific basis because of the fluid

nature of interceptions conducted over time and because of changes in

equipment and the services that the equipment supports. After

determining the county's historical baseline, law enforcement sought to

establish an appropriate means of utilizing that activity as a basis

for projecting future capacity requirements. In the Initial Notice of

Capacity, requirements were expressed as a percentage of the engineered

capacity of equipment, facilities, and services. It was thought that in

so doing, carriers would have more flexibility in addressing the

capacity requirements. Comments on the Initial Notice of Capacity,

however, questioned the meaning of engineered capacity and recommended

that capacity requirements be expressed as fixed numbers rather than as

percentages. In response, law enforcement re-examined this issue and

found that using fixed numbers for each county would be a clearer way

to express capacity requirements without tying them to constantly-

changing components of telecommunications networks.

E. Deriving a Basis for Determining Capacity Requirements for Wireless

Carriers

Having established the market service area as the appropriate

geographic area for identifying future capacity requirements for

wireless carriers, law enforcement had to decide on a basis for

determining capacity requirements for each market service area. Each

cellular interception reported during the period surveyed (January 1,

1993, to March 1, 1995) was associated with a cellular market service

area using the August 1995 version of the Cibernet database, which

contains information on roaming and billing arrangements for cellular

networks and is considered to be an authoritative source by the

telecommunications industry. Thereafter, the single day with the most

interceptions during the period surveyed was identified and used as the

historical baseline for each market service area.

Due to the similarities between cellular and PCS, law enforcement

used the historical interception activity of cellular carriers to

develop projections of future capacity requirements for PCS carriers.

Cellular markets are defined by MSAs and RSAs, and PCS markets are

defined by MTAs and BTAs. Historical cellular interception activity was

mapped to a PCS market service area. Again, the single day with the

most interceptions during the period surveyed was identified and used

as the historical baseline for the market service area.

To be responsive to comments on the Initial Notice objecting to the

use of percentages of engineered capacity, law enforcement found that

using fixed numbers rather than percentages was also an appropriate

means to express capacity requirements for wireless carriers.

F. Deriving Growth Factors for Projecting Future Capacity Requirements

From Historical Information

Section 104 of CALEA requires the Attorney General to project

future requirements for actual and maximum capacity. As discussed

previously in this notice, law enforcement derived a baseline for these

estimates from the historical interception activity in geographic areas

defined as counties for wireline carriers and market service areas for

wireless carriers during the period surveyed. To project future

capacity requirements, growth factors were developed and applied to the

historical information.

As noted, comments on the Initial Notice of Capacity recommended

that capacity requirements be stated separately for wireline and

wireless carriers. In response, law enforcement derived distinct growth

factors for wireline and wireless carriers.

1. Formulas

As discussed below, four growth factors were used in this Final

Notice of Capacity to project future capacity requirements:

Awireline, Awireless, Mwireline, and

Mwireless. The ``A'' factors were applied to historical

interception activity to estimate future actual capacity requirements

as of October 1998, and the ``M'' factors were used to estimate future

maximum capacity requirements.

The formulas used for the projections were:

Wireline:

Future Actual Capacity Requirement in a County Equals The

Historical Interception Activity in the County Multiplied by

Awireline

Future Maximum Capacity Requirement in a County Equals The Future

Actual Capacity Requirement in the County Multiplied by

Mwireline

Wireless:

Future Actual Capacity Requirement in a Market Service Area Equals

The Historical Interception Activity in the Market Service Area

Multiplied by Awireless

Future Maximum Capacity Requirement in a Market Service Area Equals

The Future Actual Capacity Requirement in the Market Service Area

Multiplied by Mwireless

All of the resulting requirements for future actual and maximum

capacity were rounded up to the next whole number.

2. Growth Factors

The growth factors used herein were derived solely from analysis

related to the historical interception information. Three sources of

historical information were deemed to provide relevant information to

be considered as growth factors: (a) The number of court orders for

call content interceptions which was obtained from the Wiretap Report

published by the Administrative Office of United States Courts for the

time period 1980 through 1995; (b) the number of court orders for call-

identifying information from pen register and trap and trace

interceptions, which was obtained from reports published by the

Department of Justice (DOJ) documenting pen register and trap and trace

usage by DOJ agencies for the time period 1987 through 1995; and (c)

the historical baseline number of call content interceptions and

interceptions of call-identifying information, which was obtained from

the survey of law enforcement and industry for the time period January

1, 1993, through March 1, 1995.

To project the future numerical level of court orders, statistical

and analytical methods were applied to the historical interception

information. It should be understood that the projections for the

number of potential future court orders do not mean that they are the

numbers of orders that law enforcement will in fact obtain or intends

to obtain. Rather, they are part of a statistical method used to derive

growth factors that would be useful, ultimately, in calculating future

actual and maximum capacity requirements.

A commonly-used analytical tool for projections, known as Best-Fit-

Line analysis, was used to track the number of court orders over time

and then to project the number into the future. Projections were made

for call content court orders for wireline and wireless for the year

1998 and the year 2004. Projections were also made for the vastly

greater number of pen register and trap and trace court orders for

wireline and wireless for the year 1998 and the year 2004. Composite

growth

[[Page 12227]]

figures for wireline interceptions and for wireless interceptions were

then calculated by weighting the court order projections by the

relative number of call content interceptions and interceptions of

call-identifying information during the period surveyed. The resulting

Awireline and Awireless growth factors were based

on the 1998 projections. The Mwireline and

Mwireless growth factors were based on the 2004 projections.

The year 1998 was selected to comply with the statutory language of

CALEA requiring law enforcement to estimate actual capacity

requirements by that time. The year 2004 was selected because it

provided a 10-year period after the passage of CALEA, a period that was

considered reasonable for projecting maximum capacity requirements. It

was also considered to be a rational period for constituting a stable

capacity ceiling and a design guide.

The value derived for Awireline is 1.259; the value

derived for Awireless is 1.707; the value derived for

Mwireline is 1.303; and the value derived for

Mwireless is 1.621. These growth factors can also be

translated into, and understood in terms of, annual growth rates for

capacity requirements. For wireline, if computed annually, growth rates

are 5.92 percent for the period from 1994 through 1998, and 4.55

percent for the period from 1998 through 2004. For wireless, if

computed annually, growth rates are 14.30 percent and 8.38 percent

respectively, for the same time periods. Of relevance in determining

the differences in growth rates are the expectations of overall

business growth for wireline and wireless telephone services. Market

projections for wireline show a steady growth rate of 3.5 percent

annually, and wireless annual growth is projected to be 12.0 percent

during each of the next 10 years.

For more information on how the growth factors were derived, refer

to Appendix E which is available in the FBI's reading room.

G. Establishing Threshold Capacity Requirements

In its review of historical interception activity, law enforcement

found that numerous counties and market service areas had no

interception activity during the time period surveyed. Under the

methodology described above, these counties and market service areas

would have future actual and maximum capacity requirements equal to

zero. However, the establishment of future capacity requirements of

zero would not provide even a minimal level of interception capacity,

nor would it address growth flexibility, and it would largely undermine

the intent of CALEA, which is to preserve law enforcement's ability to

conduct some level of interceptions everywhere. Additionally, it is

possible that law enforcement may have conducted interceptions in these

areas before or after the period surveyed, and it may well have to do

so again. Experience has shown that criminal activity can occur

anywhere. Therefore, law enforcement must be capable of conducting a

number of interceptions in all areas. Consequently, minimum threshold

baseline capacities were developed for counties and market service

areas that otherwise would have had a capacity requirement of zero

under the above methodology.

For wireline telephone service offered in counties, law enforcement

examined the distribution of historical interception activity and found

that many counties had no interceptions, and many others had only one

interception during the time period surveyed. To avoid having counties

with no future capacity requirements, law enforcement decided to treat

counties with zero historical interceptions as if they had one

interception. Hence, when the growth factors for counties were applied,

it produced a future actual capacity requirement of two simultaneous

interceptions and a future maximum capacity requirement of three

simultaneous interceptions.

For wireless market service areas, law enforcement took a similar

approach. Here, too, it found that many market service areas had no

interceptions during the time period surveyed. Law enforcement chose to

treat these market service areas as if they had one interception.

Hence, when the growth factors for wireless carriers were applied to

these market service areas, the result was a future actual capacity

requirement of two simultaneous interceptions and a future maximum

capacity requirement of four simultaneous interceptions.

IV. Alternative Analysis

Consideration was given to potentially effective and feasible

alternatives to this rule. However, as discussed in this Alternative

Analysis section, Law enforcement determined that alternatives were not

viable in that they either (1) Would impose undue burdens by not

allowing companies the flexibility to use the efficiencies of their

networks to efficiently meet the requirements; (2) would potentially

impose unfair burdens to companies with specific types of equipment;

(3) would not meet the needs of law enforcement; or, (4) would not take

into consideration the differences between the wireline and wireless

market.

A. Alternative Approaches Considered in Determining Capacity

Requirements

Law enforcement considered and rejected a number of alternatives

while developing this rule. Initially, law enforcement considered

whether a new regulation was actually necessary. That a notice was

required was obvious from the mandate of CALEA Section 104, which

directs the Attorney General on behalf of all law enforcement entities

to publish notice of the actual and maximum capacity requirements that

telecommunications carriers may be required to effect in support of

lawfully authorized electronic surveillance. Law enforcement could

identify no other existing regulations which might provide viable

alternatives. Ultimately, law enforcement determined that it was

necessary to develop new regulations which were both industry and CALEA

specific. This rule is the result of that development effort.

B. Alternative Promulgated in Initial Notice of Capacity

In accordance with CALEA 104(a)(2), the Government examined many

different alternatives of expressing the capacity requirements. The

alternatives included basing the requirements upon the type of

equipment, type of service, number of subscribers, type of carrier, and

nature of service area. In fulfilling the mandated role described

above, law enforcement examined a number of alternative approaches in

expressing the capacity required at specific geographic locations. On

October 16, 1995, law enforcement's proposed future actual and maximum

capacity requirements were presented in an Initial Notice of Capacity

published in the Federal Register (60FR53643). Comments on the Initial

Notice were accepted through January 16, 1996.

In the Initial Notice of Capacity the actual and maximum capacity

requirements were presented as a percentage of the engineered capacity

of the equipment, facilities, and services that provide a customer or

subscriber with the ability to originate, terminate, or direct

communications. Engineered capacity referred to the maximum number of

subscribers that could be served by that equipment, facility, or

service. The percentage were to apply to both the engineered subscriber

capacity of a switch and to non-switch equipment (i.e., network

peripherals) involved in the origination, termination, or direction of

communications. Percentages were used rather than fixed numbers due to

the dynamics and

[[Page 12228]]

diversity of the telecommunications industry. The use of percentages

was expected to allow telecommunications carriers the flexibility to

adjust to changes in marketplace conditions or changes in the number of

subscribers, access lines, equipment, facilities, etc., and still know

the required level of capacity. The percentages were then applied to

three categories, based upon geography and historical intercept

activities.

As a result of extensive consultation with Federal, State, and

local law enforcement agencies, telecommunications carriers, providers

of telecommunications support services, and manufacturers of

telecommunications equipment, the FBI proposed the following capacity

requirements: each telecommunications carrier would have needed the

ability to meet the capability assistance requirements defined in

section 103 of the CALEA for a number of simultaneous pen register,

trap and trace, and communication interceptions equal to the percentage

of the engineered capacity of the equipment, facilities, or services

that provide a customer or subscriber with the ability to originate,

terminate, or direct communications.

Each telecommunications carrier would have needed to ensure that it

could expeditiously increase its capacity to meet the assistance

capability requirements defined in section 103 of the CALEA for a

number of simultaneous pen register, trap and trace, and communication

interceptions equal to the percentage of the engineered capacity of the

equipment, facilities, or services that provide a customer or

subscriber with the ability to originate, terminate, or direct

communications. When translated from percentages to numbers, capacity

requirements would have been rounded up to the nearest whole number.

As noted above, the telecommunications industry generally expressed

the view that this approach was less useful than expressing capacity

requirements with fixed numbers. Consequently, this approach was

abandoned in favor of an approach based upon the use of fixed numbers.

C. Alternative Methods of Expressing Capacity Requirements

Following the release of the Initial Notice of Capacity, law

enforcement consulted with telecommunications industry representatives,

privacy advocates, and other interested parties to receive feedback on

the method used to express future actual and maximum capacity

requirements. This consultative process assisted law enforcement in

understanding the challenges facing the industry and others in applying

the capacity requirements as expressed in the Initial Notice of

Capacity. Law enforcement refined its approach of defining capacity

requirements and issued a Second Notice of Capacity, published in the

Federal Register on January 14, 1997 (62FR1902) to more fully

articulate estimated actual and maximum capacity requirements. Comments

on the Second Notice of Capacity were accepted through March 15, 1997.

The objective of both the Initial and Second Notice of Capacity was

to ensure that law enforcement's future capacity requirements would (a)

be rationally grounded, and based on historical interception activity,

(b) ensure that public safety is not compromised, (c) provide both

wireline and wireless telecommunications carriers with a degree of

certainty regarding law enforcement's needs over a reasonable period of

time, (d) be based on the geographic areas affected, and (e) not

dictate a specific solution to the industry.

Section 104 of CALEA mandates that the Attorney General publish a

Notice of Capacity estimating the capacity requirements that law

enforcement may need to conduct electronic surveillance in the future.

The FBI examined several different methods and formulas to determine

the best way to calculate the requirements to be imposed on the

telecommunications industry. The first method, which was used in the

Initial Notice of Capacity, was to express the actual and maximum

capacity requirements as a percentage of the engineered capacity of the

equipment, facilities, and services that provide a customer or

subscriber with the ability to originate, terminate, or direct

communications. This methodology is described in detail in the Initial

Notice of Capacity.28 The industry considered percentages an

imprecise guideline, the term ``engineered capacity'' confusing, and

that fixed numbers would be a better representation of how capacity

requirements should represented.

---------------------------------------------------------------------------

\28\ Initial Notice of Capacity, published 10/16/95 60FR53643.

---------------------------------------------------------------------------

Capacity Requirement on a Switch Specific Basis

Law enforcement assessed the industry comment of expressing future

capacity on a switch or equipment specific basis and determined that

capacity requirements would need to be met regardless of the type,

size, or configuration of switching equipment deployed in any given

geographic area.

Comments received to the Second Notice of Capacity indicated that

without a more specific delineation of the capacity requirements,

carriers would be placed in the position of applying the capacity

requirements to all the equipment in a geographic area. However, law

enforcement determined that there was no certain correlation between

specific equipment and a geographic location where future interception

capacity may be required.

One alternative considered was publishing the capacity requirements

on an individual switch basis. With the rapid pace at which the

telecommunications industry network advances and changes,

identification of any specific equipment in the Notice of Capacity

would run the risk of being invalid at the time the Notice of Capacity

is effective. Moreover, any new equipment installed after the

publication date of the Notice of Capacity would not be identified and

present an unnecessary level of ambiguity to all new equipment.

Equipment supporting the wireline network can be identified within

the Local Exchange Routing Guide (LERG). All local exchange switches

servicing the network are listed with their respective vertical and

horizontal coordinates, and the area codes and exchanges that they

serve. No equivalent source of information exists for the wireless

network. Therefore, expressing wireless capacity requirements could not

be accomplished at a similar geographic level as in the wireline

network.

A second alternative considered was the assessment of all

simultaneous intercept activity in a given county, regardless of the

amount and location of equipment within the county. This analysis would

result in the determination of the day with the highest number of

interceptions when all interceptions reported within the county were

considered. The application of the requirements would be as though the

electronic surveillance needs of the entire county was served by a

single switch. This value would always be less than or equal to the sum

of all the switch simultaneities within the county and would not allow

for the very real possibility that switch simultaneities could occur

concurrently in the future. For the majority of the counties there was

no significant difference between the sum of switch simultaneities and

county simultaneity (i.e., 2454 of the 3146 would retain the same

county requirement as published in the Second Notice of Capacity).

[[Page 12229]]

However, those counties with significant capacity requirements would be

subject to the largest numeric change in the value of historic

surveillance experience and hence placed under the greatest risk of

underestimating the capacity requirement.

This alternative results in significant implementation difficulty

for meeting capacity needs because any individual switch activity would

not be taken into account. In fact, this approach dilutes the magnitude

of historic interception activity. This method of consideration would,

over time, understate the needs of law enforcement.

Furthermore, the promulgation of capacity requirements on a switch

specific basis presupposes a solution and does not allow any

flexibility to carriers as networks evolve. Switch specific capacity

requirements were determined to be an unsatisfactory method of

expressing capacity requirements due to the dynamics and diversity of

the telecommunications industry.

Further, requirements on a switch specific basis would be untenable

due to the potential for future changes in switch sizes and the areas

they serve. Switch specific capacity requirements would be

fundamentally flawed since they would inappropriately ``freeze'' future

interception capacity based upon past switch activity. Some reasonable

flexibility must be employed. The use of geographic areas is expected

to allow telecommunications carriers the flexibility to adjust to

changes in marketplace conditions or changes in the number of

subscribers, access lines, equipment, facilities, etc.

Single Largest Switch Intercept Value Within a Geographic Area

A third alternative considered was the application of capacity

based on the single largest switch intercept value in a county to all

switches located in that county. This approach would result in an

excess of capacity required to be deployed in the network and hence

have significant cost implications. Additionally, there would be little

or no law enforcement justification for applying the single largest

switch historical interception value to switches within the county with

minimal electronic surveillance experience.

Average Intercept Activity Value

A fourth alternative considered was the establishment of capacity

based on an average intercept activity value for all switches in a

county and the application of this value to each switch in that county.

This alternative would result in an understatement of capacity needs

for the county because switches with significant historic electronic

surveillance in some geographic areas would not have an adequate

capacity requirement. The number of switches within a given county can

increase or decrease the average intercept activity for the entire

county, thereby possibly dangerously understating capacity requirements

in a high intercept area.

Total Intercepts Regardless of Simultaneity

A fifth alternative considered was to express total capacity

requirements of a geographic area based on the total number of

intercepts conducted in that geographic area during the observed time

period, regardless of the simultaneity. A large number of interceptions

does not universally translate into a large simultaneity value for a

given county or switch. The total number of intercepts conducted in a

geographic area is not truly representative of law enforcement

requirements. Furthermore, this could not be considered as a viable

alternative for computing capacity as it does not meet CALEA's

simultaneity requirement as expressed in Section 104(a).

Average Intercept Length

Another alternative would have been to base, in part, the capacity

requirements on the average intercept length for the county. While this

information may act as an indicator of interception activity in the

county, it would not necessarily be a reflection of a given switch. If

the average length of the interceptions is significant it would be an

indication that the simultaneity is a less peaked or random event.

However, county numbers may still be too nondescript in a small number

of counties to be transcribed to individual switches as requirements in

those instances where the county is very large geographically, or

contains a large number of individual switches.

Size of Carrier

An analysis of the telecommunications industry reveals that no

association exists between the location of criminal activity and the

size of a carrier that provides service in that geographic area. The

analysis of the historic electronic surveillance activity was based on

the geographic location and the occurrence of each surveillance

reported. No direct relationship can be drawn from the available data

between the capacity requirements and the size of the carrier, whether

that carrier is measured by the number of lines with which it provides

service, the geographic area in which it provides service or any other

measure of size.

Expressing Individual Carrier Capacity Requirements

Establishment of capacity requirements for individual carriers

cannot be accurately characterized as a geographic method of expressing

capacity requirements as mandated by CALEA. As the existing incumbent

carrier community reacts to increased competition as a result of the

Telecommunications Act of 1996, service territories will undoubtedly

change. Establishing capacity requirements on a carrier-specific basis

also leaves the deployment of capacity up to the interpretation of that

carrier. In the case of a carrier with a very large service area, law

enforcement needs in a particular geographic area may not be satisfied.

The possibility of a carrier not having sufficient capacity of

equipment, facilities and services in a given geographic area would be

a real threat to the public safety. Furthermore, law enforcement was

unable to establish a correlation between where interceptions may be

needed and individual carriers such as to support accurate future

electronic surveillance estimations.

Service or Feature-Specific Capacity Requirements

Expressing capacity based on services or features would be

unworkable and would fail to provide law enforcement with the coverage

and capability necessary to effect electronic surveillance wherever it

may be needed. Not all services or features are supported in all

geographic areas. With new services and features constantly under

development and deployment, expressing capacity requirements on a

service or feature basis would create an environment that is subject to

frequent change both as to territories and networks. Further, since

criminal activity is mobile in nature, service or feature-specific

capacity requirements would not be conducive to meeting law enforcement

requirements.

V. Statement of Capacity Requirements

Section 104 of CALEA mandates that law enforcement capacity

requirements be expressed on a geographical basis, to the maximum

extent practicable, and be published in the Federal Register after

government notice and after industry and public comment. In fulfillment

of this mandate, law enforcement, for the first time in history,

conducted an unprecedented survey of historical electronic surveillance

activity including all line related pen register, trap and trace and

communications

[[Page 12230]]

interceptions for the period January 1, 1993 through March 1, 1995. The

analysis of this collected information was used to form a baseline from

which future interception activity was projected using well recognized

statistical tools and methods.

The issuance of this Notice of Capacity represents fulfillment of

the statutory mandate to provide notice for estimated future actual and

maximum capacity requirements. Taking the unpredictable nature of crime

into account, law enforcement has made every attempt to provide

reasonable and prudent numbers in specific geographic areas, to the

maximum extent practicable, based upon hard historical interception

data.

The capacity requirements as stated in this Final Notice of

Capacity are requirements of a geographic nature and do not presuppose

a specific technical solution or deployment strategy of the industry or

of an individual carrier. The capacity requirements are expressed as to

specific geographical areas to the maximum extent practicable and hence

satisfy the obligation placed upon law enforcement by CALEA. Law

enforcement, in the fulfillment of its CALEA obligations, has expressed

the capacity requirements after careful consideration of the comments

to the Initial Notice of Capacity and Second Notice of Capacity.

The methodology used in the formulation of these estimated future

capacity requirements represents interception capacity that may be

required within various geographic areas.

Both the county and market service area capacity requirements are

based on historic interception activity with future capacity

projections based on growth factor analyses which draw upon past levels

of lawfully authorized interception orders.

The capacity requirements are being expressed in a solution neutral

manner. Switch specific delineation of capacity requirements would be

contrary to the letter and spirit of CALEA. Furthermore, promulgation

of capacity requirements on a switch-specific basis presupposes a

solution and does not allow any flexibility for the industry and would

be dated to time-specific configurations.

The dynamic nature of telecommunications technology, and of the

telecommunications industry itself, does not lend itself to the

delineation of capacity requirements of a more granular nature. Law

enforcement, in the publication of estimated future capacity

requirements, projected capacity requirements that would be applicable

regardless of individual carrier network deployment strategies.

Additionally, law enforcement can not articulate capacity

requirements in any greater detailed fashion without endangering the

public safety and risking exposure of law enforcement sensitive

information. The dynamic nature of criminal activity precludes law

enforcement from publishing capacity requirements at such a detailed

level that would aid the criminal element in determining where law

enforcement is focusing its interception efforts.

Capacity requirements as published in this Final Notice of Capacity

represent law enforcement's future estimated actual and maximum

interception needs in each geographic area. Carriers are encouraged to

propose solutions that adequately meet law enforcement needs within a

given geographic area. A carrier's specific network configuration may

afford the carrier opportunities to propose unique solutions by which

it can meet law enforcement requirements.

The obligation to satisfy the capacity requirements in a cost-

effective and reasonable manner is the responsibility of all carriers

that operate within a given geographic area. Although law enforcement

can not dictate how carriers should apply the capacity requirements,

law enforcement is providing guidance to the industry as to the

distribution of capacity requirements within a particular geographic

area.

A. Capacity Requirements for Wireline Carriers

Law enforcement is providing notice of the estimated number of

future communication interceptions, pen register and trap and trace

device-based interceptions that may be conducted simultaneously in a

given geographic area. Counties have been selected as the appropriate

geographic basis for expressing interception capacity requirements for

telecommunications carriers offering local exchange service (i.e.,

wireline carriers). Appendix A lists all actual and maximum estimates

by county. (Appendix A is available in the FBI's reading room for

review). These numbers represent estimates of potential future

simultaneous call content interceptions and interceptions of call-

identifying information for each county in the United States and its

territories. Wireline carriers may ascertain the actual and maximum

capacity estimates that will affect them by looking up in Appendix A

the county (or counties) for which they offer local exchange service.

These future capacity requirement estimates will remain in effect for

all telecommunications carriers providing wireline service to these

areas until such time, if any, as the Attorney General publishes a

notice of any necessary increase in the maximum capacity pursuant to

section 104(c) of CALEA.

County capacity requirements represent the estimated future number

of all types of interceptions that may be conducted simultaneously

anywhere within the county. When effective, the county capacity

requirements apply to all existing and any future wireline carriers

offering local exchange service in each county, regardless of the type

of equipment used or the customer base. Individual carriers configure

their networks differently, and as a result, law enforcement recognizes

that carriers may pursue different solutions for meeting the capacity

requirements.

B. Capacity Requirements for Wireless Carriers

Law enforcement is providing notice of the estimated number of

future communication interceptions, pen register and trap and trace

device-based interceptions that may be conducted simultaneously in a

given geographic area and has selected market service areas--MSAs,

RSAs, MTAs, and BTAs--as the appropriate geographic basis for

expressing actual and maximum interception capacity requirements for

telecommunications carriers offering wireless services, specifically

those providing cellular and PCS services (i.e., wireless carriers).

Appendix B lists all actual and maximum capacity estimates for MSAs and

RSAs; Appendix C lists all actual and maximum capacity estimates for

MTAs; and Appendix D lists all the actual and maximum estimates for

BTAs. (Appendixes B, C, and D are available in the FBI's reading room

for review). These numbers represent estimates of potential future

simultaneous call content interceptions and interceptions of call-

identifying information for each market service area. These future

capacity requirement estimates will remain in effect for all wireless

carriers providing service to these areas until such time, if any, as

the Attorney General publishes a notice of any necessary increases in

maximum capacity pursuant to section 104(c) of CALEA.

In all cases, the statement of interception capacity for a wireless

market service area reflects law enforcement's estimated future number

of interceptions that may be conducted simultaneously anywhere in the

service area. Law enforcement must be capable of conducting

interceptions at any time, regardless of the location of a subject's

[[Page 12231]]

mobile telephone device within the service area. Once effective, the

market service area capacity requirements apply to all existing and any

future telecommunications carrier offering wireless service in each

market. Individual carriers configure their networks differently, and

as a result, law enforcement recognizes that carriers may pursue

different solutions for meeting the capacity requirements.

In response to comments submitted to the Second Notice of Capacity

and in order to offer some flexibility for PCS carriers, law

enforcement has chosen to amend the treatment of capacity as to the

geographic areas for PCS carriers serving Major Trading Areas (MTAs)

and Basic Trading Areas (BTAs). Because each PCS market capacity

requirement is based on the historic activity of its respective and

composite cellular markets, every PCS license holder will have the

following options: (1) Provide for the equivalent total capacity of the

composite cellular markets served (MSAs and RSAs, as delineated in

Appendix B), or (2) provide the PCS requirements for MTAs and BTAs as

delineated in Appendix C and D.

The first option is responsive to the concerns of PCS carriers in

that it allows for PCS capacity requirements to more closely match the

cellular historical activity from which both the cellular and PCS

requirements were derived. This option addresses geographically large

PCS license areas that have capacity requirements driven by a small

number of their composite cellular markets. This option is available to

PCS license holders provided that their systems and services can be

shown to serve only a portion of the MTA or BTA that can be described

with reference to one or more composite cellular markets. As a PCS

service provider expands to offer service throughout a PCS license

area, the PCS carrier would be responsible for the cumulative total of

the capacity requirements of the composite cellular markets.

The second option allows a PCS carrier, serving an entire license

area (composed of its respective and composite cellular markets), to

meet law enforcement capacity requirements everywhere throughout the

market area. The simultaneity of all historic interceptions occurring

within the geographic area now served by a PCS market is the only way

for law enforcement to represent its estimated actual and maximum

capacity requirements. Therefore, this second option can be used by

those PCS carriers providing telecommunications services throughout the

market area.

C. Capacity Application

With reference to the matter of applying interception capacity so

as to accommodate the estimated actual and maximum future capacity

numbers specified for the various geographical areas set forth for

wireline and wireless carriers in this Final Notice of Capacity,

distribution of interception capacity will be addressed either pursuant

to CALEA Section 104(d) and (e) or otherwise.

1. Although law enforcement cannot, under CALEA, dictate solutions,

it is law enforcement's position, consistent with CALEA, that carriers

should consider solutions and approaches for accommodating the

published capacity requirements in a way that maximizes cost-

effectiveness.

2. Each carrier's deployment strategy must ensure that, if needed,

the estimated actual and maximum capacity requirements set forth for

the applicable geographic areas can be met. Two points require

emphasis: (1) The capacity numbers set forth are for a geographic area

and are not switch-specific requirements, and (2) no carrier will be

expected to provide capacity in excess of the geographically-based

capacity numbers set forth in this Final Notice of Capacity. Until such

time, if any, that law enforcement seeks modification of the maximum

capacity numbers in any geographic area through the publication of a

new capacity notice, no carrier will be expected to provide capacity in

excess of the maximum capacity specified for that area.

3. Switches serving multiple geographic areas will need to address

the potential cumulative requirement specified for those geographic

areas.

4. Law enforcement believes that the industry will develop several

solutions for meeting the geographically-based capacity requirements as

stated in this Final Notice of Capacity. In the event that a carrier

elects to deploy a switch-based solution, it should consider the

following information:

Nominal Levels of Capacity

Under this Final Notice of Capacity, carriers will find that the

overwhelming majority of the geographic areas delineated in the Notice

have estimated capacity requirements that are quite nominal.

The nominal character of the capacity requirements for the 3,146

counties delineated in Appendix A can be summarized by the following

statistics. Over 66 percent of all counties (2,089) have an actual

capacity requirement of two and a maximum capacity requirement of three

simultaneous interceptions. As described earlier in this Final Notice

of Capacity, these thresholds were based on a county historic

experience of one interception. Approximately 90 percent of all

counties (2,807) have an actual capacity requirement of twelve or less

and a maximum capacity requirement of sixteen simultaneous

interceptions or less.

The nominal character of the capacity requirements for the 734

cellular market service areas delineated in Appendix B can be

summarized by the following statistics. Approximately 70 percent of all

markets (510) have an actual capacity requirement of two and a maximum

capacity requirement of four simultaneous interceptions. As described

earlier in this Final Notice of Capacity, this threshold was based on a

market service area historic experience of one interception. Over 83

percent of all cellular market service areas (614) have an actual

capacity requirement of twelve or less and a maximum capacity

requirement of twenty simultaneous interceptions or less.

Wireline High-End Switch Capacity

In order to offer capacity guidance to those carriers that are

offering service in the relatively small number of counties where the

estimated actual and maximum capacity numbers may be somewhat sizeable,

(e.g., 17 out of the 3,146 counties have maximum capacity requirements

of 235 or more) and who choose to pursue a switch-based solution, law

enforcement is providing a high-end capacity ceiling that it would

expect from any one switch. The interception data collected during the

two year survey period indicates that there is a discernable difference

in the interception requirements that law enforcement would need

depending upon the type of surveillance conducted. The data indicates

that the highest level of historic call-identifying information-based

interceptions experienced by any one switch was 235, while the highest

level of historic call content-based interceptions experienced by any

one switch was 45. Applying the previously described wireline growth

factors, the data suggests that a maximum of 386 call-identifying

information-based interceptions and a maximum of 75 call content-based

interceptions may occur on a switch. This information has led law

enforcement to decide that it will not require any wireline carrier to

effect more than 386 simultaneous call-identifying information-based

interceptions or more than 75 call content-based interceptions from any

one switch, regardless of the actual and

[[Page 12232]]

maximum capacity requirements of the counties served by that switch.

Wireless High-End Switch Capacity

In order to offer capacity guidance to those carriers that are

offering service in the relatively small number of market service areas

where the estimated actual and maximum capacity numbers may be somewhat

sizeable, (e.g., 30 out of the 734 cellular market service areas have

maximum capacity requirements of 58 or more) and who choose to pursue a

switch-based solution, law enforcement is providing a high-end capacity

ceiling that it would expect from any one switch. The interception data

collected during the two year survey period indicates that there is a

discernable difference in the interception requirements that law

enforcement would need depending upon the type of surveillance

conducted. The data indicates that the highest level of historic call-

identifying information-based interceptions experienced by any one

carrier in a given market was 58, while the highest level of historic

call content-based interceptions experienced by any one carrier in a

given market was 41. Applying the previously described wireless growth

factors, the data suggests that a maximum of 163 call-identifying

information-based interceptions and a maximum of 114 call content-based

interceptions may occur in a market for which a carrier would be

responsible. This information has led law enforcement to decide that it

will not require any wireless carrier to effect more than 163

simultaneous call-identifying information-based interceptions or more

than 114 call content-based interceptions from any one switch in a

market, regardless of the actual and maximum capacity requirements of

the market service areas served by that switch. This guidance can be

used by any wireless carrier covered by this Final Notice of Capacity.

With reference to the matter of applying interception capacity to

accommodate the actual and maximum future capacity numbers specified

for the various geographical areas set forth for wireline and wireless

carriers in this Final Notice of Capacity in those instances that are

not covered by CALEA Section 104(d) and (e), (where carriers are

obligated to meet the interception capacity requirements without

reimbursement) the following information is offered:

1. The interception capacity requirement within each wireline or

wireless geographic area can be applied and capacity distributed at the

discretion of each carrier.

Carriers are in the best position to make judgments about how they

will be best able to meet the capacity requirement obligation within

each geographic area based upon the solutions they choose to use in

each area. Solutions that a carrier may choose to deploy could include

centralized, network-based solutions or switch-based solutions,

combinations of these, or other solutions that may be developed within

the telecommunications industry.

2. From a law enforcement perspective, the fundamental concern is

that interception capacity must be available as needed. Hence, as long

as carriers can accommodate the interception capacity required when

needed, the capacity could be addressed and applied as either reserved

or deployed.

D. Delivery of Capacity Requirements

Comments from interested parties have requested greater clarity in

law enforcement's definition of an interception for the purpose of

applying law enforcement's capacity requirements to ensure a CALEA-

compliant solution. Interested parties have also commented requesting

clarification as to the matter of ``delivery'' as delivery would relate

to law enforcement's estimated capacity requirement per interception.

In order to provide such additional clarification, the following

illustrative examples are being furnished. They are not intended as an

exhaustive list of options for the industry to pursue. As different

solutions are developed by the industry, the delivery of law

enforcement's estimated capacity requirements may change accordingly.

For pen register and trap and trace device-based interceptions,

where only call-identifying dialing and signaling information is

collected by the carrier and delivered to law enforcement, it is

anticipated that one delivery channel per interception will suffice for

the delivery of such information to law enforcement. This figure

presupposes, and is based on, a solution where a carrier will

``extract'' any and all dialed digits and related signaling from a

subject's voice channel necessary to fully complete a call and provide

such information on a single delivery channel. Another solution may

require two delivery channels per interception to law enforcement if

such dialed digits and related signaling are not extracted from a

subject's voice channel by a carrier. Furthermore, a carrier may choose

to consolidate the delivery of many pen register and trap and trace

device-based interceptions onto a single delivery channel. The specific

solution chosen by a carrier will therefore dictate the number of

delivery channels necessary to accommodate pen register and trap and

trace device-based interceptions.

In the case of communications content interceptions, the number of

delivery channels required will be dependent on the specific services

and features made available by a carrier in any given geographic area.

Law enforcement further believes that the industry will develop and

deploy additional services and features in the future which will also

impact the delivery of communications content interceptions to law

enforcement. Any solution developed and deployed by the industry would

need to accommodate those additional services and features.

The following examples are intended to further clarify the delivery

of law enforcement's estimated capacity requirements, based on the

information currently available to law enforcement, should a carrier

choose to effect a switch-based CALEA-compliant solution. The following

examples do not advocate or discourage the selection and deployment of

any particular solution.

For the majority of counties, (2,089 of 3,146, or 66.4 percent)

where the estimated wireline actual capacity requirement is two and the

estimated maximum capacity requirement is three, the delivery of

intercepted call-identifying information to law enforcement may take on

any of the following forms. In the event that all of the interceptions

are call-identifying information interceptions, the smallest number of

delivery channels necessary would be one. This would be the case when a

carrier extracts post cut-through dialed digits and related signaling

and consolidates all of this information onto a single delivery channel

and all of the information is intended for a single law enforcement

agency.

The largest possible number of delivery channels required per

interception for these 2,089 counties occur under circumstances where

every interception was a communications content-based interception and

the subject of the interception employs advanced features and services.

If each such subject subscribes to and simultaneously makes use of

three advanced features, a carrier may need to make available up to

five delivery channels to law enforcement. These advanced features,

being supported by such subjects' service, include but are not limited

to call waiting, an incoming call forwarded to voice-mail, and a

conference call. The delivery of all of the potential intercepted

[[Page 12233]]

communications content and call-identifying information associated with

these features could necessitate up to 15 delivery channels for the

entire county for the simultaneous delivery to law enforcement of all

of the potential communications and related call-identifying

information supported by the subjects' service.

An additional 820 (26.1 percent) counties have estimated wireline

maximum capacity requirements of 25 or less. In the case where all 25

interceptions are call-identifying information-based interceptions, a

carrier may be required to provide 50 channels for the delivery of

dialed digits and related signaling information. This number would

decrease where the carrier extracts post cut-through dialed digits and

signaling and consolidates the information on a single delivery

channel. The largest possible number of delivery channels a carrier may

be required to provide would be where all 25 interceptions were

communications content-based and the subject of each interception

utilizes a number of advanced features. As in the previous example, if

each subject subscribes to and simultaneously makes use of three

advanced features, a carrier may need to make up to five delivery

channels available to law enforcement. In this example, if every

subject within the county subscribes to and employs these services

simultaneously, there would be a need for up to 125 delivery channels

to be made simultaneously available to law enforcement.

The above two examples have application to 2,909 of the 3,146 (92.5

percent) counties covered by this Final Notice of Capacity. For those

relatively few counties where the estimated capacity requirements of a

county exceed the maximum levels set forth above for a switch-based

solution, the number of delivery channels required would be contingent

upon the type of interception and the specific solution chosen by a

carrier. The 386 maximum simultaneous interceptions described earlier

can include as many as 75 communications content interceptions. Using

the previous example, this would result in 311 (386 less 75) channels

necessary for the delivery of pen register and trap and trace device

interceptions (this would be the case when a carrier extracts post cut-

through dialed digits and related signaling and consolidates this

information onto a single delivery channel per intercept) and up to

five channels for each of the communications content interceptions. The

total number of channels would therefore be 686 (5 x 75 = 375 + 311 =

686). This number would be greatly reduced if the information for the

311 pen register and trap and trace device interceptions were to be

further consolidated.

For the majority of wireless markets (510 of 734 cellular markets,

or 69.5 percent), where the estimated wireless actual capacity

requirement is two and the estimated wireless maximum capacity

requirement is four, the delivery of intercepted call-identifying

information to law enforcement may take on any of the following forms.

In the event that all of the interceptions are call-identifying

information interceptions, the smallest number of delivery channels

necessary would be one. This would be the case when a carrier extracts

post cut-through dialed digits and related signaling and consolidates

all of this information onto a single delivery channel and all of the

information is intended for a single law enforcement agency.

The largest possible number of delivery channels required per

interception for these 510 cellular markets would occur under the

circumstances where every interception was a communications content-

based interception and the subject of the interception employs advanced

features and services. If each such subject subscribes to and

simultaneously makes use of three advances features, a carrier may need

to make available up to five delivery channels to law enforcement. If

every subject within the market subscribes to and employs these

services simultaneously, there would be a need for up to 20 delivery

channels to be made simultaneously available to law enforcement.

An additional 114 (15.5 percent) cellular markets have estimated

capacity wireless maximum requirements of 25 or less. In the case where

all 25 interceptions are call-identifying information-based

interceptions, a carrier may be required to provide 50 channels for the

delivery of dialed digit and signaling information. This number would

decrease where the carrier extracts post cut-through dialed digits and

signaling and consolidates the information on a single delivery

channel. The largest possible number of delivery channels a carrier may

be required to provide would be in the case where all 25 interceptions

were communications content-based and the subject of each interception

utilizes advanced features. As in the previous example, if each subject

subscribes to and simultaneously makes use of three advanced features,

a carrier may need to make up to five delivery channels available to

law enforcement. In this example, if every subject within the county

subscribes to and employs these services simultaneously, there would be

a need for up to 125 delivery channels to be made simultaneously

available to law enforcement.

The above two examples have application to 624 of the 734 (85.0

percent) cellular markets covered by this Final Notice of Capacity. For

those relatively few markets where the estimated capacity requirements

of a market exceed the maximum levels set forth above for a switch-

based solution, the number of delivery channels required would be

contingent upon the type of interception and the specific solution

chosen by a carrier. The 163 maximum simultaneous interceptions

described earlier can include as many as 114 communications content

interceptions. Using the previous example, this would result in 49 (163

less 114) channels necessary for the delivery of pen register and trap

and trace device interceptions (this would be the case when a carrier

extracts post cut-through dialed digits and related signaling and

consolidates this information onto a single delivery channel per

intercept) and up to five channels for each of the communications

content interceptions. The total number of channels would therefore be

619 (114 x 5 = 570 + 49 = 619). This number would be reduced if the

information for the 49 pen register and trap and trace device

interceptions were to be further consolidated.

VI. Related Issues

A. Carrier Statement

Section 104(d) of CALEA requires that within 180 days of this Final

Notice of Capacity, a telecommunications carrier shall submit a

statement identifying any of its systems or services that do not have

the capacity to accommodate simultaneously the number of call content

interceptions and interceptions of call-identifying information set

forth in this Final Notice of Capacity. Resellers of telecommunication

service need not report on systems or services subject to the reporting

requirements of another carrier. The information in the Carrier

Statement will be used, in conjunction with law enforcement priorities

and other factors, to determine the telecommunications carriers that

may be reimbursed in accordance with CALEA section 104(e).

A Telecommunications Carrier Statement Template has been developed

with the assistance of the telecommunications industry to facilitate

submission of the Carrier Statement. Use of the template is not

mandatory, but law enforcement

[[Page 12234]]

encourages industry to use the template when identifying any of its

systems or services that do not have the capacity to accommodate

simultaneously the number of call content interceptions, pen registers,

and trap and trace interceptions set forth in this Final Notice of

Capacity.

The information to be solicited will include the following: Common

Language Location Identifier (CLLI) code or equivalent identifier,

switch model or other system or service type, and the city and state

where the system or service is located. Unique information required for

wireline systems and services will include the host CLLI code if the

system or service is a remote, and the county or counties served by the

system or service. Unique information required for wireless systems and

services will include the MSA or RSA market service area number(s), or

the MTA or BTA market trading area number(s) served by the system or

service.

The confidentiality of the data received from the

telecommunications carriers will be protected by the appropriate

statute, regulation, or non-disclosure agreements.

After reviewing the Carrier Statements, the Attorney General may,

subject to the availability of appropriations, agree to reimburse a

carrier for costs directly associated with modifications to attain

capacity requirements in accordance with the final rules on cost

recovery. Decisions to enter into cost reimbursement agreements will be

based on law enforcement prioritization factors.

On April 10, 1996, the Carrier Statement Notice was published in

the Federal Register for comment under the Paperwork Reduction Act of

1995 (PRA) (61 FR 15974). A sixty-day comment period ensued ending on

June 10, 1996. After reviewing the comments received, the Second

Carrier Statement Notice was published in the Federal Register on April

24, 1997 (62 FR 20032). It was published a second time on May 6, 1997

(62 FR 24662) to correct the issuing agency. Comments were accepted on

the Second Carrier Statement Notice through June 6, 1997. In accordance

with the PRA of 1995, public comment has twice been solicited on the

reporting and record keeping requirements of the Telecommunications

Carrier Statement. These reporting and record keeping requirements have

been assigned an Office of Management and Budget (OMB) Control Number

1110-0024, which expires on November 30, 2000.

B. Cost Recovery Rules

CALEA authorizes the appropriation of $500 million for reimbursing

telecommunications carriers for certain reasonable costs directly

associated with achieving CALEA compliance. Section 109(e) directs the

Attorney General to establish regulations, after notice and comment,

for determining such reasonable costs and establishing the procedures

whereby telecommunications carriers may seek reimbursement. In

accordance with the section 109 (e) mandate, the final rule was

published in the Federal Register, 62 FR 13307, on March 20, 1997.

As authorized by section 109, and upon execution of a cooperative

agreement, a telecommunications carrier may be reimbursed for the

following: (1) All reasonable plant costs directly associated with the

modifications performed by the carrier in connection with equipment,

facilities, and services installed or deployed on or before January 1,

1995, in order to comply with section 103; (2) additional reasonable

plant costs directly associated with making the requirements in section

103 reasonably achievable with respect to equipment, facilities, or

services installed or deployed after January 1, 1995; and (3)

reasonable plant costs directly associated with modifications of any

telecommunications carrier's systems or services, as identified in the

Carrier Statement, that do not have the capacity to accommodate

simultaneously the number of call content interceptions and

interceptions of call-identifying information set forth in this Final

Notice of Capacity.

VII. The Second Notice of Capacity

A. Statement of Capacity Requirements in the Second Notice

The Second Notice of Capacity identified the number of simultaneous

interceptions that telecommunications carriers should be able to

accommodate in a given geographical area as of the date that is 3 years

after the date of this Final Notice of Capacity and thereafter.

The Initial Notice of Capacity, being law enforcement's first

expression of estimated future interception capacity on a national

scale and for all agencies, was viewed by the industry as too ambiguous

to adequately convey capacity requirements. The comments to the Initial

Notice of Capacity led to a significant change in the methodology used

in developing the capacity requirements, as well as to the expression

of those requirements on a geographically specific basis. Each of those

comments was reviewed and analyzed, and ultimately resulted in the new

approach reflected in the Second Notice of Capacity. As discussed

later, some comments to the Second Notice of Capacity suggested changes

that, if adopted, would have produced a Final Notice of Capacity

similar to the Initial Notice of Capacity.

B. Discussion of Comments on the Second Notice of Capacity

On January 14, 1997, law enforcement's estimates for future actual

and maximum capacity were presented in the Second Notice of Capacity.

The Second Notice of Capacity was published in the Federal Register as

mandated by section 104 of CALEA. Comments on the Second Notice of

Capacity were accepted through March 17, 1997. Twenty-nine parties

consisting of individuals, privacy advocates, telecommunications

companies and industry associations submitted comments. The substantive

comments are set forth in the following fourteen points.

1. The Capacity Requirements Are Not Representative of the Historical

Electronic Surveillance Information Supplied by the Industry

Seventeen comments (AirTouch Communications, Ameritech, AT&T

Wireless, Bell Atlantic NYNEX Mobile, Bell Atlantic, BellSouth,

Cellular Mobile Systems of St. Cloud, Cellular Telecommunications

Industry Association, Center for Democracy and Technology and the

Center for National Security Studies, GTE, Harrisonville Telephone Co.,

MCI, Pacific Telesis Group, Personal Communications Industry

Association, SBC Communications, United States Telephone Association,

US West) were received on the Second Notice of Capacity stating that

the capacity requirements were too high. Twelve of these comments

indicated that the numbers were too high and should not be applied to

every carrier, nor should the numbers be applied to every switch within

a geographic area. Two of these comments stated that the Government

failed to estimate its capacity needs in a ``cost-conscious manner''.

Two of the comments specifically indicated that the wireless numbers

were too high. One comment suggested that the information used in

calculating the capacity requirements be audited by the industry in an

effort to validate the requirements.

In response to the foregoing comments, law enforcement responds by

stating that the future estimated capacity requirements were projected

by applying statistical and analytical methods to the historical

interception information collected during the survey

[[Page 12235]]

of law enforcement and the telecommunications industry. It should be

understood that the projections for the number of potential future

interceptions do not mean that they are the numbers of interceptions

that law enforcement will in fact effect or intends to effect.

An option considered by law enforcement was to use only industry-

provided numbers in calculating capacity requirements. However, there

exist areas within the country for which neither industry nor law

enforcement data was available. Therefore, the inconsistency in

reporting between the industry and law enforcement did not allow for

the sole reliance on or use of either set of data. Law enforcement

believes, based upon a review of the industry's reporting, that using

only information from the industry would have resulted in an

underestimation of law enforcement interception capacity requirements

in certain areas of the country.

2. The Definition of Expeditious Is Not Realistic for the Expansion

From Actual Capacity to Maximum Capacity

Seven comments (AirTouch Communications, Bell Atlantic,

Organization for the Promotion and Advancement of Small

Telecommunications Companies, Pacific Telesis Group, Personal

Communications Industry Association, SBC Communications,

Telecommunications Industry Association) were received from the

telecommunications industry stating that five business days would not

be sufficient to allow a carrier to make the necessary equipment

changes or additions to expand its interception capacity from the

actual to the maximum capacity.

In order to assure that law enforcement will be able to effect

timely interceptions, carriers must be able to expeditiously expand to

the maximum capacity within five days. However, law enforcement intends

to give as much advance notice and flexibility as possible in

fulfilling this requirement.

Further, increasing capacity to meet the maximum requirement under

most circumstances should not pose any significant technological hurdle

for a service provider because the difference between actual and

maximum capacities is very small for most geographic areas. Law

enforcement also recognizes that in those instances where the

difference between actual and maximum capacity would be sizeable, the

increase in capacity requested by law enforcement from actual to

maximum capacity would most likely be incremental in nature and

solution dependent. Because the solution(s) to be employed is(are)

currently not known, law enforcement cannot reasonably predict exact

incremental increases in capacity. However, experience has shown that

the telecommunications industry has the technical means to respond

promptly, and law enforcement has no reason to believe that the

industry will not continue to cooperate or be able to respond as needed

in this regard.

3. The Second Notice of Capacity Inappropriately Uses a Day as the Base

Unit for Calculating Simultaneity

Four comments (Center for Democracy and Technology and the Center

for National Security Studies, Pacific Telesis Group, United States

Telephone Association, US West) were received indicating that the

Second Notice of Capacity inappropriately uses a day as the base unit

for calculating simultaneity. One of the comments suggested using

traditional industry factors such as traffic engineering ``busy hour'',

to determine capacity requirements for individual switches.

The derivation of simultaneity was based on the information

available to law enforcement. The records compiled by law enforcement,

as described in this Final Notice of Capacity, pertaining to the

historic interception activity is only available based upon, and can

only be analyzed for, individual days. The use of traffic engineering

may be appropriate in traditional telephony but is impossible to apply

to surveillance data. Criminal usage patterns, which are not available,

would need to be collected and analyzed for these parameters to use

traffic engineering principles. Furthermore, law enforcement used a

``day'' as the base unit for calculating simultaneity because court

orders are authorized for a certain number of days as opposed to any

other measure of time, and because no more detailed information exists.

4. Request for Switch Specific Requirements

Twelve comments (AirTouch Communications, Bell Atlantic NYNEX

Mobile, Bell Atlantic, BellSouth, Cellular Telecommunications Industry

Association, Center for Democracy and Technology and the Center for

National Security Studies, GTE, Personal Communications Industry

Association, SBC Communications, Telecommunications Industry

Association, United States Telephone Association, US West) were

received requesting switch-specific capacity requirements. Several of

the comments suggested that the Government should break the data down

on a switch-specific level.

As described in Section IV.C. above, this alternative was

considered, but promulgation of capacity requirements on a switch

specific basis presupposes a solution, does not allow any flexibility

to carriers as networks evolve, and would be less useful to both

industry and law enforcement. Nonetheless, after consideration of these

comments, law enforcement decided to offer information and guidance on

how a carrier may choose to apply the capacity requirements in any

given geographic area if the carrier chooses to deploy a switch-based

solution (See Section V.C.). That choice will be at the discretion of

the carrier. Under those circumstances, if a carrier chooses to deploy

a switch-based solution, the capacity requirement can initially be

distributed at the discretion of the carrier with the understanding

that the estimated actual capacity requirements of the area need to be

met.

5. Request for Specific Breakdown of Communications Content, Pen

Register, and Trap and Trace Interception Orders

Nine comments (AirTouch Communications, Bell Atlantic NYNEX Mobile,

Bell Atlantic, BellSouth, Cellular Telecommunications Industry

Association, Personal Communications Industry Association, SBC

Communications, Telecommunications Industry Association, United States

Telephone Association) were received stating that the capacity

requirements should be delineated according to the type of interception

(i.e., pen register, trap and trace, and communications content).

The average national ratio of communications content interceptions

to pen register and trap and trace interceptions is not necessarily in

any way representative of any specific geographic region, nor is it

representative of any specific switching entity. The past ratio of pen

registers and traps and traces to full communication content

interception was derived from national averages of all interceptions

conducted during the 26-month survey period. The Government believes

that it would be inappropriate to use any such ratio in all localities

as a basis for developing a solution to meet the capacity requirements

in a particular area. Any solution developed by the industry must

account for the significant variance in the distribution of the types

of interceptions. The variance for historical switch-specific data is

from zero percent communications content interceptions up to 100

percent

[[Page 12236]]

communications content interceptions from area to area. Several

examples exist where the application of the nationwide ratio would

clearly hamper law enforcement efforts to conduct electronic

surveillance and protect public safety.

Further, law enforcement has concluded that because it does not

know the type(s) of surveillance that will be needed in the future, it

cannot provide the industry with a specific breakdown of such

surveillances by county or market service area based upon past

interception activity. Also, owing to the various technical solutions

and approaches that carriers are considering for certain capabilities,

such as the potential extraction and delivery of post cut-through

dialed digits and signaling, law enforcement cannot accurately

articulate a specific breakdown of surveillances by type. In the event

that a carrier elects to use a solution that is switch-based, the

Government has taken steps to quantify the maximum level of pen

register and call content interceptions that would be expected from any

one switch in terms of a ``high end capacity ceiling'' (see Section

V.C.).

6. Request for Specific Number of Call Content Channels (CCC) and Call

Data Channel (CDC)

Four comments (AT&T Wireless, SBC Communications,

Telecommunications Industry Association, United States Telephone

Association) were received requesting that capacity requirements be

specified as numbers of CCCs and CDCs.

Law enforcement does not currently know what approaches carriers

will employ as solutions to meet CALEA requirements. The suggestion

that the required number of CCCs and CDCs should be defined separately

presupposes a solution where carriers isolate and deliver all call-

identifying information over a CDC, including post cut through digits

dialed and related signaling. It would be inappropriate for law

enforcement to presuppose any particular solution. Further, the interim

industry standard (J-STD-025) does not support the extraction of dual-

tone multi-frequency (DTMF) signals, and as such, may lead to very

different solutions from those that the comments presuppose.

7. Apportionment of Capacity Requirements Amongst Carriers Serving a

Particular Geographical Area

Thirteen comments (AirTouch Communications, AT&T Wireless, Bell

Atlantic NYNEX Mobile, BellSouth, Cellular Telecommunications Industry

Association, Center for Democracy and Technology and the Center for

National Security Studies, National Telephone Cooperative Association,

Organization for the Promotion and Advancement of Small

Telecommunications Companies, Pacific Telesis Group, Personal

Communications Industry Association, SBC Communications,

Telecommunications Industry Association, Teleport Communications Group)

were received stating that capacity requirements should be specified

for each carrier serving a particular geographical area based upon each

carrier's market share.

An apportionment of capacity amongst carriers cannot reasonably be

made based on ever-changing market factors and market shares that law

enforcement can only guess at. The inherent instability and constant

market share movements within the telecommunications market makes

apportionment impossible on a ``percentage of the market'' basis.

Furthermore, the historical data does not show any correlation between

market share and electronic surveillance activity. For example, in a

number of instances where there are multiple services providers in a

geographic area, one service provider has accounted for the majority of

historic intercepts. However, as discussed above, in a number of

instances, an individual carrier can distribute the capacity

requirements at its discretion as long as the requirements (as stated

in the appendixes to this Final Notice of Capacity) for an entire

geographical area are met. Furthermore, if a carrier chooses to deploy

a switch-based solution, Section V.C. of this Final Notice of Capacity

delineates the maximum simultaneous interceptions that would be

expected from any one switch.

8. Capacity Requirements Will Serve as a Barrier to New Entrants in the

Market

Six comments (AT&T, AT&T Wireless, Cellular Telecommunications

Industry Association, MCI, Telecommunications Industry Association,

Teleport Communications Group) were received indicating that the

capacity requirements will serve as a barrier to new entrants into the

market. One comment suggested that the Government should issue a third

notice for new entrants.

Law enforcement realizes that a new entrant in a county or market

service area can initially expect to capture only a very small portion

of the subscriber base. Also, as stated in the previous response and

elsewhere above, an individual carrier, based on its unique network

configuration, can distribute the capacity requirements at its

discretion with the understanding that the capacity requirements as

stated in the appendixes to this Final Notice of Capacity represent law

enforcement's estimated actual and maximum capacity requirements for an

entire geographical area. Furthermore, if a carrier chooses to deploy a

switch-based solution, Section V.C. of this Final Notice of Capacity

delineates the maximum simultaneous interceptions that would be

expected from any one switch.

9. The Data Used in Deriving the Capacity Requirements Should Be

Audited

One comment (Telecommunications Industry Association) was received

stating that the data collected during the survey period for the

purposes of deriving capacity requirements should be audited.

Law enforcement considered the comment requesting the audit of data

used in the calculation of the capacity requirements and concluded that

the detailed electronic surveillance information for the entire United

States is of a sensitive nature, and should not be disclosed. However,

the FBI is prepared to let an individual carrier examine the subset of

information pertaining to that carrier's network and historic

interception activity. Law enforcement has previously provided carriers

with the opportunity to examine such data by which the capacity

requirements for their networks were determined.

10. The Methodology Used for the Extrapolation of PCS Capacity

Requirements Is Not Appropriate Nor Representative of Law Enforcement

Needs

Two comments (BellSouth, Personal Communications Industry

Association) were received indicating that the Second Notice of

Capacity's method of determining capacity requirements for PCS was

incorrect and does not represent law enforcement's needs.

The decision to publish PCS capacity requirements on a market basis

was driven by the fact that each individual PCS license holder could

serve the entire market at its discretion. With no historical PCS

interception activity, as mentioned previously in this Final Notice of

Capacity, and the fact that each PCS market is composed of whole or

partial cellular markets from which capacity requirements can be

reasonably derived, law enforcement believes that market-based

requirements offer the most reasonable and supportable means of

fulfilling law enforcement's CALEA mandate to publish capacity

[[Page 12237]]

requirements on a geographical basis for all carriers.

After consideration of the comments from the PCS industry and in

order to offer some flexibility for PCS carriers, law enforcement has

chosen to amend the geographical areas that can be used for the PCS

capacity requirements for those PCS carriers serving Major Trading

Areas (MTA) and Basic Trading Areas (BTA). Every PCS license holder

will have the option of supporting either the equivalent total capacity

requirements of the composite cellular markets (MSAs & RSAs as

delineated in Appendix B) in which the license holder can provide

service or the PCS requirements for MTAs and BTAs as delineated in

Appendixes C and D, respectively. This approach is responsive to PCS

carriers' concern about PCS markets not accurately reflecting

historical surveillance activity, and it allows a PCS carrier to

increase its capacity as it expands into new service areas.

11. Any Negotiation Between Law Enforcement and a Carrier Regarding the

Capacity Requirements in One or More Geographical Areas Should Be Made

Part of the Public Record

Two comments (Ameritech, Personal Communications Industry

Association) were received stating that any negotiation between the

Government and carriers regarding capacity requirements should be made

available to the public.

The Final Notice of Capacity defines the estimated actual and

maximum capacity requirements on a geographical basis for wireline and

wireless (cellular and PCS) carriers. Law enforcement will not alter

these actual or maximum capacity requirements with any carrier. Law

enforcement has met its statutory requirement by making public the

number of interceptions it estimates it may need to conduct in

specified geographic areas in the future. The capacity requirements

reflect the total number of communications content, pen register, and

trap and trace interceptions that law enforcement estimates it may need

to conduct. Furthermore, law enforcement has suggested information and

guidance for the application of the requirements to the industry within

this Final Notice of Capacity.

12. Growth Factor Derivation is Inappropriate and Not At All Reflective

of Overall Crime Trends

Four comments (AT&T Wireless, BellSouth, Telecommunications

Industry Association, United States Telephone Association) were

received stating that the growth factor derivation was inappropriate

and not reflective of overall crime trends. One comment suggested using

zero or negative growth rates.

Overall crime trends are not necessarily indicative of, or directly

related to, electronic surveillance needs. While certain types of crime

may be decreasing, the record for electronic surveillance orders, as

shown by the Wiretap Reports and the DOJ reports on the use of pen

registers and trap and traces, indicates that over time federal, state,

and local investigations have required and increased use of electronic

surveillance. It must be stated that law enforcement agencies and

prosecutorial offices (as well as the courts) have relied on the use of

electronic surveillance where required notwithstanding overall crime

trends. Also, the maximum capacity requirements are not representative

of the number of interceptions that law enforcement expects to perform

on a regular basis, but rather a capacity ceiling to be used by the

industry in the development of technical solutions.

13. The Methodology Used in the Formulation of Capacity Requirements Is

Inappropriate

Nine comments (Ameritech, AT&T Wireless, Bell Atlantic NYNEX

Mobile, BellSouth, Center for Democracy and Technology and the Center

for National Security Studies, GTE, SBC Communications,

Telecommunications Industry Association, United States Telephone

Association) were received questioning the methodology used for

determining capacity requirements.

As discussed in Section IV.C., alternative methods of expressing

capacity requirements were considered. The methodology used to

determine future capacity requirements projects the potential

interception needs of law enforcement in geographic areas to the

maximum extent practicable. Both the wireline county and the wireless

market service area requirements were based on historic interception

activity and used growth factors derived from past interception trends

as well as commonly-used statistical tools in the issuance of lawfully

authorized surveillance orders.

14. The Final Notice of Capacity Should Express Capacity Requirements

in Terms of Engineered Capacity

One comment (Cellular Telecommunications Industry Association)

requested that the capacity requirements be expressed in terms of

``engineered capacity''.

In the Initial Notice of Capacity, requirements were expressed as a

percentage of the engineered capacity of equipment, facilities, and

services. It was thought that in so doing, carriers would have more

flexibility in addressing the capacity requirements. Comments submitted

on the Initial Notice of Capacity, however, questioned the meaning of

engineered capacity and recommended that capacity requirements be

expressed as fixed numbers rather than as percentages. In response, law

enforcement re-examined this issue and found that using fixed numbers

for each county and market service area would be a clearer way to

express capacity requirements without tying them to constantly-changing

components of telecommunications networks.

After consideration of the aforementioned comments, law enforcement

decided to offer information and guidance on ways that a carrier may

choose to apply the capacity requirements in any given geographic area

(See Section V.C.).

Dated: March 3, 1998.

Louis Freeh,

Director, Federal Bureau of Investigation, Department of Justice.

[[Page 12238]]

Appendix A.--Notice of Capacity Requirements by County for Telecommunications Carriers Providing Local Services

[Numbers represent historical simultaneous interceptions and an estimation of the simultaneous requirement of

pen register, trap and trace, and call content interceptions that may be conducted anywhere within a county.]*

----------------------------------------------------------------------------------------------------------------

County requirement

-----------------------------------------------

Estimated Estimated

State County actual maximum

interceptions interceptions Historical

that may be that may be experience

conducted conducted

----------------------------------------------------------------------------------------------------------------

Alabama............................ Autauga.................... 3 4 2

Alabama............................ Baldwin.................... 3 4 2

Alabama............................ Barbour.................... 2 3 1

Alabama............................ Bibb....................... 2 3 0

Alabama............................ Blount..................... 2 3 0

Alabama............................ Bullock.................... 2 3 0

Alabama............................ Butler..................... 2 3 0

Alabama............................ Calhoun.................... 11 15 8

Alabama............................ Chambers................... 18 24 14

Alabama............................ Cherokee................... 2 3 1

Alabama............................ Chilton.................... 2 3 0

Alabama............................ Choctaw.................... 2 3 0

Alabama............................ Clarke..................... 2 3 1

Alabama............................ Clay....................... 2 3 0

Alabama............................ Cleburne................... 2 3 0

Alabama............................ Coffee..................... 2 3 0

Alabama............................ Colbert.................... 6 8 4

Alabama............................ Conecuh.................... 2 3 1

Alabama............................ Coosa...................... 2 3 0

Alabama............................ Covington.................. 2 3 0

Alabama............................ Crenshaw................... 2 3 0

Alabama............................ Cullman.................... 2 3 0

Alabama............................ Dale....................... 2 3 0

Alabama............................ Dallas..................... 8 11 6

Alabama............................ DeKalb..................... 3 4 2

Alabama............................ Elmore..................... 3 4 2

Alabama............................ Escambia................... 2 3 1

Alabama............................ Etowah..................... 4 6 3

Alabama............................ Fayette.................... 2 3 0

Alabama............................ Franklin................... 2 3 1

Alabama............................ Geneva..................... 2 3 0

Alabama............................ Greene..................... 2 3 0

Alabama............................ Hale....................... 2 3 0

Alabama............................ Henry...................... 2 3 0

Alabama............................ Houston.................... 6 8 4

Alabama............................ Jackson.................... 8 11 6

Alabama............................ Jefferson.................. 77 101 61

Alabama............................ Lamar...................... 2 3 0

Alabama............................ Lauderdale................. 6 8 4

Alabama............................ Lawrence................... 2 3 0

Alabama............................ Lee........................ 2 3 0

Alabama............................ Limestone.................. 4 6 3

Alabama............................ Lowndes.................... 2 3 0

Alabama............................ Macon...................... 2 3 0

Alabama............................ Madison.................... 63 83 50

Alabama............................ Marengo.................... 9 12 7

Alabama............................ Marion..................... 2 3 0

Alabama............................ Marshall................... 2 3 1

Alabama............................ Mobile..................... 62 81 49

Alabama............................ Monroe..................... 2 3 1

Alabama............................ Montgomery................. 24 32 19

Alabama............................ Morgan..................... 9 12 7

Alabama............................ Perry...................... 2 3 0

Alabama............................ Pickens.................... 2 3 0

Alabama............................ Pike....................... 7 10 5

Alabama............................ Randolph................... 2 3 0

Alabama............................ Russell.................... 2 3 0

Alabama............................ Shelby..................... 2 3 0

Alabama............................ St. Clair.................. 12 16 9

Alabama............................ Sumter..................... 2 3 0

Alabama............................ Talladega.................. 6 8 4

Alabama............................ Tallapoosa................. 8 11 6

Alabama............................ Tuscaloosa................. 12 16 9

[[Page 12239]]

Alabama............................ Walker..................... 2 3 0

Alabama............................ Washington................. 2 3 0

Alabama............................ Wilcox..................... 6 8 4

Alabama............................ Winston.................... 2 3 0

Alaska............................. Aleutians East............. 14 19 11

Alaska............................. Aleutians West............. 6 8 4

Alaska............................. Anchorage.................. 57 75 45

Alaska............................. Bethel..................... 3 4 2

Alaska............................. Bristol Bay................ 2 3 0

Alaska............................. Denali..................... 2 3 0

Alaska............................. Dillingham................. 2 3 0

Alaska............................. Fairbanks North Star....... 2 3 1

Alaska............................. Haines..................... 2 3 0

Alaska............................. Juneau..................... 9 12 7

Alaska............................. Kenai Peninsula............ 2 3 0

Alaska............................. Ketchikan Gateway.......... 47 62 37

Alaska............................. Kodiak Island.............. 2 3 0

Alaska............................. Lake and Peninsula......... 2 3 1

Alaska............................. Matanuska-Susitna.......... 6 8 4

Alaska............................. Nome....................... 2 3 0

Alaska............................. North Slope................ 6 8 4

Alaska............................. Northwest Arctic........... 2 3 0

Alaska............................. Prince of Wales-Ketchikan.. 2 3 0

Alaska............................. Sitka...................... 2 3 1

Alaska............................. Skagway-Hoonah-Angoon...... 2 3 0

Alaska............................. Southeast Fairbanks........ 2 3 0

Alaska............................. Valdez-Cordova............. 2 3 0

Alaska............................. Wade Hampton............... 2 3 0

Alaska............................. Wrangell-Petersburg........ 2 3 0

Alaska............................. Yakutat.................... 2 3 0

Alaska............................. Yukon-Koyukuk.............. 7 1

This text is long and has been trimmed here. Open the source document for the complete record.