Implementation of the Communications Assistance for Law Enforcement Act

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CC Docket No. 97-213; FCC 99-11]

Implementation of the Communications Assistance for Law

Enforcement Act

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: This document establishes limited rules to ensure that

carriers have policies and procedures in place that require the

affirmative intervention by and knowledge of, their employees in

effectuating any interception through their switching premises, and

that such interception is done lawfully and documented carefully. The

decision mandates that this be done by appointment of a designated

senior officer or employee by each carrier company who is responsible

for maintaining such security procedures. The decision also establishes

reporting and recordkeeping requirements for informing law enforcement

officials of all acts of unauthorized electronic surveillance that

occur on the carriers' premises, as well as any compromises of the

carriers' systems security and integrity procedures that involve the

execution of electronic surveillance. Finally, the decision adopts

filing requirements for large and small carriers. This document

contains modified information collections subject to the Paperwork

Reduction Act of 1995 (PRA), Public Law 104-13, and has been submitted

to the Office of Management and Budget (OMB) for review under the

section 3507 of the PRA.

DATES: Effective December 22, 1999 except for Secs. 64.2103, 64.2104,

and 64.2105, which contain information collection requirements that

have not been approved by the Office of Management and Budget. The FCC

will publish a document in the Federal Register announcing the

effective date for those sections. Public comment on the information

collections are due November 22, 1999.

FOR FURTHER INFORMATION CONTACT: Thomas Wasilewski, 202-418-1310. For

further information concerning the information collections contained in

this Report and Order, contact Les Smith, Federal Communications

Commission, Room 1A-804, 445 12th Street, S.W., Washington, DC 20054,

or via the Internet at [email protected].

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

and Order (R&O) in CC Docket No. 97-213; FCC 99-11, adopted January 29,

1999, and released March 15, 1999. The complete text of this R&O is

available for inspection and copying during normal business hours in

the FCC Reference Information Center, Courtyard Level, 445 12th Street,

S.W., Washington, DC, and also may be purchased from the Commission's

copy contractor, International Transcription Services (ITS, Inc.), CY-

B400, 445 12th Street, S.W., Washington, DC.

Synopsis of the Report and Order

1. The Commission adopts a Report and Order (R&O) in CC Docket No.

97-213, regarding implementation of the Communications Assistance for

Law Enforcement Act (CALEA).1 The R&O establishes systems

security and integrity regulations that all telecommunications carriers

must follow to comply with section 105 of CALEA. The regulations were

proposed in the Notice of Proposed Rule Making (NPRM) in this

proceeding, which can be found at 62 FR 63302, November 11, 1997. The

R&O adopts these regulations pursuant to the authority granted to the

Commission under section 105 of CALEA and section 229 of the

Communications Act of 1934, as amended. Accordingly, the R&O finds that

telecommunications carriers must ensure that ``any interception of

communications or access to call-identifying information effected

within its switching premises can be activated only in accordance with

a court order or other lawful authorization and with the affirmative

intervention of an individual officer or employee of the carrier''

2 acting in accordance with the regulations adopted in the

R&O and sections 229(b) and (c) of the Communications Act.

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\1\ Public Law 103414, 108 Stat. 4279 (1994).

\2\ 47 U.S.C. 1004.

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2. While recognizing that certain carriers currently have existing

policies and procedures in place to secure and protect their

telecommunications systems in a manner that would comply with section

105 of CALEA and sections 229(b) and (c) of the Communications Act, the

R&O finds that the void created by those carriers without such policies

and procedures demands adoption of minimum set of requirements that

will ensure compliance with section 105 of CALEA and sections 229(b)

and (c) of the Communications Act. The R&O declines, however, to adopt

specific or detailed policies and procedures that telecommunications

carriers must include within their internal operating practices to

ensure compliance, because, as the R&O further finds, it is not the

Commission's responsibility to ``micro-manage'' telecommunications

carriers' corporate policies. The rules adopted in the R&O are intended

to provide carriers with guidance as to the minimum requirements

necessary to achieve compliance with section 105 of CALEA and sections

229(b) and (c) of the Communications Act in the least burdensome manner

possible.

3. The R&O mandates that carriers, as part of their policies and

procedures, must appoint the senior authorized officer(s) or

employee(s) whose job function includes being a point of contact for

law enforcement on a daily, around-the-clock basis. Carriers must

include in their policies and procedures a description of the job

functions of such points of contact and a method to enable law

enforcement authorities to contact these individuals.

4. Although the Commission declines to adopt a proposal to require

carriers to

[[Page 51463]]

respond to an interception request within a specific time frame, the

R&O encourages carriers to respond promptly and comply with any other

relevant statutes concerning their duty to assist law enforcement

authorities in performing an interception of communications or

facilitating access to call-identifying information.

5. The R&O next clarifies the term ``appropriate authorization,''

as used in section 229(b)(1)(A) of the Communications Act, which

requires that common carriers establish appropriate personnel

supervision and control policies and procedures ``to require

appropriate authorization to activate interception of communications or

access to call-identifying information(.)'' 3 The R&O, based

on the explicit language of section 105 of CALEA and section 229(b) of

the Communications Act, concludes that ``appropriate authorization''

refers both to the legal authorization that law enforcement must

present to a carrier in the form of an order, warrant, or other

authorization issued by a judge or magistrate pursuant to federal or

state statutory authority (appropriate legal authorization), and to the

authorization a carrier's employee must receive from the carrier to

assist law enforcement (appropriate carrier authorization) to engage in

the interception of communication or the access to call-identifying

information. The R&O concludes that a carrier satisfies the requirement

for appropriate authorization only when a carrier's employee implements

the interception of communications or access to call-identifying

information in accordance with appropriate carrier authorization after

having received legal authorizations.

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\3\ 47 U.S.C. 229(b)(1)(A).

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6. The R&O also requires carriers to state in their internal

policies and procedures that carrier personnel must receive both

appropriate legal authorization and appropriate carrier authorization

before taking any action to affirmatively implement the interception of

communications or access to call-identifying information. Carriers must

also, upon receipt of a proffered authorization by law enforcement,

determine that such authorization is what it purports to be, and that

it can be implemented technically, including that it is sufficiently

and accurately detailed to enable the carrier to comply with its terms.

The Commission notes, however, that its determination in the R&O under

section 105 of CALEA and section 229 of the Communications Act

regarding the level of scrunity applicable to a carrier's review of a

court order or certification is in no way intended to alter or replace

any standard or level of scrutiny imposed under any other state or

federal statute. Accordingly, the R&O requires that, as part of their

policies and procedures, carriers should also comply with appropriate

authorization requirements contained in any other relevant state or

federal statute when reviewing an authorization, and must ensure that

their designated senior officer(s) or employee(s) responsible for

affirmatively intervening to activate the interception of

communications or access to call-identifying information is fully

apprised of any additional relevant federal and state statutory

provisions.

7. The R&O further provides that carriers must report all acts of

unauthorized electronic surveillance that occur on their premises, as

well as any compromises of the carrier's system security and integrity

procedures that involve the execution of electronic surveillance, to

the appropriate law enforcement agency. The R&O does not, however,

impose a specific time frame within which a carrier must report a

security breach. Rather, the R&O requires that carriers report such

breaches within a reasonable period of time and in compliance with any

other relevant statutes.

8. Additionally, in order to comply with section 229(b)(2), the

carrier must maintain secure and accurate records of each interception

of communication or access to call-identifying information, made with

or without appropriate authorization, in the form of single

certification. This certification must include, at a minimum: (1) The

telephone number(s) and/or circuit identification numbers involved; (2)

the start date and time of the opening of the circuit for law

enforcement; (3) the identity of the law enforcement officer presenting

the authorization; (4) the name of the judge or prosecuting attorney

signing the authorization; (5) the type of interception of

communications or access to call-identifying information; and (6) the

name of the telecommunications carrier's personnel who is responsible

for overseeing the interception of communication or access to call-

identifying information and who is acting in accordance with the

carrier's policies established under section 229(b)(1). The designated

employee must sign each record, to certify the record is complete and

accurate. The Order mandates that carriers maintain these records for

ten years and keep records relating to the content of authorized

interception for a period of time determined by individual carriers in

accordance with policies and procedures established under section

229(b)(1) of the Communications Act and applicable state and federal

statutes of limitation.4

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\4\ On July 16, 1999, the Commission adopted an Order on

Reconsideration (Order) in this proceeding (FCC 99-184), which

revises the recordkeeping and maintenance requirements adopted in

the R&O. The Order eliminates the requirement that

telecommunications carriers retain the content or call-identifying

information of any interceptions of communications and the 10 year

record retention requirement. Instead, carriers must retain the

certification for a ``reasonable period of time.''

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9. The R&O adopts filing requirements in accordance with section

229(b)(3) of the Communications Act. In this regard, the R&O finds that

all telecommunications carriers must submit to the Commission the

policies and procedures adopted to comply with the requirements

established under sections 229(b)(1) and (2), regardless of carrier

size. The Commission will review carriers' policies procedures to

determine whether they comply with the Commission's Rules. If the

Commission determines that a carrier's policies and procedures are non-

compliant, the carrier shall modify its policies and procedures in

accordance with an order released by the Commission. Moreover, the

Commission shall conduct investigations as may be necessary to ensure

compliance by telecommunications carriers with the requirements of

rules established by the Commission under section 229 of the

Communications Act and section 105 of CALEA.

10. The R&O mandates that all carriers file their policies and

procedures within 90 days from the effective date of the rules adopted

in this R&O, and they must further file their policies and procedures

with the Commission no later than 90 days after the effective date of a

merger or divestiture in which a carrier becomes the surviving or

divested entity. This 90 day filing requirement also applies to

carriers who amend existing policies and procedures already filed with

the Commission.

11. Finally, the R&O does not adopt any rules (in addition to the

liabilities established by Congress in CALEA) that extend criminal and/

or civil liability, vicarious or otherwise, to a carrier for the

violations of section 105 of CALEA and section 229 of the

Communications Act. Instead, if a carrier violates the Commission's

rules implementing section 105 of CALEA, the Commission shall enforce,

pursuant to section 229(d), the penalties articulated in

[[Page 51464]]

sections 503(b) of the Communications Act and 1.80 of the Commission's

Rules.

Paperwork Reduction Act of 1995 Analysis

12. The actions contained in this R&O have been analyzed with

respect to the Paperwork Reduction Act of 1995 and found to impose

modified reporting and recordkeeping requirements or burdens on the

public. Implementation of these modified reporting and recordkeeping

requirements will be subject to approval by the Office of Management

and Budget, as prescribed by the Act. The new or modified paperwork

requirements contained in the Report and Order will go into effect

December 22, 1999, dependent on OMB approval.

Final Regulatory Flexibility Analysis

13. As required by section 603 of the Regulatory Flexibility Act

(RFA), 5 U.S.C. 603, an Initial Regulatory Flexibility Analysis (IRFA)

was incorporated in the NPRM. The Commission sought written public

comments on the proposals in the NPRM, including the IRFA. The

Commission's Final Regulatory Flexibility Analysis (FRFA) in this

Report and Order conforms to the RFA, as amended by the Contract With

America Advancement Act of 1996 (CWAAA), Public Law 104-121, 110 Stat.

847 (1996).5

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\5\ Subtitle II of the CWAAA is ``The Small Business Regulatory

Enforcement Fairness Act of 1996'' (SBREFA), codified at 5 U.S.C.

601 et. seq.

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(1) Need for and Purpose of this Action

14. This Report and Order responds to the legislative mandate

contained in the Communications Assistance for Law Enforcement Act,

Public Law 103-414, 108 Stat. 4279 (1994). The Commission, in

compliance with 47 U.S.C. 229, promulgated rules in this Report and

Order to ensure the prompt implementation of section 105 of CALEA. In

enacting CALEA, Congress sought to ``make clear a telecommunications

carrier's duty to cooperate in the interception of communications for

law enforcement purposes. . .'' 6 Specifically, Congress

sought to balance three key policies with CALEA: ``(1) to preserve a

narrowly focused capability for law enforcement agencies to carry out

properly authorized intercepts; (2) to protect privacy in the face of

increasingly powerful and personally revealing technologies; and (3) to

avoid impeding the development of new communications services and

technologies.'' 7

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\6\ CALEA, supra, at preamble.

\7\ H. Rep. No. 103-837 at 23, reprinted in 1994 U.S.C.C.A.N.

3489.

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15. The rules adopted in this Report and Order implement Congress's

goal to clarify a telecommunications carrier's duty to cooperate with

law enforcement agencies that request lawful electronic surveillance,

and to balance the three key policies, enumerated in this decision. The

objective of the rules adopted in this Report and Order is to

implement, as quickly and effectively as possible, the national

telecommunications policy for telecommunications carriers to support

the lawful electronic surveillance needs of law enforcement agencies.

(2) Summary of the Issues Raised by Public Comments Made in Response to

the IRFA

Summary of Initial Regulatory Flexibility Analysis (IRFA)

16. In the NPRM, the Commission performed an IRFA and asked for

comments that specifically addressed issues raised in the IRFA. In the

IRFA, the Commission found that the rules it proposed to adopt in this

proceeding may have a significant impact on a substantial number of

small businesses as defined by section 601(3) of the RFA.

17. In the IRFA, the Commission reiterated its proposed rules in

the NPRM requiring telecommunications carriers to establish policies

and procedures governing the conduct of officers and employees who are

engaged in surveillance activity. The proposed rules required

telecommunications carriers to maintain records of all interceptions of

communications and call identification information. Additionally, the

proposed rules required telecommunications carriers to execute an

affidavit for, and maintain a separate record of, each electronic

surveillance. Furthermore, the Commission sought comment on the length

of time telecommunications carriers should retain electronic

surveillance records, noting that 18 U.S.C. 2518(8)(a) calls for a

retention period of ten years for intercepted communications. The

proposed rules also required telecommunications carriers to report

security breaches (compromises to lawful electronic surveillance and

illegal electronic surveillance) to both the Commission and the

affected law enforcement agency.

18. In the IRFA, the Commission reiterated that our proposed rules

require telecommunications carriers classified as Class A companies

pursuant to 47 U.S.C. 32.11 to file individually with the Commission a

statement of its processes and procedures used to comply with the

systems security rules promulgated by the Commission.

Telecommunications carriers classified as Class B companies pursuant to

47 U.S.C. 32.11 could elect either to file a statement describing their

security processes and procedures or to certify that they observed

procedures consistent with the security rules promulgated by the

Commission. The Commission noted that because electronic surveillance

capacity and capability requirements are still being developed it is

not possible to predict with certainty whether the costs of compliance

will be proportionate with regard to both small and large

telecommunications carriers.

19. In the IRFA, the Commission tentatively concluded that a

substantial number of telecommunications carriers who have been

subjected to demands from law enforcement personnel to provide lawful

interceptions and call-identifying information for a period time

preceding CALEA already have in place practices for proper employee

conduct and recordkeeping. The Commission noted that, as a practical

matter, telecommunications carriers need such practices to protect

themselves from suit by persons who claim they were the victims of

illegal surveillance. By providing general guidance regarding the

conduct of carrier personnel and the content of records in the proposed

regulations, the Commission intended telecommunications carriers to use

their existing practices to the maximum extent possible. Thus, in the

IRFA, the Commission tentatively concluded that the additional cost to

most telecommunications carriers for conforming to the Commission's

proposed regulations, should be minimal.

20. Comments. Only one party filed comments in response to the

IRFA, but many parties commented on the Commission's proposed system

security and integrity regulations in response to the NPRM. The record

provided by all of these commenting parties clearly disfavors the

amount of recordkeeping proposed by the Commission in the NPRM, and

includes numerous suggestions to reduce the amount of paperwork

required by the proposed regulations without jeopardizing statutory

compliance. Thus, the final regulations reduce significantly the amount

of paperwork required of telecommunications carriers. Other parties

commented that the Commission should not promulgate any new rules to

[[Page 51465]]

implement CALEA. A plain reading of 47 U.S.C. 229(b) shows that

Congress requires the Commission to promulgate regulations that ensure

the systems security and integrity of carriers, by compelling carriers

to submit their CALEA systems security and integrity policies and

procedures to the Commission and provide records that prove to the

Commission how each telecommunications carrier is complying with the

requirements of CALEA section 105. Thus, commentary against any new

regulations contradicts the plain language of 47 U.S.C. 229.

(3) Description and Estimates of the Number of Entities Affected by

This Report and Order

21. Consistent with prior practice, the Commission shall continue

to exclude small incumbent LECs from the definition of a small entity

for the purpose of this FRFA. Nevertheless, as mentioned above, the

Commission includes small incumbent LECs in the FRFA. Accordingly, the

Commission's use of the terms ``small entities'' and ``small

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

Commission uses the term ``small incumbent LECs'' to refer to any

incumbent LECs that arguably might be defined by SBA as ``small

business concerns.''

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

decisions and rules adopted in the R&O may have a significant effect on

a substantial number of the small telephone companies identified by

SBA. The United States Bureau of the Census (``the Census Bureau'')

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

providing telephone services, as defined therein, for at least one

year.8 This number contains a variety of different

categories of carriers, including local exchange carriers,

interexchange carriers, competitive access providers, cellular

carriers, mobile service carriers, operator service providers, pay

telephone operators, PCS providers, covered SMR providers, and

resellers. It seems certain that some of those 3,497 telephone service

firms may not qualify as small entities or small incumbent LECs because

they are not ``independently owned and operated.'' 9 For

example, a PCS provider that is affiliated with an interexchange

carrier having more than 1,500 employees would not meet the definition

of a small business. It seems reasonable to conclude, therefore, that

fewer than 3,497 telephone service firms are small entity telephone

service firms or small incumbent LECs that may be affected by this

Report and Order.

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\8\ 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 (1995) (1992

Census).

\9\ 15 U.S.C. 632(a)(1).

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

definition of small entities for telephone communications companies

other than radiotelephone (wireless) companies. The Census Bureau

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

for at least one year at the end of 1992. According to SBA's

definition, a small business telephone company other than a

radiotelephone company is one employing fewer than 1,500 persons. All

but 26 of the 2,321 non-radiotelephone companies listed by the Census

Bureau were reported to have fewer than 1,000 employees. Thus, even if

all 26 of those companies had more than 1,500 employees, there would

still be 2,295 non-radiotelephone companies that might qualify as small

entities or small incumbent LECs. Although it seems certain that some

of these carriers are not independently owned and operated, we are

unable at this time to estimate with greater precision the number of

wireline carriers and service providers that would qualify as small

business concerns under SBA's definition. Consequently, we estimate

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

companies other than radiotelephone companies that may be affected by

the decisions and rules adopted in this Report and Order.

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

developed a definition of small providers of local exchange services

(LECs). The closest applicable definition under SBA rules is for

telephone communications companies other than radiotelephone (wireless)

companies. The most reliable source of information regarding the number

of LECs nationwide of which the Commission is aware appears to be the

data that we collect annually in connection with the Telecommunications

Relay Service (TRS). According to the most recent data, 1,347 companies

reported that they were engaged in the provision of local exchange

services.10 Although it seems certain that some of these

carriers are not independently owned and operated, or have more than

1,500 employees, The Commission is unable at this time to estimate with

greater precision the number of LECs that would qualify as small

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

estimates that there are fewer than 1,347 small incumbent LECs that may

be affected by the decisions and rules adopted in this Report and

Order.

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\10\ Federal Communications Commission, CCB, Industry Analysis

Division, Telecommunications Industry Revenue: TRS Fund Worksheet

Data, Tbl. 1 (Average Total Telecommunications Revenue Reported by

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

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25. Interexchange Carriers. Neither the Commission nor SBA has

developed a definition of small entities specifically applicable to

providers of interexchange services (IXCs). The closest applicable

definition under SBA rules is for telephone communications companies

other than radiotelephone (wireless) companies. The most reliable

source of information regarding the number of IXCs nationwide of which

the Commission is aware appears to be the data collected annually in

connection with the TRS Worksheet. According to the most recent data,

130 companies reported that they were engaged in the provision of

interexchange services. Although it seems certain that some of these

carriers are not independently owned and operated, or have more than

1,500 employees, the Commission is unable at this time to estimate with

greater precision the number of IXCs that would qualify as small

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

estimates that there are fewer than 130 small entity IXCs that may be

affected by the decisions and rules adopted in this Report and Order.

26. Competitive Access Providers. Neither the Commission nor SBA

has developed a definition of small entities specifically applicable to

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

definition under SBA rules is for telephone communications companies

other than radiotelephone (wireless) companies. The most reliable

source of information regarding the number of CAPs nationwide of which

the Commission is aware appears to be the data that we collect annually

in connection with the TRS Worksheet. According to the most recent

data, 57 companies reported that they were engaged in the provision of

competitive access services. Although it seems certain that some of

these carriers are not independently owned and operated, or have more

than 1,500 employees, the Commission is unable at this time to estimate

with greater precision the number of CAPs that would qualify as small

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

estimates that there are fewer than 57 small entity CAPs that may be

affected by the decisions and rules adopted in this Report and Order.

[[Page 51466]]

27. Operator Service Providers. Neither the Commission nor SBA has

developed a definition of small entities specifically applicable to

providers of operator services. The closest applicable definition under

SBA rules is for telephone communications companies other than

radiotelephone (wireless) companies. The most reliable source of

information regarding the number of operator service providers

nationwide of which the Commission is aware appears to be the data

collected annually in connection with the TRS Worksheet. According to

the most recent data, 25 companies reported that they were engaged in

the provision of operator services. Although it seems certain that some

of these companies are not independently owned and operated, or have

more than 1,500 employees, the Commission is unable at this time to

estimate with greater precision the number of operator service

providers that would qualify as small business concerns under SBA's

definition. Consequently, the Commission estimates that there are fewer

than 25 small entity operator service providers that may be affected by

the decisions and rules adopted in this Report and Order.

28. Wireless (Radiotelephone) Carriers. SBA has developed a

definition of small entities for radiotelephone (wireless) companies.

The Census Bureau reports that there were 1,176 such companies in

operation for at least one year at the end of 1992. According to SBA's

definition, a small business radiotelephone company is one employing

fewer than 1,500 persons.11 The Census Bureau also reported

that 1,164 of those radiotelephone companies had fewer than 1,000

employees. Thus, even if all of the remaining 12 companies had more

than 1,500 employees, there would still be 1,164 radiotelephone

companies that might qualify as small entities if they are

independently owned are operated. Although it seems certain that some

of these carriers are not independently owned and operated, the

Commission is unable at this time to estimate with greater precision

the number of radiotelephone carriers and service providers that would

qualify as small business concerns under SBA's definition.

Consequently, the Commission estimates that there are fewer than 1,164

small entity radiotelephone companies that may be affected by the

decisions and rules adopted in this Report and Order.

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\11\ 13 CFR 121.201, Standard Industrial Classification (SIC)

Code 4812.

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29. Cellular Service Carriers. Neither the Commission nor the SBA

has developed a definition of small entities specifically applicable to

Cellular Service Carriers and to Mobile Service Carriers. The closest

applicable definition under SBA rules for both services is for

telephone companies other than radiotelephone (wireless) companies. The

most reliable source of information regarding the number of Cellular

Service Carriers and Mobile Service Carriers nationwide of which the

Commission is aware appears to be the data collected annually in

connection with the TRS Worksheet. According to the most recent data,

792 companies reported that they are engaged in the provision of

cellular services. Although it seems certain that some of these

carriers are not independently owned and operated, or have more than

1,500 employees, the Commission is unable at this time to estimate with

greater precision the number of cellular service carriers that would

qualify as small business concerns under SBA's definition.

Consequently, the Commission estimates that there are fewer than 792

small entity cellular service carriers that might be affected by the

actions and rules adopted in this Report and Order.

30. Mobile Service Carriers. Neither the Commission or the SBA has

developed a definition of small entities specifically applicable to

mobile service carriers, such as paging companies. The closest

applicable definition under SBA rules is for radiotelephone (wireless)

companies. The most reliable source of information regarding the number

of mobile service carriers nationwide of which the Commission is aware

appears to be the data collected annually in connection with the TRS

Worksheet. According to the most recent data, 138 companies reported

that they were engaged in the provision of mobile services. Although it

seems certain that some of these carriers are not independently owned

and operated, or have more than 1,500 employees, the Commission is

unable at this time to estimate with greater precision the number of

mobile service carriers that would qualify under SBA's definition.

Consequently, the Commission estimates that there are fewer than 138

small entity mobile service carriers that may be affected by the

decision and rules adopted in this Report and Order.

31. Broadband Personal Communications Service. The broadband PCS

spectrum is divided into six frequency blocks designated A through F,

and the Commission has held auctions for each block. The Commission

defined ``small entity'' for Blocks C and F as an entity that has

average gross revenues of less than $40 million in the three previous

calendar years. For Block F, an additional classification for ``very

small business'' was added, and is defined as an entity that, together

with its affiliates, has average gross revenues of not more than $15

million for the preceding three calendar years. These regulations

defining ``small entity'' in the context of broadband PCS auctions have

been approved by SBA. No small businesses within the SBA-approved

definition bid successfully for licenses in Blocks A and B. There were

90 winning bidders that qualified as small entities in the Block C

auctions. A total of 93 small and very small business bidders won

approximately 40% of the 1,479 licenses for Blocks D, E, and F.

However, licenses for Blocks C through F have not been awarded fully,

therefore there are few, if any, small businesses currently providing

PCS services. Based on this information, the Commission concludes that

the number of small broadband PCS licenses will include the 90 winning

C Block bidders and the 93 qualifying bidders in the D, E, and F

blocks, for a total of 183 small PCS providers as defined by the SBA

and the Commission's auction rules.

32. SMR Licensees. Pursuant to 47 CFR 90.814(b)(1), the Commission

has defined ``small entity'' in auctions for geographic area 800 MHz

and 900 MHz SMR licenses as a firm that had average annual gross

revenues of less than $15 million in the three previous calendar years.

This definition of a ``small entity'' in the context of 800 MHz and 900

MHz SMR has been approved by the SBA. The rules adopted in this Report

and Order may apply to SMR providers in the 800 MHz and 900 MHz bands

that either hold geographic area licenses or have obtained extended

implementation authorizations. The Commission does not know how many

firms provide 800 MHz or 900 MHz geographic area SMR service pursuant

to extended implementation authorizations, nor how many of these

providers have annual revenues of less than $15 million. The Commission

assumes, for purposes of this FRFA, that all of the extended

implementation authorizations may be held by small entities, which may

be affected by the decisions and rules adopted in this Report and

Order.

33. The Commission recently held auctions for geographic area

licenses in the 900 MHz SMR band. There were 60 winning bidders who

qualified as small entities in the 900 MHz auction. Based on this

information, the Commission concludes that the number of geographic

area SMR licensees affected

[[Page 51467]]

by the rule adopted in this Report and Order includes these 60 small

entities. No auctions have been held for 800 MHz geographic area SMR

licenses. Therefore, no small entities currently hold these licenses. A

total of 525 licenses will be awarded for the upper 200 channels in the

800 MHz geographic area SMR auction. The Commission, however, has not

yet determined how many licenses will be awarded for the lower 230

channels in the 800 MHz geographic area SMR auction. There is no basis,

moreover, on which to estimate how many small entities will win these

licenses. Given that nearly all radiotelephone companies have fewer

than 1,000 employees and that no reliable estimate of the number of

prospective 800 MHz licensees can be made, we assume, for purposes of

this FRFA, that all of the licenses may be awarded to small entities

who, thus, may be affected by the decisions adopted in this Report and

Order.

34. Resellers. Neither the Commission nor SBA has developed a

definition of small entities specifically applicable to resellers. The

closest applicable definition under SBA rules is for all telephone

communications companies. The most reliable source of information

regarding the number of resellers nationwide of which the Commission is

aware appears to be the data collected annually in connection with the

TRS. According to the most recent data, 260 companies reported that

they were engaged in the resale of telephone services. Although it

seems certain that some of these carriers are not independently owned

and operated, or have more than 1,500 employees, the Commission is

unable at this time to estimate with greater precision the number of

resellers that would qualify as small business concerns under SBA's

definition. Consequently, the Commission estimates that there are fewer

than 260 small entity resellers that may be affected by the decisions

and rules adopted in this Report and Order.

35. Pay Telephone Operators. Neither the Commission nor the SBA has

developed a definition of small entities specifically applicable to pay

telephone operators. The closest applicable definition under SBA rules

is for telephone communications companies other than radiotelephone

(wireless) companies. The most reliable source of information regarding

the number of pay telephone operators nationwide of which the

Commission is aware appears to be the data collected annually with the

TRS Worksheet. According to the most recent data, 271 companies

reported that they were engaged in the provision of pay telephone

services. Although it seems certain that some of these carriers are not

independently owned and operated, or have more than 1,500 employees,

the Commission is unable at this time to estimate with greater

precision the number of pay telephone operators that would qualify as

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

Commission estimates that there are fewer than 271 small entity pay

telephone operators that may be affected by the decisions and rules

adopted in this Report and Order.

36. Cable Services or Systems. SBA has developed a definition of

small entities for cable and other pay television services, which

includes all such companies generating $11 million or less in revenue

annually.12 This definition includes cable systems

operators, closed circuit television services, direct broadcast

satellite services, multipoint distribution systems, satellite master

antenna systems and subscription television services. According to the

Census Bureau, there were 1,788 such cable and other pay television

services and 1,439 had less than $11 million in revenues.13

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\12\ 13 CFR 121.201, SIC Code 4841.

\13\ 1992 Economic Census Industry and Enterprise Receipts Size

Report, Table 2D, SIC 4841 (U.S. Bureau of the Census data under

contract to the Office of Advocacy of the U.S. Small Business

Administration).

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37. The Commission has developed its own definition of a small

cable system operator for the purposes of rate regulation. Under the

Commission's Rules, a ``small cable company'' is one serving fewer than

400,000 subscribers nationwide.14 Based on the most recent

information, the Commission estimates that there were 1,439 cable

operators that qualified as small cable system operators at the end of

1995. Since then, some of those companies may have grown to serve over

400,000 subscribers, and others may have been involved in transactions

that caused them to be combined with other cable operators.

Consequently, the Commission estimates that there are fewer than 1,439

small entity cable system operators that may be affected by the

decisions and rules adopted in this Report and Order.

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\14\ 47 CFR 76.901(e).

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38. The Communications Act also contains a definition of a small

cable system operator, which is ``a cable operator that, directly or

through an affiliate, serves in the aggregate fewer than 1 percent of

all subscribers in the United States and is not affiliated with any

entity or entities whose gross annual revenues in the aggregate exceed

$250,000,000.'' 15 The Commission has determined that there

are 61,700,000 subscribers in the United States. Therefore, the

Commission found that an operator serving fewer than 617,000

subscribers shall be deemed a small operator if its annual revenues,

when combined with the total annual revenues of all of its affiliates,

do not exceed $250 million in the aggregate.16 Based on

available data, the Commission finds that the number of cable operators

serving 617,000 subscribers or less totals 1,450. The Commission does

not request nor do we collect information concerning whether cable

system operators are affiliated with entities whose gross annual

revenues exceed $250,000,000, and thus are unable at this time to

estimate with greater precision the number of cable system operators

that would qualify as small cable operators under the definition in the

Communications Act. The Commission further notes that recent industry

estimates project that there will be a total of 65,000,000 subscribers,

and the Commission has based our fee revenue estimates on that figure.

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\15\ 47 U.S.C. 543(m)(2).

\16\ 47 CFR 76.1403(b).

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39. Other Pay Services. In the IRFA, the Commission included a

category entitled ``other pay services.'' Other pay services are also

classified under SIC 4841, which include cable operators, closed

circuit television services, direct broadcast satellite services (DBS),

multipoint distribution systems (MDS), satellite master antenna systems

(SMATV), and subscription television services. The Commission received

no comments regarding service providers in this category in response to

either the IRFA or the NPRM at large. Accordingly, the Commission

cannot determine at this time the number of service providers in this

category that intend to offer services to the public as

telecommunications carriers, and become subject to CALEA's

requirements.

(4) Summary Analysis of the Projected Reporting, Recordkeeping and

Other Compliance Requirements and Steps Taken to Minimize the

Significant Economic Impact of this Report and Order on Small Entities,

Including Significant Alternatives Considered and Rejected.

40. In this section of the FRFA, the Commission analyzes the

projected reporting, recordkeeping, and other compliance requirements

that may apply to small entities as a result of this Report and Order.

The Commission also

[[Page 51468]]

describes the steps taken to minimize the economic impact of our

decisions on small entities, including the significant alternatives

considered and rejected.

41. In the final regulations, the Commission affirms the proposal

in the NPRM to establish regulations that are general in nature and

provide as guidance, so that telecommunications carriers may utilize

their existing policies and procedures to the greatest extent possible.

In addition, the Commission eliminated all references to proposed rules

and tentative conclusions relating to vicarious liability arising out

of a telecommunications carrier's failure to accomplish either of CALEA

section 105's two objectives.

42. In the final regulations, the Commission eliminated all

regulations originally proposed pursuant to 47 U.S.C. 229(b)(1) that

appeared to go beyond the scope of CALEA section 105, overlapped other

proposed regulations, were unnecessarily cumbersome, or otherwise

unnecessary. Accordingly, carriers must: (1) Appoint a senior officer

or employee as point of contact responsible for affirmatively

intervening to ensure that interception of communications or access to

call-identifying information can be activated only in accordance with

the appropriate legal authorization; (2) include a description of the

job function of the appointed point of contact for law enforcement to

reach on a daily, around-the-clock basis in their policies and

procedures; (3) effectuate a requested interception promptly; (4)

incorporate our interpretation of the phrase ``appropriate

authorization'' in their policies and procedures; (5) state in their

policies and procedures that carrier personnel must receive appropriate

legal authorization, before enabling law enforcement officials to

implement the interception of communications or access to call-

identifying information; (6) require the appointed senior point of

contact to be apprised of all relevant federal and state statutory

provisions concerning the lawful interception of communications or

access to call-identifying information; (7) report security compromises

and unlawful interception of communications or access to call-

identifying information to the appropriate law enforcement authorities

within a reasonable length of time after discovery; (8) maintain a

secure and accurate record of each interception of communications or

access to call-identifying information, made with or without

appropriate authorization, in the form of single certification; (9)

maintain secure and records of call-identifying information and

unauthorized interceptions (including the content of the unauthorized

interception) for ten years; 17 10) maintain secure and

accurate records of the content of each authorized interception of

communications for a period of time determined by them in accordance

with the policies and procedures that they establish under section

229(b)(1) of the Communications Act and applicable state and federal

statutes of limitation; (11) provide a detailed description of how long

it will maintain its records of intercept content; and (12) file with

the Commission, within 90 days of the effective date of these rules,

the policies and procedures it uses to comply with the requirements of

this subchapter, and thereafter, within 90 days of a carrier's merger

or divestiture or a carrier's amendment of its existing policies and

procedures.

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\17\ See footnote 4 of this summary.

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43. The Commission eliminated the requirement of ``designated

employees,'' and the requirement for telecommunications carriers to

provide updated lists of designated employees that included personal

information about them, to law enforcement agencies. Instead,

telecommunications carriers, as part of their policies and procedures,

should only appoint a senior authorized officer or employee as a point

of contact for law enforcement to reach on a daily, around-the-clock

basis. Telecommunications carriers will include a description of the

job function of the designated point of contact and a method to enable

law enforcement authorities to contact the individual employed in this

capacity in their polices and procedures.

44. The Commission eliminated the proposed regulation requiring a

separate affidavit and a separate record for each surveillance.

Instead, the final regulation requires that telecommunications carriers

compile and maintain a single record of each intercepted communications

or access to call-identifying information, certified by a carrier

employee in charge of that electronic surveillance, that contains the

following information: (1) The telephone number(s) and/or circuit

identification number(s) involved; (2) the start date and time of the

opening of the circuit for law enforcement; (3) the identity of the law

enforcement officer presenting the authorization; (4) the name of the

judge or prosecuting attorney who signed the authorization; (5) the

type of intercepted communications or access to call-identifying

information; (6) the name(s) of the telecommunications carriers'

personnel who are responsible for overseeing the interception of

communications or access to call-identifying information and who are

acting in accordance with the carriers' policies and procedures

established under 47 U.S.C. 229(b)(1). This record shall be signed by

the individual who is responsible for overseeing the interception of

communications or access to call-identifying information and who is

acting in accordance with the carriers' policies and procedures

established under 47 U.S.C. 229(b)(1). To avoid duplicating the

existing ten year record retention requirement for records of

authorized interception content in 18 U.S.C. 2518(8)(a), the Commission

allows telecommunications carriers to retain records of the content of

authorized interceptions for a period of time that they find reasonably

necessary. However, because 18 U.S.C. 2518(8)(a) does not encompass

records of call-identifying information and records of unauthorized

interceptions, the Commission requires carriers to maintain secure and

records of call-identifying information and unauthorized interceptions

(including the content of the unauthorized interception) for ten

years.18

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\18\ See Order on Reconsideration which revises this regulation,

and which will be published shortly in the Federal Register.

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In the final regulations, the Commission did not affirm our

proposal to provide a lessened reporting requirement for carriers that

fell below the gross annual revenue threshold established in 47 CFR

32.9000 of the Commission's Rules. The Commission concludes that 47

U.S.C. 229(b)(3) requires all telecommunications carriers to submit

their policies and procedures to the Commission established under 47

U.S.C. 229(b)(1) and (2). The statute makes no distinction between

classes of telecommunications carriers for the purpose of lessening the

regulatory burden for smaller carriers. Accordingly, the Commission's

final regulations contain the requirement that all telecommunications

carriers must file their systems security and integrity policies and

procedures with the Commission, within 90 days of this Report and

Order's effective date. The Commission notes, however, that since the

proposed regulations have been drastically reduced, the burden imposed

by the regulations adopted herein is also significantly reduced for all

telecommunications carriers, including the smaller ones.

[[Page 51469]]

(5) Report to Congress

46. The Commission shall send a copy of this FRFA, along with this

Report and Order, in a report to Congress pursuant to the Small

Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C.

801(a)(1)(A). A copy of this FRFA will also be published in the Federal

Register.

Ordering Clauses

47. Accordingly, it is ordered that, pursuant to sections 4(i),

4(j), and 229 of the Communications Act of 1934, as amended, 47 U.S.C.

154(i), 154(j), and 229, and section 105 of the Communications

Assistance for Law Enforcement Act, 47 U.S.C. 1004, the rules are

adopted.

48. It is further ordered that the rules will become effective

December 22, 1999 except for Secs. 64.2103, 64.2104, and 64.2105, which

contain information collection requirements that have not been approved

by the Office of Management and Budget. The FCC will publish a document

in the Federal Register announcing the effective date for those

sections.

49. It is further ordered that the Regulatory Flexibility Analysis,

as required by Section 604 of the Regulatory Flexibility Act, and as

set forth above is adopted.

50. It is further ordered that the Commission's Office of Public

Affairs, Reference Operations Division, shall send a copy of this

Report and Order, including the Final Regulatory Flexibility Analysis,

to the Chief Counsel for Advocacy of the Small Business Administration.

Paperwork Reduction Act

52. This Report and Order contains a modified information

collection. The Commission, as part of its continuing effort to reduce

paperwork burdens, invites the general public and the Office of

Management and Budget (OMB) to comment on the information collections

contained in this Report and Order, as required by the Paperwork

Reduction Act of 1995, Public Law 104-13. Public and agency comments

are due November 22, 1999; OMB comments are due 90 days from date of

publication of this Report and Order in the Federal Register. Comments

should address: (a) whether the proposed collection of information is

necessary for the proper performance of the functions of the

Commission, including whether the information shall have practical

utility; (b) the accuracy of the Commission's burden estimates; (c)

ways to enhance the quality, utility, and clarity of the information

collected; and (d) ways to minimize the burden of the collection of

information on the respondents, including the use of automated

collection techniques or other forms of information technology.

OMB Approval Number: 3060-0809.

Title: Communications Assistance for Law Enforcement Act, Report

and Order.

Form No.: N/A.

Type of Review: Revision of existing collection.

Respondents: Business or other for profit.

Number of Respondents: 5000.

Estimated Time Per Response: 53 hours.

Total Annual Cost Burden: $11,850,000.

Total Annual Burden: 265,000 hours.

Needs and Uses: The information submitted to the Commission by

telecommunications Carriers will be used to determine whether or not

the telecommunications carriers are in conformance with CALEA's

requirements, and the information maintained by telecommunications

carriers will be used by law enforcement officials to determine the

accountability and accuracy of telecommunications carriers' compliance

with lawful electronic surveillance orders.

List of Subjects in 47 CFR Part 64

Communications common carriers, Reporting and recordkeeping

requirements.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

Rule Changes

For the resaons discussed in the preamble, the Federal

Communications Commission amends 47 CFR Part 64 as follows:

PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS

1. The authority citation for Part 64 is revised to read as

follows:

Authority: 47 U.S.C. 151, 154, 201, 202, 205, 218-220, and 332

unless otherwise noted. Interpret or apply Secs. 201, 218, 225, 226,

227, 229, 332, 48 Stat. 1070, as amended. 47 U.S.C. 201-204, 218,

225, 226, 227, 229, 332, 501 and 503 unless otherwise noted.

2. Part 64 is amended to add Subpart V to read as follows:

Subpart V--Telecommunications Carrier Systems Security and

Integrity Pursuant to the Communications Assistance for Law

Enforcement Act (CALEA)

Sec.

64.2100 Purpose.

64.2101 Scope.

64.2102 Definitions.

64.2103 Policies and procedures for employee supervision and

control.

64.2104 Maintaining secure and accurate records.

64.2105 Submission of policies and procedures and commission

review.

64.2106 Penalties.

Sec. 64.2100 Purpose.

Pursuant to the Communications Assistance for Law Enforcement Act,

Public Law 103-414, 108 Stat. 4279 (1994) (codified as amended in

sections of 18 U.S.C. and 47 U.S.C.), this subpart contains rules that

require a telecommunications carrier to ensure that any interception of

communications or access to call-identifying information effected

within its switching premises can be activated only in accordance with

appropriate legal authorization, appropriate carrier authorization, and

with the affirmative intervention of an individual officer or employee

of the carrier acting in accordance with regulations prescribed by the

Commission.

Sec. 64.2101 Scope.

The definitions included in this subchapter shall be used solely

for the purpose of implementing CALEA requirements.

Sec. 64.2102 Definitions.

(a) Appropriate legal authorization. The term appropriate legal

authorization means:

(1) A court order signed by a judge or magistrate authorizing or

approving interception of wire or electronic communications; or

(2) Other authorization, pursuant to 18 U.S.C. 2518(7), or any

other relevant federal or state statute.

(b) Appropriate carrier authorization. The term appropriate carrier

authorization means the policies and procedures adopted by

telecommunications carriers to supervise and control officers and

employees authorized to assist law enforcement in conducting any

interception of communications or access to call-identifying

information.

(c) Appropriate authorization. The term appropriate authorization

means both appropriate legal authorization and appropriate carrier

authorization.

[[Page 51470]]

Sec. 64.2103 Policies and procedures for employee supervision and

control.

A telecommunications carrier shall:

(a) Establish policies and procedures to ensure the supervision and

control of its officers and employees;

(b) Appoint a senior officer or employee as a point of contact

responsible for affirmatively intervening to ensure that interception

of communications or access to call-identifying information can be

activated only in accordance with appropriate legal authorization, and

include, in its policies and procedures, a description of the job

function of the appointed point of contact for law enforcement to reach

on a seven days a week, 24 hours a day basis;

(c) Incorporate, in its polices and procedures, an interpretation

of the phrase appropriate authorization that encompasses the

definitions of appropriate legal authorization and appropriate carrier

authorization, as stated above;

(d) State, in its policies and procedures, that carrier personnel

must receive appropriate legal authorization and appropriate carrier

authorization before enabling law enforcement officials and carrier

personnel to implement the interception of communications or access to

call-identifying information;

(e) Report to the affected law enforcement agencies, within a

reasonable time upon discovery:

(1) Any act of compromise of a lawful interception of

communications or access to call-identifying information to

unauthorized persons or entities; and

(2) Any act of unlawful electronic surveillance that occurred on

its premises.

(f) Include, in its policies and procedures, a detailed description

of how long it will maintain its records of the content of an

interception.

Sec. 64.2104 Maintaining secure and accurate records.

(a) A telecommunications carrier shall maintain a secure and

accurate record of each interception of communications or access to

call-identifying information, made with or without appropriate

authorization, in the form of single certification.

(1) This certification must include, at a minimum, the following

information:

(i) The telephone number(s) and/or circuit identification numbers

involved;

(ii) The start date and time of the opening of the circuit for law

enforcement;

(iii) The identity of the law enforcement officer presenting the

authorization;

(iv) The name of the person signing the appropriate legal

authorization;

(v) The type of interception of communications or access to call-

identifying information (e.g., pen register, trap and trace, Title III,

FISA); and

(vi) The name of the telecommunications carriers' personnel who is

responsible for overseeing the interception of communication or access

to call-identifying information and who is acting in accordance with

the carriers' policies established under Sec. 64.2103.

(2) This certification must be signed by the individual who is

responsible for overseeing the interception of communications or access

to call-identifying information and who is acting in accordance with

the telecommunications carrier's policies established under

Sec. 64.2103. This individual will, by his/her signature, certify that

the record is complete and accurate.

(3) This certification must be compiled either contemporaneously

with, or within a reasonable period of time after the initiation of the

interception of the communications or access to call-identifying

information.

(4) A telecommunications carrier may satisfy the obligations of

paragraph (a) of this section by requiring the individual who is

responsible for overseeing the interception of communication or access

to call-identifying information and who is acting in accordance with

the carriers' policies established under Sec. 64.2103 to sign the

certification and append the appropriate legal authorization and any

extensions that have been granted. This form of certification must at a

minimum include all of the information listed in paragraph (a) of this

section.

(b) A telecommunications carrier shall maintain secure and accurate

records of:

(1) Call-identifying information and unauthorized interceptions

(including the content of the unauthorized interception) for ten years;

(2) The content of each authorized interception of communications

for a reasonable period of time as determined by the carrier.

(c) It is the telecommunications carrier's responsibility to ensure

its records are complete and accurate.

(d) Violation of this rule is subject to the penalties of

Sec. 64.2106.

Sec. 64.2105 Submission of policies and procedures and commission

review.

(a) Each telecommunications carrier shall file with the Commission

the policies and procedures it uses to comply with the requirements of

this subchapter. These policies and procedures shall be filed with the

Federal Communications Commission within 90 days of the effective date

of these rules, and thereafter, within 90 days of a carrier's merger or

divestiture or a carrier's amendment of its existing policies and

procedures.

(b) The Commission shall review each telecommunications carrier's

policies and procedures to determine whether they comply with the

requirements of Sec. 64.2103 and Sec. 64.2104.

(1) If, upon review, the Commission determines that a

telecommunications carrier's policies and procedures do not comply with

the requirements established under Sec. 64.2103 and Sec. 64.2104, the

telecommunications carrier shall modify its policies and procedures in

accordance with an order released by the Commission.

(2) The Commission shall review and order modification of a

telecommunications carrier's policies and procedures as may be

necessary to insure compliance by telecommunications carriers with the

requirements of the regulations prescribed under Sec. 64.2103 and

Sec. 64.2104.

Sec. 64.2106 Penalties.

In the event of a telecommunications carrier's violation of

Sec. 64.2103 or Sec. 64.2104 of this subchapter, the Commission shall

enforce the penalties articulated in 47 U.S.C. 503(b) of the

Communications Act of 1934 and 47 CFR 1.8.

[FR Doc. 99-24853 Filed 9-22-99; 8:45 am]

BILLING CODE 6712-01-P