[Federal Register Volume 63, Number 220 (Monday, November 16, 1998)]
[Proposed Rules]
[Pages 63639-63654]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-30552]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 64
[CC Docket No. 97-213, FCC 98-282]
Communications Assistance for Law Enforcement Act
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: This Further Notice of Proposed Rulemaking (Further NPRM)
addresses alleged deficiencies in industry-developed technical
requirements for wireline, cellular and broadband Personal
Communications Services (PCS) carriers to comply with the assistance
capability requirements prescribed by the Communications Assistance for
Law Enforcement Act of 1994 (CALEA, or the Act). The Act authorizes the
Commission to establish, by rule, technical requirements or standards
that meet the assistance capability requirements, if industry or
standards setting organizations have failed to set such standards, or
if any party believes that an industry standard is deficient.
DATES: Comments are due December 14, 1998; reply comments are due
January 13, 1999.
FOR FURTHER INFORMATION CONTACT: Rodney Small, Office of Engineering
and Technology, (202) 418-2452.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
Further Notice of Proposed Rulemaking, CC Docket 97-213, FCC 98-282,
adopted October 22, 1998, and released November 5, 1998. The full text
of this Commission decision is available for inspection and copying
during normal business hours in the FCC Reference Center (Room CY-
C404), 445 Twelfth Street, S.W., Washington, D.C., and also may be
purchased from the Commission's duplication contractor, International
Transcription Service, (202) 857-3800, 1231 20th Street, N.W.,
Washington, D.C. 20036.
Summary of the Further Notice of Proposed Rulemaking
1. The Further NPRM addresses alleged deficiencies in industry-
developed technical requirements for wireline, cellular, and broadband
PCS carriers to comply with the assistance capability requirements
prescribed by CALEA. Industry developed these technical requirements in
an attempt to satisfy the ``safe harbor'' provision of the Act, which
permits telecommunications carriers to be found in compliance with
[[Page 63640]]
CALEA if carriers comply with publicly available technical requirements
adopted by an industry association or standard-setting organization, or
by the Commission. The Act authorizes the Commission to establish, by
rule, technical requirements or standards that meet the assistance
capability requirements, if industry or standards-setting organizations
have failed to set such standards, or if any party believes that an
industry standard is deficient. The Commission has received four
petitions for rulemaking asking us to establish such requirements or
standards pursuant to our statutory authority under the Act. In
addition, in response to a Public Notice the Commission's Wireless
Telecommunications Bureau and Office of Engineering and Technology
released on April 20, 1998, we have received numerous comments
disputing whether certain specific technical requirements are necessary
to comply with CALEA.
2. In light of petitioners' claims that the interim standard
adopted by industry is deficient with regard to particular technical
requirements it currently includes, this Further NPRM analyzes those
specific requirements and reaches tentative conclusions regarding which
of them meet the definitions of CALEA Section 103. The Further NPRM
also seeks comment on a range of issues associated with the
Commission's obligations under the Act. In addition, we seek comment on
what role, if any, we can or should play in assisting
telecommunications carriers other than wireline, cellular, and
broadband PCS carriers to set standards for, or to achieve compliance
with, CALEA's requirements.
3. Since 1970, telecommunications carriers have been required to
cooperate with law enforcement agencies in conducting electronic
surveillance. Recent advances in technology, however, most notably the
introduction of digital transmission and processing techniques and the
proliferation of wireless services, have hampered the law enforcement
community's ability to conduct lawfully authorized surveillance. CALEA
was enacted in 1994 to address such problems, and to ensure that law
enforcement surveillance efforts would not be unintentionally thwarted
by the development and deployment of new telecommunications
technologies and services. At the same time, however, Congress
recognized the need to protect privacy interests within the context of
court-authorized electronic surveillance. In defining the terms and
requirements of the Act, therefore, Congress sought to balance three
important policies: ``(1) to preserve a narrowly focused capability for
law enforcement agencies to carry out properly authorized intercepts;
(2) to protect privacy in the face of increasingly powerful and
personally revealing technologies; and (3) to avoid impeding the
development of new communications services and technologies.'' Based on
these considerations, Congress envisioned that the requirements of
CALEA would serve as ``both a floor and a ceiling,'' defining the
minimum capabilities that should be provided to law enforcement, while
also establishing limits as to what can be provided.
4. CALEA directs carriers to ensure that their equipment,
facilities, and services are capable of meeting certain requirements to
assist law enforcement in carrying out lawfully authorized electronic
surveillance. To accomplish this, the Act sets out general assistance
capability requirements that telecommunications carriers must meet, and
defines the obligations of the industry, the law enforcement community,
and the Commission in developing the technical requirements or
standards necessary to meet these requirements. To date, industry and
the law enforcement community, although they have reached agreement on
many issues, disagree on whether certain specific features and/or
technical requirements must be provided by carriers to comply with the
Act's assistance capability requirements. Consequently, as authorized
by the Act, representatives of industry, law enforcement, and the
privacy community have petitioned the Commission to establish such
technical requirements or standards. In this Further NPRM, therefore,
we consider whether certain specific technical requirements are
necessary for wireline, cellular and broadband PCS carriers to meet
CALEA's assistance capability requirements. Below we discuss the
relevant provisions of the Act.
CALEA Assistance Capability Requirements
5. The basic requirements for meeting CALEA's mandates are
contained in Section 103, which establishes four general ``assistance
capability requirements'' that carriers must meet to achieve
compliance. Specifically, Section 103 requires a telecommunications
carrier to:
(a) [E]nsure that its equipment, facilities, or services that
provide a customer or subscriber with the ability to originate,
terminate, or direct communications are capable of--
(1) Expeditiously isolating and enabling the government,
pursuant to a court order or other lawful authorization, to
intercept, to the exclusion of any other communications, all wire
and electronic communications carried by the carrier within a
service area to or from equipment, facilities, or services of a
subscriber of such carrier concurrently with their transmission to
or from the subscriber's equipment, facility, or service, or at such
later time as may be acceptable to the government;
(2) Expeditiously isolating and enabling the government,
pursuant to a court order or other lawful authorization, to access
call-identifying information that is reasonably available to the
carrier--
(A) Before, during, or immediately after the transmission of a
wire or electronic communication (or at such later time as may be
acceptable to the government); and
(B) In a manner that allows it to be associated with the
communication to which it pertains,
except that, with regard to information acquired solely pursuant to
the authority for pen registers and trap and trace devices (as
defined in section 3127 of title 18, United States Code), such call-
identifying information shall not include any information that may
disclose the physical location of the subscriber (except to the
extent that the location may be determined from the telephone
number);
(3) Delivering intercepted communications and call-identifying
information to the government, pursuant to a court order or other
lawful authorization, in a format such that they may be transmitted
by means of equipment, facilities, or services procured by the
government to a location other than the premises of the carrier; and
(4) Facilitating authorized communications interceptions and
access to call-identifying information unobtrusively and with a
minimum of interference with any subscriber's telecommunications
service and in a manner that protects--
(A) The privacy and security of communications and call-
identifying information not authorized to be intercepted; and
(B) Information regarding the government's interception of
communications and access to call-identifying information.
6. CALEA does not specify how these four assistance capability
requirements are to be met. Rather, it states only that
telecommunications carriers, in consultation with manufacturers and
telecommunications support service providers, must ensure that the
carriers' equipment, facilities, and services comply with the
requirements. Manufacturers and telecommunications support service
providers are subject to a ``cooperation'' requirement, i.e., they are
required to make available to carriers the features and modifications
necessary for carriers to comply with the requirements ``on a
reasonably timely basis and at a reasonable charge.'' Additionally, the
Attorney General of the United States must consult with appropriate
industry associations and
[[Page 63641]]
standards-setting organizations; with representatives of users of
telecommunications equipment, facilities, and services; and with state
utility commissions ``to ensure the efficient and industry-wide
implementation of the assistance capability requirements.''
7. Section 107(a)(2) of CALEA contains a ``safe harbor'' provision,
stating that ``[a] telecommunications carrier shall be found to be in
compliance with the assistance capability requirements under Section
103, and a manufacturer of telecommunications transmission or switching
equipment or a provider of telecommunications support services shall be
found to be in compliance with section 106, if the carrier,
manufacturer, or support service provider is in compliance with
publicly available technical requirements or standards adopted by an
industry association or standard-setting organization, or by the
Commission under subsection (b), to meet the requirements of Section
103.'' Thus, the Act envisions that an industry association or a
standards-setting organization would set applicable standards.
Individual carriers, however, are free to choose any technical solution
that meets the assistance capability requirements of CALEA, whether
based on an industry standard or not. Carriers, therefore, have some
degree of flexibility in deciding how they will comply with CALEA's
Section 103 requirements. CALEA specifically states, however, that the
absence of industry standards does not relieve a carrier of its
obligation to comply with the assistance capability requirements.
8. In addition to the safe harbor provision, section 107 also
defines certain Commission responsibilities under the Act.
Specifically, upon petition, section 107(b) authorizes the Commission
to establish, by rule, technical requirements or standards necessary
for implementing Section 103. Section 107(b) provides that a petition
may be filed with the Commission (1) if industry associations or
standard-setting organizations fail to issue technical requirements or
standards, or (2) if a government agency or any other person believes
that requirements or standards that were issued are deficient.
9. Section 107(b) specifies five factors that the Commission must
consider as part of its efforts to establish technical requirements or
standards to meet the assistance capability requirements of Section
103. Such technical requirements or standards must:
Meet the assistance capability requirements of Section 103
by cost-effective methods;
Protect the privacy and security of communications not
authorized to be intercepted;
Minimize the cost of such compliance on residential
ratepayers;
Serve the policy of the United States to encourage the
provision of new technologies and services to the public; and
Provide a reasonable time and conditions for compliance
with and the transition to any new standard, including defining the
obligations of telecommunications carriers under Section 103 during any
transition period.
10. Section 107(c) authorizes the Commission to extend the
compliance date for telecommunications carriers' equipment, facilities,
and services. On September 11, 1998, the Commission exercised its
authority under section 107(c) by extending the deadline for compliance
with Section 103 requirements from October 25, 1998 to June 30, 2000.
This extension applies to all telecommunications carriers proposing to
install or deploy, or having installed or deployed, any equipment,
facility or service prior to the effective date of Section 103, for
that part of the carrier's business on which the new equipment,
facility or service is used.
Development of Industry Interim Standard J-STD-025
11. Since early 1995, Subcommittee TR45.2 of the Telecommunications
Industry Association (TIA) has been working to develop an industry
standard that would satisfy the assistance capability requirements of
Section 103 for wireline, cellular, and broadband PCS carriers. The
standards-setting effort has included participation by industry and law
enforcement. In 1996, the Subcommittee received from the Federal Bureau
of Investigation (FBI) a document known as the Electronic Surveillance
Interface (ESI). The ESI was law enforcement's recommendation for the
logical and physical interfaces between a wireline, cellular, or
broadband PCS carrier's network and a law enforcement agency's
electronic surveillance collection facility. The ESI was developed at
the request of industry to describe law enforcement's vision and
recommendations for the interface. The ESI defined the requirements for
the delivery of both call content and call-identifying information to a
law enforcement agency (LEA).
12. By the spring of 1997, TIA developed a final draft of a
proposed CALEA industry standard. The draft standard defined services
and features to support lawfully authorized electronic surveillance and
the interfaces to deliver authorized intercepted communications and
call-identifying information to a LEA. Specifically, the draft standard
defined the intercept function in terms of five broad categories:
access, delivery, service provider administration, collection, and law
enforcement administration. This standard was submitted for balloting
to all participants in the standards-setting process under procedures
of the American National Standards Institute (ANSI). The law
enforcement community unanimously opposed adoption of this standard,
and it was voted down. The FBI, on behalf of this community, attached a
lengthy critique of the draft standard to its ballot, including
specific recommendations for changes.
13. The FBI's objections to the draft standard centered around a
list of technical capabilities that it contended are necessary to meet
CALEA's requirements, but that were not included in the industry
interim standard. The FBI's list, which has come to be known as the
``punch list,'' originally contained 11 items, and now contains nine
items. Specifically, the FBI's punch list identifies the following
capabilities it believes must be provided under CALEA:
(1) Content of subject-initiated conference calls--Would enable law
enforcement to access the content of conference calls supported by the
subject's service (including the call content of parties on hold).
(2) Party hold, join, drop--Messages would be sent to law
enforcement that identify the active parties of a call. Specifically,
on a conference call, these messages would indicate whether a party is
on hold, has joined or has been dropped from the conference call.
(3) Subject-initiated dialing and signaling information--Access to
all dialing and signaling information available from the subject would
inform law enforcement of a subject's use of features (such as the use
of flash-hook and other feature keys).
(4) In-band and out-of-band signaling (notification message)--A
message would be sent to law enforcement whenever a subject's service
sends a tone or other network message to the subject or associate
(e.g., notification that a line is ringing or busy).
(5) Timing information--Information necessary to correlate call-
identifying information with the call content of a communications
interception.
(6) Surveillance status--Message that would verify that an
interception is still functioning on the appropriate subject.
[[Page 63642]]
(7) Continuity check tone (c-tone)--Electronic signal that would
alert law enforcement if the facility used for delivery of call content
interception has failed or lost continuity.
(8) Feature status--Would affirmatively notify law enforcement of
any changes in features to which a subject subscribes.
(9) Dialed digit extraction--Information would include those digits
dialed by a subject after the initial call setup is completed.
14. After the close of balloting, Subcommittee TR45.2 held a number
of meetings and made changes to the draft industry standard, including
a number of changes recommended by the FBI. However, based on the
concerns discussed below, none of the FBI punch list items were added
to the industry standard. The Subcommittee recommended that the revised
standard be considered as a joint TIA/Committee T1 Interim Standard and
reballoted under TIA procedures rather than ANSI's. An interim
standard, however, is valid for a period of only three years and is
considered by ANSI as a ``trial use.'' TIA adopted the recommendations,
and the revised draft standard was submitted for voting in the fall of
1997. Because no law enforcement agencies are members of the TIA or
Committee T1, however, only industry entities were eligible to cast
ballots.
15. The industry unanimously approved the draft standard as
fulfilling the requirements mandated by CALEA. In December 1997, the
TIA and Committee T1, sponsored by the Alliance for Telecommunications
Industry Solutions, announced the joint publication of interim standard
J-STD-025, Lawfully Authorized Electronic Surveillance (J-STD-025,
interim standard, or industry interim standard). This standard defines
services and features required to support lawfully authorized
electronic surveillance and specifies interfaces necessary to deliver
intercepted communications and call-identifying information to a LEA.
TIA stated that compliance with J-STD-025 satisfies the ``safe harbor''
provisions of CALEA.
Petitions for Rulemaking
16. In July 1997, before the industry interim standard was
released, the Cellular Telecommunications Industry Association (CTIA)
filed a petition for rulemaking on behalf of its members requesting
that the Commission establish a standard to implement the requirements
of Section 103, pursuant to the Commission's authority under section
107(b). CTIA contended that the standards setting process was
deadlocked, and that it was unlikely that a standard would be developed
in the near future. CTIA attached to its petition the draft industry
standard that ultimately became J-STD-025, and argued that this draft
standard met the functional requirements of CALEA in their entirety.
17. In August 1997, comments on the CTIA petition were filed
jointly by the Center for Democracy and Technology (CDT) and the
Electronic Frontier Foundation (EFF). CDT/EFF generally supported
CTIA's request to adopt the proposed industry standard; however, they
recommended the deletion of provisions relating to subject location and
packet-mode information. In March 1998, following adoption of the
industry interim standard, DoJ/FBI jointly filed a motion to dismiss
CTIA's Petition for Rulemaking on the grounds that the December 1997
adoption of the interim standard rendered CTIA's petition moot. As
discussed below, we agree, and dismiss CTIA's July 1997 Petition for
Rulemaking.
18. On March 26, 1998, CDT filed a petition for rulemaking,
requesting that the Commission intervene in the implementation of
CALEA. CDT reiterated the position it and EFF had enunciated in August
1997, arguing that J-STD-025 goes too far in permitting location
information capabilities and fails to protect the privacy of packet-
mode communications. CDT further argued that the additional
surveillance enhancements sought by the FBI in the punch list are not
required under CALEA. CDT stated that the telecommunications industry
and the FBI had failed to agree on a plan for preserving a narrowly-
focused surveillance capability that would protect privacy and,
further, were now mired in an argument over designing additional
surveillance features into the nation's telecommunications system.
Finally, CDT stated that compliance with J-STD-025 was not reasonably
achievable and requested that the Commission indefinitely delay
implementation of CALEA while a more narrowly-focused standard
consistent with the intent of CALEA is developed.
19. On March 27, 1998, DoJ and the FBI jointly filed a petition for
expedited rulemaking, asking the Commission to correct deficiencies in
the industry standard by establishing additional technical standards
that meet the requirements of CALEA. DoJ/FBI claim that the interim
standard adopted by industry is deficient because: (1) It does not
ensure that law enforcement will be able to receive all of the
communications content and call-identifying information that carriers
are obligated to deliver under CALEA; and, (2) it fails to ensure that
information will be delivered in a timely manner. DoJ/FBI set forth, as
a proposed rule, the features (i.e., the punch list items) they believe
should be added to the interim standard to correct its deficiencies.
DoJ/FBI request that the Commission leave the industry interim standard
in effect pending the issuance of a final decision.
20. On April 2, 1998, TIA filed a petition for rulemaking, asking
the Commission to resolve the dispute as to whether the interim
standard is overinclusive or underinclusive. TIA requested that we: (1)
Immediately announce suspension of enforcement of CALEA until we make
our determination of a permanent standard; (2) establish a reasonable
compliance schedule of at least 24 months to implement the permanent
standard; (3) undertake an expedited schedule for establishing a
permanent standard; and (4) remand any further technical
standardization work to TIA Subcommittee TR45.2.
21. On April 20, 1998, the Commission's Wireless Telecommunications
Bureau and Office of Engineering and Technology released a Public
Notice in this proceeding soliciting comment on the above petitions, as
well as soliciting comment on whether the October 25, 1998 deadline for
compliance with CALEA's capability requirements should be extended. The
Public Notice also requested specific comment on the scope of the
assistance capability requirements necessary to satisfy the obligations
imposed by CALEA. In particular, the Public Notice requested analyses
of whether the technical requirements discussed in the petitions from
CDT and from DoJ/FBI are necessary for carriers to meet CALEA's Section
103 requirements. Finally, the Public Notice requested comment on
remanding any additional standards development to TIA Subcommittee
TR45.2.
22. A number of parties petitioned the Commission to extend the
October 25, 1998 deadline for complying with the core features of
CALEA, and on September 11, 1998, the Commission released a Memorandum
Opinion and Order (Extension Order) granting such an extension until
June 30, 2000. Pursuant to our authority under section 107(c) of CALEA,
we determined that compliance with the assistance capability
requirements of Section 103 was not reasonably achievable by any
telecommunications carrier through the application of available
technology by CALEA's compliance deadline of
[[Page 63643]]
October 25, 1998. Therefore, we granted a blanket extension of CALEA's
compliance deadline until June 30, 2000, for all telecommunications
carriers similarly situated to the petitioners, i.e., those carriers
proposing to install or deploy, or having installed or deployed, any
equipment, facility or service prior to the effective date of Section
103, for that part of the carrier's business on which the new
equipment, facility or service is used.
Authority and Approach
23. Section 107(b) of CALEA empowers the Commission to establish,
by rule, technical requirements or standards to meet the assistance
capability requirements of Section 103. Additionally, section 301(a) of
CALEA states that ``[t]he Commission shall prescribe such rules as are
necessary to implement the requirements of [CALEA].''
24. In fulfilling our obligations under CALEA, our evaluation in
this proceeding will closely follow the plain language of the Act.
Pursuant to our statutory authority, we will separately examine the two
contested features of the J-STD-025 standard (i.e., the location
information and packet-mode features opposed by CDT) and the punch list
items sought by the FBI, to determine whether each meet the mandates of
Section 103.
25. As an initial matter, we will first determine whether the
specific item we are evaluating meets the assistance capability
requirements set forth in Section 103(a)(1)-(4). In doing so, we
propose to interpret these provisions narrowly. As noted above, we look
to the plain language, its context, and, if necessary, any legislative
history that assists in ascertaining Congressional intent.
Specifically, we explore below the intent of Congress' use of the terms
``equipment, facilities or services'' in Section 103(a)(1) as it
relates to the content of subject-initiated conference calls. We also
seek to interpret Section 103(a)(2)'s provision that call-identifying
information must be provided to a LEA only if that information is
``reasonably available'' to a telecommunications carrier. In this
regard, we tentatively conclude that before we can make a determination
whether a specific technical requirement meets the mandates of Section
103's assistance capability requirements, the Commission must determine
whether the information to be provided to a LEA under Section 103(a)(2)
is reasonably available to the carrier. The Act does not specify how
the term ``reasonably available'' should be defined or interpreted, and
the Act's legislative history offers little additional guidance. We
therefore request comment on what factors the Commission should use in
determining whether the information to be provided to a LEA under
Section 103(a)(2) is reasonably available.
26. Specifically, we request comment on how cost should be
considered in our determination of reasonable availability. Further, we
note that carriers use a variety of system architectures and different
types of equipment, leading us to believe that reasonable availability
is also likely to vary from carrier to carrier. Commenters should
discuss how the Commission can evaluate whether a particular technical
requirement is reasonably available in these circumstances and discuss
how the application or interpretation of these terms in Section
103(a)(2) is similar to or different from the application or
interpretation of ``reasonably achievable'' in section 109(b), and the
factors listed there.
27. We also ask commenters to evaluate the type of information that
has been traditionally available under pen register and trap-and-trace
authorizations, and whether the provision of such information to LEAs,
in light of the statutory definitions of ``pen register'' and ``trap
and trace device'', and judicial interpretations of them, provide
guidance or represent possible factors for determining ``reasonable
availability.''
28. Finally, we also invite comment on whether and, if so, under
what circumstances and to what extent, information that does not
qualify as call-identifying information under Section 102(2) or
otherwise is not ``reasonably available'' under Section 103(a)(2), may
nevertheless qualify as call content information under Section
103(a)(1) and the definitions of ``wire and electronic communications''
in 18 U.S.C. Sec. 2510(1), (12). Commenters should take into account
that the provisions of Section 103(a)(1) do not include a criterion of
``reasonable availability.''
29. If we conclude that the item in question constitutes a
technical requirement that meets the Section 103 assistance capability
requirements, we will then proceed to analyze each of the factors
identified by section 107(b) and seek comment on whether a particular
technical requirement: (1) Meets the assistance capability requirements
of Section 103 by cost-effective methods; (2) protects the privacy and
security of communications not authorized to be intercepted; (3)
minimizes the cost of such compliance on residential ratepayers; and,
(4) serves the policy of the United States to encourage the provision
of new technologies and services to the public. Additionally, section
107(b)(5) requires the Commission to provide a reasonable time and
conditions for compliance with and the transition to any new standard,
including defining the obligations of telecommunications carriers under
Section 103 during any transition period. Thus, we will also seek
comment on issues bearing on our section 107(b)(5) determinations. If,
on the other hand, we tentatively conclude that a specific technical
requirement falls outside of the parameters of the assistance
capability requirements established by Section 103, we will seek
comment on our tentative conclusion, and request that commenters
responding to this conclusion provide support for their agreement or
disagreement by thoroughly analyzing the section 107(b) factors
mentioned above.
30. We emphasize that, because CALEA specifically requires us to
consider the section 107(b) factors, commenters are strongly encouraged
to provide us with information as detailed and specific as possible.
For sections 107(b)(1) and (3), for example, we seek detailed comment
regarding the costs of adding a feature to a telecommunications
carrier's network and on what, if any, impact of such costs will have
on residential ratepayers. Commenters should consider the costs to
manufacturers in developing the equipment or software needed to
implement the technical requirement, as well as the cost to carriers to
install and deploy such equipment. Commenters should be specific as to
which entities would incur the cost of adding particular features;
e.g., manufacturers, local exchange carriers (LECs), interexchange
carriers (IXCs), or commercial mobile radio service (CMRS) providers,
etc. Commenters should also be specific as to what costs would be
incurred for hardware, as opposed to software upgrades to carriers'
networks, and whether some of these upgrades would have other uses in
the networks. If costs are likely to be passed on to residential
ratepayers, those costs should be identified, as well as specific
mechanisms that could be used to minimize such costs.
31. Under section 107(b)(2), if a party believes that a proposed
technical requirement would not protect the privacy and security of
communications not authorized to be intercepted, we request comment on
modifications or alternative technical requirements that would enable
Section 103's capability requirements to be met. In addition, we
[[Page 63644]]
seek detailed information on whether our determination that a
particular feature must be provided under CALEA will encourage or
discourage the provision of new technologies and services to the
public. Will the implementation of a particular technical requirement
constrain a carrier's ability to develop new services or technologies?
Commenters should provide a projected timeline for each technical
requirement, identifying the time needed to develop, test, and deploy
it. Additionally, commenters should address the extent to which the
capacity requirements of section 104 should affect our determinations
under section 107(b). Finally, we ask for comment on any conditions
necessary for compliance and any specific obligations that should be
imposed on telecommunications carriers during the transition to a new
standard.
32. We note that the tentative conclusions we reach in this Further
NPRM focus on the technical requirements that the petitioners have
asked us to address in their petitions pending before us; i.e., the two
contested features of J-STD-025 and the nine punch list items. In
making our tentative decision, we recognize that CALEA requires
carriers to ensure that their networks can provide the capabilities
defined in Section 103, but does not mandate use of, or adherence to,
any particular standard. In other words, compliance with the industry
standard is voluntary, not compulsory. As a result, carriers are free
to develop CALEA solutions in any manner they choose. Thus, a carrier
may choose to utilize an industry standard as a safe harbor, or they
may choose to implement other solutions that meet the capability
requirements of Section 103. However, in order for an adopted industry
standard to satisfy the safe harbor provision of section 107(a), it
must incorporate all of the technical requirements that we ultimately
determine meet the assistance capability requirements of Section 103.
33. We note further that this proceeding does not involve any
attempt to interpret statutes other than CALEA or define the scope of
authorizations needed by LEAs to intercept or obtain call content or
call-identifying information. Rather, this proceeding is limited to
determining, as a safe harbor, what capabilities each carrier must
provide if and when presented with a proper authorization or court
order to expeditiously provide LEAs access to call content and call-
identifying information.
34. We believe that industry is in the best position to determine
how to implement these technical requirements most effectively and
efficiently. Standards-setting organizations, manufacturers, and/or
individual telecommunications carriers should develop the technical
requirements consistent with our ultimate determinations reached in
this proceeding. We tentatively conclude that it would then be
appropriate for industry, in consultation with the law enforcement
community, to develop a final ``safe harbor'' standard for CALEA
compliance. We seek comment on this conclusion.
35. Finally, we also note that manufacturers and carriers are free
to develop and deploy additional features and capabilities, beyond
those required by CALEA, in efforts to assist law enforcement agencies
in conducting lawfully-authorized electronic surveillance. Such
capabilities, however, will not be subject to any of CALEA's
obligations, including cost recovery, and will not affect any party's
obligations under CALEA in any way. Thus, nothing in the instant
Further NPRM should be construed as limiting or proposing to limit
telecommunications manufacturers, carriers or support service
providers' ability to negotiate with law enforcement agencies to add
additional capabilities to the carrier's systems, nor to define a
maximum level of capabilities available to law enforcement under the
applicable provisions of law. We now turn to a discussion of whether we
should reexamine the uncontested portions of J-STD-025 as part of our
section 107(b) inquiry.
Industry Interim Standard J-STD-025
36. The industry interim standard, J-STD-025, which applies only to
wireline, cellular, and broadband PCS carriers, specifies that
telecommunications carriers are to provide LEAs with two
telecommunications channels to perform electronic surveillance--call
content channels (CCCs) and call data channels (CDCs). J-STD-025
defines the five functions of the intercept architecture to be used.
Those functions are:
Access--Provides the LEA with the ability to isolate the
subject's call content or call-identifying information accurately and
unobtrusively. The access function helps to prevent the unauthorized
access, manipulation, and disclosure of intercept controls, call
content, and call-identifying information.
Delivery--Accepts call content and call-identifying
information from the access function and delivers it to one or more LEA
collection functions. Ensures that the call content and call-
identifying information that are delivered are authorized for a
particular LEA, and thus also prevents the unauthorized access,
manipulation, and disclosure of intercept controls, call content, and
call-identifying information.
Collection--Receives and processes call content and call-
identifying information for the subject. (This function is the
responsibility of the LEA.)
Service Provider Administration--Controls the carrier's
electronic surveillance functions. (This function is beyond the scope
of the interim standard.)
Law Enforcement Administration--Controls the LEA
electronic surveillance functions. (This function is the responsibility
of the LEA, and is also beyond the scope of the interim standard.)
37. In seeking to fulfill our obligations under the Act, the
Commission acknowledges the immense time and effort both industry and
government representatives have put into the development of CALEA
standards. We also appreciate the input and involvement of privacy
organizations in this proceeding. We further note that the Act
expresses a preference for industry to set CALEA standards, in
consultation with the Attorney General, and that the Act's legislative
history also reveals that Congress envisioned that industry would have
primary responsibility in defining standards. Consequently, we believe
that the most efficient and effective method for ensuring that CALEA
can be implemented as soon as possible is to build on the work that has
been done to date.
38. We therefore do not intend to reexamine any of the uncontested
technical requirements of the J-STD-025 standard. Instead, we will make
determinations only regarding whether each of the location information
and packet-mode provisions currently included within J-STD-025, and the
nine punch list items that are currently not included, meet the
assistance capability requirements of Section 103. We base this
approach on the fact that the issues raised in the petitions and
comments filed in this proceeding focus solely on the location
information and packet-mode provisions of J-STD-025 and the nine punch
list items sought by the FBI. Accordingly, these features will be
evaluated separately. We further note that no party has raised any
specific challenges to J-STD-025 other than with respect to these
issues, and we have not been presented with any
[[Page 63645]]
compelling reason to reexamine the entire standard. We tentatively
conclude that by limiting our inquiry to only these specific technical
issues, we will better enable manufacturers and carriers to build on
the extensive work already completed or in process, and permit them to
deploy CALEA solutions on a more expedited basis. Accordingly, the
uncontested technical requirements are beyond the scope of this
proceeding.
39. In establishing technical requirements or standards, section
107(b)(5) requires the Commission to provide a ``reasonable time'' for
carriers to comply with and/or transition to any new standards and to
define the obligations of telecommunications carriers under Section 103
during any transition period. We previously concluded in our decision
under section 107(c) that telecommunications carriers must have
installed CALEA-compliant equipment and facilities based on the
``core'' features of J-STD-025 by June 30, 2000. A footnote in that
decision indicated that the ``core'' of J-STD-025 excludes both the
location information feature and the packet-mode feature. We now
clarify those findings as follows. J-STD-025 represents an attempt by
industry to develop a standard that carriers may choose to adopt
voluntarily as a means to comply with CALEA's ``safe harbor'' provision
set forth in section 107(a). We further recognize that the statute
leaves carriers with the discretion to choose to comply with CALEA by
other means. We emphasize that in requiring carriers to comply with the
core features of J-STD-025 by June 30, 2000, we did not intend for the
Extension Order to alter the substantive requirements of CALEA. Rather,
we meant only to extend the deadline for compliance. Thus, we now
clarify our Extension Order by requiring that by June 30, 2000,
carriers must either have installed the core features of J-STD-025 to
take advantage of the ``safe harbor'' provision of section 107(a) of
CALEA or have otherwise developed an individual solution and installed
capabilities that meet the assistance capability requirements of
Section 103. We believe that this approach is more consistent with the
language of the statute and the legislative history on this point. In
addition, we now propose to modify footnote 139 of the Extension Order
to include the location information feature as part of the core of J-
STD-025 which, if chosen by carriers as a means to qualify for the
``safe harbor,'' must be implemented by the June 30, 2000 deadline.
40. As detailed in the Extension Order, an extension until June 30,
2000, provides sufficient time for manufacturers to produce CALEA
compliant equipment based on the core features of J-STD-025 or to
develop individual network solutions and provides telecommunications
carriers sufficient time to purchase, test and install such equipment
throughout their networks. We further recognize that the additional
``non-core'' technical requirements we propose to be adopted in this
rulemaking may require additional time for manufacturers to design and
develop these capabilities and for telecommunications carriers to
incorporate them into their networks. Thus, we will consider
establishing another deadline or an implementation schedule for
telecommunications carriers to comply with any new technical
requirements we ultimately adopt in the instant proceeding. We seek
comment on this proposal. Specifically, we ask carriers and
manufacturers to supply us with timelines that detail how they plan to
develop and deploy the additional technical requirements noted herein.
Location Information
41. J-STD-025 includes a ``location'' parameter that would identify
the location of a subject's ``mobile terminal'' whenever this
information is reasonably available at the intercept access point and
its delivery to law enforcement is legally authorized. Location
information would be available to the LEA irrespective of whether a
call content channel or a call data channel was employed.
42. We tentatively conclude that location information is call-
identifying information under CALEA. The Act states that call-
identifying information is ``dialing or signaling information that
identifies the origin, direction, destination, or termination of each
communication generated or received by a subscriber by means of any
equipment, facility, or service of a telecommunications carrier.'' We
believe, that location information identifies the ``origin'' or
``destination'' of a communication and thus is covered by CALEA.
43. We also observe that in the wireline environment, irrespective
of the precise nature of law enforcement's surveillance authorization,
LEAs have been able to obtain location information routinely from the
telephone number because the telephone number corresponds with
location. With the telephone number, location information is available
from a LEA's own 911/Enhanced 911 (E911) database or from the telephone
company's electronic records, such as the Loop Maintenance Operating
System (LMOS).
44. We note, however, that the location feature as it currently
appears in J-STD-025 is unclear. In particular, we note that this
feature refers to the identification of the location of a subject's
``mobile terminal,'' but does not specifically state whether it is the
precise location of the mobile terminal or handset that is intended, or
simply the location of the cell site to which the terminal or handset
is connected. Also unstated in J-STD-025 is whether continuous location
tracking is intended to be provided, or only the location at the
beginning and termination of the call.
45. In view of the above analysis, we tentatively affirm that
location information should be construed to mean cell site location at
the beginning and termination of a call. We seek comment on these
proposals and, as required by section 107(b), on the other factors that
we must consider in establishing a technical requirement or standard.
We note that location information is already included in J-STD-025, the
interim standard adopted by industry, and was opposed solely by the
privacy groups. Therefore, we request comment in particular on whether
our proposal raises issues regarding the protection of privacy and
security of communications which are not authorized to be intercepted.
Since the location information feature was included by industry in J-
STD-025, we find that the June 30, 2000 CALEA compliance deadline is
also sufficient for development and implementation of compliant
equipment that includes this feature.
46. Finally, we tentatively conclude that location information is
reasonably available to telecommunications carriers, because this
technical requirement was developed by industry and is included in the
interim standard. However, we request comment on how the Commission
should decide or interpret the term ``reasonably available'' in the
context of the proposed location information requirement. For example,
it appears that location information is already available through the
wireless carriers' billing, hand-off and system use features.
Additionally, wireless carriers will be required to have a location
information capability as part of their E911 obligations. We seek
comment as to whether the location information feature in these other
contexts can be used to address the needs of law enforcement under
CALEA. We request comment on any other issues that may impact our
determination as to whether the location information that would be
[[Page 63646]]
required to be provided to a LEA is reasonably available to carriers.
47. Commenters should also note CALEA's express statement that
``with regard to information acquired solely pursuant to the authority
for pen registers and trap and trace devices (as defined in section
3127 of title 18, United States Code), . . . call-identifying
information shall not include any information that may disclose the
physical location of the subscriber (except to the extent that the
location may be determined from the telephone number).'' We agree with
DoJ/FBI that this provision does not exclude location information from
the category of ``call-identifying information,'' but simply imposes
upon law enforcement an authorization requirement different from that
minimally necessary for use of pen registers and trap and trace
devices. We seek comment on this issue.
Packet-Mode
48. J-STD-025 provides for LEA access to call-identifying
information and the interception of wire and electronic
telecommunications, regardless of whether the telecommunications are
carried in circuit-mode or in packet-mode. It further states that the
``call-identifying information associated with the circuit-mode content
surveillance is provided on the [call data channel],'' but does not
specifically address whether call-identifying information, if any,
associated with packet-mode surveillance must be provided over a call
data channel.
49. Packet data and packet-switching technology are potentially
usable for both information services and telecommunications services.
We first observe that Section 103(b)(2)(A) of CALEA expressly excludes
``information services'' from its assistance capability requirements.
Thus, packet data and packet-switching technology is subject to these
requirements only to the extent it is used to provide
telecommunications services, and not for information services. Packet-
mode telecommunications services are expected to grow rapidly in the
near future. J-STD-025 appears to be appropriately limited to apply
only to ``telecommunications services'' as defined by the Commission.
Second, we observe that CALEA requires telecommunications carriers to
provide information to the LEA ``in a manner that protects . . . the
privacy and security of communications . . . not authorized to be
intercepted.'' This mandate would seem to be violated if the carrier
were to give the LEA both call-identifying and call content information
when only the former were authorized. Under those circumstances, the
LEA would be receiving call content information without having the
requisite authorization.
50. The record before us, however, is not sufficiently developed to
support a proposal of any particular CALEA technical requirements for
packet-mode telecommunications. Additional analysis is needed. We are
aware that packet-mode technology is rapidly changing, and that
different technologies may require differing CALEA solutions. We do not
believe that the record sufficiently addresses packet technologies and
the problems that they may present for CALEA purposes. While it is
premature to impose any particular technical requirements for packet-
mode telecommunications at this time, it is appropriate to ask for a
full range of comment on this issue.
51. In seeking to develop a full record, we first set forth an
analytical framework we believe will prove useful for evaluating the
issue of setting CALEA technical requirements for packet-mode
telecommunications. First, we advise commenters to consider the
difference between connection-oriented and connectionless packet-mode
services, and also between permanent virtual circuits, which have no
per-call information, and switched virtual circuits. With these
distinctions in mind, we request that commenters provide detailed
comments regarding whether and, if so, how the statutory requirements
of Section 103(a) of CALEA apply to packet-mode telecommunications. We
request comment on what constitutes the equivalent of ``call-
identifying information'' for packet-mode telecommunications services
within the context of CALEA. Will packet-mode call-identifying
information (or its equivalent) be reasonably available to carriers
and, thus, subject to the provisions of Section 103(a)(2) of CALEA? How
could packet-mode call content and call-identifying information (or its
equivalent) be separated for delivery to law enforcement in compliance
with CALEA?
52. In addition, we seek comment on the other section 107(b)
factors that we must consider in establishing technical requirements.
Specifically, we seek comment on any cost-effective methods for
incorporating CALEA packet-mode requirements into a telecommunications
carrier's system, and whether or not this can be accomplished in a
manner that minimizes costs to residential ratepayers. Further, we
request additional comment on whether the inclusion of packet-mode
technical requirements to meet the assistnace capability requirements
envisioned by Section 103 raises issues regarding the protection of
privacy and security of communications which are not authorized to be
intercepted. Additionally, we solicit comment on whether the inclusion
of such technical requirements would have a positive or negative effect
on the provision of new technologies and services to the public.
Commenters are also asked to provide detailed information regarding the
amount of time and conditions that they believe will be necessary to
successfully develop and deploy packet-mode technical requirements in
telecommunications systems. Finally, we recognize that packet-mode
issues are complex, and that relative to the other issues under
consideration herein, additional time may be required to resolve them.
Content of Subject-initiated Conference Calls
53. This capability would permit the LEA to monitor the content of
conversations connected via conference call set up by the facilities
under surveillance. Surveillance of all portions of a conference call
would continue, even if any party to the call utilized services such as
hold, call waiting, or three-way calling. For example, if anyone
involved in a conference call were placed on hold, all remaining
conversations would continue to be available to the LEA for monitoring.
The ability to monitor would continue even after the subject drops off
the conference call.
54. We tentatively conclude that the provision of the content of
subject-initiated conference calls is a technical requirement that
meets the assistance capability requirements of Section 103. With
appropriate lawful authorization, the LEA is entitled to ``intercept,
to the exclusion of any other communications, all wire and electronic
communications carried by the carrier within a service area to or from
equipment, facilities, or services of a subscriber.'' TIA asserts that
we must first determine whether a conference call capability would
unduly expand Title III's concept of ``facilities'' before deciding
whether such a capability is required under CALEA. We note, however,
that the plan language of CALEA's Section 103 includes the terms
``equipment'' and ``services'', in addition to ``facilities'' thus,
extending LEAs entitlement to access the ``services and equipment'', as
well as the ``facilities'', of a subscriber. According to the
legislative history, ``conference calling'' is one of the ``features
and
[[Page 63647]]
services'' that is covered by CALEA. We seek comment on this proposal.
We also seek comment as to how the Commission should define or
interpret Section 103's use of the phrase ``equipment, facilities, or
services'' in the context of subscriber-initiated conference calls.
55. We recognize that not all carriers' system architecture is the
same. Some carriers, for example, may have systems that support
continuation of conference calls after the subscriber drops off the
call, while others may not. For those network configurations in which,
when a subscriber drops off a conference call, the call nevertheless
remains routed through the subscriber's ``equipment, facilities, or
services,'' we tentatively interpret CALEA as requiring the carrier to
continue to provide the LEA the call content of the remaining parties,
pursuant to court order or other lawful authorization. For those
configurations, however, in which, when the subscriber drops off the
call, the call is either disconnected or rerouted, and the ``equipment,
facilities, or services of a subscriber'' are no longer used to
maintain the conference call, we tentatively conclude that CALEA does
not require the carrier to provide the LEA access to the call content
of the remaining parties. Moreover, in some cases where the call is re-
routed, the content of the call may no longer be classifiable as
``communications carried by the carrier within a service area''
pursuant to Section 103(a)(1) and (d). Thus, under such circumstances,
CALEA would not require the carrier to modify its system architecture
in order to support this particular technical requirement. We seek
comment on this tentative conclusion. Commenters should address how
Sections 103(a)(1) and (d) should be interpreted in this context. Also,
we tentatively conclude that CALEA does not extend to conversations
between a participant of the conference call other than the subject and
any person with whom the participant speaks on an alternative line
(e.g., when A, the subjects, is on a conference call with B and C, we
tentatively conclude that C's conversation with D on call waiting is
beyond CALEA's requirements. We also seek comment on this tentative
conclusion.
56. Additionally, we seek comment on the section 107(b) factors
that we must consider in establishing a technical requirement or
standard. Are there cost-effective methods of incorporating access to
conference call content into a telecommunications carrier's system? Can
it be accomplished in a manner that minimizes costs to residential
ratepayers? Further, we request comment on whether this proposal raises
issues regarding the protection of privacy and security of
communications which are not authorized to be intercepted.
Additionally, we solicit comment on whether the inclusion of this
technical requirement within the assistance capability requirements
envisioned by Section 103 would positively or negatively affect the
provision of new technologies and services to the public. Would, for
example, networks have to be redesigned in such a way as to preclude
certain new technologies or services? Finally, commenters are asked to
provide detailed information regarding the amount of time and
conditions that they believe will be necessary to successfully develop
and deploy this technical requirement in telecommunications systems.
Party Hold, Join, Drop on Conference Calls
57. This item also involves features designed to aid a LEA in the
interception of conference calls. This feature would permit the LEA to
receive from the telecommunications carrier messages identifying the
parties to a conversation at all times. The party hold message would be
provided whenever one or more parties are placed on hold. The party
join message would report the addition of a party to an active call or
the reactivation of a held call. The party drop message would report
when any party to a call is released or disconnects and the call
continues with two or more other parties.
58. We tentatively conclude that party hold/join/drop information
falls within CALEA's definition of ``call-identifying information''
because it is ``signaling information that identifies the origin,
direction, destination, or termination of each communication generated
or received'' by the subject. For example, party join information
appears to identify the origin of a communication; party drop, the
termination of a communication; and party hold, the temporary origin,
temporary termination, or re-direction of a communication. This
capability also appears to be necessary to enable the LEA to isolate
call-identifying and content information because, without it, the LEA
would be unable to determine who is talking to whom, and, more
accurately, to focus on the subject's role in the conversation.
Further, by isolating the call-identifying information in this manner,
the LEA can ascertain and isolate third parties who are not privy to
the communications involving the subject, thereby furthering the
minimization concept.
59. Accordingly, we propose that provision of party hold/join/drop
information, if reasonably available to the carrier, is a technical
requirement that meets the assistance capability requirements of
Section 103. We base this conclusion on the statutory language found in
Sections 103(a)(2) and 102(2). We note, however, that LEA access to
this information would be required only in those cases where the
carrier's facilities, equipment or services are involved in providing
the service; in other words, when a network signal is generated. To the
extent that customer premises equipment (CPE) is used to provide such
features, we tentatively conclude that party hold/join/drop information
could not be made available to the LEA since no network signal would be
generated. For example, many telephone sets have a ``hold'' button that
does not signal the network--thus, from the carrier's point of view,
the call's status is unchanged. We seek comment on this tentative
conclusion. We also seek comment on TIA's assertion that party/hold/
join drop information is already substantially available to the LEA
and, if so, whether it is or needs to be provided in real time.
60. We seek comment on our proposal and, as required by section
107(b), on the other factors that we must consider in establishing a
technical requirement or standard. Are there cost-effective methods of
incorporating a party hold/join/drop capability into a
telecommunications carrier's system? Can it be accomplished in a manner
that minimizes costs to residential ratepayers? Further, we request
comment on whether this proposal raises issues regarding the protection
of privacy and security of communications which are not authorized to
be intercepted. Additionally, we solicit comment on whether the
inclusion of this technical requirement within the assistance
capability requirements envisioned by Section 103 would positively or
negatively affect the provision of new technologies and services to the
public. Further, commenters are asked to provide detailed information
regarding the amount of time and conditions that they believe will be
necessary to successfully develop and deploy this technical requirement
in telecommunications systems.
Subject-initiated Dialing and Signaling Information
61. This capability would permit the LEA to be informed when a
subject using the facilities under surveillance
[[Page 63648]]
uses services such as call forwarding, call waiting, call hold, three-
way calling. DoJ/FBI requests this information for each communication
initiated by the subject. This capability would require the
telecommunications carrier to deliver a message to the LEA, informing
the LEA that the subject has invoked a feature which would place a
party on hold, transfer a call, forward a call, or add/remove a party
to a call.
62. We tentatively conclude that subject-initiated dialing and
signaling information fits within the definition of call-identifying
information contained in section 102(2) of CALEA. For example, call-
forwarding signaling information identifies the direction and
destination of a call, and call-waiting signaling information
identifies the origin and termination of each communication. We request
comment on whether remote operation of these features should affect our
tentative conclusion. For example, a subject may be able to change some
aspects of his/her service from a pay telephone, as well as from the
subject's telephone.
63. We also tentatively conclude that access to subject-initiated
dialing and signaling information may be necessary in order for the LEA
to isolate and correlate call-identifying and call content information.
Knowing what features a subject is using will ensure that the LEA
receives information ``in a manner that allows it to be associated with
the communication to which it pertains.'' For example, without knowing
that a subject has switched over to a call on call-waiting, the LEA may
not be able to associate the call-identifying information with the call
content to which it pertains and thus could be more likely to mistake
one call for another. Once again, to the extent CPE is used to perform
any of the functions described here, and no network signal is
generated, that information will not be reasonably available to a
carrier, and thus, should not be required to be provided.
64. We observe that signaling data indicating that the subject is
accessing his/her voice mail is properly classified as ``call-
identifying information.'' The contents of the voice mail fall outside
the scope of CALEA. This is because voice mail ``permits a customer to
retrieve stored information from . . . information storage
facilities,'' and CALEA does not apply to information services. The
requirement we propose below is consistent with this distinction
because it provides only the call identifying information and is not
capable of providing voice content.
65. Accordingly, we propose to include information on subject-
initiated dialing and signaling that is reasonably available to the
carrier as a technical requirement necessary to meet the assistance
capability requirements of Section 103. We base our conclusion
regarding subject-initiated dialing and signaling information that is
reasonably available to the carrier on the statutory language found in
Section 103(a)(2). We seek comment on this proposal and, as required by
section 107(b), on the other factors that we must consider in
establishing a technical requirement or standard. Are there cost-
effective methods of providing subject-initiated dialing and signaling
information? Can this requirement be accomplished in a manner that
minimizes costs to residential ratepayers? Further, we request comment
on whether this proposal or tentative conclusion raises issues
regarding the protection of privacy and security of communications
which are not authorized to be intercepted. Additionally, we solicit
comment on whether the inclusion of this technical requirement within
the assistance capability requirements envisioned by Section 103 would
positively or negatively affect the provision of new technologies and
services to the public. Commenters are asked to provide detailed
information regarding the amount of time and conditions that they
believe will be necessary to successfully develop and deploy this
technical requirement in telecommunications systems. In addition,
excluding those CPE-controlled features noted above, and consistent
with our proposed ruling regarding voice mail as noted above, we
request comment on whether information required to provide LEAs with
subject-initiated dialing and signaling activity is reasonably
available to carriers. Finally, we recognize that some commenters
assert that at least portions of this technical requirement may be
provided through other features of J-STD-025. We request comment on the
accuracy of these contentions. Commenters should demonstrate clearly
how the features required are provided, or not provided, elsewhere in
J-STD-025.
In-band and Out-of-band Signaling
66. This technical requirement would allow a telecommunications
carrier to send a notification message to the LEA when any network
message (ringing, busy, call waiting signal, message light, etc.) is
sent to a subject using facilities under surveillance. For example, if
someone leaves a voice mail message on the subject's phone, the
notification to the LEA would indicate the type of message notification
sent to the subject (such as the phone's message light, audio signal,
text message, etc.). For calls the subject originates, a notification
message would also indicate whether the subject ended a call when the
line was ringing, busy (a busy line or busy trunk), or before the
network could complete the call.
67. We believe that certain types of in-band and out-of-band
signaling information, such as notification that a voice mail message
has been received by a subject, constitute call-identifying information
under CALEA; while there may be other types of in-band and out-of-band
signaling information that would constitute call content information
and thus would raise questions as to under what authority they should
be provided to the LEA. However, for purposes of this proceeding, we do
not address such questions of whether or what type of authorization
LEAs would need to access such information. This is up to the judicial
branch. Unless necessary to establish technical standards under CALEA's
safe harbor, it is not our intention to specifically decide whether
certain types of in-band or out-of-band signaling is either call
content or call-identifying information since CALEA requires carrier
have the ability to provide access to both. We request comment on what
types of in-band and out-of-band signaling should constitute a
technical requirement necessary to meet the assistance capability
requirements envisioned by Section 103.
68. Also, in the event that we ultimately determine that in-band
and out-of-band signaling is a technical requirement necessary to meet
the assistance capability requirements under Section 103, we request
comment on whether there are cost-effective methods of providing in-
band and out-of-band signaling to a LEA. Can this requirement be
accomplished in a manner that minimizes costs to residential
ratepayers? Further, we request comment on whether this requirement
raises issues regarding the protection of privacy and security of
communications which are not authorized to be intercepted.
Additionally, we solicit comment on whether the inclusion of this
technical requirement within the assistance capability requirements
envisioned by Section 103 would positively or negatively affect the
provision of new technologies and services to the public. Commenters
are asked to provide detailed information regarding the amount of time
and conditions that they believe will be necessary to successfully
develop and deploy this technical
[[Page 63649]]
requirement in telecommunications systems.
Timing Information
69. In those cases where the LEA has obtained authorization to
intercept both content and call-identifying information, this
capability would require that a telecommunications carrier send call
timing information to the LEA so that the LEA could associate the call-
identifying information with the actual content of the call. There
would be two elements to this capability:
(1) Each call-identifying message (answer message, party join
message, party drop message, etc.) would be time stamped within a
specific amount of time from when the event triggering the message
occurred in the intercept access point. This time-stamp would allow the
LEA to associate the message to the call content information (i.e., the
conversation).
(2) A carrier would be required to send the message to the LEA
within a defined amount of time from the event to permit the LEA to
associate the number dialed to the conversation.
70. We tentatively conclude that time stamp information fits within
the definition of call-identifying information contained within section
102(2) of CALEA and will allow such information ``to be associated with
the communication to which it pertains.'' We propose to include timing
information that is reasonably available to the carrier as a technical
requirement necessary to meet the assistance capability requirements of
Section 103(a). We seek comment on this proposal. We base this
conclusion on the statutory language found in Section 103(a)(2), and on
our tentative conclusion that such information falls within the
definition of call-identifying information in section 102(2). A time
stamp permits identification of a given call from a series of calls
made within a short timeframe, and is necessary to allow a LEA to
associate call-identifying information with the communication to which
it pertains. We note, however, that CALEA does not impose a specific
timing requirement on carriers. Rather, it states that carriers must
``expeditiously'' isolate and enable the government to access call-
identifying information ``before, during, or immediately after the
transmission of a wire or electronic communication (or at such later
time as may be acceptable to the government); and in a manner that
allows it to be associated with the communication to which it
pertains.'' Therefore, we seek comment on what is a reasonable amount
of time to require the carriers to deliver the time stamped message to
the LEA. We note that DoJ/FBI have requested delivery within 3 seconds
of the beginning of the event and with an accuracy of 100 milliseconds.
Commenters should address whether this is a reasonable time frame, and
whether there are any technical barriers to implementing such a
requirement. Commenters proposing an alternative time frame should also
address technical feasibility and how such a time frame will satisfy
the requirements of the statute.
71. In addition, we seek comment, as required by section 107(b), on
the factors that we must consider in establishing a technical
requirement. Are there cost-effective methods of providing timing
information to a LEA? Can this requirement be accomplished in a manner
that minimizes costs to residential ratepayers? Further, we request
comment on whether this proposal raises issues regarding the protection
of privacy and security of communications which are not authorized to
be intercepted. Additionally, we solicit comment on whether the
inclusion of this technical requirement within the assistance
capability requirements envisioned by Section 103 would positively or
negatively affect the provision of new technologies and services to the
public. Commenters are asked to provide detailed information regarding
the amount of time and conditions that they believe will be necessary
to successfully develop and deploy this technical requirement in
telecommunications systems.
Surveillance Status
72. This capability would require the telecommunications carrier to
send information to the LEA to verify that a wiretap has been
established and is still functioning correctly. This information could
include the date, time, and location of the wiretap; identification of
the subscriber whose facilities are under surveillance; and
identification of all voice channels that are connected to the
subscriber. This information would be transmitted to the LEA when the
wiretap is activated, updated or deactivated, as well as periodically
(varying from once every hour to once every 24 hours).
73. CALEA requires carriers to ensure that authorized wiretaps can
be performed in an expeditious manner, and we believe that a
surveillance status message could assist carriers and LEAs in
determining the status of such wiretaps. We tentatively conclude,
however, that a surveillance status message does not fall within any of
the provisions of Section 103. We do not believe that it is call-
identifying information as defined by CALEA, since the information such
a feature would provide is unrelated to any particular call. Nor does a
surveillance status message appear to be required under Section
103(a)(1), since it is not necessary to intercept either wire or
electronic communications carried on a carrier's system. Nor are we
persuaded by the FBI's interpretation that a surveillance status
message is required by CALEA's direction that a carrier ``shall
ensure'' that its system is capable of meeting the Section 103(a)
requirements. Rather, we note that the Act expressly states: ``a
telecommunications carrier shall ensure that its equipment, facilities,
or services . . . are capable of'' intercepting communications and
allowing LEA access to call-identifying information. We interpret the
plain language of the statute to mandate compliance with the capability
requirements of Section 103(a), but not to require that such capability
be proven or verified on a continual basis.
74. Thus, we tentatively conclude that the surveillance status
punch list item is not an assistance capability requirement under
Section 103. However, we invite comment as to how, generally, carriers
intend to ensure that wiretaps remain operational. How, specifically,
would ``human intervention'' be exercised? For example, do carriers
plan to periodically check the circuit manually and notify the LEA that
the wiretap remains operational? Further, to the extent commenters
continue to believe that an automated surveillance status message is
necessary to implement the requirements of Section 103, we seek comment
on the 107(b) factors that the Commission must evaluate under CALEA. In
what manner could such a feature be provided? Are there cost effective
methods of providing surveillance status information to a LEA? Can this
requirement be accomplished in a manner that minimizes costs to
residential ratepayers? Could such provision of surveillance status
messages compromise the privacy and security of communications not
authorized to be intercepted? Would the provision of such information
constrain a carrier's ability to develop and deploy new technologies
and services? What period of time would be required to develop and
deploy such a feature? And, to the extent that this information were to
fall under the definition of call-identifying information, is it
reasonably available to carriers?
[[Page 63650]]
Continuity Check Tone
75. This technical requirement would require that, in cases where a
LEA has obtained authority to intercept wire or electronic
communications, a C-tone or dial tone be placed on the call content
channel received by the LEA from the telecommunications carrier until a
user of the facilities under surveillance initiates or receives a call.
At that point, the tone would be turned off, indicating to the LEA that
the target facilities were in use. This capability would permit
correlation between the time a call is initiated and the time the
connection is established. The C-tone would also verify that the
connection between the carrier's switch and the LEA is in working
order.
76. As with the case of surveillance status messages, we believe
that continuity tone could assist the LEA in determining the status of
a wiretap, but that this technical requirement is not necessary to meet
the mandates of Section 103(a). Similar to our reasoning regarding
surveillance status messages, we do not believe that a continuity tone
falls within CALEA's definition of call-identifying information, nor
does it appear to be required under Section 103(a)(1), since it is not
necessary to intercept either wire or electronic communications carried
on a carrier's system. Furthermore, as explained above, the plain
language of the statute mandates compliance with the capability
requirements of Section 103(a), but does not require that such
capability be proven or verified on a continual basis. Thus, we
tentatively conclude that the continuity tone punch list item is not an
assistance capability requirement under Section 103.
77. However, to the extent commenters continue to believe such a
technical requirement is necessary to implement the requirements of
Section 103, we seek comment on the 107(b) factors that the Commission
must evaluate under CALEA. In what manner could such a feature be
provided? Are there cost effective methods of providing a continuity
tone to a LEA? Can this requirement be accomplished in a manner that
minimizes costs to residential ratepayers? Could provision of a
continuity tone somehow compromise the privacy and security of
communications not authorized to be intercepted? For example, could
such a tone be detected by the subscriber whose facilities are under
surveillance? Would the provision of such information constrain a
carrier's ability to develop and deploy new technologies and services?
And finally, what period of time would be required to develop and
deploy such a feature?
Feature Status
78. This technical requirement would require a carrier to notify
the LEA when specific subscription-based calling services are added to
or deleted from the facilities under surveillance, including when the
subject modifies capabilities remotely through another phone or through
an operator. Examples of such services are call waiting, call hold,
three-way calling, conference calling, and call return. Also, the
carrier would be required to notify the LEA if the telephone number of
the facilities under surveillance was changed or service was
disconnected.
79. Similar to surveillance status messages and continuity tones,
we believe that feature status messages could be useful to a LEA, but
that provision of these messages from a carrier to a LEA is not
required to meet the mandates of Section 103(a). First, we believe it
is clear that feature status messages do not constitute call-
identifying information because they do not pertain to the actual
placement or receipt of individual calls. Further, feature status
messages do not appear to be required under Section 103(a)(1) because
they are not necessary to intercept either wire or electronic
communications carried on a carrier's system. Rather, they would simply
aid a LEA in determining how much capacity is required to implement and
maintain effective electronic surveillance of a target facility,
information that could be useful in assuring that an interception is
fully effectuated and the intercepted material delivered as authorized.
However, as noted by AT&T, the information that would be provided by
feature status messages can be provided by other means, such as a
subpoena to the carrier. In any event, we reiterate our view that the
plain language of the Act mandates compliance with the assistance
capability requirements of Section 103(a), but does not require
carriers to implement any specific quality control capabilities to
assist law enforcement. Thus, we tentatively conclude that the feature
status punch list item does not meet the assistance capability
requirements of Section 103.
80. We note, however, that at least some of the information that
would be provided by feature status messages--for example, a change to
the phone number of the facilities under surveillance--must be provided
to the LEA expeditiously if electronic surveillance is to be effective.
We request comment on whether this information can be provided in such
an expeditious manner by other means. We also request comment on any
other aspects or interpretations of a feature status capability that
might cause at least some portion of this feature to meet the
assistance capability requirements of Section 103. To the extent
commenters believe that such a capability is necessary to implement the
requirements of Section 103, we seek a particularized description of
such a capability and comment on the 107(b) factors that the Commission
must evaluate under CALEA. In what manner could such a capability be
provided? Are there cost effective methods of providing feature status
messages to a LEA? Can this requirement be accomplished in a manner
that minimizes costs to residential ratepayers? Could provision of
feature status messages to a LEA compromise the privacy and security of
communications not authorized to be intercepted? Would the provision of
such information constrain a carrier's ability to develop and deploy
new technologies and services? And finally, what period of time would
be required to develop and deploy such a capability?
Dialed Digit Extraction
81. This capability would require the telecommunications carrier to
provide to the LEA on the call data channel any digits dialed by the
subject after connecting to another carrier's service (also known as
``post-cut-through digits''). One example of such dialing and signaling
would occur when the subject dials an 800 number to access a long
distance carrier. After connecting to the long distance carrier through
the 800 number, the subject then dials the telephone number that is the
ultimate destination of the call.
82. We tentatively conclude that post-cut-through digits
representing all telephone numbers needed to route a call, for example,
from the subscriber's telephone through its LEC, then through IXC and
other networks, and ultimately to the intended party are call-
identifying information. We seek additional comment on whether such
call-identifying information is reasonably available to the carrier
originating the call. Currently, the second set of numbers a subject
dials (the final destination of the call) apparently is transmitted
over the CCC (the content portion of the connection) and not over the
CDC (a separate signaling channel). This method of transmission raises
two primary questions: (1) Since the post-cut-through digits are
provided on the content portion of the connection,
[[Page 63651]]
should those numbers be considered content for purposes of CALEA?; and
(2) Technically, how can such post-cut-through digits be extracted from
the content channel and delivered to a LEA by a carrier? We seek
comment on whether originating, intermediate, or terminating carriers
can deliver such call-identifying information by cost-effective means.
We are also aware of the concerns expressed by industry and privacy
advocates that this dialed digit extraction feature could prove to be
inordinately expensive to design, build, and incorporate into telephone
network infrastructures. The record established thus far does not
reflect any specific cost estimates but does raise the possibility that
there may be newly available, less expensive solutions for this
feature, although it is not clear if such solutions have the capability
of separating post-cut-through call-identifying digits from those
dialed to perform other functions. We seek comment on this proposal
and, as required by section 107(b), on the other factors that we must
consider in establishing a technical requirement. Can it be
accomplished in a manner that minimizes costs to residential
ratepayers? Additionally, we solicit comment on whether our proposal
would positively or negatively affect the provision of new technologies
and services to the public. Commenters are asked to provide detailed
information regarding the amount of time and conditions that they
believe will be necessary to successfully develop and deploy this
technical requirement in telecommunications systems. Finally, we
request detailed comment on how the privacy and security of
communications that are not authorized to be intercepted can be
protected. In particular, we request comment on whether and how such
call-identifying information can be distinguished from digits dialed to
perform other functions (e.g., to input a credit card number or to
access information services after the call reaches its final
destination in the PSTN).
Disposition of J-STD-025
83. We believe that the technical requirements proposed herein can
be most efficiently implemented by permitting Subcommittee TR45.2 of
the TIA to develop the necessary specifications in accord with our
determinations. We note that CALEA contemplates that standards will be
developed either ``by an industry association or standard-setting
organization, or by the Commission.'' We note that LEAs, carriers, and
manufacturers are voting members of the Subcommittee. While we could
undertake this task, we believe that the Subcommittee already has the
experience and resources in place to resolve these issues more quickly.
Both law enforcement agencies and telecommunications manufacturers and
carriers participate on the Subcommittee. The Subcommittee worked
diligently over a period of several years to craft J-STD-025 and both
LEAs and privacy groups agree with--or, at least do not raise any
specific objections to--the vast majority of the features of that
standard. A Commission-based standard-setting activity would
necessarily have to rely heavily on the Subcommittee to modify J-STD-
025 in any event, and thus would very likely take longer than industry-
based processes to develop a final safe harbor standard. Our decision
to rely on industry to develop the final technical specifications
reflects our commitment to achieve a CALEA solution as expeditiously as
possible.
84. Accordingly, we expect TIA to undertake the task of modifying
J-STD-025 to be consistent with the technical requirements we
ultimately adopt in this proceeding. Further, we expect the TIA to
complete any such modifications to J-STD-025 within 180 days of release
of the Report and Order in this proceeding. While this is an ambitious
schedule, we believe it is achievable because the TIA has been
examining CALEA technical standards issues for several years, and the
modifications to J-STD-025 are likely to be relatively limited. In
fact, all of the technical requirements that we have identified for
modification were previously considered in detail by TIA Subcommittee
TR45.2. We note that any telecommunications carrier conforming with the
revised standard will be considered to have complied with CALEA's safe
harbor provisions under section 107(a)(2). We consider 180 days a
sufficient time period for industry to adopt revised technical
standards compliant with CALEA and we believe that industry will be
able to comply with the core requirements of J-STD-025 (excluding the
packet-mode feature) by June 30, 2000. Therefore, we do not plan to
extend the CALEA compliance deadline for the core J-STD-025
requirements beyond that date, except in the case of individual
extenuating circumstances, to which the criteria of section 107(c) of
CALEA would apply. Based on comments received in response to this
Further NPRM, we will set a separate deadline for compliance with the
additional technical requirements that we determine CALEA mandates. We
seek comment on these tentative findings and conclusions.
Other Technologies and Systems
85. We seek comment on what role, if any, the Commission can or
should play in assisting those telecommunications carriers not covered
by J-STD-025 to set standards for, or to achieve compliance with,
CALEA's requirements. Insofar as such carriers argue that CALEA
contemplates multiple or different standards for services such as
paging, digital dispatch and wireless data, we seek comment regarding
how our determinations regarding J-STD-025, the FBI's punch list items,
and location and packet-mode information will affect the requirements
and standards already adopted or currently being established by these
other industry segments. For example, can the Commission's
determinations in this rulemaking proceeding be adapted to these other
technologies? Further, we request comment on if and how we should
consider the impact of the technical requirements we ultimately adopt
in this proceeding on these other technologies and services.
Other Matters
86. As previously discussed, in March 1998 CDT submitted a petition
for rulemaking to the Commission. In its petition, CDT requests relief
from the Commission under section 109 (as well as section 107) of
CALEA. CDT argues that ``compliance with CALEA is not reasonably
achievable with respect to equipment, facilities, and services deployed
after January 1, 1995, for the simple reason that carriers have had to
make changes to their systems not knowing what was required to comply
with CALEA.'' Lack of a CALEA standard, or a dispute about the CALEA
standard, however, is not grounds for a rulemaking under section 109.
Rather, a section 109 determination by the Commission presupposes that
the final requirements that must be met by telecommunications carriers
under Section 103 are in place. Those requirements, however, are still
in dispute. Accordingly, we are herein dismissing without prejudice
that portion of CDT's petition that relies on section 109.
87. Also, as previously discussed, in July 1997 CTIA filed a
petition for rulemaking requesting that the Commission establish a
standard to implement the mandates of Section 103, and in March 1998
DoJ/FBI submitted a motion to dismiss that petition on the grounds that
the December 1997 adoption of J-STD-025 rendered CTIA's petition moot.
CTIA agrees with DoJ/FBI
[[Page 63652]]
that its petition is moot, both because the adoption of the industry
interim standard supersedes its request for the Commission to establish
a CALEA standard by rule and because its request in its petition to
extend the CALEA compliance deadline has been addressed in this
proceeding. We agree. Accordingly, we herein dismiss as moot CTIA's
July 16, 1997 Petition for Rulemaking.
Initial Regulatory Flexibility Analysis
88. As required by the Regulatory Flexibility Act (RFA), the
Commission has prepared an Initial Regulatory Flexibility Analysis
(IRFA) of the expected significant economic impact on small entities by
the policies and rules suggested in this Communications Assistance for
Law Enforcement Act, Further Notice of Proposed Rulemaking (CALEA
Further NPRM). Written public comments are requested on the IRFA.
Comments must be identified as responses to the IRFA and must be filed
by the deadlines for comments on the CALEA Further NPRM provided above
on the first page, in the heading. The Secretary shall send a copy of
the CALEA Further NPRM, including the IRFA, to the Chief Counsel for
Advocacy of the Small Business Administration (SBA) in accordance with
paragraph 603(a).
Need for and Objectives of the Proposed Rules
89. This Further Notice of Proposed Rulemaking responds to the
legislative mandate contained in the Communications Assistance for Law
Enforcement Act, Pub. L. No. 103-414, 108 Stat. 4279 (1994) (codified
as amended in sections of 18 U.S.C. and 47 U.S.C.).
Legal Basis
90. The proposed action is authorized under the Communications
Assistance for Law Enforcement Act, Public Law 103-414, 108 Stat. 4279
(1994) (codified as amended in scattered sections of 18 U.S.C. and 47
U.S.C.). The proposed action is also authorized by sections 1, 4, 201,
202, 204, 205, 218, 229, 332, 403 and 503 of the Communications Act of
1934, as amended, 47 U.S.C. sections 151, 154, 201-205, 218, 229, 301,
303, 312, 332, 403, 501 and 503.
Description and Estimate of the Number of Small Entities To Which
the Proposed Rules Will Apply
91. The proposals set forth in this proceeding may have a
significant economic impact on a substantial number of small telephone
companies identified by the SBA. We seek comment on the obligations of
a telecommunications carrier for the purpose of complying with CALEA.
92. The RFA generally defines ``small entity'' as having the same
meaning as the term ``small business,'' ``small organization,'' and
``small governmental jurisdiction'' and the same meaning as the term
``small business concern'' under the Small Business Act, unless the
Commission has developed one or more definitions that are appropriate
to its activities. Under the Small Business Act, a ``small business
concern'' is one that: (1) is independently owned and operated; (2) is
not dominant in its field of operation; and (3) meets any additional
criteria established by the Small Business Administration (SBA). The
SBA has defined a small business for Standard Industrial Classification
(SIC) categories 4812 (Radiotelephone Communications) and 4813
(Telephone Communications, Except Radiotelephone) to be small entities
when they have fewer than 1,500 employees. We first discuss generally
the total number of small telephone companies falling within both of
those SIC categories. Then, we discuss the number of small businesses
within the two subcategories, and attempt to refine further those
estimates to correspond with the categories of telephone companies that
are commonly used under our rules.
93. Telephone Companies (SIC 483). Consistent with our prior
practice, we shall continue to exclude small incumbent LECs from the
definition of a small entity for the purpose of this IRFA.
Nevertheless, as mentioned above, we include small incumbent LECs in
our IRFA. Accordingly, our use of the terms ``small entities'' and
``small businesses'' does not encompass ``small incumbent LECs.'' We
use the term ``small incumbent LECs'' to refer to any incumbent LECs
that arguably might be defined by SBA as ``small business concerns.''
94. Total Number of Telephone Companies Affected. Many of the
decisions and rules adopted herein may have a significant effect on a
substantial number of the small telephone companies identified by SBA.
The United States Bureau of the Census (the Census Bureau) reports
that, at the end of 1992, there were 3,497 firms engaged in providing
telephone services, as defined therein, for at least one year. This
number contains a variety of different categories of carriers,
including local exchange carriers, interexchange carriers, competitive
access providers, cellular carriers, mobile service carriers, operator
service providers, pay telephone operators, PCS providers, covered SMR
providers, and resellers. Some of these providers--for example, all SMR
providers--are not covered by this Further NPRM, and it seems certain
that some of the 3,497 telephone service firms may not qualify as small
entities or small incumbent LECs because they are not ``independently
owned and operated.'' For example, a PCS provider that is affiliated
with an interexchange carrier having more than 1,500 employees would
not meet the definition of a small business. It seems reasonable to
conclude, therefore, that fewer than 3,497 telephone service firms are
small entity telephone service firms or small incumbent LECs that may
be affected by this Further NPRM.
95. Wireline Carriers and Service Providers. SBA has developed a
definition of small entities for telephone communications companies
other than radiotelephone (wireless) companies. The Census Bureau
reports that there were 2,321 such telephone companies in operation for
at least one year at the end of 1992. According to SBA's definition, a
small business telephone company other than a radiotelephone company is
one employing fewer than 1,500 persons. All but 26 of the 2,321 non-
radiotelephone companies listed by the Census Bureau were reported to
have fewer than 1,000 employees. Thus, even if all 26 of those
companies had more than 1,500 employees, there would still be 2,295
non-radiotelephone companies that might qualify as small entities or
small incumbent LECs. Although it seems certain that some of these
carriers are not independently owned and operated, we are unable at
this time to estimate with greater precision the number of wireline
carriers and service providers that would qualify as small business
concerns under SBA's definition. Consequently, we estimate that there
are fewer than 2,295 small entity telephone communications companies
other than radiotelephone companies that may be affected by the
decisions and rules recommended for adoption in this NPRM.
96. Local Exchange Carriers. Neither the Commission nor SBA has
developed a definition of small providers of local exchange services
(LECs). The closest applicable definition under SBA rules is for
telephone communications companies other than radiotelephone (wireless)
companies. The most reliable source of information regarding the number
of LECs nationwide of which we are aware appears to be the data that we
collect annually in connection with the Telecommunications Relay
Service (TARS). According to our most recent data, 1,347 companies
reported that
[[Page 63653]]
they were engaged in the provision of local exchange services. Although
it seems certain that some of these carriers are not independently
owned and operated, or have more than 1,500 employees, we are unable at
this time to estimate with greater precision the number of LECs that
would qualify as small business concerns under SBA's definition.
Consequently, we estimate that there are fewer than 1,347 small
incumbent LECs that may be affected by the decisions and rules
recommended for adoption in this NPRM.
97. Interexchange Carriers. Neither the Commission nor SBA has
developed a definition of small entities specifically applicable to
providers of interexchange services (IXCs). The closest applicable
definition under SBA rules is for telephone communications companies
other than radiotelephone (wireless) companies. The most reliable
source of information regarding the number of IXCs nationwide of which
we are aware appears to be the data that we collect annually in
connection with TARS. According to our most recent data, 130 companies
reported that they were engaged in the provision of interexchange
services. Although it seems certain that some of these carriers are not
independently owned and operated, or have more than 1,500 employees, we
are unable at this time to estimate with greater precision the number
of IXCs that would qualify as small business concerns under SBA's
definition. Consequently, we estimate that there are fewer than 130
small entity IXCs that may be affected by the decisions and rules
recommended for adoption in this NPRM.
98. Competitive Access Providers. Neither the Commission nor SBA
has developed a definition of small entities specifically applicable to
providers of competitive access services (CAPs). The closest applicable
definition under SBA rules is for telephone communications companies
other than radiotelephone (wireless) companies. The most reliable
source of information regarding the number of CAPs nationwide of which
we are aware appears to be the data that we collect annually in
connection with the TARS. According to our most recent data, 57
companies reported that they were engaged in the provision of
competitive access services. Although it seems certain that some of
these carriers are not independently owned and operated, or have more
than 1,500 employees, we are unable at this time to estimate with
greater precision the number of CAPs that would qualify as small
business concerns under SBA's definition. Consequently, we estimate
that there are fewer than 57 small entity CAPs that may be affected by
the decisions and rules recommended for adoption in this NPRM.
99. Operator Service Providers. Neither the Commission nor SBA has
developed a definition of small entities specifically applicable to
providers of operator services. The closest applicable definition under
SBA rules is for telephone communications companies other than
radiotelephone (wireless) companies. The most reliable source of
information regarding the number of operator service providers
nationwide of which we are aware appears to be the data that we collect
annually in connection with the TARS. According to our most recent
data, 25 companies reported that they were engaged in the provision of
operator services. Although it seems certain that some of these
companies are not independently owned and operated, or have more than
1,500 employees, we are unable at this time to estimate with greater
precision the number of operator service providers that would qualify
as small business concerns under SBA's definition. Consequently, we
estimate that there are fewer than 25 small entity operator service
providers that may be affected by the decisions and rules recommended
for adoption in this NPRM.
100. Wireless (Radiotelephone) Carriers. SBA has developed a
definition of small entities for radiotelephone (wireless) companies.
The Census Bureau reports that there were 1,176 such companies in
operation for at least one year at the end of 1992. According to SBA's
definition, a small business radiotelephone company is one employing
fewer than 1,500 persons. The Census Bureau also reported that 1,164 of
those radiotelephone companies had fewer than 1,000 employees. Thus,
even if all of the remaining 12 companies had more than 1,500
employees, there would still be 1,164 radiotelephone companies that
might qualify as small entities if they are independently owned are
operated. Although it seems certain that some of these carriers are not
independently owned and operated, we are unable at this time to
estimate with greater precision the number of radiotelephone carriers
and service providers that would qualify as small business concerns
under SBA's definition. Consequently, we estimate that there are fewer
than 1,164 small entity radiotelephone companies that may be affected
by the decisions and rules recommended for adoption in this NPRM.
101. Cellular and Mobile Service Carriers: In an effort to further
refine our calculation of the number of radiotelephone companies
affected by the rules adopted herein, we consider the categories of
radiotelephone carriers, Cellular Service Carriers and Mobile Service
Carriers. Neither the Commission nor the SBA has developed a definition
of small entities specifically applicable to Cellular Service Carriers
and to Mobile Service Carriers. The closest applicable definition under
SBA rules for both services is for telephone companies other than
radiotelephone (wireless) companies. The most reliable source of
information regarding the number of Cellular Service Carriers and
Mobile Service Carriers nationwide of which we are aware appears to be
the data that we collect annually in connection with the TARS.
According to our most recent data, 792 companies reported that they are
engaged in the provision of cellular services and 117 companies
reported that they are engaged in the provision of mobile services.
Although it seems certain that some of these carriers are not
independently owned and operated, or have more than 1,500 employees, we
are unable at this time to estimate with greater precision the number
of Cellular Service Carriers and Mobile Service Carriers that would
qualify as small business concerns under SBA's definition.
Consequently, we estimate that there are fewer than 792 small entity
Cellular Service Carriers and fewer than 138 small entity Mobile
Service Carriers that might be affected by the actions and rules
adopted in this NPRM.
102. Broadband PCS Licensees. The broadband PCS spectrum is divided
into six frequency blocks designated A through F, and the Commission
has held auctions for each block. The Commission defined ``small
entity'' for Blocks C and F as an entity that has average gross
revenues of less than $40 million in the three previous calendar years.
For Block F, an additional classification for ``very small business''
was added, and is defined as an entity that, together with its
affiliates, has average gross revenues of not more than $15 million for
the preceding three calendar years. These regulations defining ``small
entity'' in the context of broadband PCS auctions have been approved by
SBA. No small businesses within the SBA-approved definition bid
successfully for licenses in Blocks A and B. There were 90 winning
bidders that qualified as small entities in the Block C auctions. A
total of 93 small and very small business bidders won approximately 40%
of the 1,479 licenses for Blocks D, E, and F. However,
[[Page 63654]]
licenses for Blocks C through F have not been awarded fully, therefore
there are few, if any, small businesses currently providing PCS
services. Based on this information, we conclude that the number of
small broadband PCS licenses will include the 90 winning C Block
bidders and the 93 qualifying bidders in the D, E, and F blocks, for a
total of 183 small PCS providers as defined by the SBA and the
Commissioner's auction rules.
103. Resellers. Neither the Commission nor SBA has developed a
definition of small entities specifically applicable to resellers. The
closest applicable definition under SBA rules is for all telephone
communications companies. The most reliable source of information
regarding the number of resellers nationwide of which we are aware
appears to be the data that we collect annually in connection with the
TARS. According to our most recent data, 260 companies reported that
they were engaged in the resale of telephone services. Although it
seems certain that some of these carriers are not independently owned
and operated, or have more than 1,500 employees, we are unable at this
time to estimate with greater precision the number of resellers that
would qualify as small business concerns under SBA's definition.
Consequently, we estimate that there are fewer than 260 small entity
resellers that may be affected by the decisions and rules recommended
for adoption in this NPRM.
Description of Projected Reporting, Recordkeeping and Other
Compliance Requirements
104. The rules proposed in the NPRM require telecommunications
carriers to establish policies and procedures governing the conduct of
officers and employees who are engaged in surveillance activity. Those
proposed rules require telecommunications carriers to maintain records
of all interceptions of communications and call identification
information. Further, those proposed rules require telecommunications
carriers classified as Class A companies pursuant to 47 U.S.C.
Sec. 32.11 to file individually with the Commission a statement of its
processes and procedures used to comply with the systems security rules
promulgated by the Commission. Telecommunications carriers classified
as Class B companies pursuant to 47 U.S.C. Sec. 32.11 may elect to
either file a statement describing their security processes and
procedures or to certify that they observe procedures consistent with
the security rules promulgated by the Commission.
105. We tentatively conclude that a substantial number of
telecommunications carriers, who have been subjected to demands from
law enforcement personnel to provide lawful interceptions and call-
identifying information for a period time preceding CALEA, already have
in place practices for proper employee conduct and recordkeeping. We
seek comment on this tentative conclusion. As a practical matter,
telecommunications carriers need these practices to protect themselves
from suit by persons who claim they were the victims of illegal
surveillance. By providing general guidance regarding the conduct of
carrier personnel and the content of records in this Further NPRM, the
Commission permits telecommunications carriers to use their existing
practices to the maximum extent possible. Thus, we tentatively conclude
that the additional cost to most telecommunications carriers for
conforming to the Commission regulations contained in this Further
NPRM, should be minimal. We seek comment on this tentative conclusion.
Significant Alternatives to Proposed Rules Which Minimize
Significant Economic Impact on Small Entities and Accomplish Stated
Objectives
106. As we noted in Part I of this IRFA, supra, the need for the
proposed regulations is mandated by Federal legislation. The
legislation is specific on the content of employee conduct and
recordkeeping regulations for telecommunications carriers, which
removes from Commission discretion the consideration of alternative
employee conduct and recordkeeping regulations for smaller
telecommunications carriers. The legislation, however, provides for
Commission discretion to formulate compliance reporting requirements
for telecommunications carriers that favor smaller telecommunications
carriers, and in the NPRM the Commission exercised that discretion by
proposing rules that allow smaller carriers the option to file a
certification of compliance with the Commission instead of a statement
of the policies, processes and procedures they use to comply with the
CALEA regulations.
Federal Rules That May Overlap, Duplicate, or Conflict With the
Proposed Rules
107. As we noted in Part I of this IRFA, supra, the need for the
proposed regulations is mandated by Federal legislation. The purpose of
CALEA was to empower and require the Federal Communications Commission
and the Department of Justice to craft regulations pursuant to specific
statutory instructions. Because there were no other Federal Rules in
existence before CALEA was enacted, there are no duplicate Federal
Rules. In addition, there are no overlapping, duplicating, or
conflicting Federal Rules to the Federal Rules proposed in this
proceeding.
Ordering Clauses
108. Accordingly, pursuant to sections 1, 4, 229, 301, 303, and 332
of the Communications Act of 1934, as amended, and 107(b) of the
Communications Assistance for Law Enforcement Act, 47 U.S.C. sections
151, 154, 229, 301, 303, 332, and 1006(b), it is ordered that this
Further Notice of Proposed Rulemaking is hereby adopted. It is further
ordered that the Petition for Rulemaking filed by the Cellular
Telecommunications Industry Association on July 16, 1997 is dismissed
as moot. It is further ordered that the Petition for Rulemaking filed
by the Center for Democracy and Technology is dismissed without
prejudice to the extent the petition seeks relief under section 109 of
CALEA, 47 U.S.C. section 1008. It is further ordered that the
Commission shall send a copy of this Further Notice of Proposed
Rulemaking, including the Initial Regulatory Flexibility Analysis, to
the Chief Counsel for Advocacy of the Small Business Administration.
List of Subjects in 47 CFR Part 64
Communications common carriers.
Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 98-30552 Filed 11-13-98; 8:45 am]
BILLING CODE 6712-01-P
