[Federal Register Volume 64, Number 184 (Thursday, September 23, 1999)]
[Rules and Regulations]
[Pages 51462-51470]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-24853]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 64
[CC Docket No. 97-213; FCC 99-11]
Implementation of the Communications Assistance for Law
Enforcement Act
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: This document establishes limited rules to ensure that
carriers have policies and procedures in place that require the
affirmative intervention by and knowledge of, their employees in
effectuating any interception through their switching premises, and
that such interception is done lawfully and documented carefully. The
decision mandates that this be done by appointment of a designated
senior officer or employee by each carrier company who is responsible
for maintaining such security procedures. The decision also establishes
reporting and recordkeeping requirements for informing law enforcement
officials of all acts of unauthorized electronic surveillance that
occur on the carriers' premises, as well as any compromises of the
carriers' systems security and integrity procedures that involve the
execution of electronic surveillance. Finally, the decision adopts
filing requirements for large and small carriers. This document
contains modified information collections subject to the Paperwork
Reduction Act of 1995 (PRA), Public Law 104-13, and has been submitted
to the Office of Management and Budget (OMB) for review under the
section 3507 of the PRA.
DATES: Effective December 22, 1999 except for Secs. 64.2103, 64.2104,
and 64.2105, which contain information collection requirements that
have not been approved by the Office of Management and Budget. The FCC
will publish a document in the Federal Register announcing the
effective date for those sections. Public comment on the information
collections are due November 22, 1999.
FOR FURTHER INFORMATION CONTACT: Thomas Wasilewski, 202-418-1310. For
further information concerning the information collections contained in
this Report and Order, contact Les Smith, Federal Communications
Commission, Room 1A-804, 445 12th Street, S.W., Washington, DC 20054,
or via the Internet at lesmith@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report
and Order (R&O) in CC Docket No. 97-213; FCC 99-11, adopted January 29,
1999, and released March 15, 1999. The complete text of this R&O is
available for inspection and copying during normal business hours in
the FCC Reference Information Center, Courtyard Level, 445 12th Street,
S.W., Washington, DC, and also may be purchased from the Commission's
copy contractor, International Transcription Services (ITS, Inc.), CY-
B400, 445 12th Street, S.W., Washington, DC.
Synopsis of the Report and Order
1. The Commission adopts a Report and Order (R&O) in CC Docket No.
97-213, regarding implementation of the Communications Assistance for
Law Enforcement Act (CALEA).1 The R&O establishes systems
security and integrity regulations that all telecommunications carriers
must follow to comply with section 105 of CALEA. The regulations were
proposed in the Notice of Proposed Rule Making (NPRM) in this
proceeding, which can be found at 62 FR 63302, November 11, 1997. The
R&O adopts these regulations pursuant to the authority granted to the
Commission under section 105 of CALEA and section 229 of the
Communications Act of 1934, as amended. Accordingly, the R&O finds that
telecommunications carriers must ensure that ``any interception of
communications or access to call-identifying information effected
within its switching premises can be activated only in accordance with
a court order or other lawful authorization and with the affirmative
intervention of an individual officer or employee of the carrier''
2 acting in accordance with the regulations adopted in the
R&O and sections 229(b) and (c) of the Communications Act.
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\1\ Public Law 103414, 108 Stat. 4279 (1994).
\2\ 47 U.S.C. 1004.
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2. While recognizing that certain carriers currently have existing
policies and procedures in place to secure and protect their
telecommunications systems in a manner that would comply with section
105 of CALEA and sections 229(b) and (c) of the Communications Act, the
R&O finds that the void created by those carriers without such policies
and procedures demands adoption of minimum set of requirements that
will ensure compliance with section 105 of CALEA and sections 229(b)
and (c) of the Communications Act. The R&O declines, however, to adopt
specific or detailed policies and procedures that telecommunications
carriers must include within their internal operating practices to
ensure compliance, because, as the R&O further finds, it is not the
Commission's responsibility to ``micro-manage'' telecommunications
carriers' corporate policies. The rules adopted in the R&O are intended
to provide carriers with guidance as to the minimum requirements
necessary to achieve compliance with section 105 of CALEA and sections
229(b) and (c) of the Communications Act in the least burdensome manner
possible.
3. The R&O mandates that carriers, as part of their policies and
procedures, must appoint the senior authorized officer(s) or
employee(s) whose job function includes being a point of contact for
law enforcement on a daily, around-the-clock basis. Carriers must
include in their policies and procedures a description of the job
functions of such points of contact and a method to enable law
enforcement authorities to contact these individuals.
4. Although the Commission declines to adopt a proposal to require
carriers to
[[Page 51463]]
respond to an interception request within a specific time frame, the
R&O encourages carriers to respond promptly and comply with any other
relevant statutes concerning their duty to assist law enforcement
authorities in performing an interception of communications or
facilitating access to call-identifying information.
5. The R&O next clarifies the term ``appropriate authorization,''
as used in section 229(b)(1)(A) of the Communications Act, which
requires that common carriers establish appropriate personnel
supervision and control policies and procedures ``to require
appropriate authorization to activate interception of communications or
access to call-identifying information(.)'' 3 The R&O, based
on the explicit language of section 105 of CALEA and section 229(b) of
the Communications Act, concludes that ``appropriate authorization''
refers both to the legal authorization that law enforcement must
present to a carrier in the form of an order, warrant, or other
authorization issued by a judge or magistrate pursuant to federal or
state statutory authority (appropriate legal authorization), and to the
authorization a carrier's employee must receive from the carrier to
assist law enforcement (appropriate carrier authorization) to engage in
the interception of communication or the access to call-identifying
information. The R&O concludes that a carrier satisfies the requirement
for appropriate authorization only when a carrier's employee implements
the interception of communications or access to call-identifying
information in accordance with appropriate carrier authorization after
having received legal authorizations.
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\3\ 47 U.S.C. 229(b)(1)(A).
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6. The R&O also requires carriers to state in their internal
policies and procedures that carrier personnel must receive both
appropriate legal authorization and appropriate carrier authorization
before taking any action to affirmatively implement the interception of
communications or access to call-identifying information. Carriers must
also, upon receipt of a proffered authorization by law enforcement,
determine that such authorization is what it purports to be, and that
it can be implemented technically, including that it is sufficiently
and accurately detailed to enable the carrier to comply with its terms.
The Commission notes, however, that its determination in the R&O under
section 105 of CALEA and section 229 of the Communications Act
regarding the level of scrunity applicable to a carrier's review of a
court order or certification is in no way intended to alter or replace
any standard or level of scrutiny imposed under any other state or
federal statute. Accordingly, the R&O requires that, as part of their
policies and procedures, carriers should also comply with appropriate
authorization requirements contained in any other relevant state or
federal statute when reviewing an authorization, and must ensure that
their designated senior officer(s) or employee(s) responsible for
affirmatively intervening to activate the interception of
communications or access to call-identifying information is fully
apprised of any additional relevant federal and state statutory
provisions.
7. The R&O further provides that carriers must report all acts of
unauthorized electronic surveillance that occur on their premises, as
well as any compromises of the carrier's system security and integrity
procedures that involve the execution of electronic surveillance, to
the appropriate law enforcement agency. The R&O does not, however,
impose a specific time frame within which a carrier must report a
security breach. Rather, the R&O requires that carriers report such
breaches within a reasonable period of time and in compliance with any
other relevant statutes.
8. Additionally, in order to comply with section 229(b)(2), the
carrier must maintain secure and accurate records of each interception
of communication or access to call-identifying information, made with
or without appropriate authorization, in the form of single
certification. This certification must include, at a minimum: (1) The
telephone number(s) and/or circuit identification numbers involved; (2)
the start date and time of the opening of the circuit for law
enforcement; (3) the identity of the law enforcement officer presenting
the authorization; (4) the name of the judge or prosecuting attorney
signing the authorization; (5) the type of interception of
communications or access to call-identifying information; and (6) the
name of the telecommunications carrier's personnel who is responsible
for overseeing the interception of communication or access to call-
identifying information and who is acting in accordance with the
carrier's policies established under section 229(b)(1). The designated
employee must sign each record, to certify the record is complete and
accurate. The Order mandates that carriers maintain these records for
ten years and keep records relating to the content of authorized
interception for a period of time determined by individual carriers in
accordance with policies and procedures established under section
229(b)(1) of the Communications Act and applicable state and federal
statutes of limitation.4
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\4\ On July 16, 1999, the Commission adopted an Order on
Reconsideration (Order) in this proceeding (FCC 99-184), which
revises the recordkeeping and maintenance requirements adopted in
the R&O. The Order eliminates the requirement that
telecommunications carriers retain the content or call-identifying
information of any interceptions of communications and the 10 year
record retention requirement. Instead, carriers must retain the
certification for a ``reasonable period of time.''
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9. The R&O adopts filing requirements in accordance with section
229(b)(3) of the Communications Act. In this regard, the R&O finds that
all telecommunications carriers must submit to the Commission the
policies and procedures adopted to comply with the requirements
established under sections 229(b)(1) and (2), regardless of carrier
size. The Commission will review carriers' policies procedures to
determine whether they comply with the Commission's Rules. If the
Commission determines that a carrier's policies and procedures are non-
compliant, the carrier shall modify its policies and procedures in
accordance with an order released by the Commission. Moreover, the
Commission shall conduct investigations as may be necessary to ensure
compliance by telecommunications carriers with the requirements of
rules established by the Commission under section 229 of the
Communications Act and section 105 of CALEA.
10. The R&O mandates that all carriers file their policies and
procedures within 90 days from the effective date of the rules adopted
in this R&O, and they must further file their policies and procedures
with the Commission no later than 90 days after the effective date of a
merger or divestiture in which a carrier becomes the surviving or
divested entity. This 90 day filing requirement also applies to
carriers who amend existing policies and procedures already filed with
the Commission.
11. Finally, the R&O does not adopt any rules (in addition to the
liabilities established by Congress in CALEA) that extend criminal and/
or civil liability, vicarious or otherwise, to a carrier for the
violations of section 105 of CALEA and section 229 of the
Communications Act. Instead, if a carrier violates the Commission's
rules implementing section 105 of CALEA, the Commission shall enforce,
pursuant to section 229(d), the penalties articulated in
[[Page 51464]]
sections 503(b) of the Communications Act and 1.80 of the Commission's
Rules.
Paperwork Reduction Act of 1995 Analysis
12. The actions contained in this R&O have been analyzed with
respect to the Paperwork Reduction Act of 1995 and found to impose
modified reporting and recordkeeping requirements or burdens on the
public. Implementation of these modified reporting and recordkeeping
requirements will be subject to approval by the Office of Management
and Budget, as prescribed by the Act. The new or modified paperwork
requirements contained in the Report and Order will go into effect
December 22, 1999, dependent on OMB approval.
Final Regulatory Flexibility Analysis
13. As required by section 603 of the Regulatory Flexibility Act
(RFA), 5 U.S.C. 603, an Initial Regulatory Flexibility Analysis (IRFA)
was incorporated in the NPRM. The Commission sought written public
comments on the proposals in the NPRM, including the IRFA. The
Commission's Final Regulatory Flexibility Analysis (FRFA) in this
Report and Order conforms to the RFA, as amended by the Contract With
America Advancement Act of 1996 (CWAAA), Public Law 104-121, 110 Stat.
847 (1996).5
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\5\ Subtitle II of the CWAAA is ``The Small Business Regulatory
Enforcement Fairness Act of 1996'' (SBREFA), codified at 5 U.S.C.
601 et. seq.
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(1) Need for and Purpose of this Action
14. This Report and Order responds to the legislative mandate
contained in the Communications Assistance for Law Enforcement Act,
Public Law 103-414, 108 Stat. 4279 (1994). The Commission, in
compliance with 47 U.S.C. 229, promulgated rules in this Report and
Order to ensure the prompt implementation of section 105 of CALEA. In
enacting CALEA, Congress sought to ``make clear a telecommunications
carrier's duty to cooperate in the interception of communications for
law enforcement purposes. . .'' 6 Specifically, Congress
sought to balance three key policies with CALEA: ``(1) to preserve a
narrowly focused capability for law enforcement agencies to carry out
properly authorized intercepts; (2) to protect privacy in the face of
increasingly powerful and personally revealing technologies; and (3) to
avoid impeding the development of new communications services and
technologies.'' 7
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\6\ CALEA, supra, at preamble.
\7\ H. Rep. No. 103-837 at 23, reprinted in 1994 U.S.C.C.A.N.
3489.
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15. The rules adopted in this Report and Order implement Congress's
goal to clarify a telecommunications carrier's duty to cooperate with
law enforcement agencies that request lawful electronic surveillance,
and to balance the three key policies, enumerated in this decision. The
objective of the rules adopted in this Report and Order is to
implement, as quickly and effectively as possible, the national
telecommunications policy for telecommunications carriers to support
the lawful electronic surveillance needs of law enforcement agencies.
(2) Summary of the Issues Raised by Public Comments Made in Response to
the IRFA
Summary of Initial Regulatory Flexibility Analysis (IRFA)
16. In the NPRM, the Commission performed an IRFA and asked for
comments that specifically addressed issues raised in the IRFA. In the
IRFA, the Commission found that the rules it proposed to adopt in this
proceeding may have a significant impact on a substantial number of
small businesses as defined by section 601(3) of the RFA.
17. In the IRFA, the Commission reiterated its proposed rules in
the NPRM requiring telecommunications carriers to establish policies
and procedures governing the conduct of officers and employees who are
engaged in surveillance activity. The proposed rules required
telecommunications carriers to maintain records of all interceptions of
communications and call identification information. Additionally, the
proposed rules required telecommunications carriers to execute an
affidavit for, and maintain a separate record of, each electronic
surveillance. Furthermore, the Commission sought comment on the length
of time telecommunications carriers should retain electronic
surveillance records, noting that 18 U.S.C. 2518(8)(a) calls for a
retention period of ten years for intercepted communications. The
proposed rules also required telecommunications carriers to report
security breaches (compromises to lawful electronic surveillance and
illegal electronic surveillance) to both the Commission and the
affected law enforcement agency.
18. In the IRFA, the Commission reiterated that our proposed rules
require telecommunications carriers classified as Class A companies
pursuant to 47 U.S.C. 32.11 to file individually with the Commission a
statement of its processes and procedures used to comply with the
systems security rules promulgated by the Commission.
Telecommunications carriers classified as Class B companies pursuant to
47 U.S.C. 32.11 could elect either to file a statement describing their
security processes and procedures or to certify that they observed
procedures consistent with the security rules promulgated by the
Commission. The Commission noted that because electronic surveillance
capacity and capability requirements are still being developed it is
not possible to predict with certainty whether the costs of compliance
will be proportionate with regard to both small and large
telecommunications carriers.
19. In the IRFA, the Commission tentatively concluded that a
substantial number of telecommunications carriers who have been
subjected to demands from law enforcement personnel to provide lawful
interceptions and call-identifying information for a period time
preceding CALEA already have in place practices for proper employee
conduct and recordkeeping. The Commission noted that, as a practical
matter, telecommunications carriers need such practices to protect
themselves from suit by persons who claim they were the victims of
illegal surveillance. By providing general guidance regarding the
conduct of carrier personnel and the content of records in the proposed
regulations, the Commission intended telecommunications carriers to use
their existing practices to the maximum extent possible. Thus, in the
IRFA, the Commission tentatively concluded that the additional cost to
most telecommunications carriers for conforming to the Commission's
proposed regulations, should be minimal.
20. Comments. Only one party filed comments in response to the
IRFA, but many parties commented on the Commission's proposed system
security and integrity regulations in response to the NPRM. The record
provided by all of these commenting parties clearly disfavors the
amount of recordkeeping proposed by the Commission in the NPRM, and
includes numerous suggestions to reduce the amount of paperwork
required by the proposed regulations without jeopardizing statutory
compliance. Thus, the final regulations reduce significantly the amount
of paperwork required of telecommunications carriers. Other parties
commented that the Commission should not promulgate any new rules to
[[Page 51465]]
implement CALEA. A plain reading of 47 U.S.C. 229(b) shows that
Congress requires the Commission to promulgate regulations that ensure
the systems security and integrity of carriers, by compelling carriers
to submit their CALEA systems security and integrity policies and
procedures to the Commission and provide records that prove to the
Commission how each telecommunications carrier is complying with the
requirements of CALEA section 105. Thus, commentary against any new
regulations contradicts the plain language of 47 U.S.C. 229.
(3) Description and Estimates of the Number of Entities Affected by
This Report and Order
21. Consistent with prior practice, the Commission shall continue
to exclude small incumbent LECs from the definition of a small entity
for the purpose of this FRFA. Nevertheless, as mentioned above, the
Commission includes small incumbent LECs in the FRFA. Accordingly, the
Commission's use of the terms ``small entities'' and ``small
businesses'' does not encompass ``small incumbent LECs.'' The
Commission uses the term ``small incumbent LECs'' to refer to any
incumbent LECs that arguably might be defined by SBA as ``small
business concerns.''
22. Total Number of Telephone Companies Affected. Many of the
decisions and rules adopted in the R&O may have a significant effect on
a substantial number of the small telephone companies identified by
SBA. The United States Bureau of the Census (``the Census Bureau'')
reports that, at the end of 1992, there were 3,497 firms engaged in
providing telephone services, as defined therein, for at least one
year.8 This number contains a variety of different
categories of carriers, including local exchange carriers,
interexchange carriers, competitive access providers, cellular
carriers, mobile service carriers, operator service providers, pay
telephone operators, PCS providers, covered SMR providers, and
resellers. It seems certain that some of those 3,497 telephone service
firms may not qualify as small entities or small incumbent LECs because
they are not ``independently owned and operated.'' 9 For
example, a PCS provider that is affiliated with an interexchange
carrier having more than 1,500 employees would not meet the definition
of a small business. It seems reasonable to conclude, therefore, that
fewer than 3,497 telephone service firms are small entity telephone
service firms or small incumbent LECs that may be affected by this
Report and Order.
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\8\ United States Department of Commerce, Bureau of the Census,
1992 Census of Transportation, Communications, and Utilities:
Establishment and Firm Size, at Firm Size 1-123 (1995) (1992
Census).
\9\ 15 U.S.C. 632(a)(1).
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23. Wireline Carriers and Service Providers. SBA has developed a
definition of small entities for telephone communications companies
other than radiotelephone (wireless) companies. The Census Bureau
reports that, there were 2,321 such telephone companies in operation
for at least one year at the end of 1992. According to SBA's
definition, a small business telephone company other than a
radiotelephone company is one employing fewer than 1,500 persons. All
but 26 of the 2,321 non-radiotelephone companies listed by the Census
Bureau were reported to have fewer than 1,000 employees. Thus, even if
all 26 of those companies had more than 1,500 employees, there would
still be 2,295 non-radiotelephone companies that might qualify as small
entities or small incumbent LECs. Although it seems certain that some
of these carriers are not independently owned and operated, we are
unable at this time to estimate with greater precision the number of
wireline carriers and service providers that would qualify as small
business concerns under SBA's definition. Consequently, we estimate
that there are fewer than 2,295 small entity telephone communications
companies other than radiotelephone companies that may be affected by
the decisions and rules adopted in this Report and Order.
24. Local Exchange Carriers. Neither the Commission nor SBA has
developed a definition of small providers of local exchange services
(LECs). The closest applicable definition under SBA rules is for
telephone communications companies other than radiotelephone (wireless)
companies. The most reliable source of information regarding the number
of LECs nationwide of which the Commission is aware appears to be the
data that we collect annually in connection with the Telecommunications
Relay Service (TRS). According to the most recent data, 1,347 companies
reported that they were engaged in the provision of local exchange
services.10 Although it seems certain that some of these
carriers are not independently owned and operated, or have more than
1,500 employees, The Commission is unable at this time to estimate with
greater precision the number of LECs that would qualify as small
business concerns under SBA's definition. Consequently, the Commission
estimates that there are fewer than 1,347 small incumbent LECs that may
be affected by the decisions and rules adopted in this Report and
Order.
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\10\ Federal Communications Commission, CCB, Industry Analysis
Division, Telecommunications Industry Revenue: TRS Fund Worksheet
Data, Tbl. 1 (Average Total Telecommunications Revenue Reported by
Class of Carrier) (Dec. 1996) (TRS Worksheet).
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25. Interexchange Carriers. Neither the Commission nor SBA has
developed a definition of small entities specifically applicable to
providers of interexchange services (IXCs). The closest applicable
definition under SBA rules is for telephone communications companies
other than radiotelephone (wireless) companies. The most reliable
source of information regarding the number of IXCs nationwide of which
the Commission is aware appears to be the data collected annually in
connection with the TRS Worksheet. According to the most recent data,
130 companies reported that they were engaged in the provision of
interexchange services. Although it seems certain that some of these
carriers are not independently owned and operated, or have more than
1,500 employees, the Commission is unable at this time to estimate with
greater precision the number of IXCs that would qualify as small
business concerns under SBA's definition. Consequently, the Commission
estimates that there are fewer than 130 small entity IXCs that may be
affected by the decisions and rules adopted in this Report and Order.
26. Competitive Access Providers. Neither the Commission nor SBA
has developed a definition of small entities specifically applicable to
providers of competitive access services (CAPs). The closest applicable
definition under SBA rules is for telephone communications companies
other than radiotelephone (wireless) companies. The most reliable
source of information regarding the number of CAPs nationwide of which
the Commission is aware appears to be the data that we collect annually
in connection with the TRS Worksheet. According to the most recent
data, 57 companies reported that they were engaged in the provision of
competitive access services. Although it seems certain that some of
these carriers are not independently owned and operated, or have more
than 1,500 employees, the Commission is unable at this time to estimate
with greater precision the number of CAPs that would qualify as small
business concerns under SBA's definition. Consequently, the Commission
estimates that there are fewer than 57 small entity CAPs that may be
affected by the decisions and rules adopted in this Report and Order.
[[Page 51466]]
27. Operator Service Providers. Neither the Commission nor SBA has
developed a definition of small entities specifically applicable to
providers of operator services. The closest applicable definition under
SBA rules is for telephone communications companies other than
radiotelephone (wireless) companies. The most reliable source of
information regarding the number of operator service providers
nationwide of which the Commission is aware appears to be the data
collected annually in connection with the TRS Worksheet. According to
the most recent data, 25 companies reported that they were engaged in
the provision of operator services. Although it seems certain that some
of these companies are not independently owned and operated, or have
more than 1,500 employees, the Commission is unable at this time to
estimate with greater precision the number of operator service
providers that would qualify as small business concerns under SBA's
definition. Consequently, the Commission estimates that there are fewer
than 25 small entity operator service providers that may be affected by
the decisions and rules adopted in this Report and Order.
28. Wireless (Radiotelephone) Carriers. SBA has developed a
definition of small entities for radiotelephone (wireless) companies.
The Census Bureau reports that there were 1,176 such companies in
operation for at least one year at the end of 1992. According to SBA's
definition, a small business radiotelephone company is one employing
fewer than 1,500 persons.11 The Census Bureau also reported
that 1,164 of those radiotelephone companies had fewer than 1,000
employees. Thus, even if all of the remaining 12 companies had more
than 1,500 employees, there would still be 1,164 radiotelephone
companies that might qualify as small entities if they are
independently owned are operated. Although it seems certain that some
of these carriers are not independently owned and operated, the
Commission is unable at this time to estimate with greater precision
the number of radiotelephone carriers and service providers that would
qualify as small business concerns under SBA's definition.
Consequently, the Commission estimates that there are fewer than 1,164
small entity radiotelephone companies that may be affected by the
decisions and rules adopted in this Report and Order.
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\11\ 13 CFR 121.201, Standard Industrial Classification (SIC)
Code 4812.
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29. Cellular Service Carriers. Neither the Commission nor the SBA
has developed a definition of small entities specifically applicable to
Cellular Service Carriers and to Mobile Service Carriers. The closest
applicable definition under SBA rules for both services is for
telephone companies other than radiotelephone (wireless) companies. The
most reliable source of information regarding the number of Cellular
Service Carriers and Mobile Service Carriers nationwide of which the
Commission is aware appears to be the data collected annually in
connection with the TRS Worksheet. According to the most recent data,
792 companies reported that they are engaged in the provision of
cellular services. Although it seems certain that some of these
carriers are not independently owned and operated, or have more than
1,500 employees, the Commission is unable at this time to estimate with
greater precision the number of cellular service carriers that would
qualify as small business concerns under SBA's definition.
Consequently, the Commission estimates that there are fewer than 792
small entity cellular service carriers that might be affected by the
actions and rules adopted in this Report and Order.
30. Mobile Service Carriers. Neither the Commission or the SBA has
developed a definition of small entities specifically applicable to
mobile service carriers, such as paging companies. The closest
applicable definition under SBA rules is for radiotelephone (wireless)
companies. The most reliable source of information regarding the number
of mobile service carriers nationwide of which the Commission is aware
appears to be the data collected annually in connection with the TRS
Worksheet. According to the most recent data, 138 companies reported
that they were engaged in the provision of mobile services. Although it
seems certain that some of these carriers are not independently owned
and operated, or have more than 1,500 employees, the Commission is
unable at this time to estimate with greater precision the number of
mobile service carriers that would qualify under SBA's definition.
Consequently, the Commission estimates that there are fewer than 138
small entity mobile service carriers that may be affected by the
decision and rules adopted in this Report and Order.
31. Broadband Personal Communications Service. The broadband PCS
spectrum is divided into six frequency blocks designated A through F,
and the Commission has held auctions for each block. The Commission
defined ``small entity'' for Blocks C and F as an entity that has
average gross revenues of less than $40 million in the three previous
calendar years. For Block F, an additional classification for ``very
small business'' was added, and is defined as an entity that, together
with its affiliates, has average gross revenues of not more than $15
million for the preceding three calendar years. These regulations
defining ``small entity'' in the context of broadband PCS auctions have
been approved by SBA. No small businesses within the SBA-approved
definition bid successfully for licenses in Blocks A and B. There were
90 winning bidders that qualified as small entities in the Block C
auctions. A total of 93 small and very small business bidders won
approximately 40% of the 1,479 licenses for Blocks D, E, and F.
However, licenses for Blocks C through F have not been awarded fully,
therefore there are few, if any, small businesses currently providing
PCS services. Based on this information, the Commission concludes that
the number of small broadband PCS licenses will include the 90 winning
C Block bidders and the 93 qualifying bidders in the D, E, and F
blocks, for a total of 183 small PCS providers as defined by the SBA
and the Commission's auction rules.
32. SMR Licensees. Pursuant to 47 CFR 90.814(b)(1), the Commission
has defined ``small entity'' in auctions for geographic area 800 MHz
and 900 MHz SMR licenses as a firm that had average annual gross
revenues of less than $15 million in the three previous calendar years.
This definition of a ``small entity'' in the context of 800 MHz and 900
MHz SMR has been approved by the SBA. The rules adopted in this Report
and Order may apply to SMR providers in the 800 MHz and 900 MHz bands
that either hold geographic area licenses or have obtained extended
implementation authorizations. The Commission does not know how many
firms provide 800 MHz or 900 MHz geographic area SMR service pursuant
to extended implementation authorizations, nor how many of these
providers have annual revenues of less than $15 million. The Commission
assumes, for purposes of this FRFA, that all of the extended
implementation authorizations may be held by small entities, which may
be affected by the decisions and rules adopted in this Report and
Order.
33. The Commission recently held auctions for geographic area
licenses in the 900 MHz SMR band. There were 60 winning bidders who
qualified as small entities in the 900 MHz auction. Based on this
information, the Commission concludes that the number of geographic
area SMR licensees affected
[[Page 51467]]
by the rule adopted in this Report and Order includes these 60 small
entities. No auctions have been held for 800 MHz geographic area SMR
licenses. Therefore, no small entities currently hold these licenses. A
total of 525 licenses will be awarded for the upper 200 channels in the
800 MHz geographic area SMR auction. The Commission, however, has not
yet determined how many licenses will be awarded for the lower 230
channels in the 800 MHz geographic area SMR auction. There is no basis,
moreover, on which to estimate how many small entities will win these
licenses. Given that nearly all radiotelephone companies have fewer
than 1,000 employees and that no reliable estimate of the number of
prospective 800 MHz licensees can be made, we assume, for purposes of
this FRFA, that all of the licenses may be awarded to small entities
who, thus, may be affected by the decisions adopted in this Report and
Order.
34. Resellers. Neither the Commission nor SBA has developed a
definition of small entities specifically applicable to resellers. The
closest applicable definition under SBA rules is for all telephone
communications companies. The most reliable source of information
regarding the number of resellers nationwide of which the Commission is
aware appears to be the data collected annually in connection with the
TRS. According to the most recent data, 260 companies reported that
they were engaged in the resale of telephone services. Although it
seems certain that some of these carriers are not independently owned
and operated, or have more than 1,500 employees, the Commission is
unable at this time to estimate with greater precision the number of
resellers that would qualify as small business concerns under SBA's
definition. Consequently, the Commission estimates that there are fewer
than 260 small entity resellers that may be affected by the decisions
and rules adopted in this Report and Order.
35. Pay Telephone Operators. Neither the Commission nor the SBA has
developed a definition of small entities specifically applicable to pay
telephone operators. The closest applicable definition under SBA rules
is for telephone communications companies other than radiotelephone
(wireless) companies. The most reliable source of information regarding
the number of pay telephone operators nationwide of which the
Commission is aware appears to be the data collected annually with the
TRS Worksheet. According to the most recent data, 271 companies
reported that they were engaged in the provision of pay telephone
services. Although it seems certain that some of these carriers are not
independently owned and operated, or have more than 1,500 employees,
the Commission is unable at this time to estimate with greater
precision the number of pay telephone operators that would qualify as
small business concerns under SBA's definition. Consequently, the
Commission estimates that there are fewer than 271 small entity pay
telephone operators that may be affected by the decisions and rules
adopted in this Report and Order.
36. Cable Services or Systems. SBA has developed a definition of
small entities for cable and other pay television services, which
includes all such companies generating $11 million or less in revenue
annually.12 This definition includes cable systems
operators, closed circuit television services, direct broadcast
satellite services, multipoint distribution systems, satellite master
antenna systems and subscription television services. According to the
Census Bureau, there were 1,788 such cable and other pay television
services and 1,439 had less than $11 million in revenues.13
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\12\ 13 CFR 121.201, SIC Code 4841.
\13\ 1992 Economic Census Industry and Enterprise Receipts Size
Report, Table 2D, SIC 4841 (U.S. Bureau of the Census data under
contract to the Office of Advocacy of the U.S. Small Business
Administration).
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37. The Commission has developed its own definition of a small
cable system operator for the purposes of rate regulation. Under the
Commission's Rules, a ``small cable company'' is one serving fewer than
400,000 subscribers nationwide.14 Based on the most recent
information, the Commission estimates that there were 1,439 cable
operators that qualified as small cable system operators at the end of
1995. Since then, some of those companies may have grown to serve over
400,000 subscribers, and others may have been involved in transactions
that caused them to be combined with other cable operators.
Consequently, the Commission estimates that there are fewer than 1,439
small entity cable system operators that may be affected by the
decisions and rules adopted in this Report and Order.
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\14\ 47 CFR 76.901(e).
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38. The Communications Act also contains a definition of a small
cable system operator, which is ``a cable operator that, directly or
through an affiliate, serves in the aggregate fewer than 1 percent of
all subscribers in the United States and is not affiliated with any
entity or entities whose gross annual revenues in the aggregate exceed
$250,000,000.'' 15 The Commission has determined that there
are 61,700,000 subscribers in the United States. Therefore, the
Commission found that an operator serving fewer than 617,000
subscribers shall be deemed a small operator if its annual revenues,
when combined with the total annual revenues of all of its affiliates,
do not exceed $250 million in the aggregate.16 Based on
available data, the Commission finds that the number of cable operators
serving 617,000 subscribers or less totals 1,450. The Commission does
not request nor do we collect information concerning whether cable
system operators are affiliated with entities whose gross annual
revenues exceed $250,000,000, and thus are unable at this time to
estimate with greater precision the number of cable system operators
that would qualify as small cable operators under the definition in the
Communications Act. The Commission further notes that recent industry
estimates project that there will be a total of 65,000,000 subscribers,
and the Commission has based our fee revenue estimates on that figure.
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\15\ 47 U.S.C. 543(m)(2).
\16\ 47 CFR 76.1403(b).
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39. Other Pay Services. In the IRFA, the Commission included a
category entitled ``other pay services.'' Other pay services are also
classified under SIC 4841, which include cable operators, closed
circuit television services, direct broadcast satellite services (DBS),
multipoint distribution systems (MDS), satellite master antenna systems
(SMATV), and subscription television services. The Commission received
no comments regarding service providers in this category in response to
either the IRFA or the NPRM at large. Accordingly, the Commission
cannot determine at this time the number of service providers in this
category that intend to offer services to the public as
telecommunications carriers, and become subject to CALEA's
requirements.
(4) Summary Analysis of the Projected Reporting, Recordkeeping and
Other Compliance Requirements and Steps Taken to Minimize the
Significant Economic Impact of this Report and Order on Small Entities,
Including Significant Alternatives Considered and Rejected.
40. In this section of the FRFA, the Commission analyzes the
projected reporting, recordkeeping, and other compliance requirements
that may apply to small entities as a result of this Report and Order.
The Commission also
[[Page 51468]]
describes the steps taken to minimize the economic impact of our
decisions on small entities, including the significant alternatives
considered and rejected.
41. In the final regulations, the Commission affirms the proposal
in the NPRM to establish regulations that are general in nature and
provide as guidance, so that telecommunications carriers may utilize
their existing policies and procedures to the greatest extent possible.
In addition, the Commission eliminated all references to proposed rules
and tentative conclusions relating to vicarious liability arising out
of a telecommunications carrier's failure to accomplish either of CALEA
section 105's two objectives.
42. In the final regulations, the Commission eliminated all
regulations originally proposed pursuant to 47 U.S.C. 229(b)(1) that
appeared to go beyond the scope of CALEA section 105, overlapped other
proposed regulations, were unnecessarily cumbersome, or otherwise
unnecessary. Accordingly, carriers must: (1) Appoint a senior officer
or employee as point of contact responsible for affirmatively
intervening to ensure that interception of communications or access to
call-identifying information can be activated only in accordance with
the appropriate legal authorization; (2) include a description of the
job function of the appointed point of contact for law enforcement to
reach on a daily, around-the-clock basis in their policies and
procedures; (3) effectuate a requested interception promptly; (4)
incorporate our interpretation of the phrase ``appropriate
authorization'' in their policies and procedures; (5) state in their
policies and procedures that carrier personnel must receive appropriate
legal authorization, before enabling law enforcement officials to
implement the interception of communications or access to call-
identifying information; (6) require the appointed senior point of
contact to be apprised of all relevant federal and state statutory
provisions concerning the lawful interception of communications or
access to call-identifying information; (7) report security compromises
and unlawful interception of communications or access to call-
identifying information to the appropriate law enforcement authorities
within a reasonable length of time after discovery; (8) maintain a
secure and accurate record of each interception of communications or
access to call-identifying information, made with or without
appropriate authorization, in the form of single certification; (9)
maintain secure and records of call-identifying information and
unauthorized interceptions (including the content of the unauthorized
interception) for ten years; 17 10) maintain secure and
accurate records of the content of each authorized interception of
communications for a period of time determined by them in accordance
with the policies and procedures that they establish under section
229(b)(1) of the Communications Act and applicable state and federal
statutes of limitation; (11) provide a detailed description of how long
it will maintain its records of intercept content; and (12) file with
the Commission, within 90 days of the effective date of these rules,
the policies and procedures it uses to comply with the requirements of
this subchapter, and thereafter, within 90 days of a carrier's merger
or divestiture or a carrier's amendment of its existing policies and
procedures.
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\17\ See footnote 4 of this summary.
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43. The Commission eliminated the requirement of ``designated
employees,'' and the requirement for telecommunications carriers to
provide updated lists of designated employees that included personal
information about them, to law enforcement agencies. Instead,
telecommunications carriers, as part of their policies and procedures,
should only appoint a senior authorized officer or employee as a point
of contact for law enforcement to reach on a daily, around-the-clock
basis. Telecommunications carriers will include a description of the
job function of the designated point of contact and a method to enable
law enforcement authorities to contact the individual employed in this
capacity in their polices and procedures.
44. The Commission eliminated the proposed regulation requiring a
separate affidavit and a separate record for each surveillance.
Instead, the final regulation requires that telecommunications carriers
compile and maintain a single record of each intercepted communications
or access to call-identifying information, certified by a carrier
employee in charge of that electronic surveillance, that contains the
following information: (1) The telephone number(s) and/or circuit
identification number(s) involved; (2) the start date and time of the
opening of the circuit for law enforcement; (3) the identity of the law
enforcement officer presenting the authorization; (4) the name of the
judge or prosecuting attorney who signed the authorization; (5) the
type of intercepted communications or access to call-identifying
information; (6) the name(s) of the telecommunications carriers'
personnel who are responsible for overseeing the interception of
communications or access to call-identifying information and who are
acting in accordance with the carriers' policies and procedures
established under 47 U.S.C. 229(b)(1). This record shall be signed by
the individual who is responsible for overseeing the interception of
communications or access to call-identifying information and who is
acting in accordance with the carriers' policies and procedures
established under 47 U.S.C. 229(b)(1). To avoid duplicating the
existing ten year record retention requirement for records of
authorized interception content in 18 U.S.C. 2518(8)(a), the Commission
allows telecommunications carriers to retain records of the content of
authorized interceptions for a period of time that they find reasonably
necessary. However, because 18 U.S.C. 2518(8)(a) does not encompass
records of call-identifying information and records of unauthorized
interceptions, the Commission requires carriers to maintain secure and
records of call-identifying information and unauthorized interceptions
(including the content of the unauthorized interception) for ten
years.18
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\18\ See Order on Reconsideration which revises this regulation,
and which will be published shortly in the Federal Register.
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In the final regulations, the Commission did not affirm our
proposal to provide a lessened reporting requirement for carriers that
fell below the gross annual revenue threshold established in 47 CFR
32.9000 of the Commission's Rules. The Commission concludes that 47
U.S.C. 229(b)(3) requires all telecommunications carriers to submit
their policies and procedures to the Commission established under 47
U.S.C. 229(b)(1) and (2). The statute makes no distinction between
classes of telecommunications carriers for the purpose of lessening the
regulatory burden for smaller carriers. Accordingly, the Commission's
final regulations contain the requirement that all telecommunications
carriers must file their systems security and integrity policies and
procedures with the Commission, within 90 days of this Report and
Order's effective date. The Commission notes, however, that since the
proposed regulations have been drastically reduced, the burden imposed
by the regulations adopted herein is also significantly reduced for all
telecommunications carriers, including the smaller ones.
[[Page 51469]]
(5) Report to Congress
46. The Commission shall send a copy of this FRFA, along with this
Report and Order, in a report to Congress pursuant to the Small
Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C.
801(a)(1)(A). A copy of this FRFA will also be published in the Federal
Register.
Ordering Clauses
47. Accordingly, it is ordered that, pursuant to sections 4(i),
4(j), and 229 of the Communications Act of 1934, as amended, 47 U.S.C.
154(i), 154(j), and 229, and section 105 of the Communications
Assistance for Law Enforcement Act, 47 U.S.C. 1004, the rules are
adopted.
48. It is further ordered that the rules will become effective
December 22, 1999 except for Secs. 64.2103, 64.2104, and 64.2105, which
contain information collection requirements that have not been approved
by the Office of Management and Budget. The FCC will publish a document
in the Federal Register announcing the effective date for those
sections.
49. It is further ordered that the Regulatory Flexibility Analysis,
as required by Section 604 of the Regulatory Flexibility Act, and as
set forth above is adopted.
50. It is further ordered that the Commission's Office of Public
Affairs, Reference Operations Division, shall send a copy of this
Report and Order, including the Final Regulatory Flexibility Analysis,
to the Chief Counsel for Advocacy of the Small Business Administration.
Paperwork Reduction Act
52. This Report and Order contains a modified information
collection. The Commission, as part of its continuing effort to reduce
paperwork burdens, invites the general public and the Office of
Management and Budget (OMB) to comment on the information collections
contained in this Report and Order, as required by the Paperwork
Reduction Act of 1995, Public Law 104-13. Public and agency comments
are due November 22, 1999; OMB comments are due 90 days from date of
publication of this Report and Order in the Federal Register. Comments
should address: (a) whether the proposed collection of information is
necessary for the proper performance of the functions of the
Commission, including whether the information shall have practical
utility; (b) the accuracy of the Commission's burden estimates; (c)
ways to enhance the quality, utility, and clarity of the information
collected; and (d) ways to minimize the burden of the collection of
information on the respondents, including the use of automated
collection techniques or other forms of information technology.
OMB Approval Number: 3060-0809.
Title: Communications Assistance for Law Enforcement Act, Report
and Order.
Form No.: N/A.
Type of Review: Revision of existing collection.
Respondents: Business or other for profit.
Number of Respondents: 5000.
Estimated Time Per Response: 53 hours.
Total Annual Cost Burden: $11,850,000.
Total Annual Burden: 265,000 hours.
Needs and Uses: The information submitted to the Commission by
telecommunications Carriers will be used to determine whether or not
the telecommunications carriers are in conformance with CALEA's
requirements, and the information maintained by telecommunications
carriers will be used by law enforcement officials to determine the
accountability and accuracy of telecommunications carriers' compliance
with lawful electronic surveillance orders.
List of Subjects in 47 CFR Part 64
Communications common carriers, Reporting and recordkeeping
requirements.
Federal Communications Commission.
Magalie Roman Salas,
Secretary.
Rule Changes
For the resaons discussed in the preamble, the Federal
Communications Commission amends 47 CFR Part 64 as follows:
PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS
1. The authority citation for Part 64 is revised to read as
follows:
Authority: 47 U.S.C. 151, 154, 201, 202, 205, 218-220, and 332
unless otherwise noted. Interpret or apply Secs. 201, 218, 225, 226,
227, 229, 332, 48 Stat. 1070, as amended. 47 U.S.C. 201-204, 218,
225, 226, 227, 229, 332, 501 and 503 unless otherwise noted.
2. Part 64 is amended to add Subpart V to read as follows:
Subpart V--Telecommunications Carrier Systems Security and
Integrity Pursuant to the Communications Assistance for Law
Enforcement Act (CALEA)
Sec.
64.2100 Purpose.
64.2101 Scope.
64.2102 Definitions.
64.2103 Policies and procedures for employee supervision and
control.
64.2104 Maintaining secure and accurate records.
64.2105 Submission of policies and procedures and commission
review.
64.2106 Penalties.
Sec. 64.2100 Purpose.
Pursuant to the Communications Assistance for Law Enforcement Act,
Public Law 103-414, 108 Stat. 4279 (1994) (codified as amended in
sections of 18 U.S.C. and 47 U.S.C.), this subpart contains rules that
require a telecommunications carrier to ensure that any interception of
communications or access to call-identifying information effected
within its switching premises can be activated only in accordance with
appropriate legal authorization, appropriate carrier authorization, and
with the affirmative intervention of an individual officer or employee
of the carrier acting in accordance with regulations prescribed by the
Commission.
Sec. 64.2101 Scope.
The definitions included in this subchapter shall be used solely
for the purpose of implementing CALEA requirements.
Sec. 64.2102 Definitions.
(a) Appropriate legal authorization. The term appropriate legal
authorization means:
(1) A court order signed by a judge or magistrate authorizing or
approving interception of wire or electronic communications; or
(2) Other authorization, pursuant to 18 U.S.C. 2518(7), or any
other relevant federal or state statute.
(b) Appropriate carrier authorization. The term appropriate carrier
authorization means the policies and procedures adopted by
telecommunications carriers to supervise and control officers and
employees authorized to assist law enforcement in conducting any
interception of communications or access to call-identifying
information.
(c) Appropriate authorization. The term appropriate authorization
means both appropriate legal authorization and appropriate carrier
authorization.
[[Page 51470]]
Sec. 64.2103 Policies and procedures for employee supervision and
control.
A telecommunications carrier shall:
(a) Establish policies and procedures to ensure the supervision and
control of its officers and employees;
(b) Appoint a senior officer or employee as a point of contact
responsible for affirmatively intervening to ensure that interception
of communications or access to call-identifying information can be
activated only in accordance with appropriate legal authorization, and
include, in its policies and procedures, a description of the job
function of the appointed point of contact for law enforcement to reach
on a seven days a week, 24 hours a day basis;
(c) Incorporate, in its polices and procedures, an interpretation
of the phrase appropriate authorization that encompasses the
definitions of appropriate legal authorization and appropriate carrier
authorization, as stated above;
(d) State, in its policies and procedures, that carrier personnel
must receive appropriate legal authorization and appropriate carrier
authorization before enabling law enforcement officials and carrier
personnel to implement the interception of communications or access to
call-identifying information;
(e) Report to the affected law enforcement agencies, within a
reasonable time upon discovery:
(1) Any act of compromise of a lawful interception of
communications or access to call-identifying information to
unauthorized persons or entities; and
(2) Any act of unlawful electronic surveillance that occurred on
its premises.
(f) Include, in its policies and procedures, a detailed description
of how long it will maintain its records of the content of an
interception.
Sec. 64.2104 Maintaining secure and accurate records.
(a) A telecommunications carrier shall maintain a secure and
accurate record of each interception of communications or access to
call-identifying information, made with or without appropriate
authorization, in the form of single certification.
(1) This certification must include, at a minimum, the following
information:
(i) The telephone number(s) and/or circuit identification numbers
involved;
(ii) The start date and time of the opening of the circuit for law
enforcement;
(iii) The identity of the law enforcement officer presenting the
authorization;
(iv) The name of the person signing the appropriate legal
authorization;
(v) The type of interception of communications or access to call-
identifying information (e.g., pen register, trap and trace, Title III,
FISA); and
(vi) The name of the telecommunications carriers' personnel who is
responsible for overseeing the interception of communication or access
to call-identifying information and who is acting in accordance with
the carriers' policies established under Sec. 64.2103.
(2) This certification must be signed by the individual who is
responsible for overseeing the interception of communications or access
to call-identifying information and who is acting in accordance with
the telecommunications carrier's policies established under
Sec. 64.2103. This individual will, by his/her signature, certify that
the record is complete and accurate.
(3) This certification must be compiled either contemporaneously
with, or within a reasonable period of time after the initiation of the
interception of the communications or access to call-identifying
information.
(4) A telecommunications carrier may satisfy the obligations of
paragraph (a) of this section by requiring the individual who is
responsible for overseeing the interception of communication or access
to call-identifying information and who is acting in accordance with
the carriers' policies established under Sec. 64.2103 to sign the
certification and append the appropriate legal authorization and any
extensions that have been granted. This form of certification must at a
minimum include all of the information listed in paragraph (a) of this
section.
(b) A telecommunications carrier shall maintain secure and accurate
records of:
(1) Call-identifying information and unauthorized interceptions
(including the content of the unauthorized interception) for ten years;
(2) The content of each authorized interception of communications
for a reasonable period of time as determined by the carrier.
(c) It is the telecommunications carrier's responsibility to ensure
its records are complete and accurate.
(d) Violation of this rule is subject to the penalties of
Sec. 64.2106.
Sec. 64.2105 Submission of policies and procedures and commission
review.
(a) Each telecommunications carrier shall file with the Commission
the policies and procedures it uses to comply with the requirements of
this subchapter. These policies and procedures shall be filed with the
Federal Communications Commission within 90 days of the effective date
of these rules, and thereafter, within 90 days of a carrier's merger or
divestiture or a carrier's amendment of its existing policies and
procedures.
(b) The Commission shall review each telecommunications carrier's
policies and procedures to determine whether they comply with the
requirements of Sec. 64.2103 and Sec. 64.2104.
(1) If, upon review, the Commission determines that a
telecommunications carrier's policies and procedures do not comply with
the requirements established under Sec. 64.2103 and Sec. 64.2104, the
telecommunications carrier shall modify its policies and procedures in
accordance with an order released by the Commission.
(2) The Commission shall review and order modification of a
telecommunications carrier's policies and procedures as may be
necessary to insure compliance by telecommunications carriers with the
requirements of the regulations prescribed under Sec. 64.2103 and
Sec. 64.2104.
Sec. 64.2106 Penalties.
In the event of a telecommunications carrier's violation of
Sec. 64.2103 or Sec. 64.2104 of this subchapter, the Commission shall
enforce the penalties articulated in 47 U.S.C. 503(b) of the
Communications Act of 1934 and 47 CFR 1.8.
[FR Doc. 99-24853 Filed 9-22-99; 8:45 am]
BILLING CODE 6712-01-P
