[Federal Register Volume 64, Number 187 (Tuesday, September 28, 1999)]
[Rules and Regulations]
[Pages 52244-52246]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-25145]



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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CC Docket No. 97-213; FCC 99-184]


Implementation of the Communications Assistance for Law 
Enforcement Act

AGENCY: Federal Communications Commission

ACTION: Final rule; reconsideration

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SUMMARY: This decision revises rules previously adopted to implement 
sections of the Communications Assistance for Law Enforcement Act. In 
particular, the Commission eliminates the requirement that 
telecommunications carriers retain records of call content or 
associated call-identifying information of any unauthorized or 
authorized interceptions. This decision also eliminates the ten-year 
retention requirement for such material regarding unauthorized 
interceptions. Instead, carriers must maintain their certification of 
such call intercepts for a reasonable period of time. The action is 
taken to make the rules more in keeping with Congressional intent. This 
decision adopts modified information collections subject to the 
Paperwork Reduction Act of 1995 (PRA). The general public and other 
Federal agencies are invited to comment on the proposed or modified 
information collections contained in this proceeding.

DATES: These rules contain information collections that have not been 
approved by OMB. The Commission will publish a document in the Federal 
Register announcing the effective dates of these rules. Public and 
agency comments are due on the information collections November 29, 
1999.

FOR FURTHER INFORMATION CONTACT: Thomas Wasilewski, 202-418-1310. For 
further information concerning the information collections contained in 
this Report and Order, contact Les Smith, Federal Communications 
Commission, Room 1A-804, 445 12th Street, S.W., Washington, DC 20054, 
or via the Internet at [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order 
on Reconsideration (Order) in CC Docket No. 97-213; FCC 99-184, adopted 
July 16, 1999, and released August 2, 1999. The complete text of this 
Order 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 Order on Reconsideration

    1. The Commission, on its own motion, adopts an Order on 
Reconsideration (Order) in CC Docket No. 97-213, regarding 
implementation of the Communications Assistance for Law Enforcement Act 
(CALEA). This Order is a limited reconsideration of the Commission's 
Rule, adopted in the Report and Order (R&O) in this proceeding. (FCC 
99-11.) regarding obligations placed upon carriers to maintain secure 
and accurate records or wiretap, pen register, and trap and trace 
interceptions.
    2. Section 64.2104(b) of the Commission rules adopted in the R&O, 
erroneously required carriers to retain records of call information and 
unauthorized interceptions, including the content of such 
interceptions, for ten years, and erroneously required carriers to 
retain records of content of authorized interceptions. The Commission 
thus eliminates these requirements and instead finds that carriers 
should maintain the certification, as described in Sec. 64.2104(a) for 
``a reasonable period of time.''

Administrative Matters

Supplemental Regulatory Flexibility Act Statement

    3. As required by the Regulatory Flexibility Act (RFA),1 
an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in 
the Notice of Proposed Rulemaking (NPRM) 2 in this 
proceeding implementing the Communications Assistance for Law 
Enforcement Act (CALEA or the Act). The Commission sought written 
public comment on the proposals in the NPRM, including the IRFA. A 
Final Regulatory Flexibility Analysis (FRFA) conforming to the RFA was 
then incorporated into the Report and Order implementing section 105 of 
the Act. The Commission's Supplemental Final Regulatory Flexibility 
Analysis (Supplemental FRFA) in this Order reflects revised or 
additional information to that contained in the FRFA. The Supplemental 
FRFA is thus limited to matters raised in response to the R&O and 
addressed in this Reconsideration. This Supplemental FRFA conforms to 
the RFA.3
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    \1\ See 5 U.S.C. 603. The RFA, 5 U.S.C. 601 et seq., has been 
amended by the Contract with America Advancement Act, Public Law No. 
104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA is the 
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA).
    \2\ 62 FR 63302, November 28, 1997.
    \3\ See 5 U.S.C. 604.
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(a) Need for and Purpose of this Action
    4. The actions taken in this Order are in response to letters 
requesting clarification of the rules that erroneously require carriers 
to retain records of call content or associated call-identifying 
information of any unauthorized or authorized interceptions. The 
limited revisions made in the Order are intended to clarify the rules 
adopted in the R&O by eliminating these erroneous requirements.
(b) Summary of the Issues Raised by Public Comments Made in Response to 
the FRFA
    5. No comments were received in direct response to the FRFA, but 
the Commission received several letters requesting clarification of the 
rules adopted in the R&O. After release of the R&O, but prior to 
publication of the rules in the Federal Register, the Commission 
received letters from CTIA and AirTouch stating that Sec. 64.2104(b) of 
the new rules erroneously requires carriers to retain records of call-
identifying information and unauthorized interceptions, including the 
content of such interceptions, and erroneously requires carriers to 
retain records of content of authorized interceptions. Subsequently, 
the Federal Bureau of Investigation (FBI) sent the Commission a letter 
supporting the position taken by CTIA and AirTouch on this issue, 
stating that those requirements ``are not mandated by section 105 of 
CALEA and that, in some respects, compliance with these requirements 
could cause a carrier to violate federal electronic surveillance 
laws,'' since those laws do not require or entitle carriers to acquire 
and retain such information, but merely direct them, according to 
lawful court orders and other authorizations, to provide the technical 
assistance necessary to aid law enforcement in making intercepts.
(c) Description and Estimates of the Number of Entities Affected by 
This Report and Order
    6. A Final Regulatory Flexibility Analysis was incorporated into 
the R&O. In that analysis, the Commission described in detail the small 
entities that might be significantly affected by the rules adopted in 
the R&O. Those entities may be found in a number of wireless services 
including: telephone companies, wireline carriers and service

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providers, local exchange carriers, interexchange carriers, competitive 
access providers, wireless radiotelephone carriers, cellular licensees, 
mobile service carriers, broadband personal communications service, SMR 
licensees, resellers, pay telephone operators, cable services or 
systems, and other pay services. In this Order, the Commission hereby 
incorporates by reference the description and estimate of the number of 
small entities from the previous FRFA in this proceeding.
    7. The rule changes in this Order will affect small entities as 
indicated in the FRFA presented in the R&O. To the extent that a rule 
change here affects a particular wireless service, our estimates 
contained in the R&O, remain valid as to the size of those services.
(d) Description of Projected Reporting, Recordkeeping and Other 
Compliance Requirements
    8. In this Order, the Commission adopts no new rules and impose no 
additional reporting, recordkeeping or other compliance requirements. 
The Commission does, however, adopt specific rule changes clarifying 
that we no longer find telecommunications carriers should retain the 
content or call-identifying information of any interceptions of 
communications. Moreover, the Commission no longer finds the 10 year 
record retention requirement to be necessary, since it was originally 
implemented in order to remain consistent with the record retention 
requirement in 18 U.S.C. 2518(8)(a) with regard to content of 
authorized call intercepts. Since the Commission is no longer requiring 
carriers to maintain records of content or call-identifying 
information, we find it more appropriate to allow carriers to maintain 
the certification for a ``reasonable period of time''. Thus, we are 
making conforming changes in Sec. 64.2104(b) of the Commission Rules by 
modifying the rules expressed in paragraph (f) of new Sec. 64.2103 and 
paragraph (b) of new Sec. 64.2104, as they appear in the R&O, and 
replace them with a revised final Secs. 64.2103(f) and 64.2104(b) of 
the Commission's Rules, as set forth in this Order.
(e) Steps Taken to Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered
    9. The analysis of the Commission's efforts to minimize the 
possible significant economic impact on small entities as described in 
the FRFA, is unchanged by the Order, save that the removal of the 
recordkeeping obligations described in section (d) above will result in 
a reduction of the recordkeeping burden for all entities affected by 
the R&O and this Order.
(f) Report to Congress
    10. The Commission shall send a copy of this Order, including this 
Supplemental FRFA, in a report to Congress pursuant to the Small 
Business Regulatory Enforcement Fairness Act of 1996, see 5 U.S.C. 
801(a)(1)(A). In addition, the Commission shall send a copy of this 
Order, including this Supplemental FRFA, to the Chief Counsel for 
Advocacy of the Small Business Administration. A copy of this order and 
Supplemental FRFA (or summaries thereof) will also be published in the 
Federal Register.

Ordering Clauses

    11. Accordingly, it is ordered that, pursuant to 47 CFR 1.108, 
(4)(i) and 4(j), and section 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, 
Sec. 64.2104(b) of the Commission's rules, 47 CFR 64.2104(b), is 
modified as set out in this decision.
    12. It is further ordered that the rules set forth in this decision 
will become effective 90 days after publication in the Federal 
Register.
    13. It is further ordered that the Commission's Office of Public 
Affairs, Reference Operations Division, shall send a copy of this Order 
on Reconsideration, including the Supplemental Final Regulatory 
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small 
Business Administration.

Paperwork Reduction Act

    14. This Order contains a modified information collection. The 
Commission, as part of its continuing effort to reduce paperwork 
burdens, invites the general public to comment on the possible 
information collections contained in this Order, as required by the 
Paperwork Reduction Act of 1995, Public Law No. 104-13. Written 
comments must be submitted by the public and by other Agencies on the 
proposed information collections on or before November 29, 1999. 
Comments should address: (1) 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; (2) the accuracy of the Commission's burden estimates; (3) 
ways to enhance the quality, utility, and clarity of the information 
collected; and (4) 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, Order on 
Reconsideration.
    Form No.: N.A.
    Type of Review: Modification of Existing Collection.
    Respondents: Business and other for-profit and non-profit 
institutions.
    Number of Respondents: 5,000.
    Estimated Time Per Response: 25 hours.
    Needs and Uses: This modification decreases the recordkeeping 
burden on carriers imposed in the R&O, to remain constistent with the 
record retention requirement in 18 U.S.C. 2518(8)(a).

List of Subjects in 47 CFR Part 64

    Communications common carriers, Reporting and recordkeeping 
requirements.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.

Rule Changes

    Part 64 of Title 47 of the Code of Federal Regulations is amended 
as follows:

PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS

    1. The authority citation for Part 64 continues to read as follows:

    Authority: 47 U.S.C. 151, 154, 201, 202, 205, 218-220, and 332 
unless otherwise noted. Interpret or apply 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. Section 64.2103 is amended by revising paragraph (f) to read as 
follows:


Sec. 64.2103  Policies and procedures for employee supervision and 
control.

* * * * *
    (f) Include, in its policies and procedures, a detailed description 
of how long it will maintain its records of each interception of 
communications or access to call-identifying information pursuant to 
Sec. 64.2104.
    3. Section 64.2104 is amended by revising paragraph (b) to read as 
follows:


Sec. 64.2104  Maintaining secure and accurate records.

* * * * *
    (b) A telecommunications carrier shall maintain the secure and 
accurate records set forth in paragraph (a) for a

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reasonable period of time as determined by the carrier.
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[FR Doc. 99-25145 Filed 9-27-99; 8:45 am]
BILLING CODE 6712-01-P