[Federal Register Volume 65, Number 127 (Friday, June 30, 2000)]
[Notices]
[Pages 40694-40700]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-16584]


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DEPARTMENT OF JUSTICE

Federal Bureau of Investigation


Implementation of Section 104 of the Communications Assistance 
for Law Enforcement Act: Capacity Requirements for Paging (Traditional, 
Advanced Messaging, and Ancillary Services), Mobile Satellite System, 
and Analog and Digital Specialized Mobile Radio

AGENCY: Federal Bureau of Investigation, DOJ.

ACTION: Further notice of inquiry.

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SUMMARY: The Communications Assistance for Law Enforcement Act (CALEA) 
mandates that the Attorney General provide capacity requirements for 
the actual and maximum number of interceptions (of both call content 
and call-identifying information) that telecommunications carriers may 
be required to accommodate in support of law enforcement's electronic 
surveillance needs. On December 15, 1998, the Federal Bureau of 
Investigation (FBI) released a Notice of Inquiry (NOI) entitled 
``Capacity Requirements for Telecommunications Services Other Than 
Local Exchange Services, Cellular Services, and Broadband PCS'' (63 FR 
70160, December 18, 1998) to obtain public comment on the FBI's efforts 
to establish law enforcement's capacity requirements for services other 
than local exchange services, cellular, and broadband personal 
communications services (PCS). The FBI received comments from numerous 
telecommunications carriers and telecommunications industry 
associations. After careful consideration of the record, the FBI has 
decided to use this Further Notice of Inquiry (FNOI) to seek additional 
input on the various issues related to establishing a Notice of 
Capacity for only the following telecommunications services at this 
time: paging (including traditional (one-way paging), advanced 
messaging (e.g., two-way paging and roaming), and ancillary services), 
mobile satellite system (MSS), and analog specialized mobile radio 
(SMR) and digital SMR (e.g., enhanced specialized mobile radio (ESMR)).

DATES: Comments must be received on or before August 29, 2000.

ADDRESSES: Comments should be submitted to the Federal Bureau of 
Investigation, CALEA Implementation Section, Attention: Further Notice 
of Inquiry, 14800 Conference Center Drive, Suite 300, Chantilly, VA 
20151.

FOR FURTHER INFORMATION CONTACT: Program Manager for Capacity, CALEA 
Implementation Section, 703-814-4836 or 800-551-0336.

SUPPLEMENTARY INFORMATION:

I. Background

A. Capacity Notice Mandate

    The Communications Assistance for Law Enforcement Act (CALEA) 
became law on October 25, 1994.\1\ It was enacted to preserve law 
enforcement's ability to access call content and call-identifying 
information, pursuant to lawful authorization, notwithstanding 
technological advances in the provision of communications services. 
Section 104(a)(1) of CALEA outlines the procedure by which the Attorney 
General is obligated to publish notices of the actual and maximum 
capacity requirements for simultaneous electronic surveillance. After 
``notice and comment'' and ``consulting with State and local law 
enforcement agencies, telecommunications carriers, providers of 
telecommunications support services, and manufacturers of 
telecommunications equipment,'' the

[[Page 40695]]

Attorney General is required to publish in the Federal Register notice 
of the estimated actual and maximum capacity requirements needed to 
accommodate the electronic surveillance that government agencies may 
conduct and use simultaneously.
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    \1\ Pub. L. 103-414, 108 Stat. 4279 (1994) (Title I codified at 
47 U.S.C. 1001-1010).
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    This FNOI is part of the rulemaking process initiated pursuant to 
section 104 of CALEA. On March 3, 1995, the Attorney General delegated 
to the Director of the FBI, or his designee(s), the authority to carry 
out the responsibilities conferred upon the Attorney General pursuant 
to section 104 of CALEA. The FBI is implementing CALEA on behalf of all 
federal, state, and local law enforcement agencies.

B. Final Notice of Capacity and Notice of Inquiry

    The FBI began the process of implementing sec. 104 by publishing a 
Final Notice of Capacity in the Federal Register on March 12, 1998 (63 
FR 12218). The Final Notice of Capacity adopted capacity requirements 
for three telecommunications services that law enforcement viewed as 
its highest priorities for implementing lawfully-authorized 
interceptions. Specifically, the Final Notice of Capacity adopted 
actual and maximum capacity requirements for local exchange services, 
cellular service, and broadband PCS. The Final Notice of Capacity 
stated explicitly that other telecommunications services besides local 
exchange, cellular, and broadband PCS would be addressed in future 
Notices of Capacity.
    As a continuation of the capacity process, the NOI published in 
December 1998 provided commenters with an opportunity to provide input 
to the FBI as it develops law enforcement's capacity requirements for 
telecommunications services other than local exchange, cellular, and 
broadband PCS.

C. Rationale for This FNOI

    Both the Final Notice of Capacity and the NOI discussed the FBI's 
intent to establish capacity requirements for all telecommunications 
services.\2\ This FNOI represents the next step in the process of 
issuing Notices of Capacity for all telecommunications services. In 
response to the NOI, however, a few commenters questioned the 
appropriateness and timeliness of proceeding with establishing capacity 
requirements in light of the Federal Communications Commission's (FCC) 
continuing CALEA implementation and the ongoing lawsuit in federal 
court. In the interim, the FCC has issued decisions regarding CALEA 
that were pending when parties filed their comments to the NOI.\3\
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    \2\ Final Notice of Capacity, 63 FR 12220 (``Capacity notices 
will eventually be issued covering all telecommunications 
carriers.''); Implementation of section 104 of the Communications 
Assistance for Law Enforcement Act: Telecommunications Services 
Other than Local Exchange Services, Cellular, and Broadband PCS, 
Notice of Inquiry, 63 FR 70160, 70161 (1998) (NOI) (``Exclusion from 
the March 12, 1998 Final Notice of Capacity of other 
telecommunications carriers * * * does not exempt them from the 
statutory obligations of CALEA.''); see also Implementation of 
section 104 of the Communications Assistance for Law Enforcement 
Act, Second Notice and Request for Comments, 62 FR 1902, 1904 
(1997).
    \3\ Communications Assistance for Law Enforcement, Second Report 
and Order, CC Docket No. 97-213 (rel. Aug. 31, 1999) (Second Report 
and Order); Communications Assistance for Law Enforcement, Third 
Report and Order, CC Docket No. 97-213 (rel. Aug. 31, 1999).
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    This FNOI makes appropriate reference to the relevant portions of 
these FCC decisions insofar as they affect this Notice of Capacity 
proceeding. With respect to the ongoing litigation,\4\ the lawsuit is 
directed specifically at the conclusions reached in the Final Notice of 
Capacity concerning local exchange service, cellular service, and 
broadband PCS. Thus, the lawsuit does not affect the FBI's duty under 
CALEA to establish capacity requirements for any remaining 
telecommunications services. Consequently, the FBI invites commenters 
to provide further input on the appropriate methodologies for setting 
capacity requirements for paging, Mobile Satellite System (MSS), and 
Specialized Mobile Radio (SMR) services.
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    \4\ United States Telecom Ass'n v. F.B.I., No. 1:98CV02010 
(D.D.C. filed August 19, 1998). On December 13, 1999, the Cellular 
Telecommunications Industry Association, the Personal Communications 
Industry Association, and the Telecommunications Industry 
Association filed a joint motion to withdraw without prejudice from 
the pending lawsuit. The joint motion was granted by the court on 
that same date. The United States Telecom Association is the only 
remaining plaintiff in the pending capacity litigation.
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    A few commenters on the NOI have asserted that the FBI is precluded 
from establishing any capacity requirements because the statutory 
deadline has passed. The FBI finds this assertion to be unpersuasive 
for a number of reasons. First, despite section 104(a)(1)'s requirement 
that the Attorney General publish capacity notices within one year 
after CALEA's date of enactment, the plain statutory language of 
section 104(b) clearly anticipates that this time limit might not be 
met. Specifically, section 104(b) gives telecommunications carriers up 
to three years to comply with any capacity notice published by the 
government. Second, consistent with the plain statutory language, the 
legislative history of CALEA explicitly supports the position that the 
section 104(a)(1) time limit does not deprive the Attorney General of 
her authority to issue capacity notices. The legislative history 
clearly states, ``In the event the Attorney General publishes the 
notices after the statutory time limit, carriers will have three years 
thereafter to comply, which time period will fall after the effective 
date of section (103).'' \5\ Third, there is a substantial body of 
federal case law which holds that the failure of an agency to observe a 
procedural requirement does not void subsequent agency action.\6\ 
Guided by this precedent, the legislative history, and the plain 
statutory language, the FBI will continue the process of establishing 
capacity requirements as mandated by CALEA.
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    \5\ H.R. Rep. No. 103-827, pt. 1, at 25 (1994).
    \6\ See Brock v. Pierce County, 476 U.S. 253 (1986) (failure of 
agency to observe procedural requirement represented by the word 
``shall'' was not enough to remove the Secretary's power to act 
after 120 days and does not void subsequent agency action, 
especially when important public rights are at stake); see also 
William G. Tadlock Constr. v. United States Department of Defense, 
91 F.3d 1335, 1341 (9th Cir. 1996) (failure to follow statutory 
deadlines does not deprive the agency of jurisdiction); Idaho Farm 
Bureau Fed'n v. Babbitt, 58 F.3d 1392, 1395 (9th Cir. 1995) 
(requirement that Secretary ``shall'' publish proposed addition to 
the list of endangered species within one year does not proscribe 
listing a species as endangered after the statutory time limit had 
passed); Gottlieb v. Pepa, 41 F.3d 730, 731 (D.C. Cir. 1994) 
(language instructing that Secretary of Transportation ``shall'' 
ensure final action on correction applications is taken within 10 
months of receipt is directory rather than mandatory); National 
Cable Television Ass'n. v. Copyright Royalty Tribunal, 724 F.2d 176, 
189, n.23 (D.C. Cir. 1983) (requirement tribunal ``shall'' render a 
decision within one year does not make a later decision void); 
Marshall v. N. L. Indus., 618 F.2d 1220, 1224-1225 (7th Cir. 1980) 
(failure to meet requirement that Secretary of Labor ``shall'' make 
determination on employee's complaint within 90 days does not bar 
subsequent enforcement action); Marshall v. Local Union 1374 Int'l 
Ass'n of Machinists & Aerospace Workers, 558 F.2d 1354 (9th Cir. 
1977) (requirement that Secretary of Labor ``shall'' bring suit 
within 60 days of receiving complaint does not bar later suit).
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    Finally, some commenters contend that the FBI must first 
demonstrate a capacity need with respect to each telecommunications 
service before it can establish capacity requirements for that service. 
CALEA does not require the FBI to conclusively demonstrate its capacity 
needs with respect to a particular telecommunications service. Rather, 
section 104(a) allows the Attorney General to estimate actual and 
maximum capacity requirements which may be based upon such 
considerations as the type of equipment, type of service, number of 
subscribers, type or size of carrier, nature of service area, or any 
other measure, provided that the capacity requirements are identified, 
to

[[Page 40696]]

the maximum extent practicable, with a specific geographic location. 
Thus, the statute permits the Attorney General to estimate reasonable 
actual and maximum capacity requirements despite the absence of 
historical intercept data or a demonstrated need with respect to a 
particular telecommunications service.

II. Establishing Notice of Capacity Requirements for Paging, MSS, 
and SMR Services

A. Scope of this FNOI

    The FBI notes the numerous helpful comments that it received on the 
initial NOI, all of which it carefully considered. However, the 
comments received did not provide complete information about some of 
the matters that the FBI put forth for discussion. Also, the comments 
have raised additional issues that the FBI believes are worthy of 
further public discussion. The FBI is publishing this FNOI in order to 
obtain additional information so that it can avoid setting capacity 
requirements too low (which would impair the effectiveness of CALEA) or 
too high (which would place an unnecessary burden on industry.)
    In the NOI, the FBI sought comment on ways in which capacity 
requirements could be established for telecommunications services other 
than local exchange, cellular, and broadband PCS. The NOI encouraged 
all carriers that offer telecommunications services that were not 
covered by the Final Notice of Capacity to comment on the issues raised 
in the NOI. To facilitate the dialogue, the NOI set forth the following 
list of eleven services that had not been addressed in the Final Notice 
of Capacity: traditional paging, advanced messaging, ancillary 
services, MSS, SMR and ESMR, national and multi-rate services, ATM, 
X.25, frame relay, airplane telephony, and railroad telephony.
    After careful consideration of the record, the FBI has decided to 
use this FNOI to seek additional input on the various issues related to 
establishing a Notice of Capacity for only the following 
telecommunications services at this time: Paging (including traditional 
(one-way paging), advanced messaging (e.g., two-way paging and 
roaming), and ancillary services), MSS, and analog and digital SMR 
services. At present, it is the FBI's priority to ensure that providers 
of these types of telecommunications services can provide law 
enforcement with the technical capacity to carry out lawfully-
authorized electronic surveillance. As stated in the Final Notice of 
Capacity, the FBI will eventually publish Notices of Capacity for all 
telecommunications services covered by CALEA.

B. Services Covered by This Notice of Capacity Proceeding

1. Paging Services
    The term ``paging services'' is used throughout this FNOI to 
describe the three most common types of paging and messaging services: 
traditional one-way paging, advanced messaging services, and ancillary 
services. Traditional one-way paging refers to a category of service 
offerings that include tone-only, tone plus voice, numeric display, 
alphanumeric display, and voice message options. Advanced messaging 
services allow additional features including two-way communications 
between radio transceiving devices and roaming. Many of these services 
are sometimes referred to as narrowband PCS. Ancillary services are 
connectivity-related, real-time voice services. Ancillary services 
resemble telephony services. For example, ``caller/subscriber 
bridging'' allows a caller to speak to the subscriber through the 
paging terminal or the paging messaging switch, which answers calls, 
places the caller on hold, pages the subscriber, and then connects the 
held calling party to the subscriber. Two other services often included 
are outdial and one-number service.
    Paging services are widely deployed throughout the United States 
and, generally, have been available longer than MSS and SMR services. 
Paging is one of the most universally available services and the 
industry continues to enjoy high subscribership growth rates.
    Law enforcement officials have found that the flexible, mobile 
nature of the various paging services makes these services attractive 
to criminals, especially to groups engaged in organized criminal 
activities. Paging services have traditionally been a major intercept 
target for law enforcement.
2. MSS Services
    MSSs are satellite systems capable of providing voice and data 
services to end-users via small, handheld or portable mobile receiving 
terminals using constellations of low earth orbit (LEO) or middle earth 
orbit satellites. Additionally, some satellite service systems contain 
fixed satellite service elements, such as satellite-based payphones and 
desk-top telephones, even though they are commonly referred to as 
``mobile'' satellite services.
    MSSs provide a wide range of services, including voice, data, 
video, paging, and messaging. Also, some MSS carriers have dual-mode 
user terminals that permit users to switch between terrestrial cellular 
service and MSS service. In this FNOI, the term MSS is meant to include 
those satellite entities that provide the transmission or switching of 
telecommunications services through intersatellite links or earth 
stations/gateways regardless of whether the receiving and sending 
terminals are mobile or fixed. The MSS service subscribership rates 
have the potential to increase significantly from current levels within 
the next few years.
3. SMR Services
    The NOI referred to the terms ``SMR and ESMR.'' ``ESMR'' is a term 
used generally to refer to digital SMR service offerings. Relevant FCC 
regulations (47 CFR part 20 and part 90) use the term ``SMR,'' to 
include analog SMR and digital SMR. In this FNOI, the FBI adopts the 
FCC's terminology with respect to SMR services.
    The most important distinction for SMR services in regard to CALEA 
compliancy is the difference in the definitions of commercial mobile 
radio service (CMRS) and private mobile radio service (PMRS). In its 
Second Report and Order, the FCC has held that CMRS providers are 
considered to be telecommunications carriers for the purposes of CALEA, 
but PMRS providers are not subject to CALEA unless they offer service 
that qualifies as CMRS. For purposes of CALEA, the key factor that 
separates CMRS from PMRS is interconnection to the public switched 
telephone network (PSTN); interconnected service is considered to be 
CMRS, which is subject to CALEA, whereas pure dispatch service with no 
interconnection is considered to be PMRS, which is not covered by 
CALEA.
    SMR service is a commercial-based telecommunications service that 
uses either analog or digital technology between mobile radio units and 
base stations. SMR services are provided in different frequency bands.
    The introduction of digital SMR services such as ``push-to-talk'' 
interconnected dispatch service has attracted a new group of 
subscribers, whose numbers will probably continue to grow. Like paging 
and MSS services, the mobile nature of SMR services makes them 
convenient for furthering criminal activity.

C. Possible Methodologies for Establishing Capacity Requirements

1. Basis of Notices
    Section 104(a)(2)(A) of CALEA states that capacity notices ``may be 
based upon the type of equipment, type of

[[Page 40697]]

service, number of subscribers, type or size or [sic] carrier, nature 
of service area, or any other measure.'' Section 104(a)(2)(B) indicates 
that capacity notices ``shall identify, to the maximum extent 
practicable, the capacity required at specific geographic locations.'' 
The FBI has identified possible methods for calculating capacity 
requirements based on these principles, and requests commenters to 
provide input on them.
2. Historical Data in General
    Commenters have correctly noted that there is little electronic 
surveillance history for many of the telecommunications services 
identified in the NOI. There are several contributing factors that 
explain this near absence of surveillance history. First, the lack of a 
technical electronic surveillance solution for some of these services 
essentially precludes law enforcement from even seeking court 
authorizations for surveillance. Second, many of these services are 
relatively new and have had little time to establish surveillance 
histories. Third, the recent and dramatic increase in subscribership 
rates for many of these telecommunications services has lead to a 
newfound interest on the part of law enforcement in these services. 
Despite these factors, some commenters have argued that it is premature 
for the FBI to develop capacity requirements at this time given the 
lack of historical electronic surveillance data on these particular 
telecommunications services. As stated previously, the lack of 
historical data for many of the telecommunications services listed in 
the NOI does not preclude the FBI from estimating reasonable actual and 
maximum capacity requirements for these services.
    Similarly, some commenters have suggested basing actual capacity 
requirements on the number of intercepts recorded in the Wiretap Report 
filed annually with the Administrative Office of the United States 
Courts,\7\ or one of the other reports \8\ that list intercept 
activity. There is no report, however, that records all of the 
surveillances addressed by CALEA. Additionally, the surveillances that 
are reported in the Wiretap Report, as previously discussed in the 
Final Notice of Capacity, do not identify the actual number of lines 
for call content interceptions associated with each court order, nor 
the number of lines associated with the acquisition of call-identifying 
information interceptions (e.g., from pen registers and trap and trace 
devices) that have been performed by all law enforcement agencies. In 
addition, the Wiretap Report does not disaggregate the numbers of 
intercepts according to the specific type of service provided (e.g., 
traditional one-way paging, advanced messaging or ancillary services). 
The intercept activity recorded in the Wiretap Reports does not provide 
an accurate baseline for law enforcement to estimate its capacity 
needs. Further, most of the services covered by this FNOI are new 
technologies with limited intercept histories, but large potential 
intercept needs. Thus, for paging, MSS, and SMR services, the 
information contained in the Wiretap Reports is not a complete record 
of intercept activity.
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    \7\ The Omnibus Crime Control and Safe Streets Act of 1968 
requires the Administrative Office of the United States Courts to 
report to Congress in April of each year the number and nature of 
federal and state applications for orders authorizing or approving 
the interception of wire, oral, or electronic communications. 18 
U.S.C. 2519(1).
    \8\ The Foreign Intelligence Surveillance Act requires the 
Attorney General to report annually to the Administrative Office of 
the United States Courts and to Congress the total number of 
applications made for orders and extensions of orders approving 
electronic surveillance and the total number of such orders and 
extensions either granted, modified, or denied. 50 U.S.C. Sec. 1807. 
In addition, the Electronic Communications Privacy Act requires the 
Attorney General to report annually to Congress the number of orders 
for pen registers and trap and trace devices applied for by law 
enforcement agencies of the Department of Justice. 18 U.S.C. 3126.
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3. Potential Methodologies for Setting Capacity Requirements for Paging 
Services
    Commenters have raised several arguments in favor of setting 
distinct capacity requirements for traditional one-way paging; advanced 
messaging services; and ancillary services offered by paging service 
providers. The FBI finds some of these arguments persuasive. In 
addition, one commenter asserts that it is not necessary to establish a 
specific capacity requirement for traditional one-way paging because 
law enforcement typically uses a cloned pager to obtain call content or 
call-identifying information pursuant to a court order. Although law 
enforcement has used cloned pagers to implement surveillance orders in 
the past, a different intercept method may be used in the future. 
Moreover, the use of cloned pagers may not provide law enforcement with 
all of the information to which it might be entitled under a specific 
court order. Accordingly, the FBI will include traditional one-way 
paging service as one of the three categories of paging services when 
it establishes capacity requirements for these services.
    a. Historical Data for Paging Intercepts. Unlike more recently 
deployed services such as MSS service, traditional one-way paging 
service has a significant history of law enforcement surveillance 
intercepts. As discussed above, however, the Wiretap Report is not a 
sufficient source of data upon which capacity requirements can be 
based.
    b. Geographic Basis. Section 104 (a) (2) (B) of CALEA provides that 
notices of capacity ``shall identify, to the maximum extent 
practicable, the capacity required at specific geographic locations.'' 
Paging services seem to lend themselves to geographic classification 
because the FCC issues licenses for most paging services on a 
geographic basis. One commenter recommends that traditional one-way 
paging service be based on each provider's composite service area, 
rather than on a predefined geographic market basis. For advanced 
messaging and ancillary services, this commenter suggests basing 
capacity requirements on the Major Trading Area (MTA), unless a carrier 
can provide interface and processing capacity at one nationwide point 
on its network. The FBI seeks comment on the extent to which MTAs 
represent geographic areas that are appropriate for basing capacity 
requirements, and requests comments on any other geographic boundaries 
that should be considered.
    c. Per Carrier Basis. One commenter suggests that capacity 
requirements for traditional one-way paging services should be applied 
to each paging service provider's operations nationwide, rather than in 
each geographic market served. Additionally, this commenter noted that 
providers of traditional one-way paging services provide service over 
vastly differing areas, and that no single geographic area can be used 
for determining the proper capacity requirement. Although the FBI's 
initial preference would be to establish capacity requirements that are 
tied to uniform geographic areas throughout the paging industry, 
comments are sought on the suggestion that capacity for traditional 
one-way paging service providers should be based on each carrier's 
service area.
    d. Percentage of Subscribers. A commenter also recommends that the 
capacity requirements for paging service providers should be determined 
by application of a standardized percentage to the number of subscriber 
units the service provider serves, subject to certain limits. Under the 
approach advocated by this commenter, the percentage would be based on 
the historical incidence of paging intercepts, and would be calculated

[[Page 40698]]

separately for traditional one-way paging services, advanced messaging 
services, and ancillary services.
    As discussed previously, the historical incidence of paging 
intercepts is of little utility because the Wiretap Report is not a 
sufficient source of data upon which capacity requirements can be 
based. Nonetheless, the FBI seeks comment on the general parameters of 
this commenter's proposal to base capacity requirements on a percentage 
of paging service providers' subscribers. The FBI seeks comment on the 
merits of this approach, specifically in terms of increasing a 
carrier's capacity requirements as its growth rate increases. 
Commenters may propose suggestions as to how the FBI could obtain up-
to-date subscribership data from paging service providers. The FBI also 
seeks comment on how, under this proposed approach, paging service 
providers could be certain at all times that they are in compliance 
based on the number of end users they serve at any given time. One 
commenter favors this approach because it does not set fixed capacity 
requirements. But it is possible that basing capacity on a percentage 
of subscribers would provide less certainty to carriers for purposes of 
building their networks and planning for network expansion than would 
an approach that articulates capacity as a fixed number of intercepts. 
The FBI seeks comment on the merits and defects in this proposed 
approach.
    e. Level of Subscribership. Another potential methodology would 
link capacity requirements to subscribership using a fixed capacity 
number, rather than a percentage, associated with ranges of increasing 
subscriber numbers. For example, actual and maximum capacity numbers 
would be set for paging service providers who serve, for example, 
between one and 500,000 subscribers in a specified geographic area. 
Higher capacity requirements would be established for companies who 
serve, for example, 500,000 to 1,000,000 subscribers within a 
geographic area. As a service provider's subscribership grows, capacity 
requirements would increase, but only to specific predefined limits. 
Capacity requirements would peak after a carrier reached a specific 
number of subscribers. This approach would achieve results similar to 
the proposed method involving percentages of subscribers, except that 
it arguably would provide paging service providers with more certainty 
regarding specific numbers of intercepts they would be required to 
accommodate on their networks. The FBI seeks comment on the potential 
of this approach. In addition, the FBI seeks comment on the appropriate 
ranges of numbers of subscribers that could be used, based on the 
smallest number of subscribers served by a carrier in the paging 
industry and the subscribership bases of the largest providers of 
paging services.
    f. Additional Considerations. Commenters are requested to submit 
any additional considerations that should be factored into a 
methodology for establishing capacity requirements for paging service 
providers. For example, law enforcement's capacity needs are generally 
higher in traditionally high crime areas. Thus, the FBI seeks comment 
on how a methodology for developing capacity requirements for paging 
services can take into consideration the differences in criminal 
activity that take place in various parts of the country. The FBI seeks 
comment on any other methodologies that might be used to establish 
capacity requirements for paging service providers. Commenters are 
invited to provide details regarding any such proposal.
4. Potential Methodologies for Setting Capacity Requirements for MSS 
Services
    At the outset, the FBI notes that MSS service providers, despite 
their nontraditional regulatory history,\9\ are expressly included 
among the service providers listed in CALEA's legislative history.\10\ 
The MSSs currently in existence or in their planning stages vary 
greatly in terms of their network architecture, business plans, and 
service offerings. To the extent that MSS service providers offer 
support services to their contracted or designated common carrier/
reseller, MSS service providers are liable under section 106 of CALEA, 
which contains provisions for providers of telecommunications support 
services. To the extent that an MSS carrier/reseller enables a customer 
to originate, terminate, or direct communications, it is subject to 
CALEA requirements.\11\
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    \9\ For example, the FCC has determined that some MSS service 
providers are not common carriers. See Report and Order, CC Docket 
No. 92-76, FCC 93-478 (released Nov. 16, 1993) (Little LEO Report 
and Order); Report and Order, CC Docket No. 92-166, FCC 94-261 (rel. 
Oct. 14, 1994) (Big LEO Report and Order); and Report and Order, IB 
Docket No. 96-220 (rel. Oct. 15, 1997) (Little LEO Report and 
Order).
    \10\ See 140 Cong. Rec. H-10779 (daily ed. Oct. 7, 1994) 
(statement of Rep. Hyde); see also Second Report and Order at para. 
10, n.25 (citing legislative history); para. 14.
    \11\ See Second Report and Order at para. 11, n.26 (citing 
legislative history).
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    Given the differences among MSSs, MSS service providers are 
requested to submit comments describing their unique circumstances. For 
example, some MSS service providers serve as space station licensees 
that only sell access to a designated or contracted carrier/reseller, 
who offers telecommunications services to the public. Additionally, 
some other MSS service providers may own their own earth station/
gateway, and are directly involved in the transmission of 
communications to the public. The FCC noted in its Second Report and 
Order that a reseller's responsibility under CALEA is limited to its 
facilities. We read this to mean that an MSS reseller is not 
responsible for the CALEA obligations pertaining to the capacity of the 
MSS service provider's underlying facilities whose services it is 
reselling. The FBI seeks comment on how the MSS service provider will 
meet its obligation to comply with CALEA, and how the carrier/reseller 
that purchases access from the MSS service provider will comply with 
CALEA. In addition, the FBI requests that MSS service providers/space 
station licensees identify the carrier(s)/reseller(s) and any other 
entity that holds a gateway or earth station license for services that 
use the MSS space station. The FBI emphasizes the need, based upon the 
heterogeneous nature of the players in the MSS industry, for specific 
comment on these and other issues from each MSS service provider and 
each MSS carrier/reseller that serves, or plans to serve, the United 
States.
    In response to the NOI, commenters suggested various methodologies 
that could be used to develop capacity requirements for MSS service 
providers and MSS carriers/resellers. Commenters are requested to 
supply detailed comments on these proposals as outlined below, and, in 
particular, to identify specific characteristics of MSS service 
providers and MSS carriers/resellers that should be taken into 
consideration as the FBI establishes capacity requirements for MSS 
service providers and carriers/resellers.
    a. Historical Data for MSS Intercepts. Historical data concerning 
law enforcement's intercept activity can supply valuable insights into 
establishing capacity requirements with respect to some 
telecommunications services, such as local exchange service. The 
historical data for MSS is not helpful because MSS service is a 
relatively new service that has not yet been widely deployed.
    In response to the NOI, commenters have expressed mixed opinions 
regarding the use of historical data as a foundation for establishing 
MSS capacity requirements. Some commenters support using historical

[[Page 40699]]

data because it demonstrates the extremely low number of actual MSS 
intercept requests to date. These commenters assert that the low number 
of actual intercepts indicates that a low capacity requirement should 
be created. One commenter, however, points out the difficulties in 
using historical data on which to base MSS capacity requirements 
because of the lack of any comprehensive statistics for MSS 
interceptions. In addition, a few commenters point out that because MSS 
is so different from traditional wireless services, it is impossible to 
take historical data from terrestrial wireless intercepts and 
extrapolate MSS (non-terrestrial) capacity requirements.
    Given the emerging nature of the MSS industry and its relatively 
low current subscribership numbers, it appears that a capacity 
methodology based on historical data is not appropriate for MSS 
services. The number of intercepts to date does not take into account 
the satellite industry's new market entrants or its potential market 
growth. At this point, increased subscribership to MSS would make 
capacity requirements based on existing historical intercept activity 
obsolete. The FBI requests commenters to provide input on this 
statement, and suggest any alternatives or supplementary information.
    b. Geographic Basis/Per Gateway. In the Final Notice of Capacity, 
the capacity requirements for wireless carriers (i.e., cellular and 
broadband PCS) were based upon market service areas, in particular, 
Metropolitan Statistical Areas and Rural Statistical Areas for 
cellular, and Major Trading Areas and Basic Trading Areas for broadband 
PCS. As various commenters have pointed out, these specific 
geographical designations would be inappropriate to apply to MSS 
carriers because their earth gateways service vast territories. For 
example, some MSS carriers use two or three gateways to provide service 
to the entire United States. These same gateways can also provide 
service to Canada and Mexico.
    Some commenters have also suggested that MSS capacity requirements 
be configured on a per-gateway basis. A significant concern with this 
approach is that the capacity notice will need to be modified whenever 
an MSS carrier installs or deploys a new gateway which provides service 
to the United States. Commenters are requested to take this concern 
into account when providing input on the practicality of this approach.
    c. Per Carrier Basis. Some commenters stress that it would be 
difficult to create a standard capacity requirement for all MSS 
carriers and suggest establishing capacity requirements on a per-
carrier basis. Unlike other types of telecommunications carriers, each 
MSS service provider has a network architecture and business plan that 
is distinct from other MSS service providers. Moreover, the MSS 
industry differs from other telecommunications providers in that a 
potentially large portion of the future market could be served by 
carriers that are currently in the planning stages and not yet offering 
service. The FBI seeks comment on which methodology might be applied to 
various carriers based on their unique characteristics.
    d. Percentage of Subscribers. A methodology based on a percentage 
of an MSS carrier's subscribers, as discussed in detail above with 
respect to paging service providers, would result in capacity 
requirements that reflect a percentage of an MSS carrier's overall 
customer base. Under this approach, the capacity requirement for 
carriers that have low subscribership would be relatively low, but the 
requirement would increase--only up to a certain, pre-established 
point--as subscribership grows. This approach would require the FBI to 
have accurate, up-to-date subscribership data. The FBI seeks comment on 
the viability of basing capacity requirements for MSS carriers on a 
percentage of their subscribers. The FBI also seeks comment on whether 
there are existing sources of subscribership data that could be used to 
calculate capacity requirements, including whether MSS carriers 
publicly and routinely release the number of customers they serve.
    e. Percentage of Engineered Capacity. The Initial Notice of 
Capacity, released in 1995, defines engineered capacity as ``the 
maximum number of subscribers that can be served by that equipment, 
facility, or services'' (60 FR 53643, 53645). A commenter proposes that 
MSS capacity requirements could be based on a percentage of engineered 
capacity. The same commenter stipulates, however, that a percentage of 
engineered capacity should be used only if it is applied to the current 
serving capacity of the gateway, as opposed to the capacity to which 
the gateway can be ultimately expanded. This commenter indicates that 
because MSS services will have a very small customer base initially, 
and therefore a small amount of available capacity, if the FBI requires 
a percentage based on all of a gateway's potential serving capacity, 
``far too much capacity will be required at the initial deployment 
stage, imposing significant cost and technical constraints.'' 
Furthermore, some commenters suggest that if a percentage of engineered 
capacity approach is used, then the percentage should be set at the 
0.05 percent actual and 0.25 percent maximum ``Category III 
requirements'' because MSS carriers primarily serve rural and remote 
areas.\12\
---------------------------------------------------------------------------

    \12\ In the Initial Notice of Capacity, a methodology was 
established that used geographic regions as a basis for configuring 
capacity requirements. The reasoning behind this approach was that 
densely populated areas usually receive more wiretap requests from 
law enforcement than rural areas. Therefore, telecommunications 
carriers serving densely populated areas would be required to 
reserve more capacity for law enforcement's use then those serving 
rural areas. Category III is the lowest intercept category, 
representing law enforcement's minimum acceptable capacity 
requirements for electronic surveillance activity. Category III 
actual capacity was set for 0.05 percent of the engineered capacity, 
and the maximum capacity for 0.25 percent of the engineered 
capacity. Initial Notice of Capacity at 53645.
---------------------------------------------------------------------------

    Using a percentage of engineered capacity methodology to establish 
capacity for MSS carriers offers a flexible approach, but might be 
difficult to implement. For example, after a percentage was 
established, an MSS carrier would be required to supply data on its 
equipment, facilities, and other network elements, and would have to 
submit periodic updates on any changes to these system components. In 
addition, because the architecture of each MSS carrier is unique, it 
may be difficult to establish a uniform percentage that all MSS 
carriers could accommodate. If this methodology were combined with a 
per-carrier approach, however, each capacity requirement could be 
specific to each MSS carrier.
    The FBI seeks comment on the viability of using a percentage of 
engineered capacity as a means of establishing MSS capacity 
requirements. The FBI requests commenters to identify the equipment, 
facilities, and other network elements that would have to be examined 
in order to use this approach to determine capacity requirements.
5. Potential Methodologies for Setting Capacity Requirements for SMR 
Services
    In its Second Report and Order, the FCC has concluded that all SMR 
services which are interconnected to the PSTN are subject to CALEA. 
Specifically, the FCC indicated that push-to-talk ``dispatch'' service 
is subject to CALEA to the extent it is offered in conjunction with 
interconnected service.
    Commenters have suggested a variety of methodologies for 
establishing capacity requirements for SMR service providers. The 
methodologies proposed on the record, as well as additional

[[Page 40700]]

potential methodologies, are discussed below. The FBI requests all 
commenters to supply detailed input on these and any other 
methodologies.
    a. Historical Data for SMR Intercepts. A few commenters have 
suggested using historical intercept data to set capacity requirements 
for SMR service providers. Like MSS, the historical data on SMR appears 
to be of little value in establishing a meaningful baseline for 
capacity requirements. One commenter urges law enforcement not to 
extract historical interception data from other services, such as 
wireless terrestrial or local exchange services, and attempt to convert 
that information for use in the formulation of methodologies for SMR 
service providers. On the other hand, the FBI also notes another 
commenter's position that telecommunications services that compete with 
one another for end users should have comparable capacity requirements 
so that CALEA compliance does not unfairly burden a competing service 
provider. The FBI intends to examine the characteristics of SMR 
services during the course of establishing its capacity requirements. 
Although the FBI emphasizes law enforcement's overarching need to 
establish capacity requirements that will ensure public safety, the FBI 
is sensitive to the competitive concerns of businesses and seeks 
comment on how these competing interests could affect capacity 
requirements.
    b. Geographic Basis. Most SMR licenses are based on defined 
geographic areas. Like paging services, SMR services appear to be well 
suited to capacity requirements that follow geographic parameters. The 
FBI seeks comment on whether capacity requirements should be based on 
the same geographic areas on which licenses are based or whether there 
is a more appropriate geographic basis. Because SMR licenses are 
awarded on a variety of geographic bases,\13\ for example, by Economic 
Area or by MTA, the FBI seeks comment on the most appropriate 
geographic area by which to assign capacity requirements for SMR 
services.
---------------------------------------------------------------------------

    \13\ See 47 CFR 90.7
---------------------------------------------------------------------------

    c. Per Carrier Basis. One commenter has suggested that the FBI use 
each individual SMR service provider's characteristics to establish 
each service provider's capacity requirements. Unlike MSS service 
providers, which have unique system architecture and business plans, 
SMR service providers are not sufficiently different from one another 
to warrant the establishment of capacity requirements on a per carrier 
basis. Such an individualized approach is likely to be overly 
burdensome to administer and enforce. However, the FBI still seeks the 
opinions of commenters on this proposed approach.
    d. Percentage of Subscribers. Conceivably, an approach that applies 
a percentage of an SMR service provider's overall subscriber base, 
similar to the methodology proposed for paging services and MSS 
services, might be used to establish capacity requirements for SMR 
services. The FBI requests comment on the feasibility of this approach 
for SMR service providers and asks commenters to identify any sources 
of data regarding the number of end users that subscribe to either 
analog or digital SMR services.
    e. Level of Subscribership.  As suggested for paging service 
providers, capacity requirements for SMR service providers could be 
linked to predefined levels of subscribership. Under such an approach, 
SMR service providers could be grouped in categories according to the 
number of subscribers they serve. For example, those entities with 
relatively few subscribers would be assigned an actual capacity 
requirement of X intercepts, those with an intermediate number of 
subscribers would be required to support X+Y intercepts, while SMR 
service providers with a large number of subscribers would have an 
augmented capacity requirement of X+Y+Z. The FBI seeks comment on the 
effectiveness of applying capacity requirements that vary according to 
predefined levels of subscribership.
    f. Switch-Based. As an alternative, a commenter suggests that 
capacity requirements should be switch-based, rather than geographic-
based. The commenter also suggests that the FBI could establish a high-
end capacity limitation on a single switch. This option seems to be 
overly burdensome because it would require the FBI to obtain 
information on the network configuration of every SMR service provider 
before it could promulgate capacity requirements. Additionally, the 
network configuration is likely to change regularly as carriers install 
new switches and upgrade older switches. Commenters are requested to 
address the merits of this approach, particularly any benefits that 
could be derived from establishing capacity requirements on a per-
switch basis.
    g. Local Exchange. A commenter has suggested that the appropriate 
place for law enforcement to implement an interception is at the local 
exchange, because SMR service providers are typically connected to the 
local exchange office by use of ordinary business subscriber lines. 
Therefore, the commenter asserts that capacity requirements for SMR 
service providers would be redundant because capacity requirements for 
local exchange services are already in place. However, the FBI notes 
that the commenter's suggestion is only accurate for analog SMR 
service, not digital SMR service. Therefore, the FBI seeks comment on 
this suggestion.

D. Conclusion 

    The FBI invites all commenters to provide input in response to this 
FNOI. The FBI is committed to giving all commenters an opportunity for 
meaningful participation in the process of implementing CALEA. The FBI 
will continue to work with the telecommunications industry to develop 
capacity methodologies for all telecommunications carriers subject to 
CALEA.
    This FNOI is part of a notice and comment proceeding in which ex 
parte communications are permitted pursuant to 28 CFR 50.17.

III. Filing and Comment Information

    Although printed comments are welcomed, commenters are encouraged 
to submit their responses as electronic documents on a 3.5 inch disk. 
Documents must be in WordPerfect or Rich Text Format (RTF) and must be 
the only file on the disk. In addition, all electronic submissions must 
be accompanied by a printed sheet listing the point of contact, company 
or organization name and address, and telephone number of an individual 
who can replace the disk if it was damaged in transit. All comments 
received will be available for review at the FBI's Freedom of 
Information and Privacy Act (FOIPA) Reading Room located at FBI 
Headquarters, 935 Pennsylvania Avenue, NW, Washington, DC 20535. To 
review the comments, interested parties should contact the FBI's FOIPA 
Reading Room staff, telephone number (202) 324-8057, to schedule an 
appointment (48 hours advance notice required).

    Authority: 47 U.S.C. 1001-1010.

    Dated: March 29, 2000.
Louis J. Freeh,
Director, Federal Bureau of Investigation, Department of Justice.
[FR Doc. 00-16584 Filed 6-29-00; 8:45 am]
BILLING CODE 4410-02-P