[Federal Register Volume 66, Number 194 (Friday, October 5, 2001)]
[Rules and Regulations]
[Pages 50841-50843]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24955]


-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 22, 24, and 64

[CC Docket No. 97-213; FCC 01-265]


Communications Assistance for Law Enforcement Act

AGENCY: Federal Communications Commission.

ACTION: Final rule; extension of compliance date.

-----------------------------------------------------------------------

SUMMARY: In this document, we grant in part the relief requested by the 
Cellular Telecommunications & Internet Association (``CTIA''). As 
requested by CTIA, we are temporarily suspending the September 30, 
2001, compliance date for wireline, cellular, and broadband Personal 
Communications Services (``PCS'') carriers to implement two Department 
of Justice (``DoJ'')/Federal Bureau of Investigation (``FBI'') ``punch 
list'' electronic surveillance capabilities. We deny CTIA's request for 
a blanket extension of the September 30, 2001, compliance deadline for 
these carriers to implement a packet-mode communications electronic 
surveillance capability. However, given the imminence of the packet-
mode compliance deadline, we grant these carriers until November 19, 
2001 either to come into compliance or to seek individual relief.

DATES: The September 30, 2001, packet-mode communications compliance 
date for wireline, cellular, and broadband Personal Communications 
Services (``PCS'') is extended until November 19, 2001. The punch list 
compliance deadline is temporarily suspended pending the Commission's 
final action on a decision by the United States Court of Appeals for 
the District of Columbia Circuit (``Court Remand Decision'') that 
vacated four additional punch list capabilities that had been required 
by the Commission's Third Report and Order (``Third R&O'') in this 
proceeding.

FOR FURTHER INFORMATION CONTACT: Rodney Small, Office of Engineering 
and Technology, (202) 418-2452.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's, 
Order, CC Docket No. 97-213, FCC 01-265, adopted September 18, 2001, 
and released September 21, 2001. The full text of this Commission 
decision is available on the Commission's Internet site at www.fcc.gov. 
It is available for inspection and copying during normal business hours 
in the FCC Reference Information Center, Room CY-A257, 445 12th Street, 
SW., Washington, DC, and also may be purchased from the Commission's 
duplication contractor, Qualex International , (202) 863-2893, Room CY-
B402, 445 12th Street, SW., Washington, DC 20554. Comments may sent as 
an electronic file via the Internet to http://www.fcc.gov/e-file/ecfs.html, or by e-mail to [email protected].

Summary of the Order

    1. In the Third R&O, released in August 1999, 65 FR 51710, 
September 24, 1999, the Commission specified technical requirements for 
wireline, cellular, and broadband PCS carriers to comply with the 
assistance capability requirements prescribed by the Communications 
Assistance for Law Enforcement Act of 1994 (``CALEA''). We took this 
action under Section 107(b) of CALEA in response to petitions filed 
with us that claimed that industry standards for electronic 
surveillance failed to satisfy the four general assistance capability 
requirements in Section 103 of CALEA. Under Section 107(a)(2) of CALEA 
(the ``safe harbor'' provision), carriers and manufacturers that comply 
with industry standards for electronic surveillance are deemed in 
compliance with their specific responsibilities under Sections 103 and 
106 of CALEA. The Commission is authorized, under Section 107(b) of 
CALEA, in response to a petition from any Government agency or person, 
to establish, by rule, technical requirements or standards if industry 
associations or standard-setting organizations fail to issue technical 
requirements or standards or if any Government agency or person 
believes that such requirements or standards are deficient.
    2. In the Third R&O, we required that wireline, cellular, and 
broadband PCS carriers implement all electronic surveillance 
capabilities of the industry interim standard, J-STD-025--including two 
contested features of the interim standard, i.e., a packet-mode 
communications capability and a location information requirement--and 
six of nine additional capabilities requested by DoJ/FBI, known as the 
``punch list'' capabilities. While we required a packet-mode 
capability, we did not adopt specific technical requirements for 
packet-mode communications. Rather, we permitted carriers to deliver 
packet-mode data to be delivered to law enforcement agencies (``LEAs'') 
under the interim standard pending further study of packet-mode 
communications by the telecommunications industry. We required that the 
capabilities covered by the ``core'' interim standard--including all 
uncontested requirements of J-STD-025, as well as the contested 
location information requirement--be implemented by June 30, 2000, and 
that the packet-mode and punch list capabilities be implemented by 
September 30, 2001.
    3. Several parties challenged in the United States Court of Appeals 
for the District of Columbia Circuit six capabilities required by the 
Third R&O: location information and packet-mode communications, both of 
which were included in J-STD-025; and dialed digit extraction, party 
hold/join/drop, subject-initiated dialing and signaling, and in-band 
and out-of-band signaling, which are four of the six punch list 
capabilities requested by DoJ/FBI that we added to J-STD-025. In August 
2000, the Court vacated and remanded to us for further proceedings 
those portions of the Third R&O pertaining to the four challenged punch 
list capabilities. The Court upheld our findings in the Third R&O 
regarding location information and packet-mode communications, but with 
respect to the latter stated: ``CALEA authorizes neither the Commission 
nor the telecommunications industry to modify either the evidentiary 
standards or

[[Page 50842]]

procedural safeguards for securing legal authorization to obtain 
packets from which call content has not been stripped, nor may the 
Commission require carriers to provide the government with information 
that is ``not authorized to be intercepted.'''
    4. Following the Court Remand Decision, CTIA filed a petition to 
immediately suspend the September 30, 2001 compliance deadline for 
implementing the two unchallenged punch list capabilities--content of 
subject-initiated conference calls and timing information--and the 
packet-mode communications capability. In its petition, CTIA states 
that the compliance deadline for those capabilities should be suspended 
to ensure an orderly and cost-efficient implementation of the punch 
list and packet-mode communications capabilities. With respect to the 
punch list, CTIA argues that disentangling the four vacated 
capabilities from the two remaining capabilities would be a complex and 
inefficient process. CTIA therefore recommends that we suspend the 
compliance date for the entire punch list pending resolution of what 
capabilities are required. With respect to packet-mode communications, 
CTIA argues that the Court found that telecommunications carriers could 
not lawfully deliver the full content of a packet to a LEA under a 
``pen register'' order. CTIA further argues that we may receive 
petitions that request that we declare the current packet-mode standard 
deficient because it fails to protect the privacy of communications not 
authorized to be intercepted. Accordingly, CTIA argues that it would be 
prudent for us to suspend the packet-mode compliance deadline until we 
have all of the information necessary to make a realistic compliance 
determination.
    5. On September 1, 2000, our Office of Engineering and Technology 
(``OET'') placed the CTIA Petition on Public Notice and on September 
15, 2000, OET received comments responding to the CTIA Petition. The 
great majority of commenting parties support grant of the Petition; 
however, DoJ/FBI oppose any extension of the packet-mode compliance 
deadline.
    6. In April 2000, we issued a Public Notice providing instructions 
for those carriers needing to file petitions for extension of the June 
30, 2000 deadline for complying with the capability requirements of 
CALEA section 103. In that Public Notice, we noted that section 
107(c)(3) authorizes us to extend the compliance deadline for no longer 
than two years from the date of the petition's grant. We also noted 
that the FBI has provided each carrier an opportunity to participate in 
a ``Flexible Deployment Program,'' under which the FBI has agreed to 
review a carrier's extension request in light of the priorities of 
LEAs. We further noted that, for carriers serving geographic areas that 
do not have a history of demand by LEAs for electronic surveillance, 
the FBI may advise us that extensions of the section 103 compliance 
deadline do not unduly threaten the public safety. Accordingly, we 
urged each carrier seeking an extension of the June 30, 2000 CALEA 
deadline to participate in the Flexible Deployment Program before 
submitting to us a section 107(c) petition for extension of time to 
comply. A number of carriers chose to participate in the Flexible 
Deployment Program, and we have made preliminary determinations to 
suspend the June 30, 2000 deadline for many of those carriers. On 
August 15, 2001, our Common Carrier Bureau released an Order making 
final determinations to grant extensions of the June 30, 2000, deadline 
to several hundred wireline carriers. We anticipate making final 
determinations on other wireline--as well as wireless--carriers' 
requests for extensions of that deadline in the near future. We also 
note that in August 2001 the FBI released a Second Edition of its 
Flexible Deployment Program. This Second Edition pertains to packet-
mode communications and is designed to assist carriers in meeting 
packet-mode requirements mandated by CALEA.
    7. There is broad agreement among industry and law enforcement that 
we should suspend the September 30, 2001 compliance deadline for the 
two unchallenged punch list capabilities, pending a final action by the 
Commission of what punch list capabilities will be required. We agree 
with the majority of commenters that retaining the current deadline for 
two of the punch list capabilities prior to determining the disposition 
of the four punch list capabilities vacated by the Court Remand 
Decision could result in major inefficiencies for carriers. Moreover, 
there is insufficient corresponding benefit in implementing these two 
capabilities by themselves to warrant disruption and costs such a 
severable implementation would entail. Most carriers use more than one 
type of switch in their networks, often from different manufacturers. 
Most manufacturers have developed a CALEA solution that includes all 
six punch list capabilities that the Third R&O required; some 
manufacturers have included the core interim standard and the punch 
list capabilities in one software package, others have separated the 
core interim standard and punch list capabilities into different 
software packages. Some software packages allow each punch list 
capability to be toggled, while other software packages do not allow 
toggling. In either case, carriers have to install and test the full 
software package. Carriers will have to test software with toggling 
functions to ensure that toggling off some capabilities does not 
interfere with the provision of other capabilities. For those software 
packages that do not allow toggling, carriers would have to implement 
the whole software package by the current September 30, 2001 deadline, 
absent an extension from the Commission, if the software could not be 
modified before then either to remove the four vacated punch list 
capabilities or to provide a toggle on/off function. While we believe 
that LEAs will cooperate with carriers to minimize the burden on 
carriers, we find, under these circumstances, such an approach to be 
inherently burdensome and inefficient. Furthermore, a temporary 
suspension of the compliance date for the unchallenged capabilities 
will ensure that all punch list capabilities that may ultimately be 
required will proceed on the same compliance schedule. In any event, we 
anticipate that we would likely receive and grant many individual 
petitions for extension, which would be an unwarranted exercise and 
expenditure of resources. While we encourage carriers to make available 
to LEAs any surveillance capability they have available, we recognize 
that the deployment of software with the punch list capabilities will 
vary from carrier to carrier.
    8. Accordingly, pursuant to our authority to provide a reasonable 
time and conditions for compliance with and the transition to any new 
standard, we are temporarily suspending the current September 30, 2001, 
deadline for all punch list capabilities, including the two 
unchallenged punch list capabilities (i.e., subject-initiated 
conference calls and timing information), pending the Commission's 
final action on the Court Remand Decision. We anticipate that we will 
establish a new compliance date for all required punch list 
capabilities in time to allow carriers to be fully CALEA-compliant no 
later than June 30, 2002. We arrive at this outside target date because 
we intend to address the Court Remand Decision no later than year's 
end. We intend to act as expeditiously as possible on the remand, 
before year's end if possible, believing it to be a priority of this 
agency. The record

[[Page 50843]]

indicates that carriers can implement any required changes to their 
software within six months of our decision.
    9. With regard to a packet-mode communications electronic 
surveillance capability, we find no need to extend the September 30, 
2001, compliance deadline in the blanket manner requested by CTIA. 
While we deny CTIA's section 107(c) petition for a blanket extension 
for the reasons stated above, we believe that the record supports a 
brief extension in order to allow carriers additional time for 
compliance with and transition to the packet-mode standards. Given the 
imminence of the September 30, 2001 deadline, we believe that a brief 
extension is necessary to allow carriers additional time to upgrade 
their systems to incorporate the packet-mode capability or to allow any 
carriers wishing to avail themselves of the section 107(c) petition 
procedure a reasonable amount of time to prepare their petitions, 
including the technical justification required therein. Briefly 
extending the deadline will also provide any carriers that wish to 
voluntarily participate in the FBI's Flexible Deployment Program with 
respect to packet-mode communications the time necessary to prepare the 
documentation, including technical data relating to the carrier's 
system, as required under the program and allow Commission staff to 
announce the section 107(c) filing procedures with respect to packet-
mode communications. Accordingly, pursuant to our authority under 
section 107(b)(5) of CALEA and sections 4(i) and (j) of the 
Communications Act, we grant, sua sponte, an extension until November 
19, 2001, for wireline, cellular, and broadband PCS carriers to 
implement a packet-mode capability. We view this brief extension as 
extraordinary relief necessary in the interests of fairness and 
reasonableness and do not expect to grant any further extensions on an 
industry-wide basis with respect to packet-mode communications. We 
therefore encourage any carriers unable to meet the November 19, 2001 
deadline to seek individual relief under the section 107(c) procedures. 
In this regard, we direct the Common Carrier Bureau and the Wireless 
Telecommunications Bureau to release a Public Notice further explaining 
the section 107(c) petitioning process with respect to packet-mode 
communications.
    10. Pursuant to sections 1, 4, 229, 301, 303, and 332 of the 
Communications Act of 1934, as amended, and section 107(b) of the 
Communications Assistance for Law Enforcement Act, 47 U.S.C. 151, 154, 
229, 301, 303, 332, and 1006(b), the Petition to Suspend Compliance 
Date, filed August 23, 2000 by CTIA, is Granted in part and denied in 
part.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 01-24955 Filed 10-4-01; 8:45 am]
BILLING CODE 6712-01-P