[Federal Register Volume 69, Number 184 (Thursday, September 23, 2004)]
[Rules and Regulations]
[Pages 56956-56957]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-20706]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[ET Docket No. 04-295; FCC 04-187]


Communications Assistance for Law Enforcement Act

AGENCY: Federal Communications Commission.

ACTION: Declaratory ruling.

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SUMMARY: This document issues a Declaratory Ruling to clarify that 
commercial wireless ``push-to-talk'' services continue to be subject to 
the 1994 Communications Assistance for Law Enforcement Act (``CALEA''), 
regardless of the technologies that Commercial Mobile Radio Services 
(``CMRS'') providers choose to apply in offering them. We issue this 
ruling at the request of, and in response to, a joint petition filed by 
the Department of Justice, Federal Bureau of Investigation, and the 
Drug Enforcement Administration (collectively, ``Law Enforcement'').

EFFECTIVE DATE: September 23, 2004.

FOR FURTHER INFORMATION CONTACT: Rodney Small, Office of Engineering 
and Technology, (202) 418-2454, e-mail: [email protected], TTY (202) 
418-2989.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Declaratory Ruling, ET Docket No. 04-295, FCC 04-187, adopted August 4, 
2004, and released August 9, 2004. The full text of this document is 
available for inspection and copying during normal business hours in 
the FCC Reference Center (Room CY-A257), 445 12th Street, SW., 
Washington, DC 20554. The complete text of this document also may be 
purchased from the Commission's copy contractor, Best Copy and 
Printing, Inc., 445 12th Street, SW., Room, CY-B402, Washington, DC 
20554. The full text may also be downloaded at: http://www.fcc.gov. 
Alternate formats are available to persons with disabilities by 
contacting Brian Millin at (202)418-7426 or TTY (202) 418-7365.

Summary of the Declaratory Ruling

    1. Law Enforcement asserts that an increasing number of wireless 
carriers offer push-to-talk services this service without admitting 
that they have related CALEA obligations. We clarify that CMRS carrier 
offerings of push-to-talk service that are offered in conjunction with 
interconnected service to the public switched telephone network 
(``PSTN''), but may use different technologies, are subject to CALEA 
requirements.
    2. The Second Report and Order (Second R&O) in CC Docket No. 97-
213, 64 FR 55164, October 12, 1999, addressed the dichotomy between 
push-to-talk ``dispatch'' services that are interconnected to the PSTN 
and those that are not. The Commission focused on this difference in 
the context of first concluding that CMRS providers should be 
considered telecommunications carriers for the purposes of CALEA. The 
Commission found that Sec. 102(8)(B)(i) of CALEA, defining 
``telecommunications carrier'' as including ``a person or entity 
engaged in providing commercial mobile service (as defined in section 
332(d) of the [Communications Act])'' requires that conclusion, See 
Communications Assistance for Law Enforcement Act, CC Docket No. 97-
213, Second Report and Order, 15 FCC Rcd 7105 (2000), 64 FR 55164, 
October 12, 1999, The Commission further recognized that the definition 
of commercial mobile service requires interconnected service. Thus, if 
services such as ``traditional'' Specialized Mobile Radio provide 
interconnection to the PSTN, the Commission determined that they 
satisfy the definition of CMRS and thus, are subject to CALEA. The 
Commission further found the same definitional approach holds for push-
to-talk ``dispatch'' service, because if it is offered as an 
interconnected service, ``it is a switched service functionally 
equivalent to a combination of speed dialing and conference calling.'' 
If the push-to-talk ``dispatch'' service otherwise does not 
interconnect to PSTN, the Commission found that it is not subject to 
CALEA.
    3. We find that this approach continues to be applicable to CMRS 
offered push-to-talk services that may use different technologies, such 
as a packet mode network based on more advanced wireless protocols. The 
Commission noted in the Second R&O that CALEA is technology neutral, 
and ``[t]hus, the choice of technology that a carrier makes when 
offering common carrier services does not change its obligations under 
CALEA.'' We find that whether a CMRS carrier's push-to-talk service 
offering is subject to CALEA depends on the regulatory definition and 
functional characteristics of that service and not on the particular

[[Page 56957]]

technology the carrier chooses to apply in offering it. Therefore, we 
conclude that regardless of what newer technologies a CMRS carrier may 
use in its offering of push-to-talk ``dispatch service,'' it continues 
to be subject to the requirements of CALEA, if the required 
definitional element for CMRS service is met, i.e., the delivery of the 
push-to-talk service is offered in conjunction with interconnected 
service to the PSTN.
    4. On the other hand, we reiterate that if the push-to-talk service 
is limited to a private or ``closed'' network, and is not offered in 
conjunction with interconnected service to the PSTN, then, generally, 
it remains not subject to CALEA. We qualify this approach, however, 
recognizing that what has been termed ``private dispatch services'' may 
be developed or implemented in a manner that raises issues pertaining 
to the ``Substantial Replacement Provision'' of CALEA 
Sec. 102(8)(B)ii), which is discussed in the Commission's companion 
Notice of Proposed Rulemaking (``NPRM'') in this proceeding. For 
example, an entity might deploy a seemingly ``private'' or ``closed'' 
push-to-talk services that may satisfy all three prongs of the 
Substantial Replacement Provision such that this service would be 
subject to CALEA. We find that such instances are within the scope of 
the NPRM, and commenters should address them in that context.

Ordering Clauses

    5. Pursuant to sections 1, 4(i), 7(a), 229, 301, 303, and 332 of 
the Communications Act of 1934, as amended, and sections 103, 106, 107, 
and 109 of the Communications Assistance for Law Enforcement Act, 47 
U.S.C. 151, 154(i), 157(a), 229, 301, 303, 332, 1002, 1005, 1006, and 
1008, the DECLARATORY RULING is hereby ADOPTED.
    6. The Commission's Consumer Information and Governmental Affairs 
Bureau, Reference Information Center, shall send a copy of this 
DECLARATORY RULING to the Chief Counsel for Advocacy of the Small 
Business Administration.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 04-20706 Filed 9-22-04; 8:45 am]
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