Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the matter of                 | *  | CC Docket No. 97-213         |
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**[ORDER ON REMAND]{.underline}**

**Adopted: April 5, 2002 Released: April 11, 2002**

**By the Commission:** Commissioner Copps issuing a statement.

**TABLE OF CONTENTS**

[Heading]{.underline} [Paragraph No.]{.underline}

I. INTRODUCTION 1

II\. BACKGROUND 2

III\. DISCUSSION 8

A. Call-Identifying Information 11

B. Cost Considerations 49

C. Dialed Digit Extraction 66

D. Party Hold/Join/Drop Messages 94

E. Subject‑Initiated Dialing and Signaling Information 104

F. In‑Band and Out‑of‑Band Signaling Information 114

G. CALEA Section 107(b)(4) 126

H. Punch List Compliance Date 127

IV\. SUPPLEMENTAL FINAL REGULATORY FLEXIBILITY ANALYSIS 130

V. ORDERING CLAUSES 147

APPENDIX A: FINAL RULES

APPENDIX B: COMMENTING PARTIES

# INTRODUCTION

1.  In this *Order on Remand*, we respond to a decision issued by the
    United States Court of Appeals for the District of Columbia Circuit
    ("Court")[^1] that vacated four Department of Justice ("DoJ")/
    Federal Bureau of Investigation ("FBI") "punch list" electronic
    surveillance capabilities mandated by the *Third Report and Order*
    ("*Third R&O*") in this proceeding.[^2] We find that all of these
    capabilities are authorized by the Communications Assistance for Law
    Enforcement Act of 1994 ("CALEA")[^3] and must be provided by
    wireline, cellular, and broadband Personal Communications Services
    ("PCS") telecommunications carriers by June 30, 2002. We also
    require that two additional "punch list" capabilities that were
    mandated by the *Third R&O* but not reviewed by the Court be
    provided by that same date.

    **II. BACKGROUND**

2.  In the *Third R&O*, released August 31, 1999, the Commission
    specified technical requirements for wireline, cellular, and
    broadband PCS carriers to comply with the assistance capability
    requirements prescribed by CALEA. We took this action under Section
    107(b) of CALEA[^4] 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.[^5] Section 103(a) requires that a
    telecommunications carrier shall ensure that its equipment,
    facilities, or services that provide a customer or subscriber with
    the ability to originate, terminate, or direct communications are
    capable of:

\(1\) expeditiously isolating and enabling the government, pursuant to a
court order or other lawful authorization, to intercept, to the
exclusion of any other communications, all wire and electronic
communications carried by the carrier within a service area to or from
equipment, facilities, or services of a subscriber of such carrier
concurrently with their transmission to or from the subscriber's
equipment, facility, or service, or at such later time as may be
acceptable to the government;

> \(2\) expeditiously isolating and enabling the government, pursuant to
> a court order or other lawful authorization, to access
> call-identifying information[^6] that is reasonably available[^7] to
> the carrier --

\(A\) before, during, or immediately after the transmission of a wire or
electronic communication (or at such later time as may be acceptable to
the government); and

\(B\) in a manner that allows it to be associated with the communication
to which it pertains,

except that, with regard to information acquired solely pursuant to the
authority for pen registers and trap and trace devices (as defined in
Section 3127 of title 18, United States Code), such call-identifying
information shall not include any information that may disclose the
physical location of the subscriber (except to the extent that the
location may be determined from the telephone number);

\(3\) delivering intercepted communications and call-identifying
information to the government, pursuant to a court order or other lawful
authorization, in a format such that they may be transmitted by means of
equipment, facilities, or services procured by the government to a
location other than the premises of the carrier; and

\(4\) facilitating authorized communications interceptions and access to
call-identifying information unobtrusively and with a minimum of
interference with any subscriber\'s telecommunications service and in a
manner that protects --

\(A\) the privacy and security of communications and call-identifying
information not authorized to be intercepted; and

\(B\) information regarding the government\'s interception of
communications and access to call-identifying information.

47 U.S.C. Section 1002(a).

3.  Under Section 107(a)(2) of CALEA[^8] (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.[^9] "If
    industry associations or standard-setting organizations fail to
    issue technical requirements or standards or if a Government agency
    or any other person believes that such requirements or standards are
    deficient,"[^10] 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.

4.  In the *Third R&O*, the Commission required that wireline, cellular,
    and broadband PCS carriers implement all electronic surveillance
    capabilities of the industry interim standard, J-STD-025
    ("J-Standard")[^11] -- including two contested features of the
    interim standard, *i.e.*, a packet-mode communications
    capability[^12] and a location information requirement[^13] -- and
    six of nine additional capabilities requested by DoJ/FBI, known as
    the "punch list" capabilities. With respect to the six required
    punch list capabilities, "dialed digit extraction" would provide to
    law enforcement agencies ("LEAs") those digits dialed by a subject
    after the initial call setup is completed; "party hold/join/drop"
    would provide to LEAs information to identify the active parties to
    a conference call; "subject-initiated dialing and signaling" would
    provide to LEAs access to all dialing and signaling information
    available from the subject, such as the use of flash‑hook and other
    feature keys; "in‑band and out‑of‑band signaling" would provide to
    LEAs information about tones or other network signals and messages
    that a subject's service sends to the subject or associate, such as
    notification that a line is ringing or busy; "subject-initiated
    conference calls" would provide to LEAs the content of conference
    calls supported by the subject's service; and "timing information"
    would provide to LEAs information necessary to correlate
    call‑identifying information with call content.[^14]

5.  The Commission required that all uncontested capabilities covered by
    the interim standard, as well as the contested location information
    requirement, be implemented by June 30, 2000,[^15] and further
    required that the contested packet-mode communications capability
    and the punch list capabilities be implemented by September 30,
    2001.[^16] Subsequently, the Commission temporarily suspended the
    punch list compliance deadline.[^17]

6.  The United States Telecom Association ("USTA"), Electronic Privacy
    Information Center ("EPIC"), and others sought review by the Court
    of the *Third R&O*. In particular, the petitioners challenged the
    requirements that carriers make available to LEAs four of the six
    punch list capabilities: dialed digit extraction, party
    hold/join/drop messages, subject-initiated dialing and signaling
    information, and in-band and out-of-band signaling information.
    Petitioners argued that the Commission exceeded its statutory
    authority, impermissibly expanded the types of call-identifying
    information that carriers must make accessible to LEAs, and violated
    CALEA's requirements that the Commission protect communication
    privacy and minimize the cost of CALEA implementation.

7.  In its August 15, 2000 *Remand Decision*, the Court affirmed the
    Commission's findings in the *Third R&O* in part and vacated and
    remanded in part for further proceedings. In particular, the Court
    vacated and remanded to the Commission the *Third R&O*'s decisions
    concerning the four punch list capabilities.[^18] As a result of the
    *Remand Decision*, the Commission issued a *Public Notice* seeking
    to update the record in the CALEA technical capabilities
    proceeding.[^19] Comments on the *Public Notice* were due by
    November 16, 2000 and reply comments were due by December 8,
    2000.[^20] Thirteen parties filed comments and nine parties filed
    reply comments. Commenting parties are listed in Appendix B.

#  DISCUSSION

8.  Under Section 107(a),[^21] CALEA provides a mechanism by which the
    telecommunications industry is afforded the first opportunity to
    prescribe the technical standards necessary to meet the required
    surveillance capabilities. If industry associations or
    standard-setting organizations fail to issue technical requirements
    or standards or "if a Government agency or any person believes that
    such requirements or standards are deficient," entities may petition
    the Commission under Section 107(b)[^22] to establish technical
    requirements or standards that---

```{=html}
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(1) meet the assistance capability requirements of Section 103 by
    cost-effective methods;

(2) protect the privacy and security of communications not authorized to
    be intercepted;

(3) minimize the cost of such compliance on residential ratepayers;

(4) serve the policy of the United States to encourage the provision of
    new technologies and services to the public; and

(5) provide a reasonable time and conditions for compliance with and the
    transition to any new standard, including defining the obligations
    of telecommunications carriers under Section 103 during any
    transition period.

    47 U.S.C. Section 1006(a).

```{=html}
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```
9.  The Court concluded that the Commission's decision to include the
    four punch list capabilities under review (*i.e.,* dialed digit
    extraction; party hold/join/drop messages; subject-initiated dialing
    and signaling information; and in-band and out-of-band signaling
    information) reflected a lack of reasoned decision making. The Court
    held that the Commission had not explained the basis for its
    conclusion that the four punch list capabilities are required by
    CALEA as "call-identifying information." Citing the structure of
    CALEA, the Court observed that Section 107(b) limits the
    Commission's ability to alter industry-developed technical standards
    to cases where the Commission finds those standards deficient. The
    Court held the Commission had not identified any deficiencies in the
    J-STD-025's use of the terms "origin," "destination," "direction,"
    and "termination," which the Court explained are the key statutory
    terms in defining "call identifying information," and thus did not
    satisfy Section 107(b)'s requirements. The Court also concluded that
    the Commission's decision suffered from two additional defects under
    Section 107(b). First, the Court said the Commission had not
    explained how the punch list capabilities would satisfy CALEA's
    Section 103 requirements by "cost-effective methods" or by
    minimizing the impact on residential ratepayers. Second, the Court
    found that the Commission failed to explain how the post-cut-through
    dialed digits requirement would "protect the privacy and security of
    communications not authorized to be intercepted."[^23]

10. In the discussion that follows, we first address CALEA's key
    statutory terms---"call identifying information" and the underlying
    terms "origin," "destination," "termination," and "direction"--- and
    the criteria by which we will evaluate the cost directives of
    Section 107(b). We then address each of the four punch list
    capabilities for compliance with Section 107(b), including cost and
    privacy considerations.

    A. [Call-Identifying Information]{.underline}

11. [Background.]{.underline} Section 102(2) of CALEA defines
    "call-identifying information" as "dialing or signaling information
    that identifies the origin, direction, destination, or termination
    of each communication generated or received by a subscriber by means
    of any equipment, facility, or service of a telecommunications
    carrier."[^24] The J-Standard further interprets the key terms in
    this definition as follows:

    **origin** is the number of the party initiating the call (*e.g.*,
    calling party); **termination** is the number of the party
    ultimately receiving a call (*e.g.*, answering party); **direction**
    is the number to which a call is re-directed or the number from
    which it came, either incoming or outgoing (*e.g.*, redirected-to
    party or redirected-from party); and **destination** is the number
    of the party to which a call in being made (*e.g.*, called
    party).[^25]

12. Although the J-Standard adopts definitions that frame
    call-identifying information in terms of telephone numbers, the
    Commission, in the *Third R&O*, found capabilities required under
    CALEA, in some cases, require carriers to disclose information that
    is not a telephone number. For example, the Commission found that
    the provision of cell phone location information is necessary to
    meet CALEA's assistance capability requirements.[^26] Because the
    Commission-adopted requirements encompass a broader interpretation
    of "call-identifying information" than that provided for by the
    industry definition, the Court examined the meaning of
    "call-identifying information" in the statute to determine whether
    the Commission properly adopted the challenged CALEA requirements.

13. The Court concluded that the statute does not unambiguously answer
    whether "call identifying information" is limited to telephone
    numbers.[^27] It also found that the statute is ambiguous as to
    precisely what constitutes call-identifying information and thus,
    what the CALEA requirements are. As the Court stated:

    Although we reject petitioners' argument that Section 102(2) is
    unambiguously limited to telephone numbers, we think it is equally
    clear that nothing points to an "unambiguously expressed intent of
    Congress" to require every one of the challenged assistance
    capabilities.[^28]

14. [Standard of Review]{.underline}. In cases where the intent of
    Congress is not clear, an agency may develop its interpretation of
    the statute within the guidelines set forth in *Chevron v. National
    Resources Defense Counsel, Inc.*, 467 U.S. 837 (1984), and
    subsequent cases. This so-called *Chevron* "step two" analysis
    affords an agency considerable deference in its statutory
    interpretation, but also requires the agency to "cogently explain"
    its interpretation in such a way that a reviewing court can conclude
    that the decision was the result of "reasoned decisionmaking."[^29]

15. In applying *Chevron* "step two," the Court found that the
    Commission had failed to provide a sufficient explanation in the
    *Third R&O* for the Court to determine whether the Commission's
    interpretation of "call-identifying information" was in fact a
    reasonable conclusion.[^30] Thus, the Court did not reach the
    question as to whether CALEA could be interpreted in the manner the
    Commission proposed, but instead found that the Commission had
    failed to adequately describe its decisionmaking process.

16. Based on the *Remand Decision* and in consideration of comments that
    we received in response to the October 2000 *Public Notice* seeking
    to update the record in the CALEA technical capabilities
    proceeding,[^31] we re-examine the term "call-identifying
    information" as used in CALEA. Keeping in mind the standards
    discussed above, we will set forth an interpretation of the term. We
    will then be able to determine whether the "punch list" items
    subject to the Court's remand meet the statute's assistance
    capability requirements.

17. [Comments]{.underline}. The majority of commenting parties contend
    that the J-Standard definition reflects the intent of Congress, note
    that the standard is the product of the technical expertise of
    engineers from leading carriers and manufacturers, and urge us to
    adopt an interpretation of "call-identifying information" that is
    identical to that adopted in the J-Standard.

18. AT&T Corp. and AT&T Wireless Group ("AT&T") state that the
    Commission should not modify J-STD-025's definition of
    call-identifying information because the J-Standard defined the
    terms "origin, direction, destination, or termination" in terms of
    telephone numbers, and because CALEA's legislative history shows
    that Congress understood that call-identifying information was
    limited to telephone numbers.[^32] AT&T also states that because the
    statute established a mechanism to incorporate the combined expert
    technical opinions and efforts of the world's leading system
    engineers from a wide variety of carriers and manufacturers into the
    standard-setting process, the Commission should be hesitant to
    reject the J-Standard. If we find the standard deficient, AT&T
    argues, we risk ignoring the industry "know-how" that Congress
    wanted to incorporate into the CALEA standards. Other commenters
    similarly urge us to show deference to the industry-established
    standard.[^33]

19. The Cellular Telecommunications and Internet Association
    ("CTIA")[^34] states that we must begin our analysis by accepting
    the telecommunications industry's definitions of origin,
    destination, direction and termination from J-STD-025.[^35] CTIA
    asserts that the four vacated punch list items are not
    "call-identifying information" within the meaning of CALEA
    because (1) J-STD-025 accounted for the provision of
    "call-identifying information" and specifically defined the key
    concepts of "origin, direction, destination or termination" as they
    are understood within the industry; (2) these definitions have not
    been challenged as deficient; and (3) the four vacated capabilities
    are inconsistent with these definitions.[^36]

20. Cingular Wireless LLC ("Cingular") claims the legislative history of
    the Act -- in particular, the House Report[^37] -- makes it clear
    that CALEA does not require, and the Commission cannot impose, any
    of the four vacated punch list capabilities because none constitute
    call-identifying information.[^38] BellSouth Corporation
    ("BellSouth"), the Verizon Telephone Companies ("Verizon"),
    WorldCom, Inc. ("WorldCom"), and The Personal Communications
    Industry Association ("PCIA") make similar assertions.[^39] Verizon
    contends that the J-Standard comports with a reading of the Act in
    the context of both plain English and standard industry-accepted
    terms.[^40]

21. The Center for Democracy and Technology ("CDT") states that we must
    read CALEA in conjunction with existing laws that authorize
    electronic surveillance. CDT cites the "pen register" and "trap and
    trace" provisions of the Electronic Communications Privacy Act of
    1986 ("ECPA")[^41] as permitting LEAs to obtain, respectively, only
    the telephone numbers to which a subject makes calls and the
    telephone numbers from which a subject receives calls. CDT notes
    that the ECPA requires a LEA to obtain a court order before using a
    pen register or trap and trace device, but to be granted such an
    order the government needs only certify that "the information likely
    to be obtained is relevant to an ongoing criminal
    investigation."[^42] CDT also notes that J-STD-025 would guarantee
    LEAs access to both telephone numbers and call content. Therefore,
    CDT maintains, the core interests of LEAs are fully addressed by
    that industry standard.[^43]

22. A number of commenters read the record in this proceeding to support
    retention of the J-Standard without alteration.[^44] The
    Telecommunications Industry Association ("TIA") states that "absent
    any express evidence that \[the J-Standard's\] technical definitions
    are inconsistent with CALEA," we should not alter them, and suggests
    that such evidence does not exist.[^45] USTA further states that we
    must "defer to the experts" in interpreting the language of CALEA
    and urges us to refrain from altering the definitions adopted in the
    J-Standard.[^46]

23. DoJ/FBI disagree with industry commenters and contend that the types
    of information covered by the four punch list capabilities
    constitute call-identifying information.[^47] They state that CALEA
    does not limit call-identifying information to telephone numbers;
    rather, it defines that term to encompass, but extend beyond,
    telephone numbers.[^48] As such, they claim, we must find the
    definitions used by the J-Standard deficient.[^49]

24. First, DoJ/FBI point to the Court's decision to support its
    contention that "call-identifying information" represents more than
    telephone numbers. If Congress had intended the definition other
    commenters support, DoJ/FBI claim, it would have said so. According
    to DoJ/FBI, the Court found that Congress had not made such a clear
    statement.[^50] Moreover, DoJ/FBI note that the Court affirmed the
    Commission's determination that wireless location information
    constitutes call-identifying information. The Court could not have
    done so, they claim, unless "call-identifying information"
    encompasses more than just telephone numbers.[^51] DoJ/FBI also
    dispute whether the legislative history of the Act supports the
    J-Standard definition. They note the ambiguous nature of the
    legislative history generally, and claim that the House Report cited
    by other commenters draws its language from an earlier version of
    the legislation that incorporated different terms than the version
    that was enacted.[^52] Even if we were to give full weight to the
    House Report, DoJ/FBI claim, a plain reading of the text still does
    not support the J-Standard definition. DoJ/FBI note that the
    legislative history of CALEA states that call-identifying
    information "typically" is information that identifies the numbers
    dialed or otherwise transmitted for the purpose of routing calls
    through a carrier's network, and contends that the word "typically"
    makes clear that the discussion of call-identifying information was
    not intended to be exhaustive or exclusive.[^53] DoJ/FBI also
    contend that the CALEA legislation added a minimization provision to
    the pen register statute,[^54] and that provision makes clear that
    LEAs are entitled to "record" and "decode" all "electronic or other
    impulses" that convey "dialing and signaling information utilized in
    call processing." Additionally, DoJ/FBI contend that there is no
    indication that Congress intended to frame the definition of
    call-identifying information within the context of the pen register
    statute exclusively.

25. DoJ/FBI ask us to adopt a rebuttable presumption that
    call-identifying information includes information that LEAs
    traditionally have been able to receive through authorized pen
    register and trap-and-trace surveillance of wireline telephones, and
    to give this presumption substantial weight wherever CALEA's
    statutory language and legislative history neither compel nor
    foreclose treating particular information as call-identifying
    information. DoJ/FBI maintain that, under traditional pen
    register/trap-and-trace surveillance, the electrical impulses
    transmitted to LEAs include not only the intercept subject's dialing
    and signaling activity,[^55] but also the audio portion of the call,
    and that the transmitted signals are processed by equipment that
    strips out the audio signals, then decodes and records the signals
    used in call processing. DoJ/FBI state that this information
    includes not only the phone numbers dialed by the subject, but also
    all signals that are sent from the subject to the carrier.[^56]
    Furthermore, DoJ/FBI note that Section 103(a)(2) of CALEA provides
    that carriers must be able to deliver call-identifying information
    whenever LEAs are entitled to obtain such information "pursuant to a
    court order or other lawful authorization," regardless of whether
    the source of legal authorization is the pen register statute or
    some other authority. They note that Section 103(a)(2) provides
    that, "with regard to information acquired solely pursuant to the
    authority for pen registers and trap and trace devices . . . .
    call-identifying information shall not include any information that
    may disclose the physical location of the subscriber . . . ."
    DoJ/FBI maintain that if call-identifying information meant nothing
    more than "information available under the pen register statute,"
    then the location information clause of Section 103(a)(2) would be
    superfluous.[^57] By viewing the CALEA definitions in question in
    conjunction with Section 103(a)(2), DoJ/FBI set forth their basis
    for an interpretation of "call-identifying information" that is more
    expansive than that contained in the J-Standard.

26. DoJ/FBI therefore recommend that the Commission find that
    call-identifying information includes all dialing and signaling
    information that identifies the origin, direction, destination, or
    termination of communications.[^58] DoJ/FBI contend that "origin,
    destination, direction, or termination" may be "identified" by more
    than one kind of dialing or signaling information, and that we
    reasonably may construe call-identifying information to reach all
    such information.[^59] DoJ/FBI urge us to adopt these definitions:

    an **origin** is information that identifies the use of a carrier's
    equipment, facilities, or services to transmit a communication to
    another party; a **termination** is dialing or signaling information
    that identifies the use of a carrier's equipment, facilities, or
    services to receive a communication from another party;
    **direction** is dialing or signaling information that identifies
    the use of a carrier's equipment, facilities, or services to control
    the path or course of the communication to another party; and
    **destination** is dialing or signaling information that identifies
    the use of a carrier's equipment, facilities, or services toward
    which the communication is directed.[^60]

    DoJ/FBI base these definitions on Section 103(a) of CALEA, which
    requires a telecommunications carrier "to ensure that its equipment,
    facilities, or services that provide a customer or subscriber with
    the ability to originate, terminate, or direct communications" can
    provide certain capability requirements. DoJ/FBI note that Section
    103(a) does not address the term "destination." DoJ/FBI support its
    definition by examining the "common usage" of the term, and putting
    that definition in context with the other terms they have defined in
    reference to Section 103(a).[^61] Finally, DoJ/FBI contend that a
    multi-party call often involves more than one "communication" and
    that call-identifying information pursuant to CALEA includes all
    dialing and signaling information that identifies the origin,
    direction, destination, or termination of "each communication."[^62]

27. DoJ/FBI also contend that, because the Court held that CALEA's
    definition of call-identifying information neither clearly excludes
    nor clearly includes the information covered by the four
    capabilities, we therefore have the discretion to reinstate those
    capabilities under the *Chevron* "step two" analysis.[^63] "The
    point of the D.C. Circuit's decision was simply to require the
    Commission to identify the shortcomings of the J-Standard's
    definition," DoJ/FBI state, "not to compel the Commission to accept
    that definition."[^64] DoJ/FBI also disagree with those commenters
    who claim that the Commission should afford deference to the
    industry definition due to the structure of CALEA. Once the industry
    standards are challenged, DoJ/FBI claim, the statute places disputes
    about the legal sufficiency of industry standards before the
    Commission.[^65] DoJ/FBI distinguish between the technical expertise
    necessary to implement legal requirements and the legal expertise in
    determining what those requirements are. While the industry may
    possess technical expertise, DoJ/FBI assert, it has no unique legal
    expertise to justify the deference some commenters claim the
    Commission should afford when considering whether the J-Standard
    satisfies the legal requirements of CALEA.[^66]

28. [Discussion]{.underline}. Several commenting parties continue to
    assert that the plain meaning of the language of the statute
    supports the J-Standard's definitions.[^67] We do not see how this
    can be the case in light of the Court's determination that the
    statute is ambiguous. Nevertheless, that does not mean that we
    cannot conclude, based on the reasoned decisionmaking standard, that
    a permissible understanding of "call-identifying information" is one
    that is framed in terms of telephone numbers. As described in detail
    below, we reject that course. We believe that commenters'
    suggestions for a narrow definition are unconvincing and we identify
    additional situations where "call-identifying information"
    necessarily includes more than telephone numbers.

29. First, to adopt the J-Standard's definitions, we would be unable to
    give all portions of CALEA full effect. The Court noted this fact in
    its opinion:

    CALEA's definition of "call-identifying information," moreover,
    refers not just to "dialing . . . information," but also to
    "signaling information," leading us to believe that Congress may
    well have intended the definition to cover something more than just
    the "dialing . . . information" conveyed by telephone numbers.
    Finally, Section 103(a)(2) of CALEA provides that when information
    is sought pursuant to a pen register or trap and trace order,
    "call-identifying information shall not include any information that
    may disclose the physical location of the subscriber (except to the
    extent that the location may be determined from the telephone
    number)." 47 U.S.C. § 1002(a)(2). As the Commission observed,
    Congress would have had no need to add this limitation if
    "call-identifying information" referred only to telephone
    numbers.[^68]

    We are disinclined to interpret a statute in a manner that will
    render portions of it superfluous.[^69] We do not find that the
    arguments set forth by those commenters who support the J-Standard's
    definitions provide such a justification.

30. We also disagree that Congress clearly concluded that
    call-identifying information was limited to telephone numbers, as
    several commenters assert. The legislative history of CALEA does not
    clearly state Congress's intent with respect to the key terms at
    issue. The Court states, for example, that "the Report also echoes
    CALEA's inherent ambiguity, stating that call-identifying
    information is 'typically the electronic pulses, audio tones, or
    signaling messages that identify the numbers dialed or otherwise
    transmitted for the purpose of routing calls through the
    telecommunications carrier's network.'"[^70] We agree with DoJ/FBI
    that the use of the word "typically" suggests that the House
    Report's discussion of "call-identifying" information was not
    exhaustive.[^71] As described below, LEAs currently receive certain
    information that consists of more than telephone numbers under
    existing procedures. We think it would be implausible to read CALEA
    as providing for a more limited class of information than that which
    LEAs already receive.

31. Nor do we find a basis for tying our interpretation of CALEA
    exclusively to a prior, separate statute. For example, some
    commenters argue that we should limit "call-identifying information"
    to telephone numbers because such an interpretation mirrors the
    definitions offered by the ECPA. However, in the *Remand Decision*,
    the Court stated that CALEA does not cross-reference or incorporate
    the definitions of pen registers and trap and trace devices in the
    ECPA.[^72] Moreover, these standards are evolving. The recently
    enacted USA PATRIOT Act extends LEAs' authority to encompass
    electronic surveillance, and expands the terms "pen register" and
    "trap and trace device" to include the concept of "dialing, routing,
    addressing, or signaling information."[^73] The argument that we
    should adopt a telephone number-based definition because of the ECPA
    makes little sense in light of the legislative changes to the pen
    register and trap and trace definitions. Because of these
    legislative changes, we dismiss the concern that the adoption of a
    standard more comprehensive than the J-Standard would mandate
    capabilities not covered by pen registers and trap and trace
    devices; that will not be the case. We also agree with DoJ/FBI that
    CALEA is designed to address electronic surveillance capabilities
    broadly, and reflects, for example, "Title III" of the Omnibus Crime
    Control and Safe Streets Act of 1968, as modified by the ECPA,[^74]
    that is outside the scope of the pen register and trap and trace
    provisions in the ECPA.[^75] This fact weighs against us placing too
    much weight on the definitions in the ECPA.

32. We also reject those comments that would have us adopt the
    J-Standard's definitions because they represent industry expertise.
    The language of the statute does not require us to defer to the
    industry standard as part of our evaluation. Instead, we evaluate
    the industry-adopted standard in the context of the overall record
    of this proceeding. Moreover, because the statute requires the
    Commission to become involved in those cases where the industry and
    those who hold an interest in the implementation of CALEA cannot
    agree on the requisite technical standards, we do not see how we
    could defer to industry expertise without undermining the statute's
    operation. We likewise reject the suggestion that we should adopt no
    more than the J-Standard's definitions because only the J-Standard
    was supported by the vast majority of commenters. Rulemaking by head
    count, while arguably efficient, is also impermissibly arbitrary and
    capricious.[^76]

33. We conclude that those commenters who urge us to adopt "only *number
    information* such as that which has traditionally been
    provided"[^77] miss the point. To adopt a definition that rigidly
    applies number information undermines CALEA's intent. The meaning of
    "call-identifying information" that we adopt should be tailored to
    replicate the existing electronic surveillance capability functions,
    but should also be expressed in sufficiently broad terms so as not
    to be limited to a specific network technology. This analysis is
    consistent with overall purpose expressed for the Act: CALEA was
    intended to preserve the ability of law enforcement officials to
    conduct electronic surveillance effectively and efficiently in the
    face of rapid advances in telecommunications technology.[^78]

34. An example of this approach can be found in the provision of antenna
    location information. The Court upheld the Commission's refusal to
    remove this capability -- which requires carriers to make available
    the physical location of the antenna tower that a mobile phone uses
    to connect at the beginning and end of a call -- from the
    J-Standard.[^79] Structurally, this capability has no equivalent in
    the traditional wireline architecture. However, the Commission found
    that antenna location information is functionally equivalent to
    existing capabilities. Because a wireline telephone number usually
    corresponds with a subscriber location, LEAs have generally been
    able to obtain location information. In a wireless environment, the
    location of the cell sites to which the mobile unit is connected --
    which quite clearly is not a "telephone number" -- serves as the
    equivalent location information.

35. To frame a complete definition of "call-identifying information," we
    also look to information that LEAs receive under existing
    capabilities. DoJ/FBI describe traditional pen register surveillance
    in a standard wireline network. LEAs typically receive signaling
    information generated by the network, such as ringing tones and busy
    signals. If the caller signals the network -- for example, if a call
    waiting subscriber uses a flash hook to place one party on hold and
    to complete the circuit between the subscriber and the incoming
    caller -- then the flash hook is reported to the LEA.[^80] This
    signaling information is not a traditional "telephone number."

36. Similarly, we note that there are many situations in which a party
    inputs dialing information that, in itself, is not a telephone
    number. For example, when a party that uses a "speed dial" feature
    dials a special code, the code itself is not a telephone number.
    J-STD-025 Annex D, Table 34 ("Speed Calling") describes such a
    situation and anticipates reporting both the speed dial code and the
    telephone number it represents. A caller may also use a
    "dial-around" code to reach an interexchange carrier that is not the
    party's presubscribed interexchange carrier. This carrier access
    code -- *e.g*., 10-10-321 -- is not itself a telephone number but
    nevertheless contains basic network information.

37. Although we understand "call-identifying information" to consist of
    both dialing and signaling information that may or may not be
    described in terms of telephone numbers, we emphasize that not all
    dialing and signaling information is "call-identifying information."
    For example, parties using bank-by-phone systems, automated
    prescription renewal services, and voicemail systems often enter
    account numbers, prescription numbers and passcodes that do not
    affect how the network processes the ongoing call. To reach this
    distinction, we look at the definition of "call-identifying
    information": "dialing or signaling information that identifies the
    origin, direction, destination, or termination of each communication
    generated or received by a subscriber by means of any equipment,
    facility, or service of a telecommunications carrier."[^81] While
    some dialing or signaling information identifies the origin,
    direction, destination, or termination of a communication,[^82]
    other dialing or signaling information -- such as a bank account
    number -- clearly does not. Again, an analysis of traditional pen
    register surveillance supports this distinction. During a
    traditional pen register surveillance, a LEA receives all signals
    that are sent from the intercept subject to the carrier, including
    'off-hook' and 'on-hook' signals, hook flashes, ringing tones and
    busy signals.[^83] Because special equipment is used to identify and
    record those audio signals used in call processing, the traditional
    model recognizes that there is a distinction between audio signals
    that are call content and audio signals that are
    call-identifying.[^84] This model also supports a broad
    interpretation of what "identifies" the origin, direction,
    destination, or termination of a communication. We agree with
    DoJ/FBI that, because these terms can be identified in more than one
    way and by more than one kind of information, we should construe
    call-identifying information to include all such information.[^85]
    Thus, insofar as a ringing tone or a busy signal provides
    information that is descriptive of an origin, direction,
    destination, or termination a communication, we will find that tone
    or signal "identifies" such a communication for purposes of CALEA
    and falls within CALEA's definition of "call-identifying
    information."

38. Under the J-Standard's definitions, call content does not identify
    the origin, termination, direction, and destination of a
    communication, and thus is not "call identifying information" for
    purposes of CALEA. We agree, and further note that the J-Standard's
    definitions are generally framed in terms of network architecture.
    This approach makes sense, and we conclude that the J-Standard is,
    in general, the appropriate starting point for defining the key
    terms of origin, termination, direction, and destination.

39. We find that the J-Standard's definitions are too limited, however.
    As noted above, Section 102(2) of CALEA defines call-identifying
    information as "dialing or signaling information that identifies the
    origin, direction, destination, or termination" of each call or
    communication. Thus, the origin, direction, destination, or
    termination of the call is not itself call-identifying information.
    Instead, the origin, direction, destination, or termination is
    identified by call-identifying information, such as the caller's
    phone number. Accordingly, the J-Standard's definitions are
    deficient to the extent that they confuse origin, direction,
    destination, and termination with phone numbers or other information
    that may be used to identify the origin, direction, destination, and
    termination of each call or communication.

40. Turning to the first of the four terms, the J-Standard defines an
    "origin" as the number of the party initiating a call -- *i.e*., the
    calling party. For example, in a simple two-way telephone call, the
    dialing or signaling information that identifies the "origin" of a
    communication is the calling party's telephone line (which is
    commonly identified by a telephone number). We note that there are
    situations in which information other than a number is needed to
    identify the party initiating a call. For example, when a wireless
    phone is used to initiate a call, that origin may be identified by
    both the number assigned to the wireless phone and the location
    information of the antenna site to which the phone is connected.
    However, as discussed above, neither the phone number nor the
    antenna location (for wireless calls) is the origin of the call.
    Rather, the phone number and the antenna location (for wireless
    calls) are information that identifies the origin. With this in
    mind, we conclude that the statutory term "origin" refers to the
    initiator of a call (*e.g*., the "calling party") and not the phone
    number of that initiator.

41. Because the origin pertains to a calling party, there may be
    multiple points in a telephone call scenario that give rise to
    information that identifies the origin of a communication.[^86] An
    example is the case where the party under surveillance takes an
    incoming call and subsequently receives a network notification of a
    second incoming call. Dialing or signaling information that
    describes this second call would identify the "origin" of the call
    because it describes a calling party. Although there has already
    been one origin in this scenario -- the first incoming caller -- it
    does not preclude information about the second caller from
    identifying an origin under the definition we adopt. In the
    situation where one party ("A") calls a second party ("B") (and,
    thus, information about A describes an origin), B may initiate a
    three-way call by dialing a third party ("C"). In this case,
    information about B also describes an origin because B was the
    calling party that brought C into the call.

42. If an "origin" describes the beginning of a call, then a
    "termination" can, in the most general sense, be thought of as a
    stopping point in the network. The J-Standard defines "termination"
    in terms of the "party *ultimately* receiving the call" (emphasis
    added). We think common practice as well as the industry's own
    technical standards suggest a broader definition that recognizes
    that a call can "terminate" when it reaches an identifiable stopping
    point in the network. J-STD-25, Annex D, Table 21 ("Call Waiting and
    Recall with a Single Call Identity"), Step 6 shows a diagram where
    the surveillance subject ("S") is connected to one party ("A"),
    while the other party ("B") is on hold. As shown in the diagram, the
    communication path starting from party A terminates at S. However,
    as is also shown in the diagram, the communication path coming from
    the held party B terminates at the subject's switch, and not at the
    subject's line.

43. This example also supports the proposition that a termination is not
    always identified by a telephone number. Although the J-Standard
    illustrates the communication path from a party on hold as ending in
    a switch, the J-Standard's definition is too limited to encompass
    this scenario because (1) a network switch is not a party in a call,
    and (2) a network switch is a point in the network with no directory
    telephone number. Accordingly, we also find the J-Standard's
    definitions are deficient to the extent that they specify a "party"
    in a communication. The origin, direction, destination, or
    termination of a call can be either a party or a place in the
    network. The network switch is the most obvious example of the
    latter.

44. Accordingly, we conclude that a "termination" is a party or place at
    the end of a communication path. Moreover, there can be multiple
    terminations within a single call. J-STD-025, Annex D, Table 21,
    Step 6 ("Call Waiting and Recall with a Single Call Identity") shows
    a diagram where the surveillance subject ("S") is connected to one
    party ("A"), while the other party ("B") is on hold. As shown in the
    diagram, the connection starting from A terminates at S. However,
    the subject ("S") can toggle between the two other parties,
    resulting in a situation where A is on hold, and B is connected
    to S. This situation is illustrated in Step 5 of the same table. At
    that step, the communication from A terminates at S's switch, and
    the communication from B terminates at S. This concept of multiple
    terminations is consistent with the definition we adopt because
    there are multiple points in a call at which there is information
    that identifies the called party. Changes made during the call --
    such as a called party being put on hold -- can generate information
    that identifies a new or changed termination.

45. The J-Standard identifies the "destination" as the number of the
    called party. In order to better understand what a "destination" is,
    we think it is helpful to review common and technical definitions of
    these terms. Webster's Dictionary defines "destination" as "the
    place toward which you are going,"[^87] and Newton's
    Telecommunications Dictionary defines "destination" as an address or
    field "that indicates for whom a message is intended."[^88] These
    definitions, and the J-Standard, all generally describe a place or a
    party that a calling party is trying to reach. In the CALEA context,
    then, a "destination" can be understood to be a party or place to
    which a call is being made.[^89]

46. Under the J-Standard, the "direction" is defined as the number to
    which a call is re-directed or the number from which it came, either
    incoming or outgoing (*e.g.*, redirected-to party or redirected-from
    party). Again, we reject the contention that this information is
    exclusively a telephone number. However, we agree with the general
    characterization of "direction" as a description of navigation
    within a network. We find that the "direction" is, broadly speaking,
    information that identifies the path of communication.

47. For these reasons, we find it proper to view "call-identifying
    information" as consisting of dialing or signaling information that
    is not limited to telephone numbers.[^90] However, this dialing or
    signaling information must identify the origin, termination,
    direction, or destination of each communication. We define these
    terms as follows:

    **origin** is a party initiating a call (*e.g*., a calling party),
    or a place from which a call is initiated; **destination** is a
    party or place to which a call is being made (*e.g*., the called
    party); **direction** is a party or place to which a call is
    re-directed or the party or place from which it came, either
    incoming or outgoing (*e.g*., a redirected-to party or
    redirected-from party); and **termination** is a party or place at
    the end of a communication path (*e.g*., the called or
    call-receiving party, or the switch of a party that has placed
    another party on hold).

    These changes distinguish between origin, destination, direction,
    and termination, and the information that identifies them; permit
    multiple origins, destinations, directions, and terminations in a
    call; and provide for terminations inside a network switch or at
    another point within a network.

48. We think this approach defines call-identifying information in a
    manner that can be converted into actual network capabilities,
    unlike the definition suggested by DoJ/FBI. DoJ/FBI look to Section
    103 of CALEA, which requires a carrier to "ensure that its
    equipment, facilities, or services that provide a customer or
    subscriber with the ability to originate, terminate, or direct
    communications" meet the specified assistance capability
    requirements, and adopt a parallel definition for the terms
    "termination," "origin," and "direction" under the definition of
    "call identifying information." However, it is not clear to us how
    Section 103 describes the key terms. At most, Section 103 indicates
    that Congress concluded that customers who originated, terminated,
    and directed calls might, during this process, use a carrier's
    equipment, facilities and services, and that the carrier's
    equipment, facilities, and services must be capable of isolating and
    providing certain information about those activities. It does not
    tell us what Congress thought a "termination," "origin," and
    "direction" is, nor does it lead to the conclusion that a
    "termination," "origin," or "direction" always uses a carrier's
    equipment, facilities, and services in a manner that generates call
    identifying information. By contrast, the definitions we adopt
    remedy the J-Standard's deficiencies insofar that they are not
    limited to telephone numbers and are framed to accommodate CALEA's
    intent to preserve the ability of law enforcement officials to
    conduct electronic surveillance effectively and efficiently in the
    face of rapid advances in telecommunications technology.
    Nevertheless, our interpretation draws heavily from the
    industry-established standards and is in many cases supported by the
    industry's own technical models.

#### B. [Cost Considerations]{.underline} {#b.-cost-considerations .unnumbered}

49. We also reconsider in depth cost considerations related to the punch
    list items. Under Sections 107(b)(1) and 107(b)(3) of CALEA, if the
    Commission finds that industry-established technical standards are
    deficient, it may establish standards that "meet the assistance
    capability requirements of Section 103 *by cost-effective
    methods*"[^91] and "minimize the cost of such compliance on
    residential ratepayers."[^92] In the *Remand Decision*, the Court
    stated that the *Third R&O* "made no attempt to compare the cost of
    implementing the punch list capabilities with the cost of obtaining
    the same information through alternative means, nor did it explain
    how it measured cost-effectiveness. Although it mentioned
    residential ratepayers, it never explained what impact its Order
    would have on residential rates."[^93] The Court could not find a
    rational connection between the facts found and the choice made --
    and thus concluded that the Commission's treatment of these cost
    factors represented an arbitrary and capricious action.[^94] For
    this reason, we generally address cost considerations in this
    Section. We will then apply that general framework in portions of
    the next four Sections, where we will evaluate each of the four
    vacated punch list capabilities.

50. [Comments]{.underline}. In the October 2000 *Public Notice*, the
    Commission sought comment on the definition of the term
    "cost-effective methods," how cost effectiveness should be measured
    in relation to the punch list capabilities, and how requiring the
    capabilities would affect residential ratepayers.[^95] It also asked
    for alternative methods for providing the four capabilities, and for
    the implementing cost and effect on residential ratepayers of each
    alternative method.[^96] Many commenters contend that the J-Standard
    is not deficient and, insofar that it will be less expensive to
    implement than the punch list capabilities, retention of the
    J-Standard represents the most "cost-effective" option for the
    Commission.[^97] Others suggest that the Commission must consider
    whether there are less costly alternatives to providing the same
    functionality as the punch list capabilities.[^98] In general, these
    commenters suggest an approach that measures cost-effectiveness by
    identifying two or more ways of meeting CALEA's requirements and
    then determining which is the least expensive to implement.

51. WorldCom says even if such a comparison is not available, we should
    adopt a definition that still gives "cost-effective" meaning. "There
    is a point where a particular capability is simply too costly," it
    asserts, adding that it believes that CALEA implementation cannot be
    an open-ended process in which cost is not a consideration.[^99]
    Other commenters contend that the projected cost of CALEA
    implementation, by itself, makes it impossible for us to implement
    the punch list capabilities in a "cost-effective" manner.[^100] For
    example, USTA and others acknowledge that CALEA implementation costs
    have been reduced by the FBI's "flexible deployment" program,[^101]
    but USTA argues that not all costs have been defrayed and that there
    is no assurance that the punch list capabilities can be deployed in
    a "cost-effective" manner. USTA also maintains that the costs of
    CALEA far exceed the \$500 million appropriated by Congress to
    reimburse carriers for CALEA compliance, and that these costs are
    solely for the benefit of LEAs and would otherwise not be incurred
    by carriers.[^102] Both USTA and BellSouth also suggest that we
    undertake a cost-benefit analysis.[^103] BellSouth also claims that
    cost-minimization is a reasonable means of defining
    cost-effectiveness.[^104]

52. CTIA, which claims that the four vacated capabilities do not meet
    CALEA's Section 107(b) requirements,[^105] acknowledges that DoJ/FBI
    have entered into "buyout" agreements with several manufacturers,
    but states that it remains concerned that an uneven playing field
    will be created if carriers are not covered equally by these
    agreements. CTIA recommends that the Commission determine which
    costs the buyout actually reimburses and which costs are left to
    carriers to pay.[^106] CTIA and the National Telephone Cooperative
    Association ("NTCA") also maintain that Section 107 requires that
    the Commission evaluate cost-effectiveness across the industry, not
    on a carrier-by-carrier basis.[^107] Additionally, CTIA expresses
    concern that the DoJ/FBI buyout initiative may cause some carriers
    to accept and adopt all punch list capabilities before the
    lawfulness of those capabilities has been determined.[^108]

53. Commenters also cite the cost of implementing the punch list
    capabilities, and claim that the adoption of those capabilities will
    not minimize the cost of compliance on residential ratepayers. USTA
    argues that the cost of the J-Standard capabilities, the punch list
    capabilities, and CALEA capacity requirements far exceed the \$500
    million appropriated by Congress to reimburse carriers for CALEA
    compliance.[^109] BellSouth claims that it will incur costs for the
    four vacated punch list capabilities, plus the two uncontested punch
    list capabilities, of between \$193-286 million, depending upon
    whether the FBI buyout has been consummated with all vendors and
    whether carriers are allowed to install CALEA-compliant equipment
    and software during regularly scheduled upgrades.[^110] These costs,
    commenters claim, make it impossible to minimize the cost on
    residential ratepayers,[^111] and will have a particularly
    disproportionate hardship on residential ratepayers subscribed to
    small telephone companies operating in rural areas with limited
    resources.[^112]

54. DoJ/FBI contend that the aggregate costs of implementing all CALEA
    capabilities will be much lower than industry estimates both because
    most costs are being borne by the government and because carriers
    are generally permitted to deploy CALEA solutions as part of their
    normal software upgrade cycles.[^113] DoJ/FBI note that, under
    CALEA, certain carrier costs are reimbursable and further note that
    the FBI has reached cooperative agreements with five manufacturers
    that greatly reduce carrier costs. DoJ/FBI contend that, under these
    buyout agreements, each manufacturer provides a CALEA-compliant
    software solution for J-STD-025 and the six punch list items
    required by the *Third R&O*, and that carriers software costs are
    fully covered. DoJ/FBI maintain that the switch platforms covered by
    these buyout agreements account for approximately 90% of the
    wireline and wireless switches currently in use in the United
    States.[^114] Finally, DoJ/FBI argue that, with minor exceptions,
    CALEA hardware modifications are not attributable to the four
    contested punch list capabilities.[^115] DoJ/FBI further contend
    that the incremental costs associated with implementing the four
    punch list capabilities are only a small portion of aggregate costs
    and that many costs of modifying the J-Standard will be the same
    regardless of whether the four capabilities are added.[^116]

55. More fundamentally, DoJ/FBI argue that the cost criteria of this
    section do not call on the Commission to decide whether the costs of
    particular assistance capabilities are worth incurring; rather,
    these criteria are directed instead at ensuring that the Commission
    does not subject carriers and residential ratepayers to unnecessary
    expense by choosing a costly means of meeting Section 103's
    requirements when an equally effective but less expensive
    alternative is available. DoJ/FBI contend that because no commenter
    has identified any alternative means that cure the deficiencies of
    J-STD-025 by less expensive means,[^117] that failure to identify
    alternatives disposes of any cost-based objections under Section
    107(b).[^118] Therefore, DoJ/FBI conclude, the Commission can adopt
    the four punch list capabilities and comply with the cost criteria
    outlined in Section 107(b) of CALEA.

56. Finally, DoJ/FBI refute BellSouth's asserted CALEA costs of
    \$193-286 million to implement all six punch list capabilities as
    unsubstantiated and not credible. DoJ/FBI contend that BellSouth
    will pay nothing for the software required to implement CALEA on
    most switching platforms; BellSouth is participating in the FBI's
    flexible deployment program, which will permit it to adhere to its
    normal software upgrade cycle; and BellSouth is eligible for federal
    reimbursement for costs attributable to CALEA's capacity
    requirements.[^119] DoJ/FBI assert that BellSouth offers no
    explanation for its costs in light of the cost-shifting and
    cost-minimizing plans in which it will participate, and note that no
    other carrier has advanced similar cost claims.[^120] DoJ/FBI also
    assert that the relevant costs are those specifically attributable
    to the four contested punch list capabilities, not the sum total of
    all possible CALEA implementation costs. Finally, DoJ/FBI assert
    that CTIA's competitive concerns involve reimbursement issues before
    DoJ, and not standard-setting issues before the Commission.[^121]

57. [Discussion]{.underline}*.* CALEA does not define "cost-effective."
    We agree with those commenters who suggest one approach for
    determining whether something is "cost-effective" is to compare two
    or more ways of accomplishing a task and identifying the process
    that is the least expensive. We believe this approach is consistent
    with the *Remand Decision*, where the Court, in addressing Section
    107(b)(1)'s requirement "by cost-effective methods," found the
    Commission "made no attempt to compare the cost of implementing the
    punch list capabilities with the cost of obtaining the same
    information through alternative means."[^122] Additionally, the
    Commission has previously used the phrase to describe a comparative
    process,[^123] although it has not had the opportunity to consider
    "cost-effective" as a statutory term. We find further support for
    this interpretation of "cost-effective" in other statutes where
    Congress has defined or described the term,[^124] as well as in
    other agencies' rules.[^125] Thus, we think it makes sense to
    consider whether a particular option is better than some alternative
    at achieving some particular regulatory requirement, when such a
    comparison is available.[^126] As described *infra* in our analysis
    of each punch list capability, we first inquire whether we have in
    the record an alternative means to accomplish each of the punch list
    capabilities.[^127] To the extent that we determine that each punch
    list capability "meet(s) the assistance capability requirements" of
    CALEA, but we are unable to compare the cost of implementing the
    punch list capabilities with the cost of obtaining the same
    information though alternative means, we will not end our inquiry.
    Although we think, based on the comments, the *Remand Decision*, the
    Commission's prior interpretation of the term and other statutes
    that have interpreted the term, that a cost comparison is the most
    useful means of determining whether something is "cost-effective,"
    we recognize that it may not be the only method. If we cannot make a
    cost comparison, we will consider other ways of determining whether
    a punch list capability is "cost-effective." We disagree with those
    who would have us end our inquiry once we determine that there are
    no alternative means of meeting a CALEA capability, because under
    such circumstances other methods of measurement may assist the
    Commission in giving meaning to the "cost-effective" element.

58. We find merit in BellSouth's suggestion that something can be
    "cost-effective" if it serves to minimize costs. In general,
    something is "effective" if it accomplishes a task in an efficient
    manner.[^128] At the same time, we approach this evaluation
    cautiously. We disagree with USTA that CALEA costs -- including
    punch list costs -- are solely for the benefit of LEAs. The public
    benefits of implementing the vacated punch list capabilities could
    be large, if these capabilities significantly assist in crime
    reduction and prevention. For example, granting LEAs these
    capabilities could potentially play a major role in the timely
    apprehension of a terrorist suspect. The benefits of just one such
    apprehension could be countless lives saved and billions of
    dollars.[^129] However, we decline to adopt or reject a capability
    solely on the basis of a cost-benefit analysis because Congress has
    already made such a calculation when it determined the assistance
    capability requirements of CALEA.[^130]

59. For these reasons, we think those comments that would have us reject
    the punch list capabilities solely because they would be costly to
    implement are incorrect. As an initial matter, we note that there
    are costs associated with CALEA, and it is clear that Congress
    anticipated that carriers would bear some of these costs.[^131]
    However, as part of our examination of whether a technical standard
    that we require under CALEA is "cost-effective," we will consider
    the financial burden it places on carriers. In the case of the punch
    list capabilities, we note that several aspects of the
    implementation program significantly mitigate this burden, which
    serves to make implementation of the punch list capabilities
    "cost-effective" for carriers.

60. First, DoJ/FBI will be paying for many of the costs associated with
    implementing the four vacated punch list capabilities. For more than
    90% of switches, DoJ/FBI state that they have reached buyout
    agreements with manufacturers to pay for all necessary software
    upgrades, and those upgrades represent a significant portion of the
    total cost of implementing the four vacated punch list
    capabilities.[^132] Second, for the majority of switches, carriers
    will be permitted to implement required punch list capabilities
    coincident with routine switch upgrades. Thus, most carriers may
    defer punch list costs to achieve implementation efficiencies;
    *i.e.*, punch list costs will be effectively lessened because most
    carriers will not have to perform a special punch list software
    upgrade. Third, five telecommunications equipment manufacturers have
    incorporated all six punch list capabilities required by the *Third
    R&O* into one software upgrade,[^133] and it is unclear whether
    deleting one or more of these capabilities from that upgrade will
    lessen the cost of the upgrade to those carriers that purchase
    software from manufacturers that are not covered by the DoJ/FBI
    buyout agreements.[^134] Fourth, carriers can recover at least a
    portion of their CALEA software and hardware costs by charging to
    LEAs, for each electronic surveillance order authorized by CALEA, a
    fee that includes recovery of capital costs, as well as recovery of
    the specific costs associated with each order.[^135] Finally,
    carriers are not required to pay to make CALEA-compliant any
    equipment, facility, or service deployed on or before January 1,
    1995, unless that equipment, facility, or service has been replaced,
    significantly upgraded, or undergone major modification.[^136]
    Therefore, for many switches, there will be few costs attributable
    to CALEA. Together, these factors support a finding that the punch
    list capabilities represent "cost-effective methods" to meet CALEA's
    requirements.

61. We also disagree with CTIA that potential absence of a level playing
    field for individual carriers should cause us to reject inclusion of
    any punch list capability. To the extent that a carrier believes
    that implementing any required capability is not reasonably
    achievable for cost or other reasons with respect to any equipment,
    facility, or service deployed after January 1, 1995, the carrier may
    petition the Commission under Section 109(b) of CALEA for a
    determination as to whether it must pay for any such
    implementation.[^137] With specific respect to the costs of the six
    punch list capabilities cited by BellSouth, it is unclear what
    BellSouth's costs would be for the two uncontested capabilities
    alone, and how the DoJ/FBI buyout and flexible deployment programs
    affect those costs -- whether for two, three, four, five, or six
    punch list capabilities.

62. We agree with commenting parties that we must consider the effect of
    CALEA compliance on residential ratepayers under Section 107(b)(3).
    For the reasons discussed below, we consider the effects on
    residential wireline subscribers only. Although CALEA does not
    define the term "residential ratepayers," we note that in debating
    the CALEA bill in the House of Representatives (H.R. 4922),
    Congressman Markey stated: "Section 109(b)(1) lists several factors
    the Commission should consider in determining whether compliance is
    reasonable. These factors direct the Commission's attention to,
    *inter alia*, the impact on rates for basic residential telephone
    service . . . ."[^138] Wireless telecommunications services such as
    cellular or PCS are intrinsically mobile services, and we have not
    previously attempted to describe what "basic residential" service is
    in the wireless context, nor have we differentiated between
    residential and other classes of wireless service.[^139] By
    contrast, the concept of "residential ratepayer" has historically
    been used in the context of rate regulation for wireline
    telecommunication service, which traditionally differentiates rates
    for residential and business customers. Interpreting the legislative
    history to reflect Congress's desire to ensure that basic wireline
    telephone rates would not be significantly affected by CALEA is
    supported by other provisions in CALEA. For example, Section
    229(e)(1) allows carriers to petition the Commission to adjust rates
    to recover costs expended in satisfying CALEA's capability
    requirements, and Section 229(e)(3) directs the Commission to
    convene a Federal-State joint board to recommend appropriate changes
    to the Commission's rules for recovering costs pursuant to the
    Commission's jurisdiction. Both of these provisions apply only to
    wireline telecommunications carriers. Pursuant to Section 332 of the
    Communications Act, states do not have authority to regulate rates
    for commercial mobile radio services[^140] and the Commission has
    forborne from such rate regulation.[^141] Because Congress enacted
    Section 332 (and the Commission adopted its forbearance decision)
    prior to CALEA, it is reasonable to conclude that Congress was aware
    of the lack of rate regulation for wireless services. Accordingly,
    it is appropriate to limit our consideration of the effect on
    residential ratepayers to those whose rates are regulated.

63. In addition, we note that at the time CALEA was enacted in October
    1994, there were many more households with telephones than wireless
    subscribers.[^142] Moreover, we note that about 94% of households
    had telephone service when CALEA was enacted and that "basic
    residential telephone service" at that time was almost entirely
    wireline.[^143] Accordingly, it seems clear that, in expressing
    concern about the impact of CALEA compliance on "residential
    ratepayers," Congress was referring to wireline subscribers.

64. We believe that the general approach we have taken with our analysis
    of "cost-effective" is applicable in considering ways of minimizing
    the impact on residential ratepayers. That which is "cost-effective"
    is also likely to correlate to the effect on residential ratepayers,
    and so many of the factors we have identified in our discussion of
    §107(b)(1) will also apply to a §107(b)(3) analysis. We conclude
    that the capabilities that we have identified -- and the means of
    implementing them -- do serve to minimize the cost on residential
    ratepayers. The DoJ/FBI buyout agreements incorporate costs related
    to the four punch list capabilities, and therefore will serve to
    reduce the overall cost borne by carriers and passed through to
    their ratepayers -- including residential ratepayers.[^144] The
    "flexible deployment program" sponsored by DoJ/FBI permits carriers,
    in many circumstances, to deploy CALEA-compliant software over the
    course of regularly scheduled upgrades. The incorporation of CALEA
    deployment into the regular business cycle can produce efficiencies
    that reduce CALEA compliance costs.[^145] Section 229(e) of the
    Communications Act sets forth a cost recovery process by which a
    common carrier may petition the Commission to adjust charges to
    recover costs associated with CALEA compliance.[^146] Because this
    provision gives the Commission authority to approve these changes
    "consistent with maintaining just and reasonable charges," and in
    furtherance of both the Communications Act and CALEA, we conclude
    that any CALEA-based charges that traditional wireline carriers wish
    to pass on to residential ratepayers will be afforded additional
    Commission review, whereupon the Commission can insure that
    residential ratepayer costs are minimized. Finally, Section 109
    serves as an ultimate check on cost considerations. To the extent
    that a carrier believes that it cannot undertake the implementation
    of a particular capability with respect to any equipment, facility,
    or service, it may request a determination as to whether the
    capability is "reasonably achievable."[^147] We conclude that the
    punch list capabilities are supported by DoJ/FBI cost-minimization
    programs that serve to shift costs away from or ameliorate the cost
    impact on carriers.[^148] These measures, in turn, minimize the
    impact on the residential ratepayers who otherwise might see these
    costs reflected in higher bills.

65. To the extent that there are costs borne by the carriers and passed
    through to customers, we note that it is likely that the costs would
    be shared by all ratepayers and, therefore, would be significantly
    diluted on an individual residential ratepayer basis.[^149] The fact
    that costs are spread across such a large base in itself suggests
    another means by which provision of these capabilities will minimize
    the effect on residential ratepayers -- that the cost of CALEA
    compliance for any particular residential ratepayer will be
    minimal.[^150] In this connection, we note that, even if the
    definition of "residential ratepayers" is broadened to include
    households that use wireless telephone service as a substitute for
    local wireline telephone service, there is no reason to believe that
    implementation of the punch list items would fail to minimize the
    cost on wireless residential ratepayers. In the *Third R&O*, the
    Commission found that five major telecommunications manufacturers --
    which account for the great majority of sales to wireline, cellular,
    and broadband PCS carriers in the United States -- anticipated total
    revenues from carriers purchasing the four vacated punch list
    capabilities of about \$277 million. Of this amount, about \$159
    million was anticipated in wireless revenues and about \$117 million
    was anticipated in wireline revenues.[^151] While these figures do
    not include all carrier costs of implementing the four capabilities,
    in the *Third R&O* we found that, relative to other cost/revenue
    estimates, the manufacturers' estimates were "the most detailed and
    reliable."[^152] Further, the FBI's buyout and flexible deployment
    programs, coupled with manufacturers incorporating all punch list
    capabilities into one software upgrade, would likely lessen costs to
    such an extent that total costs of implementing the four vacated
    capabilities nationwide would be well below \$159 million to
    wireless carriers and \$117 million to wireline carriers.
    Nonetheless, assuming pessimistically that those costs would
    eventuate and that they would be passed on to wireless subscribers
    and residential wireline ratepayers in full as a one-time charge,
    the respective charge per wireless subscriber and residential
    wireline ratepayer would average about \$1.45 and \$1.20.[^153]
    Alternatively, if these costs to wireless and wireline carriers were
    converted to a rate increase to wireless subscribers and residential
    wireline ratepayers, the rate increase would average only pennies
    per month per subscriber/ratepayer.[^154] Accordingly, we find that
    the likely worst-case cost impact of carriers implementing the four
    vacated capabilities would be minimal on both wireless subscribers
    and residential wireline ratepayers.

    C. [Dialed Digit Extraction]{.underline}

66. This capability would require the telecommunications carrier to
    provide to the LEA on the call data channel the identity of any
    digits dialed by the subject after connecting to another carrier\'s
    service (also known as "post-cut-through digits"). One example of
    such dialing and signaling would occur when the subject dials an 800
    number to access a long distance carrier. After connecting to the
    long distance carrier through the 800 number, the subject then dials
    the telephone number that represents the ultimate destination of the
    call. As discussed in paragraph nine, *supra*, the Court found that
    the Commission's treatment of dialed digit extraction in the *Third
    R&O* was insufficient because it did not explain the basis for its
    conclusion that this capability constituted call-identifying
    information, nor how granting LEAs this capability would satisfy
    CALEA's requirements by cost-effective methods or protect the
    privacy and security of communications not authorized to be
    intercepted.

67. [Comments]{.underline}*.* Several commenters claim that
    post-cut-through digits are never call-identifying from the
    perspective of the originating carrier. USTA states that once the
    originating telephone network has processed a phone call, the
    originating network does not redirect the call, change its
    destination or alter the point of termination.[^155] Similarly, CTIA
    states that digits dialed after a call is connected are always
    content from the perspective of the originating carrier, even though
    those digits may be call identifying from the perspective of the
    subsequent interexchange carrier. CTIA claims that this is
    especially true for wireless carriers, which have no local loop,
    because the digits used to complete the call are carried on the
    signaling or control channels and post-cut-through digits are
    carried over the content channels.[^156] CTIA also maintains that
    events that occur on the switches or facilities of other carriers
    are not contemplated or addressed by the J-Standard.[^157] PCIA
    further notes that a dialed digit extraction capability would
    require an originating carrier to electronically monitor the call
    content channel in order to decode all digits dialed after calls are
    connected, and that some post-cut through digits are used for a
    variety of transactional purposes rather than for call
    routing.[^158]

68. USTA also argues that inclusion of dialed digit extraction
    capability would be onerous for carriers because it would require
    them to subvert normal call processing needs and buy additional
    equipment solely to accommodate surveillance activities. USTA
    further argues that J-STD-025 provides for use of a call content
    channel to monitor the transmit path from a subject and to extract
    any post dialed digits, and that this existing capability is more
    economical than a dialed digit extraction capability would be.[^159]
    PCIA contends that post-cut through digits are not reasonably
    available to the originating carrier that completed the call, and
    that the originating carrier regards all post-cut through digits as
    call content, even if they are used for call routing.[^160] PCIA
    further contends that providing these digits to LEAs would be a
    particular problem for wireless carriers because those carriers do
    not use "tone decoders" in call processing.[^161] Thus, PCIA
    contends, wireless carriers would have to make major, expensive
    modifications to their switches, including installation of tone
    decoders that are otherwise unnecessary.[^162] Similarly, AT&T
    contends that the cost of implementing a dialed digit extraction
    capability for wireless carriers would be exorbitant and not
    cost-effective because dual tone multi frequency ("DTMF") tone
    extractors and decoders would be required for every surveillance
    target and every telephone line potentially usable by that target
    with advanced calling features.[^163] AT&T recommends that, should
    the Commission require this capability, we consider requiring LEAs
    to extract post-cut-through dialed digits on content channels using
    their own decoders.[^164] AT&T contends that this would require LEAs
    to purchase only a limited number of tone decoding collection
    devices, which would be much less expensive and more efficient than
    requiring every switch in the nation to be overhauled to provide a
    dialed digit extraction capability. AT&T states that the FBI has
    estimated that it could cost LEAs up to \$20 million per year to
    provide their own decoding, but AT&T asserts that this would be far
    less than the economic burden that would be forced upon the
    telecommunications industry should carriers be required to provide
    and implement thousands of DTMF decoders.[^165]

69. Commenters also claim that there are alternate means for LEAs to
    obtain the dialed digit functionality. BellSouth and others contend
    that a LEA could obtain post-cut-through digits by serving the
    originating carrier with a Title III order, which permits LEAs to
    access call content.[^166] Alternatively, BellSouth suggests that a
    LEA could obtain these digits by serving the terminating carrier
    with a pen register order.[^167] CDT states that dialed digit
    extraction entails the impermissible interception of content, and
    also states that the alternative means discussed above -- namely,
    the use of Title III warrants on originating carriers or pen
    register orders on terminating carriers -- will serve to protect
    privacy.[^168] CTIA also expresses concern about protecting the
    privacy of post cut through dialed digits, and suggests that a
    dialed digit extraction capability could lead to a situation where
    the originating carrier would have to extract spoken digits from the
    content channel.[^169] BellSouth also expresses concern that
    requiring this capability in the absence of a Title III warrant will
    jeopardize its responsibility with respect to customer
    privacy.[^170]

70. Both CTIA and AT&T contend that we must consider the legality of
    requiring dialed digit extraction on a pen register.[^171] CTIA
    maintains that 18 U.S.C. §3121(c) was intended to codify
    then-existing New York law that made it unlawful to use a pen
    register device that also had the capacity to acquire the contents
    of the communication.[^172] Others state that DoJ/FBI has not
    identified the legal authority that would permit it to obtain
    post-cut-through digits under a pen register,[^173] and suggest that
    it would be premature for us to require this functionality in the
    absence of assurance that LEAs could legally avail themselves of
    it.[^174] BellSouth claims that the burden of proof should be on the
    government to "toggle on" this feature.[^175]

71. CDT also contends that LEAs' desire to capture all telephone numbers
    cannot justify requiring disclosure of content, and cites *Brown v.
    Waddell,*[^176] which held that "clone" pager devices cannot be
    authorized under pen register authority because some of the digits
    intercepted may be content.[^177] CDT also maintains that privacy
    cannot be protected through a "minimization" scheme, for there is no
    such scheme that can distinguish between post-cut-through digits
    that are content and those that are not, and it rejects the
    minimization requirements of Title III as being applicable to a pen
    register order.[^178] Finally, Cingular claims that if some digits
    are not call-identifying information, then carriers cannot be
    required to provide all digits,[^179] and WorldCom asks us to state
    that the CALEA requirements do not preclude LEAs from obtaining the
    proper legal authority before they obtain information that is
    otherwise required under the statute.[^180]

72. DoJ/FBI refute claims that post-cut-through dialed digits are not
    "call-identifying information" from the perspective of the
    originating carrier because that carrier does not use the
    information to route the call. Instead, DoJ/FBI claim that CALEA is
    written to include information that identifies the origin,
    direction, destination, or termination of a communication and does
    not consider how a particular carrier handles the information.[^181]
    DoJ/FBI also state that while originating carriers may not
    themselves use post-cut-through digits for call routing purposes,
    neither the statutory definition of call-identifying information nor
    CALEA Section 103(a)(2) limits a carrier's obligation to
    call-identifying information that is used by the carrier
    itself.[^182] DoJ/FBI also assert that to hold that dialing and
    signaling information is not call-identifying if a particular
    carrier does not use the information for call routing purposes would
    mean that, in many cases, telephone numbers would not qualify as
    call-identifying information. DoJ/FBI cite a conventional
    long-distance call in which the originating carrier uses only the
    area code to route the call. DoJ/FBI maintain that under the
    commenters' interpretation of call-identifying information, only the
    area code would qualify as call-identifying; hence the originating
    carrier would be under no obligation to provide an LEA the rest of
    the telephone number. DoJ/FBI contend that CTIA is incorrect in
    suggesting that, if carriers were to supply to LEAs post-cut-through
    dialed digits, that would expand LEAs' surveillance capabilities
    beyond their traditional scope. DoJ/FBI maintain that LEAs have
    always had the capability to obtain dialed digits, post-cut-through
    as well as pre-cut-through, and that only the methods of obtaining
    those dialed digits have varied.[^183] DoJ/FBI also claim that,
    because dialed digit extraction is merely a capability, we may
    require it without conflicting with CALEA's provision that limits a
    LEA from requiring a specific design of equipment, facilities,
    services, features, or system configurations.[^184]

73. As DoJ/FBI state, the applicability of the pen register statute to
    post-cut-through dialed digits has been disputed in the comments to
    this proceeding, and the Court noted that this issue has yet to be
    resolved.[^185] However, DoJ/FBI contend that we need not resolve
    this issue if we distinguish between providing the capability to
    perform dialed digit extraction and requiring carriers to deliver
    this information.[^186] We can find the former is required as a
    CALEA capability, DoJ/FBI contend, while emphasizing that a carrier
    need only provide this information pursuant to a lawful instrument,
    whether that instrument is a pen register or a Title III warrant.
    Furthermore, DoJ/FBI contend, we can further CALEA's privacy
    considerations by requiring carriers to have the capability to turn
    off dialed digit extraction and refining the dialed digit extraction
    requirement if technology is subsequently developed that
    distinguishes between post-cut-through digits that are
    "call-identifying" and those that are content.[^187]

74. DoJ/FBI distinguish *Brown v. Waddell* as inapplicable to our
    analysis. DoJ/FBI maintain that clone pagers are used by LEAs to
    intercept content messages transmitted to digital display pagers,
    and that is why those pager devices cannot be authorized under pen
    register authority.[^188] Instead, DoJ/FBI claim, because digital
    pagers are used to display visual messages, "\[t\]he whole point of
    using a clone pager is to obtain the content of those
    messages."[^189] For dialed digit extraction, LEAs seek those
    post-cut-through digits that are call-identifying information.
    Similarly, DoJ/FBI contend that the pen register minimization
    provision in 18 U.S.C. §3121(c) does not preclude LEAs from
    recording and decoding post-cut-through digits that are used in call
    processing.[^190] DoJ/FBI also refute CTIA's contention that this
    provision was intended to federalize the state law decision in
    *People v. Bialostok* regarding the treatment of pen registers under
    New York Criminal Procedure Law.

75. DoJ/FBI ask us to reject the alternatives that parties have
    suggested -- serving the originating carrier with a Title III
    warrant, or serving the terminating carrier with a pen register
    order -- as failing to "meet the assistance requirements" of
    CALEA.[^191] DoJ/FBI claim that these methods are inconsistent with
    CALEA because they do not ensure that LEAs can obtain the
    information they seek, and because they would limit LEAs' ability to
    obtain information "before, during, or immediately after" the
    communication has taken place.[^192] DoJ/FBI claim that were we to
    accept these alternatives, we would fail to give meaning to the
    requirement in Section 103(a)(2) of CALEA that every carrier must be
    capable of delivering all reasonably available call-identifying
    information to law enforcement contemporaneously with the
    transmission of the underlying communication.[^193]

76. With respect to the cost of implementing a dialed digit extraction
    capability, DoJ/FBI concede that this capability may require
    additional hardware for certain switch platforms, but note that to
    the extent these hardware add-ons are attributed to capacity
    requirements, carriers may seek reimbursement under the capacity
    provisions of DoJ's cost recovery regulations,[^194] and further
    note that the cost of modifying switches placed into service before
    1995 will not be borne by carriers.[^195] DoJ/FBI also refute claims
    that it would be less expensive for originating carriers to deliver
    post-cut-through digits to LEAs on a call content channel and to
    have the LEAs use their own tone decoders to extract dialed digits,
    and contend that this option should be rejected for privacy reasons
    because LEAs would then receive all of the content of the
    call.[^196]

77. [Discussion]{.underline}. As an initial matter, we conclude that the
    dialed digit extraction capability provides call-identifying
    information. Post-cut-through digits identify, under many
    circumstances, a communication's destination or a termination. For
    example, a party may dial a toll-free number to connect to a long
    distance carrier (*e.g.* 1-800-CALL-ATT) and subsequently enter
    another phone number to be connected to a party. That second number
    identifies a "destination" because it is "a party or place to which
    a call is being made." If a successful connection is made, that
    second number also identifies a "termination" because it is the
    called or call-receiving party. We recognize that a subject may also
    dial digits that are not call-identifying information -- such as a
    bank account or social security number -- but note that many
    post-cut-through dialed digits simply route the call to the intended
    party and are, therefore, unquestionably call-identifying
    information even under a narrow interpretation of that term.

78. We disagree with those commenters who contend that dialed digits are
    not "call-identifying" because a particular carrier does not use
    that information as part of its call processing. Such an approach
    would recast CALEA's focus from the interception of particular
    communications (which may pass through several carriers) to the
    operations of particular carriers. "Call-identifying information" is
    defined in terms of "communication generated or received by a
    subscriber."[^197] The definition says nothing about whether a
    carrier uses the dialed digits as part of its own call processing
    nor does it distinguish how the carrier handles those digits within
    its network.[^198] We also do not find any support for a
    carrier-based distinction in the legislative history of the
    Act.[^199] Although CALEA considers whether a carrier can reasonably
    obtain call-identifying information (no one has suggested, for
    example, that a carrier must provide a LEA information about a call
    it has not carried), it does not turn on how a carrier treats that
    information. Therefore, we think Verizon is correct when it observes
    that dialed digits may be "call-identifying" for purposes of CALEA
    even if they are not so from a carrier's perspective.[^200] We also
    agree with DoJ/FBI that limiting "call-identifying information" to
    that information used by a particular carrier to process calls could
    lead to absurd results, such as an originating carrier declining to
    provide a LEA with the seven digits dialed after the area code in a
    non-post-cut-through long distance call by claiming that it is not
    "call-identifying information" from that carrier's perspective.

79. Section 103(a) of CALEA requires carriers to be capable of
    "expeditiously isolating" wire and electronic communications and
    call-identifying information to enable LEAs to obtain this
    information "concurrently with their transmission from the
    subscriber's equipment, facility, or service\...." (in the case of
    the interception of wire and electronic communications)[^201] or
    "before, during, or immediately after the transmission of a wire or
    electronic communication" (in the case of call-identifying
    information).[^202] This timing requirement leads us to reject the
    alternative of having a LEA serve the terminating carrier with a pen
    register order to obtain those dialed digits that were placed once a
    call has been cut-through from the originating carrier. Under this
    suggestion, we can envision a scenario in which a suspect could
    connect to multiple interexchange carriers before dialing the final
    phone number. In that case, the LEA would have to submit pen
    register orders to each interexchange carrier and, because the
    identity of each new carrier would only be identified by one
    immediately before it in the call history, the LEA would have to
    initiate each pen register sequentially. This process would not
    simply be burdensome on LEAs; it is inconsistent with Section 103(a)
    because the government would be unable to obtain call-identifying
    information concurrently with its transmission to or from a
    subscriber. Dialed digit extraction, by contrast, does not suffer
    from this time lag problem.

80. We also find that dialed digit extraction is a capability that is
    "reasonably available to the carrier" under Section 103 of
    CALEA.[^203] Whether a carrier does or does not process or use these
    digits in the course of a communication strikes us as much less
    important for purposes of this analysis than whether the carrier
    does or does not have access to the digits. PCIA and other
    commenters note that dialed digit extraction will require greater
    use of tone decoders in existing switches and the installation of
    tone decoders on wireless networks.[^204] Because the deployment of
    tone decoders may result in additional hardware costs, and may
    require carriers to engage in an activity they do not currently
    perform (the identification of post-cut-through digits), these
    commenters conclude that dialed digit extraction is not "reasonably
    available."[^205] We disagree with this approach, which suggests
    that, if carriers have to expend funds on tone decoders, a dialed
    digit extraction capability is not "reasonably available." The
    J-Standard defines "reasonably available" as information "present at
    an Intercept Access Point for call processing purposes."[^206] We
    think this is a better approach -- something is "available" if it is
    accessible, for example[^207] -- but we question why the information
    must be present "for call processing purposes." We read "reasonably"
    as a qualifier; if information is only accessible by significantly
    modifying a network, then we do not think it is "reasonably"
    available. We reject, *infra*, the proposal that a carrier provide a
    LEA with the content channel and look to the LEA to obtain
    post-cut-through dialed digits using their own decoders. When
    post-cut-through dialed digits are present at a carrier's Intercept
    Access Point, we find that they can be made available to a LEA
    without significantly modifying the carrier's network.[^208] We
    recognize that there are costs associated with the implementation of
    dialed digit extraction -- in particular, the installation of
    additional tone decoders -- but we do not believe that these costs
    (especially in light of the reimbursement mechanisms) make the
    capability any less accessible to carriers. Moreover, because the
    Commission must take into consideration cost factors when it sets
    standards under Section 107(b) of CALEA, we think cost concerns are
    better addressed as part of our Section 107(b) analysis, as opposed
    to our inquiry as to whether information is "reasonably available"
    to a carrier.

81. Although we have found that dialed digit extraction is a capability
    that meets CALEA's assistance capability requirements under Section
    103 of the Act, CALEA requires any technical standards the
    Commission adopts to comply with the provisions of Section 107(b).
    Section 107(b)(2) requires that any standards we require must
    "protect the privacy and security of communications not authorized
    to be intercepted."[^209] Because not all post-cut-through digits
    will be "call-identifying information," several commenters contend
    that this provision bars us from requiring dialed digit extraction.
    We disagree.

82. As DoJ/FBI note, we can distinguish between providing the capability
    to perform dialed digit extraction and deciding whether this
    information must be delivered under a particular legal authority.
    While we believe it is clear that LEAs may receive post-cut-through
    dialed digits that constitute call-identifying information, there
    currently appears to be no technology that can separate those
    post-cut-through dialed digits from other post-cut-through dialed
    digits that are not call-identifying (*i.e*., that are call
    content). Moreover, as the Court noted in the *Remand Decision*,
    although the government contends that a LEA may receive all
    post-cut-through digits with a pen register order, subject to
    CALEA's requirements that the LEA uses "technology reasonably
    available to it" to avoid processing digits that are content, no
    court has yet considered that contention and it may be that a Title
    III warrant is required to receive all post-cut-through
    digits.[^210] We strongly disagree with CTIA's contention that "the
    Commission must decide the applicability of the pen register statute
    to post cut through dialed digits so that a subsequent court can be
    assured that the law was applied and privacy considered in the
    decision-making process."[^211] The Court took issue with the
    Commission precisely because the Commission made such a conclusion.
    Although the Commission assumed in the *Third R&O* that a pen
    register order would always be sufficient for a LEA to obtain
    post-cut-through dialed digits in all cases, the Court observed that
    "\[n\]o court has yet considered that contention."[^212] We think it
    is inadvisable for us to make such a blanket conclusion and we
    decline to do so here.

83. In a similar vein, we decline to decide whether a Title III warrant
    is an alternative to dialed digit extraction. Because
    post-cut-through digits include call identifying information, LEAs
    should be able to obtain this information under CALEA so long as
    they have a valid legal instrument. Although a Title III warrant --
    which would give a LEA call content -- may be one such valid
    instrument, it is not up to us to decide whether it is the only one
    that could be used. Were we to conclude that a Title III warrant
    represents an alternative means of accomplishing the dialed digit
    extraction capability we would necessarily have to assume that a pen
    register does not entitle a LEA to dialed digit extraction. Such a
    decision would improperly usurp the role of the courts to decide
    what legal instrument is necessary to obtain the dialed digit
    information. DoJ/FBI contend that by enacting the provision found in
    18 U.S.C. §3121(c) that requires LEAs to use technology reasonably
    available to them to limit recording and decoding to dialing and
    signaling information used in call processing, Congress understood
    the scope of a pen register to include post-cut-through dialed
    digits in some cases.[^213] We do not know whether this is true, and
    it may be that a Title III warrant will be a LEA's only alternative
    for obtaining post-cut-through dialed digits in some cases.[^214] We
    conclude, however, that that is a legal question that should be left
    to a court that is considering a specific surveillance
    request.[^215]

84. Our approach is similar to the approach that we employed with
    respect to a packet-mode communications capability. Our packet-mode
    approach was upheld by the Court in the *Remand Decision*, and we
    noted that fact in the *Order* in this proceeding:

    At the outset, we note that the Court affirmed our findings in the
    *Third R&O* not to remove the packet-mode capability that was
    included in the industry established safe harbor J-STD-025. As we
    discussed above, the interim standard does not specify the call
    identifying information for packet communications. As a result, both
    call-identifying information and call content could be provided for
    electronic surveillance under the interim standard. The Court noted
    that nothing in our treatment of packet-mode communications requires
    carriers to turn over content information to LEAs absent lawful
    authorization, and therefore carriers have no reason to believe that
    they will be forced by our packet-mode decision to submit
    unauthorized information to LEAs. We agree with DoJ/FBI that while
    parties may dispute whether a carrier may supply to a LEA the entire
    packet (*i.e.*, content and call-identifying information) in
    response to a pen register order, there appears to be no dispute
    that a carrier must supply the entire packet in response to a Title
    III order. Thus, the interim standard for the packet capability
    appears to be appropriate at least in some cases, even though it
    does not include a standard for separating call-identifying
    information from the content of the packet. \[footnotes
    omitted\][^216]

85. We find that the situation with respect to a dialed digit extraction
    capability parallels the situation with respect to a packet-mode
    communications capability. In each instance, it is clear that LEAs
    possessing a Title III order may receive content information, but it
    is unclear whether LEAs possessing only a pen register warrant may
    receive such information. As with any other information provided by
    a CALEA capability, a LEA must obtain the proper legal authority
    from a court.[^217] If a LEA thinks a pen register is the proper
    authority to obtain information under the dialed digit extraction
    capability, then it must convince the court of this fact.[^218]

86. We disagree with those commenters that suggest that we should not
    decide whether dialed digit extraction is a capability that is
    required under CALEA until after we know what the proper legal
    instrument is for a LEA to obtain this information. Similarly, we
    cannot agree with the contention that, because post-cut-through
    dialed digits are sometimes not call-identifying, carriers should
    not be required to have the capability to provide to LEAs
    post-cut-through digits. Because dialed digit extraction includes
    call-identifying information and we find that it otherwise meets the
    assistance capability requirements under Section 103, it should be
    included in our CALEA standards.

87. We do not find the cases cited by commenters to be relevant to our
    consideration of dialed digit extraction. *Brown v. Waddell* does
    not preclude LEAs from obtaining post-cut-through dialed digits with
    a pen register order because that decision pertains to digital
    display pagers whose messages are inherently content. By contrast,
    dialed digit extraction includes call-identifying information.
    *Brown* does not address whether LEAs are able to obtain a mix of
    content and call-identifying information under a pen register. We
    find no support in the record for CTIA's contention that the pen
    register minimization provision in 18 U.S.C. §3121(c) makes it
    unlawful to use a pen register that also delivers call content --
    either directly, or through codification of New York State Law.
    Instead, a plain reading of the legislative history suggests that
    Congress thought that LEAs would sometimes obtain call content and
    that it placed the burden on LEAs (as opposed to carriers) to use
    technology to restrict the information that the pen register
    captures to dialed digits that are "call-identifying."[^219]

88. Because the standards we adopt must protect the privacy and security
    of communications not authorized to be intercepted, we reject the
    proposal to allow a LEA to extract dialed digits on content channels
    using their own decoders. This alternative is not acceptable because
    it would require the LEA in every case, no matter the level of
    authorization involved, to obtain the entire content when a less
    intrusive alternative (dialed digit extraction, whereby carriers
    separate out tone information) is available. This alternative would
    also shift from carriers to LEAs responsibility for ensuring that
    interceptions are conducted in a way that protects the privacy and
    security of communications not authorized for interception as much
    as possible. Such a result would be inconsistent with Section
    103(a)(4) of CALEA, which requires carriers to protect the privacy
    and security of communications and call-identifying information not
    authorized to be intercepted.

89. By concluding that LEAs may obtain dialed digit extraction
    information only with the appropriate legal instrument, we take into
    account the privacy considerations in Section 107(b)(2). Just
    because we determine that a dialed digit extraction capability is
    required under CALEA does not mean that LEAs may avail themselves of
    this capability in all circumstances. Instead, a LEA must continue
    to seek and obtain from an appropriate court the necessary
    authorization in order to conduct surveillance operations. The
    specific legal instrument, which will be based on the facts
    particular to each situation, will frame what communications are
    authorized to be intercepted. Thus, if a court determines that a pen
    register is insufficient to obtain post-cut-through digits because
    of content information contained in the communication, the court
    will have determined that a LEA is not authorized to obtain the
    information obtained by dialed digit extraction and a carrier must
    be able to exclude dialed digit extraction when it is presented with
    that pen register order. If, on the other hand, a court determines
    that a pen register order is sufficient for a LEA to obtain dialed
    digit extraction information in a particular case, then the carrier
    would be expected to comply with such an order. By providing for a
    dialed digit extraction capability but not assuming that it will be
    legally available to LEAs in all circumstances, we will protect the
    privacy of the communication that a LEA is not authorized to obtain.
    In doing so, however, we will not prejudge the role of a court to
    frame what, in a particular situation, constitutes the exact
    communication that a LEA is authorized and not authorized to
    obtain.[^220]

90. In order to respond to the appropriate legal authority, a carrier
    must have the ability to turn on and off the dialed digit extraction
    capability. DoJ/FBI note that "many" of the software upgrades they
    have negotiated "include the capability for carriers to toggle
    individual punch list capabilities on or off," and identify the
    toggle feature as a means of adding dialed digit extraction as a
    network capability, but allowing a carrier not to use that
    capability (*i.e.*, turn it off) if the carrier has reservations
    about the legal basis for providing all post-cut-through
    digits.[^221] We agree that a toggle feature for dialed digit
    extraction is necessary in order to protect privacy interests under
    certain circumstances, without disrupting the carrier\'s ability to
    provide other punch list capabilities included in the same software.
    We therefore conclude that carriers must have the equipment and
    software to support a dialed digit extraction capability with a
    toggle feature. Where such a toggle feature will not be available
    from a carrier\'s vendor by the compliance deadline, that carrier
    may file a petition with the Commission under Section 107(c),
    requesting an extension of the compliance deadline.[^222]

91. As a final matter, we turn to the cost considerations under Section
    107(b)(1) and (3) of CALEA. First, we must find that dialed digit
    extraction meets CALEA's capability requirements "by cost-effective
    methods."[^223] Because there are no alternative means of
    accomplishing this objective,[^224] we cannot engage in the type of
    cost-comparison analysis discussed in Section III B, *supra*.
    However, we note that several mechanisms -- including the FBI
    reimbursement program -- do serve to minimize the cost of providing
    this capability. In the *Third R&O*, the Commission found that five
    major telecommunications manufacturers anticipated total revenues
    from carriers purchasing a dialed digit extraction capability of
    \$121 million.[^225] Further, the FBI's buyout and flexible
    deployment programs, coupled with manufacturers incorporating all
    punch list capabilities into one software upgrade, could lessen
    software costs dramatically. We also note that, to the extent that a
    carrier requires additional DTMF tone extractors and decoders to
    perform two or more simultaneous wiretaps, the carrier may be
    reimbursed for expending funds to meet these capacity
    requirements.[^226] Further, as noted in paragraph 60, *supra*,
    because a single software upgrade incorporating all six punch list
    capabilities has already been undertaken by five manufacturers,
    including or not including a dialed digit extraction capability may
    not significantly change carriers' costs. Because these factors
    serve to minimize the cost of implementing dialed digit extraction,
    we conclude that dialed digit extraction meets CALEA's capability
    requirements "by cost-effective methods."

92. We also find that authorizing a dialed digit extraction capability
    is unlikely to significantly affect residential ratepayers. The
    factors we previously identified as minimizing the cost for
    residential ratepayers -- including the FBI buyout and flexible
    deployment programs -- will be applicable to dialed digit
    extraction. Moreover, we note that carriers will be able to spread
    costs across a large ratepayer base and there is no indication that
    the costs of dialed digit extraction will be disproportionately
    borne by residential (versus other classes of) ratepayers. Even if
    wireline carriers were forced to bear costs as great as the \$60
    million for this capability estimated by five major
    telecommunications manufacturers[^227] and these costs were passed
    on to residential ratepayers as a one-time charge, the charge per
    residential ratepayer would average less than one dollar.[^228]
    Alternatively, a \$60 million charge to wireline carriers, if
    converted to a rate increase to almost 100 million residential
    ratepayers, would average only 1-3 cents per month per ratepayer.
    [^229]

93. Accordingly, in view of the fact that we conclude that a dialed
    digit extraction electronic surveillance capability constitutes
    call-identifying information and that authorizing a dialed digit
    extraction electronic surveillance capability would be in
    conformance with Section 107(b) of CALEA, we find that a dialed
    digit extraction capability is a technical requirement that meets
    the assistance capability requirements of Section 103 of CALEA.

    D. [Party Hold/Join/Drop Messages]{.underline}

94. This capability would permit the LEA to receive from the
    telecommunications carrier messages identifying the parties to a
    conference call at all times. The party hold message would be
    provided whenever one or more parties are placed on hold. The party
    join message would report the addition of a party to an active call
    or the reactivation of a held call. The party drop message would
    report when any party to a call is released or disconnects and the
    call continues with two or more other parties. As discussed in
    paragraph nine, *supra*, the Court found that the *Third R&O* did
    not adequately explain the basis for its conclusion that this
    capability constituted call-identifying information or how granting
    LEAs this capability would satisfy CALEA's requirements by
    cost-effective methods.

95. *Comments*. CDT states that party hold/join/drop messages do not
    identify calls, but rather identify callers. CDT further states that
    the *Third R&O* ignored the plain meaning of CALEA in its conclusion
    that these messages identify the "temporary origin, temporary
    termination or re-direction of a communication." CDT contends that
    the concepts of "temporary" origin and termination do not appear in
    the CALEA statute, and that a call does not terminate or originate
    when a party drops off, joins, or is placed on hold with respect to
    a continuing phone call.[^230] CTIA states that multiple definitions
    of "origin" and "termination" makes a mockery of statutory
    interpretation. In addition, CTIA contends that party information
    has never been available to LEAs because such information does not
    identify a call's origin or termination. CTIA further contends that
    it is unclear why this information would be necessary in the case of
    a pen register order, where this signaling information would prove
    meaningless. CTIA asserts that only in the case of a full Title III
    intercept, where LEAs desire to know who is talking or connected at
    any given time, is this capability necessary.[^231]

96. USTA argues that J-STD-025 already provides information similar to
    party hold/join/drop messages. Specifically, USTA states that
    J-STD-025 provides an origination message, which indicates that the
    subject has placed an outgoing call and identifies the destination
    directory number; a termination message, which indicates that the
    subject has an incoming call and identifies the directory number; an
    answer message, which identifies the directory number where the call
    is answered in cases when it is not the normal destination (*e.g.,*
    call pickup or call forwarding); and, a change message, which
    reports any changes in call identities.[^232]

97. DoJ/FBI state that party hold/join/drop information identifies
    direction or destination of communications whenever a party to a
    "multi-leg" call (*i.e.*, a call involving three or more parties
    where at least two parties are not directly connected to one another
    during the entirety of the call) is joined, dropped, or placed on
    hold. DoJ/FBI concede that in the past, party hold and drop
    information was not available directly and was inferred by indirect
    means, but argue that call-identifying information includes this
    information.[^233] In reply comments, DoJ/FBI contend that
    commenters who suggest that party hold/join/drop information is not
    call-identifying information rely primarily on the theory that
    call-identifying information does not include information about
    changes in the various legs of a multi-party call. However, DoJ/FBI
    maintain that CALEA's definition of call-identifying information
    covers all dialing and signaling information that identifies the
    origin, direction, destination, or termination of each communication
    generated or received by a subscriber. DoJ/FBI note that a multi-leg
    call can involve more than one communication -- for example, when
    one party toggles back and forth between two other parties, speaking
    first to one and then to the other. DoJ/FBI contend that a carrier
    must be capable of notifying LEAs about changes in party status that
    affect the path of the subsequent communications and assert that
    J-STD-025's "Change" message reports only changes in overall call
    identity, and not changes in the identity of each leg of a multi-leg
    call. DoJ/FBI further contend that CTIA is incorrect in suggesting
    that party join/hold/drop information is superfluous in Title III
    cases because LEAs can determine the parties in a multi-leg call
    simply by listening to their voices. DoJ/FBI assert that this
    suggestion falls short, for example, when parties are listening
    without speaking, or when two parties have sufficiently similar
    voices to raise a reasonable doubt in the mind of a jury.[^234]

98. [Discussion]{.underline}. We find that authorizing a party
    hold/join/drop message electronic surveillance capability would be
    in conformance with Sections 102(2) and 103(a) of CALEA. The changes
    in origin(s) and termination(s) as parties join a call, are placed
    on and off hold, and then drop off the call were discussed in
    paragraph 44, *supra,* and reviewed in detail in J-STD-025, Section
    D.7.1, "Call Waiting and Recall with a Single Call Identity." We
    conclude that, under our revised definitions of the components of
    call-identifying information, party hold/join/drop information is
    call-identifying information because it identifies changes in the
    origin(s) and termination(s) of each communication generated or
    received by the subject. Further, by isolating call-identifying
    information in this manner, the LEA may more readily avoid
    monitoring the communications of third parties who are not privy to
    the communications involving the subject, thereby furthering privacy
    considerations. In the *Third R&O*, the Commission defined
    call-identifying information to be "reasonably available" to an
    originating carrier if such information "is present at an
    \[Intercept Access Point\] and can be made available without the
    carrier being unduly burdened with network modifications."[^235] The
    J-Standard acknowledges that the network must recognize and process
    party hold/join/drop functions as part of its basic operation. Thus,
    we conclude that party hold/join/drop information is not only
    present at an Intercept Access Point but, because it is already
    being used by the carrier, satisfies the definition of "reasonably
    available" in the original version of the J-Standard.[^236] In
    short, by any reasonable standard, this information is "reasonably
    available."

99. Additionally, we note that commenters have presented no alternative
    ways of obtaining all the information encompassed by this
    capability. While the J-Standard provides some of the information
    encompassed by this capability, the J-Standard does not provide all
    such information, including separate call identities for each leg of
    multi-leg calls.

100. We now turn to the cost considerations under Section 107(b)(1)
     and (3) of CALEA. First, we must find that party hold/join/drop
     meets CALEA's capability requirements "by cost-effective
     methods."[^237] Because there are no alternative means of
     accomplishing this objective, we cannot engage in the type of
     cost-comparison analysis discussed in Section III B, *supra*.
     However, we note that several mechanisms -- including the FBI
     reimbursement program -- do serve to minimize the cost of providing
     this capability. In the *Third R&O*, we found that five major
     telecommunications manufacturers anticipated total revenues from
     carriers purchasing a party hold/join/drop message capability of
     \$64 million.[^238] Further, as noted above, the FBI's buyout and
     flexible deployment programs, coupled with five manufacturers
     incorporating all punch list capabilities into one software
     upgrade, will lessen software costs significantly, and including or
     not including a party hold/join/drop message capability may not
     significantly change carriers' costs. For these reasons, we find
     that the cost to carriers of implementing this capability would be
     minimized and that requiring the capability would be
     cost-effective.

101. We also find that authorizing a party hold/join/drop capability is
     unlikely to significantly affect residential ratepayers. The
     factors we previously identified as minimizing the cost for
     residential ratepayers -- including the FBI buyout and flexible
     deployment programs -- will be applicable to party hold/join/drop.
     Moreover, we note that carriers will be able to spread costs across
     a large ratepayer base and there is no indication that the costs of
     party hold/join/drop will be disproportionately borne by
     residential ratepayers. Even if wireline carriers were forced to
     bear costs as great as the \$22 million for this capability
     estimated by five major telecommunications manufacturers[^239] and
     these costs were passed on to residential ratepayers as a one-time
     charge, the charge per residential ratepayer would average much
     less than one dollar.[^240] Alternatively, a \$22 million charge to
     wireline carriers, if converted to a rate increase to almost 100
     million residential ratepayers, would average only about a penny
     per month per ratepayer. [^241]

102. Finally, we find that authorizing a party hold/join/drop electronic
     surveillance capability would be in conformance with the second
     prong of Section 107(b) of CALEA.[^242] We see no significant
     privacy issues arising from grant to LEAs of a party hold/join/drop
     capability, no party to this proceeding challenged the *Third
     R&O*'s decision with respect to that capability on privacy grounds,
     and the Court did not cite privacy as a basis for remanding to the
     Commission the *Third R&O*'s decision with respect to that
     capability. Therefore, we do not address this factor further.

103. Accordingly, in view of the fact that we conclude that party
     hold/join/drop information constitutes call-identifying information
     and that authorizing a party hold/join/drop electronic surveillance
     capability would be in conformance with Section 107(b) of CALEA, we
     find that a party hold/join/drop capability is a technical
     requirement that meets the assistance capability requirements of
     Section 103 of CALEA.

     E. [Subject-Initiated Dialing and Signaling
     Information]{.underline}

104. This capability would permit the LEA to be informed when a subject
     sends signals or digits to the network. This capability would
     require the telecommunications carrier to deliver a message to the
     LEA, for each communication initiated by the subject, informing the
     LEA whenever the subject has invoked a feature during a call,
     including features that would place a party on hold, transfer a
     call, forward a call, or add/remove a party to a call. As discussed
     in paragraph nine, *supra*, the Court found that the *Third R&O*
     did not adequately explain the basis for its conclusion that this
     capability constituted call-identifying information nor how
     granting LEAs this capability would satisfy CALEA's requirements by
     cost-effective methods.

105. *Comments*. CDT states that CALEA requires only that carriers give
     LEAs the specific telephone numbers associated with a call. CDT
     contends that if a subscriber switches from one call to another
     using call waiting, there are two calls in progress, and that
     switching back-and-forth between calls does not constitute
     termination of the first call.[^243] CDT further contends that,
     under the *Third R&O*'s interpretation of call waiting, there would
     be two "origins" of the same call -- the originating phone number
     and the flash signal used by the subscriber to resume a
     conversation with the originating caller. Finally, CDT contends
     that a subscriber's activation of call forwarding service does not
     identify the origin, direction, destination, or termination of a
     communication because no communication has taken place.[^244] CTIA
     makes similar comments regarding call waiting and call forwarding.
     Specifically, CTIA states that although call waiting involves two
     phone calls, each with an origin and termination, it does not
     involve the origin and termination of a new communication every
     time a party switches from one call to another. CTIA further states
     that activation of call forwarding does not necessarily identify
     any particular call within the meaning of CALEA, given that a
     subscriber may activate call forwarding without ever forwarding any
     call. Finally, CTIA states that the concern that use of call
     forwarding might hide from LEAs the called telephone number was
     addressed in J-STD-025 by providing the telephone numbers
     identifying the direction and termination of forwarded calls.[^245]

106. BellSouth states that subject-initiated dialing and signaling
     information is not call-identifying information. BellSouth argues
     that J-STD-025 requires carriers to deliver to LEAs telephone
     numbers that are related to the origination or destination of a
     call, and that a subject-initiated dialing and signaling capability
     would provide information that has nothing to do with the routing
     of a call.[^246] BellSouth further argues that, under J-STD-025,
     carriers report the resultant status change that occurs in the call
     rather than the stimulus itself, but that the information provided
     by J-STD-025 is similar to what would be provided by
     subject-initiated dialing and signaling information.[^247]
     BellSouth also contends that such information is not reasonably
     available because there are significant technical issues that make
     a subject-initiated dialing and signaling capability difficult to
     achieve. For example, BellSouth states that in some switch
     implementations, detection and collection of off-hook and digit
     information occur in a line module that is separate and distinct
     from the main processor of the switch. Accordingly, BellSouth
     maintains that making this information available to the main
     processor so that it can be sent to LEAs may require fundamental
     modifications to switch architecture that are not only technically
     challenging but also costly.[^248]

107. DoJ/FBI state that subject-initiated dialing and signaling
     information is generated by use of such services as call
     forwarding, call waiting, call hold, and three-way calling, and
     that, to the extent these services have been available in the past,
     LEAs have had access to such information. DoJ/FBI contend that
     CALEA's definition of call-identifying information encompasses
     subject-initiated dialing and signaling information because such
     information identifies the direction or destination of
     communications.[^249] DoJ/FBI further contend that BellSouth is
     incorrect when it claims that the dialing and signaling activity
     initiated by pressing a flash hook or feature key is unrelated to
     call routing. DoJ/FBI assert that the resulting signals are
     transmitted to the carrier's switch to enable the switch to control
     the various legs of the call and route the communication properly.
     DoJ/FBI also assert that BellSouth is incorrect that similar
     information is already provided to LEAs under J-STD-025 because
     that standard does not capture all of the call-identifying
     information that is generated when a subject engages in dialing and
     signaling activity. DoJ/FBI acknowledge that there may be specific
     instances in which a particular subject-initiated dialing or
     signaling action can be detected or inferred through the messages
     provided by J-STD-025, but maintain that will often not be the
     case.[^250] DoJ/FBI reference their earlier reply comments in this
     proceeding, in which they argued that the "Change" message of
     J-STD-025 is inadequate to capture subject-initiated dialing and
     signaling activity when the subject presses the flash hook to move
     back and forth between two legs of a call. DoJ/FBI therefore
     maintain that J-STD-025 does not ensure that LEAs will receive
     critical information about the direction and destination of each
     communication within a multi-leg call.[^251] DoJ/FBI also maintain
     that the information that LEAs would derive from a subject's
     dialing and signaling activity is not redundant with the
     information that LEAs would derive from party hold/join/drop
     messages because such activity may be either pre-cut-through or
     post-cut-through and may be transmitted either in-band or
     out-of-band. DoJ/FBI contend that, while some subject initiated
     dialing and signaling activity may result in party hold/join/drop
     messages, much of it will not.[^252]

108. [Discussion]{.underline}. We find that authorizing a
     subject-initiated dialing and signaling electronic surveillance
     capability would be in conformance with Sections 102(2) and 103(a)
     of CALEA. We conclude that this capability constitutes
     call-identifying information because it provides information
     regarding the party or place to which a forwarded call is
     redirected and because it provides information regarding a waiting
     calling party. We also conclude that access to subject‑initiated
     dialing and signaling information may be necessary for the LEA to
     isolate and correlate call-identifying and call content
     information. Knowing what features a subject is using will ensure
     that the LEA receives information in a manner that allows each
     feature to be timely associated with the communication to which it
     pertains. For example, without knowing that a subject has switched
     over to a call on call‑waiting, the LEA may not be able to
     associate the call‑identifying information with the call content to
     which it pertains and thus could be more likely to mistake one call
     for another. Further, we conclude that signals such as on-hook,
     off-hook, and flash-hook signals, which are generated by a subject,
     are reasonably available to the carrier because they must be
     processed at the carrier's Intercept Access Point. DTMF signals
     generated by a subject that must be processed at the Intercept
     Access Point also are reasonably available to the carrier; however,
     some DTMF signals generated by the subject are post-cut-through
     digits, and those signals are covered under dialed digit
     extraction. We note that there are some functions that are
     sometimes performed by the network and that at other times are
     performed by customer premises equipment. When customer premises
     equipment is used to perform any of the functions described herein
     and no network signal is generated, that information is not
     reasonably available to a carrier, and thus is not required to be
     provided.

109. Additionally, we note that commenters have presented no alternative
     ways of obtaining all the information encompassed by this
     capability. We have found J-STD-025 deficient insofar as it will
     not guarantee the delivery of all "call-identifying information,"
     and therefore reject those comments that contend that J-STD-025 is
     an alternative to the provision of subject-initiated dialing and
     signaling information. For example, J-STD-025 does not provide all
     call-identifying information that is generated when a subject
     engages in dialing and signaling activity, such as when the subject
     uses the flash hook to move back and forth between two legs of a
     multi-leg call. Further, while there may be some overlap between a
     subject-initiated dialing and signaling information capability and
     other punch list capabilities, it appears that a subject-initiated
     dialing and signaling information capability provides some unique
     call-identifying information; *e.g.*, this capability would permit
     a LEA to know when services such as call forwarding and call return
     are being used by the subject.

110. We now turn to the cost considerations under Section 107(b)(1)
     and (3) of CALEA. First, we must find that subject-initiated
     dialing and signaling meets CALEA's capability requirements "by
     cost-effective methods."[^253] Because there are no alternative
     means of accomplishing this objective, we cannot engage in the type
     of cost-comparison analysis discussed in Section III B, *supra*.
     However, we note that several mechanisms -- including the FBI
     reimbursement program -- do serve to minimize the cost of providing
     this capability. In the *Third R&O*, we found that five major
     telecommunications manufacturers anticipated total revenues from
     carriers purchasing a subject-initiated dialing and signaling
     capability of just \$35 million.[^254] Further, as noted above, the
     FBI's buyout and flexible deployment programs, coupled with five
     manufacturers' incorporation of all punch list capabilities into
     one software upgrade, will lessen software costs significantly, and
     including or not including a subject-initiated dialing and
     signaling capability in the manufacturers' software package may not
     significantly change carriers' costs. For these reasons, we find
     that the cost to carriers of implementing this capability would be
     minimized and that requiring the capability would be
     cost-effective.

111. We also find that authorizing a subject-initiated dialing and
     signaling capability is unlikely to significantly affect
     residential ratepayers. The factors we previously identified as
     minimizing the cost for residential ratepayers -- including the FBI
     buyout and flexible deployment programs -- will be applicable to
     subject-initiated dialing and signaling. Moreover, we note that
     carriers will be able to spread costs across a large ratepayer base
     and there is no indication that the costs of subject-initiated
     dialing and signaling will be disproportionately borne by
     residential (versus other classes of) ratepayers. Even if wireline
     carriers were forced to bear costs as great as the \$8 million for
     this capability estimated by five major telecommunications
     manufacturers[^255] and these costs were passed on to residential
     ratepayers as a one-time charge, the cost per residential ratepayer
     would average only a few pennies. [^256] Alternatively, an \$8
     million charge to wireline carriers, if converted to a rate
     increase to almost 100 million residential ratepayers, would
     average less than a penny per month per ratepayer. [^257]

112. Finally, we find that authorizing a subject-initiated dialing and
     signaling information electronic surveillance capability would be
     in conformance with the second prong of Section 107(b) of
     CALEA.[^258] We see no significant privacy issues arising from
     grant to LEAs of a subject-initiated dialing and signaling
     information capability, no party to this proceeding challenged the
     *Third R&O*'s decision with respect to that capability on privacy
     grounds, and the Court did not cite privacy as a basis for
     remanding to the Commission the *Third R&O*'s decision with respect
     to that capability. Therefore, we do not address this factor
     further.

113. Accordingly, in view of the fact that we conclude that
     subject-initiated dialing and signaling information constitutes
     call-identifying information and that authorizing a
     subject-initiated dialing and signaling electronic surveillance
     capability would be in conformance with Section 107(b) of CALEA, we
     find that a subject-initiated dialing and signaling capability is a
     technical requirement that meets the assistance capability
     requirements of Section 103 of CALEA.

     F. [In-Band and Out-of-Band Signaling Information]{.underline}

114. This capability would enable a telecommunications carrier to send a
     notification message to the LEA when any call-identifying network
     signal (*e.g.*, audible ringing tone, busy, call waiting signal,
     message light trigger) is sent to a subject. For example, if
     someone leaves a voice mail message on the subject's phone, the
     notification to the LEA would indicate the type of call-identifying
     network signal sent to the subject (*e.g.*, stutter dial tone,
     message light trigger). For calls the subject originates, a
     notification message would also indicate whether the subject ended
     a call when the line was ringing, busy (a busy line or busy trunk),
     or before the network could complete the call. As discussed in
     paragraph nine, *supra*, the Court found that the *Third R&O* did
     not adequately explain the basis for its conclusion that this
     capability constituted call-identifying information nor how
     granting LEAs this capability would satisfy CALEA's requirements by
     cost-effective methods.

115. *Comments*. Cingular states that most in-band and out-of-band
     signaling information is not related to call routing and, moreover,
     cannot be detected from the network or the originating or
     terminating switches. Cingular therefore argues that in-band and
     out-of-band network signaling information is not reasonably
     available to carriers. Cingular further argues that, to the extent
     these signals can be audibly detected, they can already be obtained
     through a properly authorized Title III intercept. Finally,
     Cingular argues that implementing an in-band and out-of-band
     network signaling information capability would require the
     widespread deployment of signal detection equipment, at significant
     cost to residential ratepayers.[^259]

116. USTA states that in-band and out-of-band signaling information is
     not used to process or route calls and, in most cases, does not
     constitute communications. Instead, USTA maintains, such
     information is associated with call attempts that do not result in
     a communication, such as a busy signal. USTA also maintains that
     J-STD-025 already provides in-band and out-of-band signaling
     information, including a termination message that indicates
     whenever a call is incoming to a subject and includes the directory
     number of the calling party, if available to the network. USTA
     therefore concludes that an in-band and out-of-band signaling
     information capability is unnecessary and not cost effective.[^260]

117. DoJ/FBI state that in-band and out-of-band network signaling
     information has traditionally been available to LEAs and
     constitutes call-identifying information under J-STD-025's
     definition, which includes unsuccessful call attempts as well as
     completed calls. DoJ/FBI contend that network signaling information
     may identify how a call attempt is terminated (*e.g.*, a call
     attempt that results in a busy signal indicates that the call
     attempt is being terminated in a different manner from a call
     attempt that results in ringing); or may identify the direction of
     a call attempt by the subject's facilities (*e.g.,* a stutter tone
     may identify the redirection of an incoming call to the subject's
     voice mail box).[^261]

118. In reply comments, DoJ/FBI contend that the suggestion of
     commenting parties that signals generated during unsuccessful call
     attempts do not involve communications is incorrect. DoJ/FBI note
     that J-STD-025 provides a Termination Attempt message to LEAs to
     report every incoming circuit-mode call attempt to the intercept
     subject, and assert that, if the definition of "call-identifying
     information" were construed to exclude unsuccessful call attempts,
     LEAs would be denied access even to the telephone numbers
     associated with such attempts. DoJ/FBI also assert that commenters
     are incorrect that this capability is duplicative of J-STD-025's
     existing message set. DoJ/FBI reference their earlier reply
     comments in this proceeding, in which they argued that the
     J-Standard does not require carriers to provide LEAs with
     notification of network-generated call progress signals.[^262]
     DoJ/FBI note that the J-Standard requires delivery of call content
     only between call completion and call release, and that there is no
     requirement that call content be delivered on incoming calls before
     they are answered. Therefore, they argue that tones such as busy
     signals will not be delivered to LEAs without an in-band and
     out-of-band signaling capability.[^263] DoJ/FBI also argue that the
     J-Standard's Termination Attempt message is an inadequate
     substitute for both audible tones and alphanumeric display
     information. For example, DoJ/FBI contend that an alphanumeric
     display may notify the subject that a call has been redirected to
     the subscriber's voice mail box, and none of the J-Standard's
     messages would disclose that a voice mail message has been left for
     the subject.[^264] DoJ/FBI conclude that carriers must be capable
     of providing to LEAs network signals that originate in their own
     networks, but do not have to provide signals that originate in
     other carriers' networks.[^265]

119. [Decision]{.underline}. We find that authorizing in-band and
     out-of-band signaling information electronic surveillance
     capability for call-identifying information that is based on
     network signals that originate on carriers' own networks would be
     in conformance with Sections 102(2) and 103(a) of CALEA. While
     certain types of signals used by carriers for supervision or
     control do not trigger any audible or visual message to the
     subscriber and are therefore not call-identifying information,
     other types of signals -- such as ringing and busy tones -- are
     call-identifying information under our revised definitions because
     they convey information about the termination of a call. For
     example, when a subject calls another party, until the called party
     answers the subject's communications path is terminated at an
     audible ringing tone generator. However, if the called party is
     engaged in another conversation and does not have call waiting, the
     subject's communications path is terminated at a busy signal
     generator. Thus, even for calls from the subject that are never
     answered, the fact that the subject hears busy or audible ringing
     signal provides call-identifying information that is not provided
     to law enforcement via other means.

120. We disagree with USTA that the J-Standard provides adequate in-band
     and out-of-band signaling information. As DoJ/FBI note, there are
     both audible signals and alphanumeric display information that the
     J-Standard does not provide that convey call-identifying
     information. The fact that a call attempt does not result in a
     conversation because the line is busy or because the called party
     does not answer does not mean that no "communication" has taken
     place.

121. In-band and out-of-band signals that are generated at the carrier's
     Intercept Access Point toward the subscriber are handled by the
     carrier and are clearly available to the carrier at an Intercept
     Access Point. As discussed *supra*, we conclude that these in-band
     and out-of-band signals convey call-identifying information. We
     further note that, because carriers already deliver this
     information to subscribers, we see no reason why such in-band and
     out-of-band signaling information cannot also be made available to
     LEAs without significantly modifying the carrier's network. Thus,
     in-band and out-of-band signaling information is "reasonably
     available."[^266] Additionally, we note that commenters have
     presented no alternative ways of obtaining all the information
     encompassed by this capability. While the J-Standard provides some
     of the information encompassed by this capability, the J-Standard
     does not provide all such information, including an indication of
     whether an unanswered call from the subject to another party
     results in a busy or ringing signal.

122. We now turn to the cost considerations under Section 107(b)(1)
     and (3) of CALEA. First, we must find that in-band and out-of-band
     signaling information meets CALEA's capability requirements "by
     cost-effective methods."[^267] Because there are no alternative
     means of accomplishing this objective, we cannot engage in the type
     of cost-comparison analysis discussed in Section III B, *supra*.
     However, we note that several mechanisms -- including the FBI
     reimbursement program -- do serve to minimize the cost of providing
     this capability. In the *Third R&O*, we found that five major
     telecommunications manufacturers anticipated total revenues from
     carriers purchasing an in-band and out-of-band signaling
     information capability of \$57 million.[^268] As noted above, the
     FBI's buyout and flexible deployment programs, coupled with five
     manufacturers incorporating all punch list capabilities into one
     software upgrade, will lessen software costs significantly. Also,
     we again note that including or not including an in-band and
     out-of-band signaling information capability may not significantly
     change carriers' costs. For these reasons, we find that the cost to
     carriers of implementing this capability would be minimized and
     that requiring the capability would be cost-effective.

123. We also find that authorizing an in-band and out-of-band signaling
     information capability is unlikely to significantly affect
     residential ratepayers. The factors we previously identified as
     minimizing the cost for residential ratepayers -- including the FBI
     buyout and flexible deployment programs -- will be applicable to
     in-band and out-of-band signaling information. Moreover, we note
     that carriers will be able to spread costs across a large ratepayer
     base and there is no indication that the costs of in-band and
     out-of-band signaling information will be disproportionately borne
     by residential (versus other classes of) ratepayers. Even if
     wireline carriers were forced to bear costs as great as the \$27
     million for this capability estimated by five major
     telecommunications manufacturers[^269] and these costs were passed
     on to residential ratepayers as a one-time charge, the cost per
     residential ratepayer would average much less than one
     dollar.[^270] Alternatively, a \$27 million charge to carriers, if
     converted to a rate increase to almost 100 million residential
     ratepayers, would average only about a penny per month per
     ratepayer.[^271]

124. Finally, we find that authorizing an in-band and out-of-band
     signaling information electronic surveillance capability would be
     in conformance with the second prong of Section 107(b) of
     CALEA.[^272] We see no significant privacy issues arising from
     grant to LEAs of an in-band and out-of-band signaling information
     capability, no party to this proceeding challenged the *Third
     R&O*'s decision with respect to that capability on privacy grounds,
     and the Court did not cite privacy as a basis for remanding to the
     Commission the *Third R&O*'s decision with respect to that
     capability. Therefore, we do not address this factor further.

125. Accordingly, in view of the fact that we conclude that in-band and
     out-of-band signaling information constitutes call-identifying
     information and that authorizing an in-band and out-of-band
     signaling information electronic surveillance capability would be
     in conformance with Section 107(b) of CALEA, we find that an
     in-band and out-of-band signaling information capability is a
     technical requirement that meets the assistance capability
     requirements of Section 103 of CALEA.

     G. [CALEA Section 107(b)(4)]{.underline}

126. Although Section 107(b)(4) -- *i.e.*, serve the policy of the
     United States to encourage the provision of new technologies and
     services to the public -- was not briefed to or addressed by the
     Court in its *Remand Decision*, we briefly address this factor in
     accordance with our statutory directive under CALEA. As described
     in the legislative history, one of the key concerns in enacting
     CALEA was "the goal of ensuring that the telecommunications
     industry was not hindered in the rapid development and deployment
     of the new services and technologies that continue to benefit and
     revolutionize society."[^273] Aside from one suggestion that the
     cost of compliance would divert capital from new technology
     deployment,[^274] no commenter has argued -- nor is there anything
     in the record to suggest -- that inclusion of the four punch list
     requirements would impede in any way the provision of new
     telecommunications technologies or services to the public or would
     delay in any manner the course or current pace of technology.
     Rather, the punch list requirements represent a technical solution
     that interfaces with the carriers' own network designs to provide
     LEAs with interception access and the capability to intercept wire
     and electronic communications. Additionally, as noted above, for
     the majority of switches, carriers will be permitted under the
     FBI's flexible deployment program to implement any required punch
     list capabilities coincident with routine switch upgrades.[^275]
     Moreover, we do not believe Section 107(b)(4) was intended to bar a
     feature simply because it imposes costs on telecommunications
     companies and thereby might affect their other spending. The two
     express references to costs in Section 107(b) (*i.e.,* cost
     effectiveness and minimizing impact on residential ratepayers)
     consider cost in a relative, not an absolute, sense. Accordingly,
     we do not believe paragraph (b)(4) was intended to prohibit any
     feature because the cost might have some impact on
     telecommunications companies' other spending. Given this, we find
     that adoption of the punch list requirements is consistent with the
     United States' policy of encouraging the provision of new
     technologies and services to the public

     H. [Punch List Compliance Date]{.underline}

127. Section 107(b)(5) of CALEA requires that the Commission "provide a
     reasonable time and conditions for compliance with and the
     transition to any new standard, including defining the obligations
     of telecommunications carriers under Section 103 during any
     transition period."[^276] The *Third R&O* required that the six
     punch list capabilities be implemented by wireline, cellular, and
     broadband PCS carriers by September 30, 2001 and -- as discussed in
     paragraph 60, *supra* -- five telecommunications switch
     manufacturers have incorporated all of these capabilities into one
     software upgrade. In the *Order* in this proceeding, which
     suspended the September 30, 2001 deadline for all punch list
     capabilities, including the two unchallenged capabilities (*i.e.*,
     subject-initiated conference calls and timing information), we
     indicated that we anticipated establishing June 30, 2002 as the new
     compliance date for all required punch list capabilities as we
     expected to address the Court's Remand Decision by year's end and
     given that the record indicates that carriers can implement any
     required changes to their software within six months of our
     decision.[^277] We find it reasonable to require wireline,
     cellular, and broadband PCS carriers to implement all punch list
     capabilities by June 30, 2002, and conclude that the June 30, 2002
     deadline will satisfy Section 107(b)(5).[^278] At the initial
     stages of CALEA implementation, the Commission found that carriers
     could put into effect any required changes to their network within
     six months of its decision.[^279] We recognize that this is a more
     aggressive timetable than the six months we anticipated earlier. We
     believe that this accelerated compliance schedule is reasonable for
     this stage of the CALEA implementation, as carriers have been aware
     of the CALEA capabilities under consideration in the instant *Order
     on Remand* since October 2000.[^280] In addition, the record
     indicates that much of the software required to implement the punch
     list items has already been developed, which should significantly
     speed implementation.[^281] Finally, carriers have much greater
     experience in meeting CALEA's capability requirements than they had
     in 1998. Together, these factors make a shorter implementation
     timetable reasonable.

128. We note that carriers who are unable to comply may seek relief
     under the applicable provisions of CALEA.[^282] The Wireline
     Competition Bureau (formerly, the Common Carrier Bureau) and the
     Wireless Telecommunications Bureau previously issued a *Public
     Notice* outlining the petitioning process for telecommunications
     carriers seeking relief under Section 107(c) for an extension of
     the CALEA compliance deadline.[^283] Carriers seeking relief from
     the June 30, 2002 compliance date should follow the procedures
     outlined in that *Public Notice*. We further note that, in most
     cases, extensions that the Commission has already granted will
     apply to the capabilities we are requiring in this *Order on
     Remand.*[^284] As the Wireline Competition and Wireless
     Telecommunications Bureaus have previously stated: "Unless the
     Commission action \[granting an extension\] specifies otherwise,
     the extension applies to all assistance capability functions,
     including punch list and packet-mode capabilities, at the listed
     facilities."[^285]

129. Therefore, we are lifting the suspension of the punch list
     compliance deadline, and specifying the revised punch list
     compliance deadline as June 30, 2002. Given that the Commission has
     rendered its final decision with regard to the challenged punch
     list features, we expect all carriers to be either fully
     CALEA-compliant by that date or to have a pending or granted
     petition seeking relief from compliance with that date that was
     filed with the Commission under the procedures described above.

## IV. SUPPLEMENTAL FINAL REGULATORY FLEXIBILITY ANALYSIS {#iv.-supplemental-final-regulatory-flexibility-analysis .unnumbered}

*(A) Need for and Purpose of this Action*

130. As required by the Regulatory Flexibility Act (RFA),[^286] the
     Commission incorporated an Initial Regulatory Flexibility Analysis
     (IRFA) in the *Further NPRM.*[^287] The Commission sought written
     public comments on the proposals in the *Further NPRM*, including
     the IRFA. In the *Third R&O*, the Commission adopted a Final
     Regulatory Flexibility Analysis (FRFA).[^288] As part of the
     instant *Order on Remand*, we have prepared this Supplemental FRFA
     to conform to the RFA.[^289]

131. The *Third R&O* responded to the legislative mandate contained in
     the Communications Assistance for Law Enforcement Act, Pub. L. No.
     103-414, 108 Stat. 4279 (1994) (codified as amended in sections of
     18 U.S.C. and 47 U.S.C.). The Commission, in compliance with 47
     U.S.C. § 229, promulgates rules in this *Order on Remand* to ensure
     the prompt implementation of section 103 of CALEA. This action
     simply responds to an Order of the United States Court of Appeals
     for the District of Columbia Circuit (the "Court") and puts into
     effect rules we originally evaluated as part of the FRFA in the
     *Third R&O*. Also, as noted, we have already done a FRFA for the
     rules at issue in the *Third R&O*.

132. In enacting CALEA, 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."[^290] The rules adopted in this *Order on Remand*
     implement Congress's goal to balance the three key policies
     enumerated above. The objective of the rules is to implement as
     quickly and effectively as possible the national telecommunications
     policy for wireline, cellular, and broadband PCS telecommunications
     carriers to support the lawful electronic surveillance needs of law
     enforcement agencies in a manner that is responsive to the Court's
     remand of the *Third R&O.*

     \(B\) Summary of the Issues Raised by Public Comments

133. In the *Further NPRM*, the Commission performed an IRFA and asked
     for comments that specifically addressed issues raised in the IRFA.
     No parties filed comments directly in response to the IRFA.
     Similarly, as part of the pleading cycle that followed the Court's
     remand of the *Third R&O*, no parties filed comments directly in
     response to the IRFA or the FRFA. In response to non-RFA comments
     filed in this docket, the Commission modified several of the
     proposals made in the *Further NPRM*. These modifications include
     changes to packet switching, conference call content, in-band and
     out-of-band signaling, and timing information, as first discussed
     in the *Third R&O.*

134. The Commission's effort to update the record in response to the
     Court's Remand Order resulted in additional non-RFA comments. The
     Rural Cellular Association (RCA) asserts that the costs of
     additional communications assistance capabilities would impose
     undue cost burdens on and jeopardize the efficient planning and
     development of facilities by small and rural carriers.[^291]
     Similarly, the National Telephone Cooperative Association (NTCA)
     claims that any regulation which requires carriers to deploy or
     upgrade facilities disproportionally affects small and rural
     carriers.[^292]

*(C) Description and Estimate of the Number of Entities Affected*

135. The RFA directs agencies to provide a description of and, where
     feasible, an estimate of the number of small entities that may be
     affected by the action taken.[^293] The RFA generally defines the
     term "small entity" as having the same meaning as the terms "small
     business," "small organization," and "small governmental
     jurisdiction."[^294] In addition, the term "small business" has the
     same meaning as the term "small business concern" under the Small
     Business Act.[^295] A small business concern is one that: (1) is
     independently owned and operated; (2) is not dominant in its field
     of operation; and (3) satisfies any additional criteria established
     by the Small Business Administration (SBA).[^296] A small
     organization is generally "any not-for-profit enterprise which is
     independently owned and operated and is not dominant in its
     field."[^297] Nationwide, as of 1992, there were approximately
     275,801 small organizations.[^298] Finally, "small governmental
     jurisdiction" generally means "governments of cities, counties,
     towns, townships, villages, school districts, or special districts,
     with a population of less than 50,000."[^299] As of 1992, there
     were approximately 85,006 such jurisdictions in the United
     States.[^300] This number includes 38,978 counties, cities, and
     towns; of these, 37,566, or 96 percent, have populations of fewer
     than 50,000.[^301] The United States Bureau of the Census (Census
     Bureau) estimates that this ratio is approximately accurate for all
     governmental entities. Thus, of the 85,006 governmental entities,
     we estimate that 81,600 (91 percent) are small entities.

136. The most reliable source of information regarding the total numbers
     of certain common carrier and related providers nationwide appears
     to be data the Commission publishes annually in its
     *Telecommunications Provider Locator* report, derived from filings
     made in connection with the Telecommunications Relay Service
     (TRS).[^302] According to data in the most recent report, there are
     5,679 interstate service providers.[^303] These providers include,
     *inter alia*, local exchange carriers, wireline carriers and
     service providers, interexchange carriers, competitive access
     providers, operator service providers, pay telephone operators,
     providers of telephone service, providers of telephone exchange
     service, and resellers.

137. We have included small incumbent local exchange carriers
     (LECs)[^304] in this present RFA analysis. As noted above, a "small
     business" under the RFA is one that, *inter alia*, meets the
     pertinent small business size standard (*e.g.*, a telephone
     communications business having 1,500 or fewer employees), and "is
     not dominant in its field of operation."[^305] The SBA's Office of
     Advocacy contends that, for RFA purposes, small incumbent LECs are
     not dominant in their field of operation because any such dominance
     is not "national" in scope.[^306] We have therefore included small
     incumbent LECs in this RFA analysis, although we emphasize that
     this RFA action has no effect on FCC analyses and determinations in
     other, non-RFA contexts.

138. *Total Number of Telecommunications Entities Affected.* 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.[^307] This number contains a variety of different
     categories of entities, 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."[^308]
     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 the actions taken in this *Order on
     Remand*.

139. *Wireline Carriers and Service Providers.* The SBA has developed a
     definition of small entities for wired telecommunications carriers.
     The Census Bureau reports that there were 2,321 such telephone
     companies in operation for at least one year at the end of
     1992.[^309] According to the SBA's definition, such a small
     business telephone company is one employing no more than 1,500
     persons.[^310] All but 26 of the 2,321 wireline companies listed by
     the Census Bureau were reported to have fewer than 1,000 employees.
     Even if all 26 of the remaining companies had more than 1,500
     employees, there would still be 2,295 wireline companies that might
     qualify as small entities. 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. Therefore, we
     estimate that fewer than 2,295 communications wireline companies
     are small entities that may be affected by these rules.

140. *Local Exchange Carriers, Competitive Access Providers,
     Interexchange Carriers, Operator Service Providers, Payphone
     Providers, and Resellers.* Neither the Commission nor the SBA has
     developed a specific size standard definition for small LECs,
     competitive access providers (CAPS), interexchange carriers (IXCs),
     operator service providers (OSPs), payphone providers, or
     resellers. The closest applicable size standard for these
     carrier-types under SBA rules is for wired telecommunications
     carriers and telecommunications resellers.[^311] The most reliable
     source of information that we know regarding the number of these
     carriers nationwide appears to be the data that we collect annually
     in connection with the TRS.[^312] According to our most recent
     data, there are 1,329 LECs, 532 CAPs, 229 IXCs, 22 OSPs, 936
     payphone providers, and 710 resellers.[^313] Although it seems
     certain that some of these carriers are not independently owned and
     operated, or have more than 1,500 employees, we are unable at this
     time to estimate with greater precision the number of these
     carriers that would qualify as small business concerns under the
     SBA\'s definition. Therefore, we estimate that there are fewer than
     1,329 small entity LECs or small incumbent LECs, 532 CAPs, 229
     IXCs, 22 OSPs, 936 payphone providers, and 710 resellers that may
     be affected by these rules.

141. *Wireless Carriers*. The applicable definition of a small entity
     wireless carrier is the definition under the SBA rules applicable
     to radiotelephone (wireless) companies. This provides that a small
     entity is a radiotelephone company employing no more than 1,500
     persons. The Census Bureau reports that there were 1,176
     radiotelephone (wireless) companies in operation for at least one
     year at the end of 1992, of which 1,164 had fewer than 1,000
     employees.[^314] 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. It seems certain that some of
     these carriers are not independently owned and operated.
     Consequently, we estimate that there are fewer than 1,164 small
     entity radiotelephone companies that may be affected by the actions
     taken in this *Order on Remand*.

142. *Cellular, PCS, SMR and Other Mobile Service Providers*. The most
     reliable source of current information from which we can draw an
     estimate of the number of small business commercial wireless
     entities appears to be data the Commission published annually in
     its Trends in Telephone Service report.[^315] According to the most
     recent Trends Report, 806 carriers reported that they were engaged
     in the provision of cellular service, PCS services, or SMR
     telephony services, which are placed together in the data.[^316]
     Moreover, 323 such licensees in combination with their affiliates
     have 1,500 or fewer employees and thus qualify as "small
     businesses" under the above definition. Thus, we estimate that
     there are 323 or fewer small wireless service providers that may be
     affected by the rules we adopt in this proceeding.

*(D) Description of Projected Reporting, Recordkeeping and Other
Compliance*

*Requirements.*

143. No reporting and recordkeeping requirements are imposed on
     telecommunications carriers. Telecommunications carriers, including
     small carriers, will have to upgrade their network facilities to
     provide to law enforcement the assistance capability requirements
     adopted herein. Although compliance with the technical requirements
     will impose costs on carriers, we have examined means by which
     these costs will be minimized (such as by federal
     cost-reimbursement mechanisms and the ability of carriers to charge
     for the provision of assistance capability services). The most
     detailed and reliable cost estimates for carriers to implement the
     assistance capability features we require herein are \$159 million
     total for wireless carriers and \$117 million for wireline
     carriers, including small entities. However, as discussed in
     paragraph 65, *supra*, we expect the actual costs borne by carriers
     to be substantially lower after the application of the
     cost-minimization provisions discussed above.

*(E) Steps Taken to Minimize Significant Economic Impact on Small
Entities and Significant Alternatives Considered.*

144. The need for the regulations adopted herein is mandated by Federal
     legislation. In the regulations we adopt, we affirm our proposals
     in the *Further NPRM* to establish regulations for wireline,
     cellular, and broadband PCS telecommunications carriers. Costs to
     telecommunications carriers will be mitigated in several ways. For
     example, the final regulations require telecommunications carriers
     to make available to law enforcement call identifying information
     when it can be done without unduly burdening the carrier with
     network modifications, thus allowing cost to be a consideration in
     determining whether the information is "reasonably available" to
     the carrier and can be provided to law enforcement. Thus,
     compliance with the assistance capability requirements of CALEA
     will be reasonable for all carriers, including small
     carriers.[^317] Also, under CALEA, some carriers will be able to
     request reimbursement from the Department of Justice for network
     upgrades to comply with the technical requirements adopted herein,
     and others may defer network upgrades to their normal business
     cycle.[^318]

145. We believe that these provisions can serve to mitigate any
     additional cost burdens that would otherwise be borne by small
     carriers. The Commission considered several alternatives advanced
     by commenters in the proceeding -- including not requiring the
     assistance capabilities adopted herein -- but rejected them after
     concluding that they would not meet the statutory requirements of
     CALEA. We note that the statutory mandate under CALEA requires all
     carriers to provide assistance capabilities, and this includes
     small entities.[^319] Thus, we must rely on cost-mitigation
     procedures to address NTCA's assertion that any regulation that
     requires carriers to deploy or upgrade facilities will
     disproportionally affect small carriers.

*Report to Congress*

146. The Commission will send a copy of this Supplemental FRFA, along
     with this Order on Remand, in a report to Congress pursuant to the
     Congressional Review Act, 5 U.S.C. § 801(a)(1)(A). In addition, the
     Commission will send a copy of this *Order on Remand*, including
     this Supplemental FRFA, to the Chief Counsel for Advocacy of the
     Small Business Administration. A copy of this *Order on Remand*,
     including the Supplemental FRFA, will also be published in the
     Federal Register. See 5 U.S.C. § 604(b).

# V. ORDERING CLAUSES {#v.-ordering-clauses .unnumbered}

147. Accordingly, IT IS ORDERED that, 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), this O*rder on Remand* and the rules specified in Appendix
     A ARE ADOPTED.

148. IT IS FURTHER ORDERED that the rules set forth in Appendix A WILL
     BECOME EFFECTIVE 30 days after publication in the Federal Register.

149. IT IS FURTHER ORDERED that the Commission's Consumer and
     Governmental Affairs Bureau, Reference Information Center, shall
     send a copy of this Order on Remand, including the Supplemental
     Final Regulatory Flexibility Analysis, to the Chief Counsel for
     Advocacy of the Small Business Administration.

FEDERAL COMMUNICATIONS COMMISSION

William F. Caton

Acting Secretary

**APPENDIX A: FINAL RULES**

AMENDMENTS TO THE CODE OF FEDERAL REGULATIONS

PART 22- PUBLIC MOBILE SERVICES

A. Part 22 of the Code of Federal Regulations is amended as follows:

1\. The authority citation in Part 22 continues to read:

AUTHORITY: 47 U.S.C. 154, 222, 303, 309 and 332.

2\. Sections 22.1102 and 22.1103 are revised to read as follows:

**§ 22.1102 Definitions.**

\* \* \*

*Origin*. A party initiating a call (*e.g.*, a calling party), or a
place from which a call is initiated.

*Termination*. A party or place at the end of a communication path
(*e.g.* the called or call-receiving party, or the switch of a party
that has placed another party on hold).

*Direction*. A party or place to which a call is re-directed or the
party or place from which it came, either incoming or outgoing (*e.g.*,
a redirected-to party or redirected-from party).

*Destination*. A party or place to which a call is being made (*e.g.*,
the called party).

**§ 22.1103 Capabilities that must be provided by a cellular
telecommunications carrier.**

\(a\) \* \* \*

\(b\) As of November 19, 2001, a cellular telecommunications carrier
shall provide to a LEA communications and call-identifying information
transported by packet-mode communications.

\(c\) As of June 30, 2002, a cellular telecommunications carrier shall
provide to a LEA the following capabilities:

\(1\) Content of subject‑initiated conference calls;

\(2\) Party hold, join, drop on conference calls;

\(3\) Subject‑initiated dialing and signaling information;

\(4\) In‑band and out‑of‑band signaling;

\(5\) Timing information;

\(6\) Dialed digit extraction, with a toggle feature that can
activate/deactivate this capability.

PART 24- PERSONAL COMMUNICATIONS SERVICES

B. Part 24 of the Code of Federal Regulations is amended as follows:

1\. The authority citation in Part 24 continues to read:

AUTHORITY: 47 U.S.C. 154, 301, 302, 303, 309 and 332.

2\. Sections 24.902 and 24.903 are amended to read as follows:

**§ 24.902 Definitions.**

\* \* \*

*Origin*. A party initiating a call (*e.g.*, a calling party), or a
place from which a call is initiated.

*Termination*. A party or place at the end of a communication path
(*e.g.* the called or call-receiving party, or the switch of a party
that has placed another party on hold).

*Direction*. A party or place to which a call is re-directed or the
party or place from which it came, either incoming or outgoing (*e.g.*,
a redirected-to party or redirected-from party).

*Destination*. A party or place to which a call is being made (*e.g.*,
the called party).

**§ 24.903 Capabilities that must be provided by a broadband PCS
telecommunications carrier.**

\(a\) \* \* \*

\(b\) As of November 19, 2001, a broadband PCS telecommunications
carrier shall provide to a LEA communications and call-identifying
information transported by packet-mode communications.

\(c\) As of June 30, 2002, a broadband PCS telecommunications carrier
shall provide to a LEA the following capabilities:

\(1\) Content of subject‑initiated conference calls;

\(2\) Party hold, join, drop on conference calls;

\(3\) Subject‑initiated dialing and signaling information;

\(4\) In‑band and out‑of‑band signaling;

\(5\) Timing information;

\(6\) Dialed digit extraction, with a toggle feature that can
activate/deactivate this capability.

PART 64 ‑ MISCELLANEOUS RULES RELATING TO COMMON CARRIERS

C. Part 64 of the Code of Federal Regulations is amended as follows:

1\. The authority citation for Part 64 is amended 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, 208, 225, 226,
227, 229, 332, 501 and 503 unless otherwise noted.

2\. Sections 64.2202 and 64.2203 are amended to read as follows:

**§ 64.2202 Definitions.**

\* \* \*

*Origin*. A party initiating a call (*e.g.*, a calling party), or a
place from which a call is initiated.

*Termination*. A party or place at the end of a communication path
(*e.g.* the called or call-receiving party, or the switch of a party
that has placed another party on hold).

*Direction*. A party or place to which a call is re-directed or the
party or place from which it came, either incoming or outgoing (*e.g.*,
a redirected-to party or redirected-from party).

*Destination*. A party or place to which a call is being made (*e.g.*,
the called party).

**§ 64.2203 Capabilities that must be provided by a wireline
telecommunications carrier.**

\(a\) \* \* \*

\(b\) As of November 19, 2001, a wireline telecommunications carrier
shall provide to a LEA communications and call-identifying information
transported by packet-mode communications.

\(c\) As of June 30, 2002, a wireline telecommunications carrier shall
provide to a LEA the following capabilities:

\(1\) Content of subject‑initiated conference calls;

\(2\) Party hold, join, drop on conference calls;

\(3\) Subject‑initiated dialing and signaling information;

\(4\) In‑band and out‑of‑band signaling;

\(5\) Timing information;

\(6\) Dialed digit extraction, with a toggle feature that can
activate/deactivate this capability.

**APPENDIX B: COMMENTING PARTIES TO PUBLIC NOTICE OF OCTOBER 17, 2000**

[Comments]{.underline}

AT&T Corp. and AT&T Wireless Group

BellSouth Corporation

Cellular Telecommunications and Internet Association

Center for Democracy and Technology

Cingular Wireless LLC

Cisco Systems, Inc.

Department of Justice and Federal Bureau of Investigation

Personal Communications Industry Association

Rural Cellular Association

SBC Communications, Inc.

Telecommunications Industry Association

United States Telecom Association

Verizon Telephone Companies

[Reply Comments]{.underline}

AT&T Corp. and AT&T Wireless Group

BellSouth Corporation

Cellular Telecommunications and Internet Association

Cingular Wireless LLC

Department of Justice and Federal Bureau of Investigation

KMC Telecom

National Telephone Cooperative Association

United States Telecom Association

WorldCom, Inc.

STATEMENT OF COMMISSIONER

MICHAEL J. COPPS

RE: Communications Assistance for Law Enforcement.

I support the Commission's actions today. Our responsibilities under
Section 107 of the Communications Assistance for Law Enforcement Act
("CALEA") are critical, and I am pleased that the Commission was able to
move from our September 18, 2001 Order to today's Order so rapidly. Our
actions today will help law enforcement agencies ("LEAs") and the
wireless industry make progress in better equipping LEAs to collect
call-identifying information.

While I support today's action, I am concerned about two aspects of the
Order. First, as the Order notes, we must "establish standards that
'meet the assistance capability requirements of Section 103 by cost
effective methods'[^320] and 'minimize the cost of such compliance on
residential ratepayers.[^321]'" The Remand Order states that the Third
R&O "made no attempt to compare the cost of implementing the punch list
capabilities with the cost of obtaining the same information through
alternative means, nor did it explain how it measured
cost-effectiveness. Although it mentioned residential ratepayers, it
never explained what impact its Order would have on residential
rates."[^322]

In today's Order, with an explanation of our reasoning, we conclude that
the same capabilities that we have identified in our previous Order and
the same means of implementing these capabilities are cost-effective and
serve to minimize costs on residential ratepayers.

I remain concerned, however, that CALEA-related costs for these
government mandates will be high for residential customers and wireless
providers, especially for rural providers. Carriers and consumers have
only one recourse when faced with these costs -- they may petition the
Commission under Section 109(b)(1) and demonstrate that compliance with
the new assistance capabilities is not "reasonably achievable." The
Commission must then consider "the effect on rates for basic residential
telephone service" as part of determining whether the capabilities are
reasonably achievable for that carrier.

> My second issue of concern is privacy. CALEA requires any Commission
> rule to "protect the privacy and security of communications not
> authorized to be intercepted." The Court noted in the *Remand
> Decision* that in justifying its decision: "The Commission spoke of
> law enforcement\'s need to obtain post-cut-through dialed digits and
> of the cost of providing them, but it never explained, as CALEA
> requires, how its rule will 'protect the privacy and security of
> communications not authorized to be intercepted.'"[^323] The Court
> also stated that the Commission's rejection of alternatives to its
> post-cut-through dialed digit decision was based not on technological
> infeasibility, but because the alternatives \"'would shift the cost
> burden from the originating carrier to the LEA,' 'could be
> time-consuming,' and might burden law enforcement\'s ability 'to
> conduct electronic surveillance effectively and efficiently.'"[^324]
> The Court stated that this was "an entirely unsatisfactory
> response."[^325]
>
> Congress insisted that we protect individual privacy in CALEA. The
> Court told us that we must explain how our rule does this, and not
> accept a solution that fails to protect privacy merely because of
> costs, time burdens, or difficulties LEAs might encounter from a rule
> that is more privacy protective. This is an extremely difficult task
> for the Commission. I would be more satisfied if we had a
> post-cut-through dialed digit technology available to us that provides
> LEAs with call-identifying information while protecting other
> information. Unfortunately, we do not, so we have chosen a technology
> that ensures that LEAs will receive the information they need, and
> rely on the fact that a court must decide whether a pen register
> warrant or a Title III warrant is the appropriate legal authority when
> that information is mixed with non-call-identifying information. Given
> our options at this time, I believe that this is the best choice
> available to us.

[^1]: *See United States Telecom. Association v. FCC*, 227 F.3d 450
    (D.C. Cir. 2000) (hereinafter "*Remand Decision*"). The *Remand
    Decision* is available at
    [http://www.fcc.gov/ogc/documents/opinions/2000/99-1442.html]{.underline}.

[^2]: Communications Assistance for Law Enforcement Act, *Third Report
    and Order*, CC Docket No. 97-213, 14 FCC Rcd 16794 (1999).

[^3]: Communications Assistance for Law Enforcement Act, Pub. L. No.
    103-414, 108 Stat. 4279 (1994) (codified as amended in scattered
    sections of 18 U.S.C. and 47 U.S.C. §§ 229, 1001-1010, 1021).

[^4]: 47 U.S.C. § 1006(b).

[^5]: *See* Section 103(a)(1)-(4), 47 U.S.C. § 1002(a)(1)-(4).

[^6]: Section 102(2) of CALEA defines "call-identifying information" as
    "dialing or signaling information that identifies the origin,
    direction, destination, or termination of each communication
    generated or received by a subscriber by means of any equipment,
    facility, or service of a telecommunications carrier." 47 U.S.C. §
    1001(2).

[^7]: The Act does not define or interpret the term "reasonably
    available."

[^8]: 47 U.S.C. § 1006(a)(2).

[^9]: 47 U.S.C. §§ 1002 & 1005.

[^10]: 47 U.S.C. § 1006(b).

[^11]: The interim standard was jointly published in December 1997 by
    the Telecommunications Industry Association (TIA) and Committee T1,
    sponsored by the Alliance for Telecommunications Industry Solutions
    (ATIS).

[^12]: Section 3 of J-STD-025 describes packet-mode as a "communication
    where individual packets or virtual circuits of a communication
    within a physical circuit are switched or routed by the accessing
    telecommunication system. Each packet may take a different route
    through the intervening network(s)."

[^13]: J-STD-025 includes a parameter that would identify the location
    of a subject\'s "mobile terminal" whenever this information is
    reasonably available at the Intercept Access Point and its delivery
    to law enforcement is legally authorized. Location information would
    be available to the law enforcement agency irrespective of whether a
    call content channel or a call data channel is employed. *See*
    J-STD-025 at § 6.4.6 and §§ 5.4.1-5.4.8, Tables 1, 5, 6, and 8.

[^14]: For an in-depth description of the punch list, including the
    three additional capabilities proposed by DoJ/FBI, which the
    Commission denied, *see Third R&O, supra* n.2, at ¶¶ 57-123. The
    publishers of the J-Standard subsequently issued a revised standard
    -- J-STD-025-A -- that incorporated the changes adopted by the
    Commission in its *Third R&O*. The revised J-Standard was issued in
    May 2000.

[^15]: *Id.* at ¶¶ 13, 46.

[^16]: *Id.* at ¶¶ 55, 129.

[^17]: *See* Communications Assistance for Law Enforcement Act, *Order*,
    CC Docket No. 97-213, 16 FCC Rcd 17397 (2001). The *Order* also
    granted a brief extension of the deadline for implementing a
    packet-mode communications capability until November 19, 2001. Id.
    at 17397 *¶* 1.

[^18]: 227 F.3d at 463. *See ¶* 9, *infra*, for a detailed discussion of
    the *Remand Decision*.

[^19]: *See* "FCC Seeks Comments to Update the Record in the CALEA
    Technical Capabilities Proceeding," *Public Notice*, 15 FCC Rcd
    20142 (rel. Oct. 17, 2000).

[^20]: Reply comments were originally due by December 1, 2000, but that
    deadline was extended by one week. *See Order Extending Time for
    Reply Comments*, CC Docket No. 97-213, 15 FCC Rcd 23776 (rel. Nov.
    29, 2000).

[^21]: 47 U.S.C. § 1006(a).

[^22]: 47 U.S.C. § 1006(b).

[^23]: 227 F.3d at 461-462.

[^24]: 47 U.S.C. § 1001(2).

[^25]: J-STD-025 at 5 (emphasis in original).

[^26]: *Third R&O*, *supra* n.2, at ¶ 44.

[^27]: 227 F.3d at 458. Notably, if CALEA unambiguously limited
    call-identifying information to telephone numbers, the Commission
    would be bound to adopt standards that implement the express will of
    Congress -- *i.e.*, capabilities that require the provision of no
    more than telephone numbers.

[^28]: 227 F.3d at 459.

[^29]: *Motor Vehicles Mfrs Ass'n v. State Farm Mut. Auto. Ins. Co*.,
    463 U.S. 29, 48-52 (1983); *A.L. Pharma, Inc. v. Shalala*, 62 F.3d
    1484, 1491 (D.C. Cir. 1995).

[^30]: 227 F.3d at 460.

[^31]: *See Public Notice*, *supra* n.19.

[^32]: AT&T Comments at 3-6.

[^33]: *See*, *e.g.*, USTA Comments at 7; PCIA Comments at 6.

[^34]: At the time CTIA filed its comments, it was known as the
    "Cellular Telecommunications Industry Association."

[^35]: CTIA Comments at 2.

[^36]: *Id*. at 11-12.

[^37]: *See* H.R. Rep. No. 103-827, 103^rd^ Cong., 2d Sess (1994).

[^38]: Cingular Comments at 1.

[^39]: BellSouth Comments at 4-7; Verizon Comments at 2; WorldCom
    Comments at 3; and PCIA Comments at 3-6.

[^40]: Verizon Comments at 2.

[^41]: *See* Electronic Communications Privacy Act of 1986, Pub. L. No.
    99-508, 100 Stat. 1848 (1986).

[^42]: CDT Comments at 3-4 (*citing* 18 U.S.C. §§ 3122-23).

[^43]: *Id*. at 3.

[^44]: *See, e.g.*, USTA Comments at 3-4; WorldCom Reply Comments at 2.

[^45]: TIA Comments at 3.

[^46]: USTA Comments at 7.

[^47]: DoJ/FBI Comments at 8-29.

[^48]: DoJ/FBI Reply Comments at 2-4.

[^49]: DoJ/FBI Comments at 7.

[^50]: DoJ/FBI Reply Comments at 3.

[^51]: *Id.*

[^52]: *Id*.

[^53]: *Id.* at 2-4.

[^54]: 18 U.S.C. §§ 3121-3127.

[^55]: The "intercept subject" is any party using the communications
    facilities that are being monitored by a LEA. As we stated in the
    *Third R&O*: "In a particular investigation, the 'intercept
    subjects' could include the subscriber, who may or may not be
    involved in criminal activity; a non-subscriber who is not involved
    in criminal activity; or a non-subscriber who *is* involved in
    criminal activity." *See Third R&*O, *supra* n.2, at n.11.

[^56]: DoJ/FBI Comments at 10-12.

[^57]: DoJ/FBI Reply Comments at 4-7.

[^58]: DoJ/FBI Comments at 13.

[^59]: *Id.* at 13-14.

[^60]: *Id.* at 14-16.

[^61]: *Id.* at 16.

[^62]: *Id.* at 16-18.

[^63]: *Id.* at 10.

[^64]: *Id.* at 9.

[^65]: *Id.*

[^66]: *Id.*

[^67]: *See*, *e.g.*, Verizon Comments at 2.

[^68]: 227 F.3d at 458.

[^69]: *See Remand Decision,* 227 F.3d at 463 (citing *Washington Market
    Co. v. Hoffman*, 101 U.S. (11 Otto) 112, 115-16 (1879); *See also*
    *Pennsylvania Dept. of Pub. Welfare v. Davenport*, 495 U.S. 552, 562
    (1990) (expressing "a deep reluctance to interpret a statutory
    provision so as to render superfluous other provisions in the same
    enactment").

[^70]: 227 F.3d at 458.

[^71]: DoJ/FBI Reply Comments at 2-4.

[^72]: 227 F.3d at 459.

[^73]: *See* 18 U.S.C. § 3127 (2001).

[^74]: Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No.
    90-351, 82 Stat. 212 (1968), and ECPA, *supra* n.41 (together
    codified as amended in 18 U.S.C. §§ 2510-2522 and in other Sections
    of 18 U.S.C). These statutory provisions delineate the scope and
    limitations of federal wiretap surveillance authority. A "Title III
    warrant" -- *i.e.* a warrant issued pursuant to Title III of the
    Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §
    2518(3) -- permits a LEA to receive call content if there is
    "probable cause for belief that an individual is committing, has
    committed, or is about to commit a particular offense. . . ." *See*
    18 U.S.C. § 2518(3)(a).

[^75]: DoJ/FBI Reply Comments at 6.

[^76]: *National Resources Defense Council v. EPA*, 822 F.2d 104, 122
    n.17 (D.C. Cir 1987) (stating that an agency decision-making is not
    "a democratic process by which the majority of commentators prevail
    by sheer weight of numbers.")

[^77]: *See, e.g.,* BellSouth Comments at 5 (emphasis added).

[^78]: 140 Cong. Rec. H-10779-02 (daily ed. October 7, 1994) (statement
    of Rep. Hyde). See also *Third R&O*, *supra* n.2, at ¶ 2.

[^79]: 227 F.3d at 463.

[^80]: *See* DoJ/FBI Comments at 12.

[^81]: 47 U.S.C. § 1001(2).

[^82]: We further define these key terms below.

[^83]: DoJ/FBI Comments at 12.

[^84]: *Id.*

[^85]: *Id*. at 13-14.

[^86]: We examine these situations in greater depth below as part of our
    analysis of the "punch list" items.

[^87]: Webster's New World Dictionary, College ed. (1962.) at 398.

[^88]: Newton's Telecom Dictionary, 5^th^ ed., at 273.

[^89]: We distinguish a "destination" from a "termination." Webster's
    defines "terminate" as to "end," "conclude," or "stop" (1504) and
    Newton's defines a "terminal" as "the point at which a telephone
    line ends or is connected to other circuits in a network" (890). In
    a simple two-party call ("A" calls "B"), the called party ("B") is
    both a termination and a destination. However, in more complex
    scenarios, the termination(s) and destination(s) will not always be
    identical. Where a calling party dials the access number of an
    interexchange carrier and connects through that interexchange
    carrier to reach a called party ("A" to "X" to "B," where "X" is the
    interexchange carrier), there are two terminations -- first at X (a
    call-receiving party) and then again B (the called party). If B then
    calls a third party ("C") to establish a three-way call, then C is
    also a termination. If A tries to dial B but the network is unable
    to make a connection, B would be the destination but, because the
    network never connects to that point, there is no termination at B.

[^90]: We conclude that this identifying information could include, for
    example, information that identifies lines, antenna towers, or other
    telecommunication service provider ("TSP") facility or facilities.
    In the wireless location information requirement, which the Court
    upheld, a provider will have to identify a particular cell tower.
    Where a call terminates at the TSP switch that serves the subject,
    we suspect that the provider and LEA may find it more convenient to
    describe the action instead of providing an identification number
    for the terminating switch -- even though both would be "identifying
    information."

[^91]: 47 U.S.C. § 1006(b)(1) (emphasis added).

[^92]: 47 U.S.C. § 1006(b)(3).

[^93]: 227 F.3d at 461.

[^94]: *Id*. (citing Motor Vehicle Mfrs., 463 U.S. at 43).

[^95]: *See Public Notice*, *supra* n.19.

[^96]: *Id.*

[^97]: *See, e.g.,* USTA Comments at 13; BellSouth Reply Comments at 13.

[^98]: CTIA Comments at 25 (alternative costs should have been
    identified and considered); Rural Cellular Association ("RCA")
    Comments at 6 (Commission failed to evaluate whether the punch list
    items were the most cost-effective way of meeting the CALEA
    requirements); AT&T Reply Comments at 2 (Commission should give
    serious consideration to the proposed alternative methods for law
    enforcement to obtain the same information at a substantially lower
    cost).

[^99]: WorldCom Reply Comments at 5.

[^100]: *See, e.g.,* AT&T Comments at 4 (asserting that the provision of
    the punch list capabilities is not cost-effective because of costs
    that are "excessive and unreasonably burdensome").

[^101]: USTA Comments at 12-13; *see also* BellSouth Comments at 22;
    NTCA Reply comments at 4.

[^102]: USTA Comments at 13.

[^103]: USTA Reply Comments at 2; BellSouth Comments at 21 (stating that
    "\[m\]andating implementation of the four 'punch list' capabilities
    will add significantly and unnecessarily to the total costs of CALEA
    compliance, without any countervailing benefits.")

[^104]: BellSouth Comments at 22. Because BellSouth claims that the
    J-Standard is not deficient, it concludes that retention of the
    J-Standard is the best method to achieve cost-minimization and,
    thus, to adopt a standard that is "cost-effective."

[^105]: CTIA Comments at 18.

[^106]: *Id*. at 22-24.

[^107]: *Id*. at 23 and NTCA Reply Comments at 4.

[^108]: CTIA Comments at 24.

[^109]: USTA Comments at 13.

[^110]: BellSouth Comments at 21.

[^111]: *See, e.g.*, PCIA Comments at 9 (describing the effect of
    requiring post cut-through dialed digits).

[^112]: USTA Comments at 12-13; RCA Comments at 7.

[^113]: DoJ/FBI Comments at 31, 41-43.

[^114]: DoJ/FBI *Ex Parte* Presentation, CC Docket 97-213, filed April
    18, 2001, at 2. This figure represents an update from the 85% figure
    DoJ/FBI provided in its November 2000 Comments. *See* DoJ/FBI
    Comments at 36-40.

[^115]: DoJ/FBI Comments at 40, 43.

[^116]: *Id*. at 31, 36-37.

[^117]: With respect to proposed alternatives for dialed digit
    extraction, DoJ/FBI assert that they fail to qualify under Section
    107(b) because they are inadequate to meet the assistance capability
    requirements of Section 103. We discuss dialed digit extraction --
    and these proposed alternatives -- *infra.*

[^118]: DoJ/FBI Comments at 32, 43-47.

[^119]: DoJ/FBI Reply Comments at 19-20.

[^120]: *Id.* at 19-20.

[^121]: *Id*. at 20-21.

[^122]: 227 F.3d at 461.

[^123]: *See, e.g.,* 47 C.F.R. § 54.603(b)(4); 47 C.F.R. § 54.615 (c)(7)
    (same definition) (providing, in the Universal Service context, that
    "the most cost-effective method of providing a service is defined as
    the method that costs the least after consideration of the features,
    quality of transmission, reliability, and other factors that the
    health care provider deems relevant to choosing a method of
    providing the required health care services").

[^124]: ". . . the term *"cost effective" means costing no more than the
    available alternatives*, determined by a comparison of all related
    direct and indirect costs . . . and taking into account the ability
    of each alternative to accommodate mission requirements as well as
    the related factors of risk, reliability, schedule, and technical
    performance. . . ." (15 U.S.C. § 5802, "Commercial Space
    Competitiveness") (emphasis added); "'Cost-effective', when applied
    to any measure or resource referred to in this chapter, means that
    such measure or resource must be forecast -- (i) to be reliable and
    available within the time it is needed, and (ii) to meet or reduce
    the electric power demand, . . . of the consumers of the customers
    at an estimated incremental system cost *no greater than that of the
    least-cost similarly reliable and available alternative measure or
    resource*, or any combination thereof." (16 U.S.C. § 839(a),
    "Pacific Northwest Electric Power Planning and Conservation")
    (emphasis added). See also 2 U.S.C. §1535 ("Least burdensome option
    or explanation required"); 10 C.F.R. §436.16 ("Measuring
    Cost-effectiveness"); 40 C.F.R. Part 35, Subpart E, App. A
    ("Cost-Effectiveness Analysis Guidelines"); *but see* 5 U.S.C.
    §552(a)(u)(4)(A) (requiring a board to conduct a cost-benefit
    analysis to demonstrate that a program is cost-effective).

[^125]: The Department of Commerce's National Oceanic and Atmospheric
    Administration has defined "cost-effective" to mean "the least
    costly activity among two or more activities that provide the same
    or a comparable level of benefits, in the judgment of the trustees."
    15 C.F.R. § 990.30. Similarly, the Department of Interior has
    defined "cost-effective" to mean "that when two or more activities
    provide the same or a similar level of benefits, the least costly
    activity providing that level of benefits will be selected." 43
    C.F.R. § 11.14(j). The Department of Defense has defined "cost
    effective" to mean "that the required level of workload (output, as
    described in the performance work statement) is accomplished with as
    little resource consumption (input) as possible without degradation
    in the required quality level of products or services." 32 C.F.R. §
    169a.15(d)(3)(i); *but see* 44 C.F.R. § 209.2 (requiring, in a
    Federal Emergency Management Agency disaster assistance program,
    that a mitigation activity will not cost more than the anticipated
    value of the reduction in both direct and indirect damages and
    subsequent negative impacts to the area if future disasters were to
    occur).

[^126]: *See also* *Husqvarna AB v. EPA*, 254 F.3d 195 at 200 (D.C. Cir.
    2001) (finding that because a statute did not mandate a specific
    method of cost analysis, the Environmental Protection Agency's
    choice of how to consider costs was reasonable). In this case, we
    recognize that the statute does not define "cost-effective" and look
    to other sources to give this term meaning.

[^127]: To the extent that commenters suggest that the Commission must
    independently search for alternative means of meeting a CALEA
    capability and then evaluate which is the least expensive to
    implement, we see nothing in the statute that would support such an
    interpretation and we reject that approach. We note that we have
    solicited comment as to whether the punch list capabilities met
    CALEA's assistance capability requirements, and we will consider
    *infra* the punch list capabilities, arguments that they do not
    comply with CALEA's requirements, and alternative means that have
    been proposed for complying with CALEA. Further independent inquiry
    on our part would quickly stray from the record developed in this
    proceeding.

[^128]: Webster's New World Dictionary, College ed. (1962) at 462.

[^129]: We note that total costs to insurers of the September 11, 2001
    terrorist attacks in the United States have been "conservatively
    estimated at \$US40bn." and "estimated at \$30 billion to \$70
    billion." *See*, respectively, *The Australian Financial Review*,
    "Australasian Business Intelligence" by Devon Spurgeon, October 26,
    2001; and *USA Today*, "House passes terrorism-insurance bill,"
    November 30, 2001 at 1B.

[^130]: However, we think it is illustrative in this case insofar that
    it supports our contention that we should not put undue weight on
    the absolute cost of implementing a capability as part of a
    determination as to whether it meets CALEA "by cost-effective
    methods."

[^131]: *See* 140 Cong. Rec. H10773-02, 10782 (daily ed. October 4,
    1994) (reporting various statements of representatives discussing,
    *inter alia*, the legislation's costs to industry).

[^132]: *See* *Order*, supra n.17 at 16 FCC Rcd 17402 ¶ 9.

[^133]: *See* DoJ/FBI *Ex Parte* Presentation, CC Docket 97-213, filed
    April 18, 2001, at 2. We also note that USTA made an *ex parte*
    presentation in this proceeding on April 25, 2001. As part of that
    presentation, USTA attached a table showing the CALEA capability of
    eight wireline manufacturers. Four of those manufacturers --
    Siemens, Nortel, Lucent, and AG Communications Systems ("AGCS") --
    included all six punch list capabilities on six major switches. On
    five of these switches -- Siemens "EWSD," Siemens "DCO," Nortel
    "DMS-10," Lucent "5E," and AGCS "GTD5" -- a toggle permits each
    capability to be disabled if it is not required. On the remaining
    switch -- Nortel "DMS-100" -- a toggle permits each capability
    except party hold/join/drop to be disabled if it is not required.
    There was less information available regarding the switches of the
    other four wireline manufacturers -- Mitel, Redcom, Ericsson, and
    American Digital Switching ("ADS"). For the Mitel "GX5000," it was
    not known whether the punch list capabilities would be offered; for
    the Redcom "MDXI," software version 6 did not include the punch list
    capabilities and software version 7, due in mid-2002, is scheduled
    to include two punch list capabilities; for the Ericsson "AKE10," a
    software release date had not been established; and for the "ADS
    Centura 2000," there was no resolution regarding the punch list
    capabilities. *See* USTA *Ex Parte* Presentation, CC Docket 97-213,
    filed April 26, 2001, at Table.

[^134]: Accordingly, software costs for the punch list capabilities may
    no longer be variable based upon the number of punch list
    capabilities that we deem to be CALEA requirements.

[^135]: *See, e.g.,* 47 U.S.C. § 229(e) and collateral state
    regulations.

[^136]: *See* Section 109(d) of CALEA, 47 U.S.C. § 1008(d).

[^137]: 47 U.S.C. § 1008(b).

[^138]: *See* 140 Cong. Rec. H10773-02, 10780 (daily ed. October 4,
    1994) (statement of Rep. Markey).

[^139]: We recognize that some wireless subscribers may use that service
    as a substitute for traditional wireline service, but we have only
    limited data on the extent to which that occurs; *see* n.143,
    *infra*.

[^140]: 47 U.S.C. §332 (enacted as part of the Omnibus Budget
    Reconciliation Act of 1993, Pub. L. No. 103-166, Title VI, §6002(b),
    107).

[^141]: Implementation of Sections 3(N) and 332 of the Communications
    Act -- Regulatory Treatment of Mobile Services, *Second Report and
    Order*, GN Docket No. 93-252, 9 FCC Rcd 1411 (1994).

[^142]: The number of U.S. households with telephones is about 102
    million currently, and was about 94 million at the time CALEA was
    enacted. *See* *Telephone Subscribership in the United States*,
    released by the FCC's Common Carrier Bureau (now Wireline
    Competition Bureau) on February 7, 2002. Table 1 shows that the
    number of households with telephones was 101.7 million as of July
    2001, 100.2 million as of November 2000, and 93.7 million as of
    November 1994. Appendix C, Table 1 of our *Sixth Annual CMRS
    Competition Report*, FCC 01-192, released July 17, 2001, shows that
    there were 109.5 million wireless subscribers as of December 2000
    and 24.1 million wireless subscribers as of December 1994. Thus,
    there are currently more wireless subscribers than households with
    telephones; however, as of late 1994, there were about four times as
    many households with telephones as wireless subscribers.

[^143]: *See* *Telephone Subscribership in the United States*, *supra*
    n.142. Table 1 shows that, as of November 1994, the percentage of
    households with telephones was 93.8%. While, as discussed in n.142,
    there were about 24 million wireless subscribers at that time, it
    would have been cost-prohibitive for households to use wireless
    telephone service as a substitute for basic wireline telephone
    service in late 1994 because wireless telephone rates were much
    higher than at present. Appendix C, Table 8 of the *Sixth Annual
    CMRS Competition Report* shows that the cellular consumer price
    index ("CPI") declined by 29% between December 1997 and December
    2000, versus an increase in the local telephone CPI of 10% during
    that same period. The cellular CPI is not available prior to
    December 1997, but in 2001 the Strategis Group, Inc. estimated that
    the average price per minute for mobile telephone service was 57
    cents in 1994, 43 cents per minute in 1997, and 21 cents per minute
    in 2000; *see* Thomas J. Sugrue, Opening Remarks to *Sixth Annual
    CMRS Competition Report*, June 20, 2001, at slide 5. Thus, it seems
    clear that between 1994 and 2000 there was a major decrease in
    wireless rates that fueled the dramatic increase in the number of
    wireless subscribers during that period, including some households
    substituting wireless service for wireline service. According to a
    Yankee Group survey of early 2001, about 3% of wireless subscribers
    did not have a wireline telephone, and a CTIA survey of early 2000
    estimated that this percentage could be as high as 5%. *See Sixth
    Annual CMRS Competition Report*, *supra* n.142 at 32 n.207.

[^144]: *See* DoJ/FBI Reply Comments at 18-19.

[^145]: *Id.* at 41.

[^146]: 47 U.S.C. §229(e).

[^147]: We reject those commenters who would have us pre-empt this
    capability as not "reasonably available" under Section 103(a)(2)
    because such an approach fails to take into account the particular
    equipment, facility, or service that may be used to deploy this
    capability on a case-by-case basis. *See* DoJ/FBI Reply Comments at
    11. Section 109 provides a method for a carrier to obtain a
    determination that CALEA compliance with respect to its particular
    equipment, facility, or service is not "reasonably achievable"
    without eliminating this capability in other situations where it is,
    in fact, "reasonably achievable."

[^148]: Several commenters note that these programs may not apply to all
    situations and, therefore, they assert that there may be particular
    situations in which the cost-minimization programs will not minimize
    costs. *See, e.g.,* NTCA Comments at 4 ("Other carriers may have
    filed flexible deployment plans that the FBI finds unacceptable.
    These carriers will be forced to update their equipment immediately
    at considerable expense or face the potential fines associated with
    CALEA.") We do not think that the fact that there may be some cases
    where the DoJ/FBI programs do not apply serves to defeat our
    conclusion that, as a whole, they reduce the cost to residential
    ratepayers associated with the implementation of the punch list
    capabilities.

[^149]: We discuss this concept as it is applied to each punch list
    capability in greater depth *infra*.

[^150]: We recognize that these costs will likely be greater on a
    individual residential ratepayer basis in those rural areas where
    there is a smaller base over which to spread costs. *See* RCA
    comments at 7. These carriers may serve areas that do not have a
    history of LEA surveillance requests and are eligible for DoJ/FBI
    extended implementation. This circumstance will serve to reduce the
    cost to carriers and, thus, residential ratepayers, because of
    implementation efficiencies. We acknowledge that this does not
    change the per capita cost rural ratepayers may have to pay
    vis-à-vis urban customers, but note that CALEA requires us only to
    establish standards that minimize the cost on residential
    ratepayers. We read this provision to require us to minimize the
    cost of compliance on residential ratepayers, and not as a mandate
    to insure that all ratepayers pay exactly the same costs -- whether
    they are in a rural area with a smaller ratepayer base or because
    they are in a high-crime area in which the flexible deployment
    program is unavailable.

[^151]: *Third R&O*, *supra* n.2, at Appendix B. These figures are
    derived by adding the estimated total revenues for the four vacated
    punch list capabilities: party hold, join, drop messages;
    subject-initiated dialing and signaling; in-band and out-of-band
    signaling; and dialed digit extraction. The sum of wireless and
    wireline revenues does not add to the total due to rounding.

[^152]: *Id*. at n.68. We think this continues to be the case,
    particularly because these manufacturers represent such a large
    portion of the network equipment industry and we have not received
    any new reliable industry-wide cost estimates to replace these
    earlier estimates.

[^153]: As discussed in n.142, *supra*, there are currently about 109.5
    million wireless subscribers and about 101.7 million households with
    telephones. Dividing the \$159 million estimated wireless cost by
    109.5 million wireless subscribers yields a cost of \$1.45 per
    wireless subscriber. The cost per residential wireline ratepayer
    cannot be calculated as exactly because some of the 101.7 million
    households that have telephones may have wireless service only. The
    Bureau of Census includes questions on telephone availability as
    part of its Current Population Series ("CPS"). The question asked in
    the CPS that is most relevant to the issue of the number of
    households that have wireline service is: "Is there a telephone in
    this house/apartment?" *See* *Telephone Subscribership in the United
    States*, *supra* n.142 at 2. That question could be interpreted by
    some respondents to mean a wireline telephone only, *i.e.*, a
    telephone that can be used only in the house/apartment; while other
    respondents may interpret the question to mean either a wireline or
    wireless telephone, *i.e.*, either a telephone that can be used only
    in the house/apartment or a telephone that can be used both in the
    house/apartment and outside the house/apartment. Based on the
    surveys done by the Yankee Group and CTIA, *supra* n.143, we will
    use as the likely range of households that have wireline telephones
    96-98 million. Dividing the \$117 million estimated wireline cost by
    98 million residential wireline ratepayers yields \$1.19 per
    residential wireline ratepayer, and dividing the \$117 million
    estimated wireline cost by 96 million residential wireline
    ratepayers yields \$1.22 per residential wireline ratepayer.

[^154]: Specifically, a cost of \$159 million to wireless carriers,
    converted to a rate increase to 109.5 million wireless subscribers,
    would average 6.8 cents per month per wireless subscriber using a
    relatively rapid amortization period of two years and a relatively
    high discount rate of 12%; and would average 2.8 cents per month per
    wireless subscriber using a relatively slow amortization period of
    five years and a relatively low discount rate of 6%. A cost of \$117
    million to wireline carriers, converted to a rate increase to 96-98
    million residential wireline ratepayers, would average 5.6-5.7 cents
    per month per residential wireline ratepayer using a relatively
    rapid amortization period of two years and a relatively high
    discount rate of 12%; and would average 2.3-2.4 cents per month per
    residential wireline ratepayer using a relatively slow amortization
    period of five years and a relatively low discount rate of 6%.

[^155]: USTA Comments at 10.

[^156]: CTIA Comments at 13. *See also* Cingular Comments at 6; CDT
    Comments at 6.

[^157]: CTIA Comments at 12-14.

[^158]: PCIA Comments at 8-9.

[^159]: USTA Comments at 9-11.

[^160]: PCIA Comments at 8.

[^161]: *Id.* at 9.

[^162]: *Id*.

[^163]: AT&T Comments at 11.

[^164]: *Id*. at 12.

[^165]: *Id.* at 12-13.

[^166]: BellSouth Comments at 11. *See also* CDT Comments at 7; PCIA
    Comments at 3-6; CTIA Comments at 18-22.

[^167]: BellSouth Comments at 11. *See also* CDT Comments at 7.

[^168]: CDT Comments at 7.

[^169]: CTIA Comments at 13.

[^170]: BellSouth Reply Comments at 17.

[^171]: CTIA Reply Comments at 13; AT&T Comments at 7.

[^172]: CTIA Comments at 20, *citing* *People v. Bialostok*, 80 N.Y.2d
    738, 610 N.E.2d 374 (1993).

[^173]: BellSouth Reply Comments at 15.

[^174]: *Id*. at 15-16. *See also* AT&T Comments at 10; WorldCom
    Comments at 5.

[^175]: BellSouth Reply Comments at 16 n43.

[^176]: 50 F.3d 285 (4^th^ Cir. 1995).

[^177]: CDT Comments at 4-7.

[^178]: *Id*. at 8*.*

[^179]: Cingular Reply Comments at 14.

[^180]: WorldCom Comments at 5.

[^181]: DoJ/FBI Comments at 21; DoJ/FBI Reply Comments at 12. DoJ/FBI
    suggest that if a subject dials the same number to reach the same
    party on two different occasions -- the first by calling the party
    directly and the second by dialing the number after being
    "cut-through" to a calling card service -- that "\[t\]here is no
    possible statutory basis for suggesting that the same telephone
    number is 'call-identifying information' the first time and
    something else the second time." DoJ/FBI Comments at 19.

[^182]: DoJ/FBI Comments at 20-21.

[^183]: DoJ/FBI Reply Comments at 14.

[^184]: *Id.* at 23 n9. The applicable provision is codified at 42
    U.S.C. §103(b)(1)(A).

[^185]: DoJ/FBI Comments at 50. DoJ/FBI acknowledge that
    post-cut-through digits that are dialed for transactional purposes
    do not constitute call-identifying information, but contend that
    post-cut-through telephone numbers are call-identifying information.

[^186]: *Id*. at 50-51. "By making clear its decision is directed solely
    at the issue of capability, not that of legal authorization, the
    Commission can ensure that carriers do not mistakenly regard
    themselves as 'bound' by the Commission's order to deliver
    post-cut-through digits. If a court determines that the pen register
    statute does not provide sufficient legal authority for a carrier to
    perform dialed digit extraction, the Commission's decision would not
    preclude such a determination."

[^187]: *Id.* at 51-52 (stating that "\[i\]f the Commission wishes to do
    so, it can modify the Third Report and Order to make this toggling
    capability a condition for dialed digit extraction, thereby ensuring
    that carriers can execute pen register orders without jeopardizing
    'the privacy and security of communications not authorized to be
    intercepted' if a particular court differs with the government
    regarding the legality of requiring post-cut-through digits under
    the pen register statute.'"

[^188]: DoJ/FBI Reply Comments at 27.

[^189]: *Id.*

[^190]: *Id.* at 26. The statute requires LEAs to use "reasonable
    available" technology to restrict recording and decoding to the
    dialing and signaling information used in call processing.

[^191]: *Id*. at 24.

[^192]: *Id*. (citing 47 U.S.C. §§1002(a)(2) and 1006(b)(1)).

[^193]: *Id.* at 30.

[^194]: We note, however, that, pursuant to the FBI's *Final Notice* *of
    Capacity,* telecommunications carriers were required to file
    "statements of submission" by September 8, 1998 to apply for
    reimbursement for expenses incurred to meet the FBI's capacity
    requirements. *See* Implementation of Section 104 of the
    Communications Assistance for Law Enforcement Act, *Final Notice of
    Capacity,* 63 FR 12218 (1998).

[^195]: DoJ/FBI Comments at 40, 43.

[^196]: DoJ/FBI Reply Comments at 23.

[^197]: 47 U.S.C. §1001(2).

[^198]: Post-cut-through digits may be handled on the content channel as
    opposed to the call data channel. *See, e.g.,* AT&T Comments at 6.

[^199]: CALEA's legislative history describes "call-identifying"
    information as information that describes communication "placed to,
    or received by, the facility or service that is the subject of the
    court order or lawful authorization." H.R. Rep. No. 103-827, 103^rd^
    Cong., 2d Sess (1994) at 21. We do not think the legislative
    history's statement that CALEA is "not intended to guarantee
    'one-stop shopping' for law enforcement" alters our analysis. *See*
    H.R. Rep. No. 103-827, 103^rd^ Cong., 2d Sess (1994) at 21. This
    discussion relates to whether a communication is within a particular
    carrier's control -- and not whether a communication is
    "call-identifying information" for purposes of CALEA. As discussed,
    *infra*, post-cut-through digits are available at a carrier's
    Intercept Access Point, which suggests that these communications are
    within a carrier's control.

[^200]: "Post-cut-through dialed digits may include the telephone
    numbers dialed after connecting to a long-distance carrier, in which
    case they are call-identifying information under CALEA, as they
    identify the destination of a call. But these digits are call
    identifying to the long distance company to which the call is
    delivered, not to the local exchange carrier that merely passes them
    on just like the rest of the content of the call. Information is not
    call identifying when the carrier involved in the surveillance does
    not use it for that purpose." Verizon Comments at 4. We disagree
    with Verizon insofar that it would have us hold that this
    information is not call-identifying.

[^201]: 47 U.S.C. § 1002(a)(1).

[^202]: 47 U.S.C. § 1002(a)(2).

[^203]: *Id*. As mentioned in n.7, *supra*, CALEA does not define the
    term "reasonably available."

[^204]: PCIA Comments at 8. Cingular Comments at 7. USTA Comments at 10.
    In wireline calls, a tone decoder in a switch is used to identify
    the number being dialed by the caller. After the call is
    cut-through, the decoder is available for another call. In wireless
    systems, tone decoders are not typically used in the call set-up
    process. PCIA Comments at 8-9.

[^205]: *See, e.g.,* USTA Comments at 10: "The inclusion of
    post-cut-through dialed digits in the J-Standard would be extremely
    onerous for carriers because it would require carriers to subvert
    normal call processing needs and buy additional equipment solely to
    accommodate surveillance activities. Such a result would not be cost
    effective. In the words of the statute, post cut-though dialed
    digits are not *reasonably available* from the originating carrier"
    (emphasis in original).

[^206]: J-STD-025 § 4.2.1.

[^207]: Webster's New World Dictionary, College ed. (1962.) at 101.

[^208]: Although commenters discuss the hardware modifications that will
    be required to collect this information -- *i.e.* the installation
    of tone decoders -- none argue that the basic structure of the
    network will not allow for the provision of a dialed digit
    extraction capability. *See also Third R&O*, *supra* n.2, at ¶¶
    28-31.

[^209]: 47 U.S.C. § 1006(b)(2).

[^210]: 227 F.3d at 462.

[^211]: CTIA Reply Comments at 13.

[^212]: *Remand Decision*, 227 F.3d at 462.

[^213]: DoJ/FBI *Ex Parte* Presentation, CC Docket 97-213, filed April
    18, 2001, at 2.

[^214]: Similarly, we do not know whether changes to wiretap law
    embodied in the USA PATRIOT Act will affect the scope and nature of
    pen registers and trap and trace device warrants issued by the
    courts.

[^215]: We reject AT&T's suggestion that we use the structure of CALEA
    (which gives the Commission authority to resolve certain standards
    issues) to adopt a "working assumption" that courts will conclude
    that a Title III order is necessary for LEAs to obtain
    post-cut-thorough dialed digits. AT&T Comments at 9-10. Again, as
    noted above, it is not for the Commission to decide the particular
    legal authority necessary to obtain post-cut-through dialed digits.
    Rather, the Commission is to decide whether such capability is
    required under CALEA.

[^216]: *See* *Order*, *supra* n.17, at ¶ 13.

[^217]: We agree with WorldCom on this point and reiterate that LEAs
    must always obtain a court authorization or other valid legal
    instrument before a carrier can be required to provide information
    as part of a CALEA capability. *See also* Section 103(a)(4)(A), 47
    U.S.C. § 1002(a)(4)(A) (requiring carriers to facilitate
    interceptions in a manner that protects the privacy of
    communications "not authorized to be intercepted.") In each case, a
    court will have to consider what communications are authorized to be
    intercepted and what is the appropriate legal instrument for a LEA's
    surveillance.

[^218]: *See Remand Decision*, 227 F.3d at 465-66 (discussing how the
    Commission's treatment of the packet mode capability did not attempt
    to alter the evidentiary standard nor compel carriers to turn over
    call content to LEAs absent lawful authorization).

[^219]: *See* H.R. Rep. No. 103-827, 103^rd^ Cong., 2d Sess (1994) at 32
    (stating that government agencies installing pen registers "use,
    when reasonably available, technology that restricts the information
    captured by such device to the dialing or signaling information
    necessary to direct or process a call, excluding any further
    communication conducted through the use of dialed digits that would
    otherwise be captured").

[^220]: We do not discount the responsibility of carriers to ensure that
    they facilitate authorized communications interceptions in a manner
    that protects the privacy and security of communications not
    authorized for interception. *See* ¶ 88, *supra*, and 47 U.S.C. §
    1002(a)(4). The burden is clearly on a LEA to convince a court that
    a pen register is a sufficient legal instrument to obtain dialed
    digit extraction information. *See* n.217, *supra*, and accompanying
    text. A carrier that is not convinced that a pen register order is a
    "valid legal instrument" to obtain dialed digit extraction may
    decide not to provide this information to a LEA -- just as a carrier
    that is presented with a pen register order may conclude that it is
    not a "valid legal instrument" for it to provide a call content
    channel that has been requested by a LEA.

[^221]: Although a carrier must make information from dialed digit
    extraction available to a LEA upon presentation of a valid legal
    instrument, we do not mean to suggest that, by analogy, the
    provision of selected dialed digits (*i.e*. those that do not
    constitute call-identifying information) is a capability that is
    reasonably available to carriers. Were a court to determine that a
    LEA is authorized to obtain only those dialed digits that do not
    constitute call-identifying information under a particular pen
    register order, a carrier would have to decide if it could provide
    the requested information consistent with its duty under CALEA to
    protect the privacy of communications not authorized to be
    intercepted. If it concluded that it could not, the carrier might
    decide not to provide a LEA with dialed digit extraction information
    in response to such an order.

[^222]: Alternatively, if a carrier believes that deploying a dialed
    digit extraction capability with a toggle feature is not "reasonably
    achievable," the carrier may file a petition with the Commission
    under Section 109(b), requesting an exemption from deployment of
    this capability. 47 U.S.C. § 1006(b).

[^223]: 47 U.S.C. § 1006(b).

[^224]: *See* *supra*, ¶ 79 (rejecting the alternative of having a LEA
    serve the terminating carrier with a pen register due to time lag
    problems), ¶ 83 (declining to find that a Title III warrant is a
    sufficient alternative to a pen register order), and ¶ 88 (rejecting
    the alternative of having a LEA use its own decoders to extract
    dialed digits on call content channels due to privacy concerns).

[^225]: *Third R&O*, *supra* n.2, at Appendix B. Figure is for wireline
    and wireless carriers.

[^226]: However, as discussed in n.194, *supra*, there was a carrier
    filing deadline of September 8,1998 to qualify for capacity
    reimbursements.

[^227]: *Third R&O*, *supra* n.2, at Appendix B. Figure is for wireline
    carriers only.

[^228]: Based on 96-98 million U.S. households with wireline telephone
    service, the cost would average 61-63 cents per subscribing
    household. *See* n.153, *supra*.

[^229]: Specifically, a \$60 million charge to carriers, converted to a
    rate increase to 96-98 million residential ratepayers, would average
    2.9-3.0 cents per month per ratepayer using a relatively rapid
    amortization period of two years and a relatively high discount rate
    of 12%; and would average 1.2 cents per month per ratepayer using a
    relatively slow amortization period of 5 years and a relatively low
    discount rate of 6%.

[^230]: CDT Comments at 9.

[^231]: CTIA Comments at 15-16.

[^232]: USTA Comments at 7-8.

[^233]: DoJ/FBI Comments at 27-28.

[^234]: DoJ/FBI Reply Comments at 16-18.

[^235]: *Third R&O*, *supra* n.2, at ¶¶ 28-29. *See also supra* n.206
    and accompanying text.

[^236]: J-STD-025 § 4.2.1.

[^237]: 47 U.S.C. § 1006(b).

[^238]: *Third R&O*, *supra* n.2, at Appendix B. Figure is for wireline
    and wireless carriers.

[^239]: *Id*. Figure is for wireline carriers only.

[^240]: Based on 96-98 million U.S. households with wireline telephone
    service, the cost would average 22-23 cents per subscribing
    household. *See* n.153, *supra*.

[^241]: Specifically, a \$22 million charge to carriers, converted to a
    rate increase to 96-98 million residential ratepayers, would average
    1.0-1.1 cents per month per ratepayer using a relatively rapid
    amortization period of two years and a relatively high discount rate
    of 12%; and would average 0.4 cents per month per ratepayer using a
    relatively slow amortization period of 5 years and a relatively low
    discount rate of 6%.

[^242]: *See* ¶ 8, *supra*.

[^243]: CDT Comments at 10.

[^244]: *Id*. at 11.

[^245]: CTIA Comments at 14-15.

[^246]: BellSouth Comments at 16.

[^247]: *Id*. at 17.

[^248]: *Id*. at 17-18.

[^249]: DoJ/FBI Comments at 23-25.

[^250]: DoJ/FBI Reply Comments at 14-15.

[^251]: DoJ/FBI "Reply Comments Regarding Standards for Assistance
    Capability Requirements," CC Docket No. 97-213, filed June 12, 1998,
    at 48-49.

[^252]: DoJ/FBI "Reply Comments Regarding Further Notice of Proposed
    Rulemaking," CC Docket No. 97-213, filed January 27, 1999, at 46-47.

[^253]: 47 U.S.C. § 1006(b).

[^254]: *Third R&O*, *supra* n.2, at Appendix B. Figure is for wireline
    and wireless carriers.

[^255]: *Id*. Figure is for wireline carriers only.

[^256]: Based on 96-98 million U.S. households with wireline telephone
    service, the cost would average 8 cents per subscribing household.
    *See* n.153, *supra*.

[^257]: Specifically, an \$8 million charge to carriers, converted to a
    rate increase to 96-98 million residential ratepayers, would average
    0.4 cents per month per ratepayer using a relatively rapid
    amortization period of two years and a relatively high discount rate
    of 12%; and would average 0.2 cents per month per ratepayer using a
    relatively slow amortization period of 5 years and a relatively low
    discount rate of 6%.

[^258]: *See* ¶ 8, *supra*.

[^259]: Cingular Comments at 10.

[^260]: USTA Comments at 9.

[^261]: DoJ/FBI Comments at 26-27.

[^262]: DoJ/FBI "Reply Comments Regarding Standards for Assistance
    Capability Requirements," *supra* n.251, at 55.

[^263]: *Id*. at 57.

[^264]: *Id*. at 58-59.

[^265]: DoJ/FBI Reply Comments at 15-16.

[^266]: There is nothing in the record to refute our conclusion that
    this information can be made available without a carrier being
    unduly burdened with network modifications. *See also Third R&O*,
    *supra* n.2, at ¶¶ 28-29; *supra* n.206 and accompanying text.

[^267]: 47 U.S.C. § 1006(b).

[^268]: *Third R&O*, *supra* n.2, at Appendix B. Figure is for wireline
    and wireless carriers.

[^269]: *Id*. Figure is for wireline carriers only.

[^270]: Based on 96-98 million U.S. households with wireline telephone
    service, the cost would average 28 cents per subscribing household.
    *See* n.153, *supra*.

[^271]: Specifically, a \$27 million charge to carriers, converted to a
    rate increase to 96-98 million residential ratepayers, would average
    1.3 cents per month per ratepayer using a relatively rapid
    amortization period of two years and a relatively high discount rate
    of 12%; and would average 0.5 cents per month per ratepayer using a
    relatively slow amortization period of 5 years and a relatively low
    discount rate of 6%.

[^272]: *See* ¶ 8, *supra*.

[^273]: House Report No. 103-827, at 3493.

[^274]: USTA Comments, at 13.

[^275]: *See* ¶ 60, *supra*.

[^276]: 47 U.S.C. § 1006(b)(5).

[^277]: *Order*, *supra* n.17, at ¶ 12.

[^278]: Because the pleading cycle closed prior to the Commission's
    decision to suspend the compliance deadline, commenters generally
    request relief from the original September 30, 2001 deadline as
    opposed to identifying a specific time period that they believed
    would be "reasonable." *See, e.g.,* AT&T Reply Comments at 9.
    However, one commenter -- KMC Telecom -- specifically requested that
    the Commission adopt a June 30, 2002 date. KMC Telecom Reply
    Comments at 4.

[^279]: *Order*, *supra* n.17, at ¶¶ 9, 12. The Commission reached this
    decision after considering comments that said it could take longer
    for large carriers to deploy CALEA-compliant switches and concluding
    that, among other things, a six-month time period was "sufficient
    and reasonable given the urgency of ensuring law enforcement access
    to CALEA\'s capabilities." Petition for Extension of the Compliance
    Date under Section 107 of the Communications Assistance for Law
    Enforcement Act, *Memorandum Opinion and Order*, 13 FCC Rcd 17990,
    18017-18 ¶¶ 48-49.

[^280]: *See Public Notice, supra* n.19.

[^281]: *See* ¶ 60, *supra*.

[^282]: We again note that a carrier is not required to make any
    equipment, facility, or service deployed on or before January 1,
    1995 CALEA-compliant unless the Attorney General has agreed to pay
    the carrier the reasonable costs directly associated with such
    modifications; or unless the equipment, facility, or service has
    been replaced, significantly upgraded, or undergone major
    modification. *See* 47 U.S.C. § 1008(c)(3). To the extent that a
    carrier believes that implementing any required capability is not
    reasonably achievable for cost or other reasons with respect to any
    equipment, facility, or service deployed after January 1, 1995, the
    carrier may petition the Commission under Section 109(b) of CALEA
    for a determination. If the Commission determines that the
    capability is not reasonably achievable, then the carrier will not
    have to make the modifications, unless the Attorney General agrees
    to pay the additional costs of making the capability requirements
    reasonably achievable and enters into such an agreement with the
    carrier. 47 U.S.C. § 1008 (b)(2). *See also* ¶¶ 60-61, *supra*.

[^283]: The Common Carrier and Wireless Telecommunications Bureaus
    Establish Procedures for Carriers to Submit or Supplement CALEA
    Section 107(c) Extension Petitions, Both Generally and With Respect
    to Packet-Mode and Other Safe Harbor Standards, *Public Notice*, 16
    FCC Rcd 17,101 (CCB WTB 2001) (*Extension Petition Procedures Public
    Notice*). Carriers should be aware that the CALEA Implementation
    Section (CIS) of FBI may periodically update its Flexible Assistance
    Guides. *See e.g.*, U.S. Dept. of Justice, FBI, CIS, Flexible
    Deployment Assistance Guide (Jan. 2000); Deployment Assistance Guide
    (Jan. 2000); and Flexible Deployment Assistance Guide, Second
    Edition, Packet-Mode Communications (Aug. 2001). *See also*
    [www.askcalea.net](http://www.askcalea.net/)[.]{.underline}

[^284]: Preliminary determinations of pending petitions also will apply
    to the capabilities we are requiring in this *Order on Remand*.

[^285]: *Extension Petition Procedures Public Notice* at 16 FCC Rcd
    17103 ¶ 8.

[^286]: *See* 5 U.S.C. § 603. The RFA, see 5 U.S.C. § 601 *et. seq.*,
    has been amended by the Contract With America Advancement Act of
    1996, Pub. L. No. 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of
    the CWAAA is the Small Business Regulatory Enforcement Fairness Act
    of 1996 (SBREFA).

[^287]: Communications Assistance for Law Enforcement Act, *Further
    Notice of Proposed Rulemaking*, 13 FCC Rcd 22632, 22695-703 (1998).

[^288]: Communications Assistance for Law Enforcement Act, *Third Report
    and Order*, CC Docket No. 97-213, 14 FCC Rcd 16794, 16852-59 (1999).

[^289]: *See* 5 U.S.C. § 604.

[^290]: H.R. Rep. No. 103-827, 103rd Cong., 2d Sess (1994) at 13.

[^291]: Rural Cellular Association Comments at 7.

[^292]: National Telephone Cooperative Association Comments at 5.

[^293]: 5 U.S.C. § 603(b)(3).

[^294]: *Id.*, § 601(6).

[^295]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    "small business concern" in 15 U.S.C. § 632). Pursuant to the RFA,
    the statutory definition of a small business applies "unless an
    agency, after consultation with the Office of Advocacy of the Small
    Business Administration and after opportunity for public comment,
    establishes one or more definitions of such term which are
    appropriate to the activities of the agency and publishes such
    definition(s) in the Federal Register." 5 U.S.C. § 601(3).

[^296]: Small Business Act, 15 U.S.C. § 632.

[^297]: 5 U.S.C. § 601(4).

[^298]: 1992 Economic Census, U.S. Bureau of the Census, Table 6
    (special tabulation of data under contract to Office of Advocacy of
    the U.S. Small Business Administration).

[^299]: 5 U.S.C. 601(5).

[^300]: U.S. Dept. of Commerce, Bureau of the Census, "1992 Census of
    Governments."

[^301]: *Id.*

[^302]: FCC, Common Carrier Bureau, Industry Analysis Division,
    *Telecommunications Provider Locator*, Tables 1-2 (November 2001)
    (*Provider Locator*). This report is available on-line at:
    <http://www.fcc.gov/Bureaus/Common_Carrier/Reports/FCC-State_Link/Locator/locat01.pdf>
    *See also* 47 C.F.R. § 64.601 *et seq.*

[^303]: *Provider Locator* at Table 1.

[^304]: *See* 47 U.S.C 251(h) (defining "incumbent local exchange
    carrier").

[^305]: 15 U.S.C. § 632.

[^306]: Letter from Jere W. Glover, Chief Counsel for Advocacy, SBA, to
    William E. Kennard, Chairman, FCC (May 27, 1999). The Small Business
    Act contains a definition of "small business concern," which the RFA
    incorporates into its own definition of "small business." *See* 15
    U.S.C. § 632(a) (Small Business Act); 5 U.S.C. § 601(3) (RFA). SBA
    regulations interpret "small business concern" to include the
    concept of dominance on a national basis. 13 C.F.R. § 121.102(b).

[^307]: United States Dept. of Commerce, Bureau of the Census, *1992
    Census of Transportation*, Communications, and Utilities:
    Establishment of Firm Size, at Firm Size 1-123 (1995) ("1992
    Census").

[^308]: 15 U.S.C. § 632(a)(1).

[^309]: *1992 Census* at Firm Size 1‑123 (based on previous SIC codes).

[^310]: 13 C.F.R. § 121.201, North American Industry Classification
    System (NAICS) code 513310. The category of Telecommunications
    Resellers, NAICS code 513330 also has an associated business size
    standard of 1,500 or fewer employees.

[^311]: 13 C.F.R. § 121.201, NAICS codes 513310 and 513330.

[^312]: *See* 47 C.F.R. § 64.601 *et seq*.; *Provider Locator* at Table
    1.

[^313]: *Provider Locator* at Table 1. The total for resellers includes
    both toll resellers and local resellers.

[^314]: 1992 Census at Firm Size 1‑123.

[^315]: Trends in Telephone Service, Common Carrier Bureau, Industry
    Analysis Division (Aug. 2001) ("Trends Report"). This report is
    available on-line at:
    http://www.fcc.gov/Bureaus/Common_Carrier/Reports/FCC-State_Link/IAD/trend801.pdf

[^316]: Trends Report, Table 5.3.

[^317]: *See* n.147, *supra*, and accompanying text.

[^318]: *See* ¶ 60, *supra*.

[^319]: *See* ¶ 2, *supra*.

[^320]: 47 U.S.C. § 1006(b)(1) (emphasis added).

[^321]: 47 U.S.C. § 1006(b)(3).

[^322]: *United States Telecom. Assoc. v. FCC*, 227 F.3d 450, 461 (DC
    Cir. 2000) (hereafter "*Remand Decision*").

[^323]: *Remand Decision* at 462.

[^324]: *Id*.

[^325]: *Id*.