> **DA 01-2243**

**Released: September 28, 2001**

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**

1\. This Public Notice is being released as announced by the Commission
in Communications Assistance for Law Enforcement Act, CC Docket No.
97-213, *Order*, FCC 01-265 (rel. Sept. 21, 2001) (*Order*). In the
*Order*, the Commission held that wireline, cellular and broadband PCS
carriers have until November 19, 2001 either to implement a packet-mode
communications electronic surveillance capability, or to seek individual
relief under section 107(c)[^1] of the Communications Assistance for Law
Enforcement Act ("CALEA").[^2] This notice explains the petitioning
process for telecommunications carriers seeking relief under section
107(c) for an extension of the CALEA compliance deadline with respect to
packet-mode communications, as well as other safe harbor standards.

**[[Background]{.underline}]{.smallcaps}**

2\. *[Assistance capability requirements]{.underline}*. CALEA was
enacted on October 25, 1994, and 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. To achieve this goal, section 103(a) of CALEA sets out four
assistance capability requirements applicable to carriers' "equipment,
facilities, or services that provide a customer, or subscriber with the
ability to originate, terminate, or direct communications."[^3]
Telecommunications carriers had until June 30, 2000 to implement these
capabilities in their systems.[^4]

3\. *[Petitions for extension of CALEA compliance
deadline]{.underline}*. Under section 107(c) of CALEA, a carrier may
petition the Commission for an extension of the compliance deadline;[^5]
but before acting on a carrier's petition, the Commission must consult
with the Attorney General.[^6] An extension may be granted if the
Commission determines that "compliance with the assistance capability
requirements under section 103 is not reasonably achievable through
application of technology available within the compliance period."[^7]
In granting a petition, the Commission may extend the compliance
deadline no longer than two years from the date of grant.[^8]

4\. By *Public Notice* released April 25, 2000, the Commission
established procedures for the filing and consideration of section
107(c) petitions for extension.[^9] The CALEA Implementation Section of
the FBI (CIS) published a [Flexible Deployment Assistance
Guide,]{.smallcaps} [^10] establishing a voluntary Flexible Deployment
program parallel to the Commission's process, to facilitate its review
of carrier extension proposals and negotiate changes, where necessary,
to meet the needs of law enforcement agencies. In the *April 2000 Public
Notice*, the Commission encouraged carriers to participate in the CIS's
Flexible Deployment program, and to file with their CALEA section 107(c)
extension petitions evidence of such participation. A large number of
carriers filed extension petitions; almost all participated in the
Flexible Deployment process. The Commission has completed its required
consultations with the CIS with respect to most of these petitions, and
is in the process of acting on them.[^11] On August 8, 2001, the CIS
released a second edition of its [Flexible Deployment Assistance
Guide]{.smallcaps}[^12] applicable to packet-mode communications.

5\. *[Safe harbor standards]{.underline}*. Section 107(a)(2) of CALEA
provides that a carrier will be deemed to comply with the assistance
capability requirements if it complies with "publicly available
technical requirements or standards adopted by an industry association
or standard-setting organization."[^13] Section 107(b) provides that any
person may petition the Commission to modify such standards (or, in
their absence, to establish standards).[^14] In such cases, section
107(b)(5) directs the Commission to "provide a reasonable time and
conditions for compliance with and the transition to any new
standard."[^15]

6\. Subcommittee TR45.2 of the Telecommunications Industry Association
(TIA) developed an interim standard (J-STD-025) to serve as a "safe
harbor" for wireline, cellular and broadband PCS carriers under section
107(a) of CALEA.[^16] The standard was challenged under section
107(b).[^17] In response, the Commission modified the standards by
adding six "punch list" items,[^18] and specified September 30, 2001 as
the effective date both for the additional standards and for those
portions of J-STD-025 that covered packet-mode communications.[^19] On
review, the U.S. Court of Appeals for the District of Columbia Circuit
vacated and remanded to the Commission those portions of the *Third
Report and Order* regarding four of the six punch list items; the court
upheld the Commission's decision maintaining the packet-mode capability
specified in J-STD-025.[^20]

7\. By *Order* released September 21, 2001, the Commission acted on
petitions seeking blanket extensions of the September 30, 2001 effective
date for the punch list portions of the amended safe harbor standards
and for the packet-mode portions of J-STD-025.[^21] It postponed the
effective date of the standards for all six of the punch list items,
pending further Commission action on the four remanded items. The
Commission declined to similarly postpone the effective date of the
packet-mode standards from September 30, 2001, but provided a brief
extension of that effective date until November 19, 2001, to provide
time for carriers to either upgrade their systems or file extension
petitions for individual relief under section 107(c) of CALEA.

**[[Additional Extension Relief]{.underline}]{.smallcaps}**

8\. *[Previously filed extension petitions]{.underline}*. Both the
Commission's *April 2000 Public Notice* and the [January 2000 CIS
Guide]{.smallcaps} require carriers seeking CALEA extensions under
section 107(c) to detail the facilities for which they seek extensions
and the dates by which each facility would provide the assistance
capabilities required by section 103. A Commission action extending a
carrier's deadline for complying with section 103 applies only to those
facilities (*e.g*., each switch) for which the carrier sought an
extension, and not to other facilities the carrier may have.[^22] Unless
the Commission action specifies otherwise, the extension applies to all
assistance capability functions, including punch list and packet-mode
capabilities, at the listed facilities.[^23] Grant of a section 107(c)
extension petition establishes for that carrier's facilities a new,
individualized compliance deadline or deadlines, which supersede---but
by no more than two years---the June 30, 2000, deadline.

9\. *[Circumstances that call for additional extension
relief]{.underline}*. All carriers should take this opportunity to
carefully review the status of their CALEA implementation efforts, and
any extension requests they may have filed, to determine whether they
need to seek additional relief at this time. Carriers in the following
circumstances should file with the Commission a request for an extension
of their compliance deadlines:

-   A carrier that seeks to extend its compliance date for
    **packet-mode** communications beyond November 19, 2001, the new
    effective date of the packet-mode safe harbor standard for wireline,
    cellular and broadband PCS carriers.

-   A carrier that previously received a section 107(c) extension from
    the Commission, but whose facilities will not be CALEA-compliant
    (*e.g.,* packet mode facilities) by its extended compliance
    deadline.

-   A carrier that previously filed a CALEA extension petition, but did
    not include some of its facilities, if those facilities will not be
    CALEA-compliant by the compliance deadline.

-   A carrier that did not previously file a CALEA extension petition,
    and has facilities (for example, new service offerings) that will
    not comply with CALEA by the compliance deadline.

10\. *[Flexible Deployment program]{.underline}*. The Commission
continues to encourage---but not require---carriers seeking extension
relief to participate in the CIS Flexible Deployment program. Our
experience indicates that participation expedites and significantly aids
the Commission in its statutory obligation to consult with the Attorney
General on individual carriers' section 107(c) petitions.

-   Carriers wishing to participate in the Flexible Deployment program
    regarding their **packet-mode** facilities should refer to the
    [August 2001 CIS Packet-Mode Guide]{.smallcaps} in preparing their
    filings.[^24]

-   All other carriers that wish to participate in the Flexible
    Deployment program should refer to the [January]{.smallcaps} 2000
    CIS [Guide]{.smallcaps}.[^25]

    **[[Modified Procedures for 107(c)
    Extensions]{.underline}]{.smallcaps}**

11\. *[Carriers that have previously filed a CALEA 107(c) petition and
that choose to participate in the CIS Flexible Deployment
program]{.underline}*. A carrier that has previously filed a CALEA
extension petition with the Commission [and]{.underline} that chooses to
participate in the CIS Flexible Deployment program may simply supplement
its earlier petition with a one-page letter:

-   Identifying the carrier by name and Telephone Relay Service (TRS)
    number.[^26]

-   Indicating whether it is a wireline or a wireless carrier. Wireline
    and wireless requests must be filed separately.

-   Stating that it is participating in the Flexible Deployment program.

-   Attaching a copy of its Flexible Deployment filing, which includes
    information such as the specific facilities for which an extension
    is sought and the date(s) by which the carrier expects to provide
    CALEA capabilities--

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-   **Packet-mode filers** must follow the [August 2001 CIS Packet-Mode
    Guide]{.smallcaps}.

-   **Other filers** must follow the [January 2000 CIS
    Guide]{.smallcaps}.

12\. *[Carriers that have not previously filed a CALEA 107(c) petition,
and that choose to participate in the CIS Flexible Deployment
program]{.underline}*. A carrier that has not previously filed a CALEA
extension petition but wishes to participate in the CIS Flexible
Deployment program should refer to either the [January 2000 CIS
Guide]{.smallcaps} or the [August 2001 CIS Packet-Mode
Guide]{.smallcaps}, as appropriate. Upon submitting its Flexible
Deployment documentation to the CIS, the carrier must then file with the
Commission an extension petition. The petition must include all the
information listed in paragraph 11, above, plus the following:

-   contact information for the carrier, including the name, telephone
    number, facsimile number, address and e-mail address of the officer
    or employee authorized to discuss the extension request with the
    Commission, and

-   the signature of the officer or employee authorized by the carrier
    to be responsible for its content.

    13\. *[Carriers that choose not to participate in the CIS Flexible
    Deployment program]{.underline}*. Carriers that choose not to
    participate in the Flexible Deployment program must file with the
    Commission a petition that includes all the information listed in
    paragraphs 11 and 12, above, plus the following:

-   a brief statement or showing as to why the extension is necessary,

-   in lieu of a Flexible Deployment template---

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-   the identity of the carrier's switching equipment (by manufacturer;
    type, make and model; software version or generic currently
    operating; Common Language Location Identification (CLLI) Code and
    geographic areas served),

-   the date or dates that the equipment will become compliant with
    section 103, to the extent such information is available to the
    carrier,

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-   a letter from each of its switching equipment manufacturers---

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-   identifying itself as the equipment manufacturer for the petitioning
    carrier,

-   asserting that the section 103 compliance solutions will not be
    tested and installed for that carrier by the compliance date,

-   identifying the installation date(s) that it has negotiated with the
    petitioning carrier, stating when compliance with section 103 will
    be accomplished, broken down by switch platform if the petitioning
    carrier's recommended compliance date differs by switch platform,
    and

-   including the name, title, and telephone number of the
    manufacturer's officer or employee who signed the letter.

14\. *[FCC filing details]{.underline}*. In the first sentence of its
petition or supplement, a carrier must list its TRS number(s), specify
whether it is a wireline or wireless carrier, and indicate the specific
subject matter of the petition (*e.g*., CALEA Section 107(c) Petition
Packet-mode Communications). All carriers (*i.e.*, both petition filers
and letter filers) must file an original and two copies addressed to:

> Secretary, Federal Communications Commission
>
> ATTN: CALEA 107(c)
>
> 445 12th Street, S.W.
>
> Washington, D.C. 20554.

In addition, wireline carriers should reference File No. NSD-L-00-234,
and send an additional copy of the petition or supplement to:

> CALEA Section 107(c) Petition
>
> Network Services Division
>
> Portals II, 445 12th Street, S.W., Room 6-A320,
>
> Washington, D.C. 20554.

These procedures replace the previous requirement to file an original
and five copies with the Commission; further, the Commission no longer
asks carriers to file electronic copies on diskette. Petitioning
carriers may [not]{.underline} file their petitions or supplements with
the Commission electronically. The Commission is currently not equipped
with encryption capability to ensure the confidential treatment of
information as it is transmitted to the FCC.[^27]

15\. *[CIS filing requirement]{.underline}*. All carriers, whether or
not they choose to participate in the CIS Flexible Deployment program,
must at the same time send one additional copy of their FCC filings to:

> CALEA Implementation Section
>
> 14800 Conference Center Drive, Suite 300
>
> Chantilly, Virginia 20151-0450.

16\. *[Confidentiality of filings]{.underline}*. The information
carriers provide in their petitions and supplements pursuant to CALEA
section 107(c) will not be made routinely available for public
inspection, and carriers do not need to request confidential treatment
separately. Persons seeking access to such information must request such
access pursuant to 47 C.F.R. § 0.461 of the Commission's rules.

17\. *[Preliminary determinations under section 107(c)]{.underline}*.
The CALEA extension process established in the *April 2000 Public
Notice* provided that a carrier filing a facially complete extension
petition would be shielded from enforcement actions under section 108 of
CALEA[^28] pending Commission action on its petition, through the
mechanism of a "preliminary determination" that the petition was
meritorious.[^29] This presumption will also apply to future CALEA
extension filings. Upon the filing with the Commission of a petition or
supplement in accordance with the requirements set forth in this *Public
Notice*, the carrier will be deemed to have received a preliminary
extension for the period requested in its filing, but not to exceed the
two-year limit provided by section 107(c)(3)(B),[^30] until the
preliminary determination is superseded by a Commission determination on
the merits of the petition. Once the Commission makes a determination on
the merits of the petition, it will release an appropriate order.

18\. *[Other information]{.underline}*. Petitions or supplements filed
pursuant to CALEA section 107(c) are classified as \"permit but
disclose\" proceedings for purposes of the Commission\'s ex parte rules.
*See generally* 47 C.F.R. §§ 1.1200-1.1216. As a \"permit but disclose\"
proceeding, ex parte presentations will be governed by the procedures
set forth in section 1.1206 of the Commission\'s rules applicable to
non-restricted proceedings, 47 C.F.R. § 1.1206. Parties making oral ex
parte presentations are reminded that memoranda summarizing the
presentation must contain a summary of the substance of the presentation
and not merely a listing of the subjects discussed. More than a one- or
two-sentence description of the views and arguments presented is
generally required. *See* 47 C.F.R. § 1.1206(b)(2). Other rules
pertaining to oral and written presentations are set forth in section
1.1206(b) as well.

19\. *[CIS information]{.underline}*. Questions regarding the CIS
Flexible Deployment program should be addressed to the Flexible
Deployment Program Manager, CALEA Implementation Section (CIS),
Attention: Flexible Deployment Assistance Guide, 14800 Conference Center
Drive, Suite 300, Chantilly, Virginia 20151-0450. CIS can be reached by
telephone at 800-551-0336 or 703-814-4700, or via e-mail at
FlexD@AskCalea.net.

20\. *[FCC information]{.underline}*. For further information concerning
107(c) petition filings to the Commission, wireline carriers should
contact Gayle Radley Teicher of the Network Services Division, Common
Carrier Bureau, at 202-418-1515, gteicher@fcc.gov; wireless carriers
should contact Susan Kimmel or John Spencer of the Policy Division,
Wireless Telecommunications Bureau, at 202-418-1310, skimmel@fcc.gov or
jspencer@fcc.gov.

**-FEDERAL COMMUNICATIONS COMMISSION-**

[^1]: 47 U.S.C. § 1006(c).

[^2]: Pub. L. No. 103-414, 108 Stat. 4279 (1994) (codified as amended in
    18 U.S.C. § 2522, and 47 U.S.C. §§ 229, 1001-1010).

[^3]: 47 U.S.C. § 1002(a). For purposes of simplicity, this *Public
    Notice* refers to "equipment, facilities and services" collectively
    as "facility" or "facilities," except where a given subset is meant.

[^4]: *See* Communications Assistance for Law Enforcement Act, CC Docket
    No. 97-213, *Memorandum Opinion and Order*, 13 FCC Rcd 17990 (1998).

[^5]: 47 U.S.C. § 1006(c)(1).

[^6]: 47 U.S.C. § 1006(c)(2). The Attorney General delegated the
    consultation responsibility to the Federal Bureau of Investigation
    (FBI), which established a CALEA Implementation Section to carry out
    this and related functions.

[^7]: 47 U.S.C. § 1006(c)(2).

[^8]: 47 U.S.C. § 1006(c)(3).

[^9]: *See* CALEA Section 103 Compliance and Section 107(c) Petitions,
    *Public Notice,* 15 FCC Rcd 7482 (2000), *as modified by Public
    Notice*, 15 FCC Rcd 9518 (2000) \[hereinafter the *April 2000* and
    *June 2000 Public Notices*\], available at
    \<[http://www.fcc.gov/ccb/nsd/documents/CALEA2001.html](http://www.fcc.gov/ccb/nsd/documents/CALEA2001.HTML)\>
    (last visited on Sept. 26, 2001).

[^10]: U.S. Dept. of Justice, Federal Bureau of Investigation, CALEA
    Implementation Section, [Flexible Deployment Assistance
    Guide]{.smallcaps} (Jan. 2000) \[hereinafter [January 2000 CIS
    Guide]{.smallcaps}\]. The Guide is available on the Internet at
    \<http://www.askcalea.net/pdf/flexgide.pdf\> (last visited on Sept.
    26, 2001).

[^11]: *See, e.g*., CALEA Section 107(c) Extension of Capability
    Requirements, *Order*, DA 01-1902 (Comm. Carr. Bur., Aug. 15, 2001).
    Commission staff expects to take action on virtually all pending
    petitions where the Commission and the FBI have completed the
    consultation process in advance of September 30, 2001.

[^12]: U.S. Dept. of Justice, Federal Bureau of Investigation, CALEA
    Implementation Section, [Flexible Deployment Assistance Guide,
    Second Edition, Packet-Mode Communications]{.smallcaps} (Aug. 2001)
    \[hereinafter [August 2001 CIS Packet-Mode Guide]{.smallcaps}\]. The
    Guide is available on the Internet at
    \<http://www.askcalea.net/pdf/flexgide2.pdf\> (last visited on Sept.
    26, 2001).

[^13]: 47 U.S.C. § 1006(a)(2).

[^14]: 47 U.S.C. § 1006(b).

[^15]: 47 U.S.C. § 1006(b)(5).

[^16]: *See* Communications Assistance for Law Enforcement Act, CC
    Docket No. 97-213, *Third Report and Order*, 14 FCC Rcd 16794, 16798
    (1999) (*Third Report and Order*).

[^17]: Two industry associations--the United States Telecom Association
    and the Cellular Telecommunications Industry Association--joined by
    the Center for Democracy and Technology, filed a petition for
    judicial review, as did the Electronic Frontier Foundation,
    Electronic Privacy Information Center, and American Civil Liberties
    Union.

[^18]: *Id*., 14 FCC Rcd at 16820-46.

[^19]: *Id*., 14 FCC Rcd at 16819, 16849. The Commission retained the
    June 30, 2000, effective date for the rest of J-STD-025's standards.
    For a description of the difference between circuit-mode and
    packet-mode communications, *see id*. at 16816 n.97.

[^20]: *United States Telecom Ass'n v. FCC*, 227 F.3d 450 (D.C. Cir.
    2000).

[^21]: Communications Assistance for Law Enforcement Act, CC Docket No.
    97-213, *Order*, FCC 01-265 (Sept. 21, 2001).

[^22]: To date, Commission orders granting extensions have not specified
    or referenced facilities, but rather referenced the FBI Flexible
    Deployment plan support letters that in turn reference the
    facilities.

[^23]: Should a carrier have in place assistance capabilities in advance
    of an extended deadline, it should of course stand ready to make
    them available to law enforcement agencies upon request.

[^24]: *See supra* n.12.

[^25]: *See supra* n.10.

[^26]: Both the [January 2000 CIS Guide]{.smallcaps} and the [August
    2001 CIS Packet-Mode Guide]{.smallcaps} require that a carrier
    include its TRS number on its FBI filing as well.

[^27]: *See* Electronic Filing of Documents in Rulemaking Proceedings,
    *Order*, 13 FCC Rcd 11322 (1998).

[^28]: 47 U.S.C. § 1007.

[^29]: *See April 2000 Public Notice*, 15 FCC Rcd at 7486-87.

[^30]: 47 U.S.C. § 1006(c)(3)(B).