**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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| Communications Assistance for    | ** |                              |
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| Law Enforcement Act              | *  |                              |
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**ORDER**

**Adopted:** September 18, 2001 **Released:** September 21, 2001

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

# INTRODUCTION

1.  In this *Order*, we grant in part the relief requested by the
    Cellular Telecommunications & Internet Association ("CTIA").[^1] As
    requested by CTIA, we are temporarily suspending the September 30,
    2001 compliance date for wireline, cellular, and broadband Personal
    Communications Services ("PCS") carriers to implement two Department
    of Justice ("DoJ")/Federal Bureau of Investigation ("FBI") \"punch
    list\" electronic surveillance capabilities mandated by the *Third
    Report and Order* ("*Third R&O"*) in this proceeding.[^2] We deny
    CTIA's request for a blanket extension of the September 30, 2001
    compliance deadline for these carriers to implement a packet-mode
    communications electronic surveillance capability, also mandated by
    the *Third R&O*. However, given the imminence of the packet-mode
    compliance deadline, we grant these carriers until November 19, 2001
    either to come into compliance or to seek individual relief.

# BACKGROUND

2.  In the *Third R&O*, released in August 1999, the Commission
    specified technical requirements for wireline, cellular, and
    broadband PCS carriers to comply with the assistance capability
    requirements prescribed by the Communications Assistance for Law
    Enforcement Act of 1994 ("CALEA").[^3] 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] Under Section 107(a)(2) of
    CALEA[^6] (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.[^7] The Commission is authorized,
    under Section 107(b) of CALEA, in response to a petition from any
    Government agency or person, to establish, by rule, technical
    requirements or standards if industry associations or
    standard-setting organizations fail to issue technical requirements
    or standards or if any Government agency or person believes that
    such requirements or standards are deficient.[^8]

3.  In the *Third R&O*, we required that wireline, cellular, and
    broadband PCS carriers implement all electronic surveillance
    capabilities of the industry interim standard, J-STD-025[^9] --
    including two contested features of the interim standard, *i.e.*, a
    packet-mode communications capability[^10] and a location
    information requirement[^11] -- and six of nine additional
    capabilities requested by DoJ/FBI, known as the "punch list"
    capabilities.[^12] While we required a packet-mode capability, we
    did not adopt specific technical requirements for packet-mode
    communications. Rather, we permitted carriers to deliver packet-mode
    data to be delivered to law enforcement agencies ("LEAs") under the
    interim standard pending further study of packet-mode communications
    by the telecommunications industry.[^13] We required that the
    capabilities covered by the "core" interim standard -- including all
    uncontested requirements of J‑STD-025, as well as the contested
    location information requirement -- be implemented by June 30,
    2000,[^14] and that the packet-mode and punch list capabilities be
    implemented by September 30, 2001.[^15]

4.  More specifically with respect to a packet-mode communications
    capability, the industry interim standard does not specify the call
    identifying information for packet communications, although it does
    indicate how some information that could be considered
    call-identifying (*e.g.*, time stamp, physical location of a mobile
    subject) could be sent with the packets under certain conditions. As
    a result, call-identifying information and call content are not
    separated under the interim standard during electronic surveillance.
    Nevertheless, we decided as a temporary solution that packet-mode
    communications could be delivered to LEAs under the interim
    standard, to be used in accordance with the appropriate level of
    legal authorization.[^16] To address privacy implications of the
    interim standard's packet-mode capability, we requested that the
    Telecommunications Industry Association ("TIA") submit to us by
    September 30, 2000 a report detailing a permanent solution for
    separating call-identifying information from call content.[^17] On
    September 29, 2000, TIA submitted its report to the Commission.[^18]
    In a cover letter to the report, TIA encourages the Commission to
    establish a procedure for implementing a permanent packet-mode
    electronic surveillance solution in an efficient and rational
    manner. The cover letter also states that the consensus among the
    report's participants was that providing the entire packet stream
    for a particular subscriber is by far the most cost-effective and
    technically feasible method for providing access to LEAs, but that
    manufacturers and carriers are unsure whether to continue expending
    considerable resources to develop complicated and expensive
    solutions for packet-mode communications consistent with J-STD-025,
    if it is possible that those solutions may prove to be only an
    interim or temporary remedy.[^19] The TIA Report does not detail a
    specific technical solution for separating call-identifying
    information from call content. Rather, the Report discusses
    packet-mode technologies generally -- including Internet access via
    a code division multiple access technology known as "cdma2000," an
    integrated services digital network technology known as "X.25 over
    ISDN," Internet protocol ("IP"), wireless Internet protocol
    ("Wireless IP"), asynchronous transfer mode ("ATM"), "frame relay,"
    general packet radio service ("GPRS"), "packet-cable," and cellular
    digital packet data ("CDPD")[^20] -- and suggests that the FBI's
    "Carnivore" technology offers a potential solution for separating
    call-identifying information from content, yet cites numerous
    industry concerns with that technology, including liability and
    privacy.[^21]

5.  Several parties challenged in the United States Court of Appeals for
    the District of Columbia Circuit six capabilities required by the
    *Third R&O*: location information and packet-mode communications,
    both of which were included in J-STD-025; and dialed digit
    extraction, party hold/join/drop, subject-initiated dialing and
    signaling, and in-band and out-of-band signaling, which are four of
    the six punch list capabilities requested by DoJ/FBI that we added
    to J-STD-025.[^22] In August 2000, the Court vacated and remanded to
    us for further proceedings those portions of the *Third R&O*
    pertaining to the four challenged punch list capabilities.[^23] The
    Court upheld our findings in the *Third R&O* regarding location
    information and packet-mode communications, but with respect to the
    latter stated: "CALEA authorizes neither the Commission nor the
    telecommunications industry to modify either the evidentiary
    standards or procedural safeguards for securing legal authorization
    to obtain packets from which call content has not been stripped, nor
    may the Commission require carriers to provide the government with
    information that is 'not authorized to be intercepted.'"[^24]

6.  Following the Court's decision, CTIA filed a petition to immediately
    suspend the September 30, 2001 compliance deadline for implementing
    the two unchallenged punch list capabilities -- content of
    subject-initiated conference calls and timing information -- and the
    packet-mode communications capability.[^25] In its petition, CTIA
    states that the compliance deadline for those capabilities should be
    suspended to ensure an orderly and cost-efficient implementation of
    the punch list and packet-mode communications capabilities. With
    respect to the punch list, CTIA argues that disentangling the four
    vacated capabilities from the two remaining capabilities would be a
    complex and inefficient process.[^26] CTIA therefore recommends that
    we suspend the compliance date for the entire punch list pending
    resolution of what capabilities are required.[^27] With respect to
    packet-mode communications, CTIA argues that the Court found that
    telecommunications carriers could not lawfully deliver the full
    content of a packet to a LEA under a "pen register"[^28] order.[^29]
    CTIA further argues that we may receive petitions that request that
    we declare the current packet-mode standard deficient because it
    fails to protect the privacy of communications not authorized to be
    intercepted. Accordingly, CTIA argues that it would be prudent for
    us to suspend the packet-mode compliance deadline until we have all
    of the information necessary to make a realistic compliance
    determination.[^30]

7.  On September 1, 2000, our Office of Engineering and Technology
    ("OET") placed the CTIA Petition on *Public Notice,*[^31] and on
    September 15, 2000, OET received comments responding to the CTIA
    Petition. Subsequently, *ex parte* presentations regarding the CTIA
    Petition were received.[^32] The great majority of parties support
    grant of the Petition. BellSouth Corporation, BellSouth
    Telecommunications, Inc., BellSouth Cellular Corp., and BellSouth
    Wireless Data, L.P. ("BellSouth") state that a suspension of the
    September 30, 2001 deadline for both punch list and packet-mode
    communications capabilities is warranted in light of the uncertainty
    created by the Court's decision.[^33] With respect to packet-mode
    communications, BellSouth concurs with CTIA that the Court found
    that carriers are prohibited from providing call content to LEAs
    pursuant to pen register orders.[^34] BellSouth therefore contends
    that carriers cannot use J-STD-025 for packet-mode electronic
    surveillance, and that a new packet-mode standard must be developed
    that adequately protects privacy.[^35] Cisco Systems ("Cisco")
    argues that while header and content information can be separated
    for Internet Protocol packets, we have never offered a meaningful
    definition of "call-identifying information" for packet-mode
    communications and it is therefore unclear what information a
    carrier may lawfully provide to a LEA under a pen register
    order.[^36] The National Telephone Cooperative Association ("NTCA")
    contends that small carriers cannot meet the September 30, 2001
    compliance deadline and that without a suspension of that deadline
    these carriers will be forced to petition the Commission for
    extensions of time.[^37] USTA contends that a suspension of the
    deadline is warranted both for the punch list and the packet-mode
    capabilities because of the uncertainty created by the *Court Remand
    Decision*.[^38] USTA further contends that many vendors, and in
    particular those vendors that serve small and midsized wireline
    carriers, will not have the punch list capabilities available to
    carriers by September 30, 2001.[^39] USTA asserts that if that
    deadline is not suspended, many of its members would petition the
    Commission for an extension. Finally, USTA requests that we clarify
    that any carrier that may be granted an extension beyond September
    30, 2001 to meet the core J-STD-025 requirements be declared exempt
    from meeting that deadline for the punch list and any other
    capability that is not contained in J-STD-025.[^40] None of the
    petition's supporters suggest a new compliance date for either the
    punch list or packet-mode capabilities.

8.  SecureCable, Inc.[^41] opposes any suspension of the September 30,
    2001 compliance deadline because it contends that the Court decision
    affects only four punch list capabilities. SecureCable therefore
    argues that there is no basis to suspend the compliance deadline for
    the other two punch list capabilities and the packet-mode
    capability.[^42]

9.  DoJ/FBI contend that an extension of the compliance deadline is
    warranted only for the punch list capabilities, and recommend that
    the new deadline for those capabilities be six months from the date
    of our forthcoming decision that will address the *Court Remand
    Decision*.[^43] DoJ/FBI note that when the Commission extended the
    general CALEA compliance date from October 25, 1998 to June 30,
    2000, it concluded that six months was sufficient time for carriers
    to purchase, test, and install equipment throughout their
    networks.[^44] DoJ/FBI also contend that a suspension of the
    compliance deadline for packet-mode communications is unwarranted
    because the Court upheld our decision with respect to such
    communications.[^45] DoJ/FBI further contend that, contrary to CTIA,
    the Court reached no conclusion as to whether the delivery of the
    full content of a packet to a LEA under a pen register order would
    be unlawful.[^46] DoJ/FBI also note that where a Title III court
    order has been issued, there is no dispute that a telecommunications
    carrier is obligated to deliver full packet information to a
    LEA.[^47] Additionally, DoJ/FBI contend that a packet-mode
    electronic surveillance capability is critically important to LEAs
    and is mandated by CALEA.[^48] Moreover, DoJ/FBI assert that some
    authorized wiretaps have been frustrated by carriers' inability to
    facilitate surveillance of packet-mode communications. Finally,
    DoJ/FBI state that they have completed cooperative agreements with
    five major telecommunications manufacturers for CALEA software
    solutions that will enable carriers to provide all required CALEA
    capabilities -- including any required punch list capabilities -- to
    LEAs at no charge to carriers. DoJ/FBI contend that these solutions
    cover more than 90% of the nation's wireline and wireless lines, and
    that many of the solutions include the capability for carriers to
    "toggle"[^49] individual punch list capabilities.[^50]

10. In April 2000, we issued a *Public Notice* providing instructions
    for those carriers needing to file petitions for extension of the
    June 30, 2000 deadline for complying with the capability
    requirements of CALEA section 103.[^51] In that *Public Notice*, we
    noted that section 107(c)(3)[^52] authorizes us to extend the
    compliance deadline for no longer than two years from the date of
    the petition's grant.[^53] We also noted that the FBI has provided
    each carrier an opportunity to participate in a "Flexible Deployment
    Program," under which the FBI has agreed to review a carrier's
    extension request in light of the priorities of LEAs. We further
    noted that for carriers serving geographic areas that do not have a
    history of demand by LEAs for electronic surveillance, the FBI may
    advise us that extensions of the section 103 compliance deadline do
    not unduly threaten the public safety. Accordingly, we urged each
    carrier seeking an extension of the June 30, 2000 CALEA deadline to
    participate in the Flexible Deployment Program before submitting to
    us a section 107(c) petition for extension of time to comply.[^54] A
    number of carriers chose to participate in the Flexible Deployment
    Program, and we have made preliminary determinations to suspend the
    June 30, 2000 deadline for many of those carriers. On August 15,
    2001, our Common Carrier Bureau released an *Order* making final
    determinations to grant extensions of the June 30, 2000 deadline to
    several hundred wireline carriers.[^55] We anticipate making final
    determinations on other wireline -- as well as wireless -- carriers'
    requests for extensions of that deadline in the near future. We also
    note that in August 2001 the FBI released a *Second Edition* of its
    Flexible Deployment Program. This *Second Edition* pertains to
    packet-mode communications and is designed to assist carriers in
    meeting packet--mode requirements mandated by CALEA.[^56]

# DISCUSSION

11. There is broad agreement among industry and law enforcement that we
    should suspend the September 30, 2001 compliance deadline for the
    two unchallenged punch list capabilities, pending a final action by
    the Commission of what punch list capabilities will be required. We
    agree with the majority of commenters that retaining the current
    deadline for two of the punch list capabilities prior to determining
    the disposition of the four punch list capabilities vacated by the
    *Court Remand Decision* could result in major inefficiencies for
    carriers. Moreover, there is insufficient corresponding benefit in
    implementing these two capabilities by themselves to warrant
    disruption and costs such a severable implementation would entail.
    Most carriers use more than one type of switch in their networks,
    often from different manufacturers. Most manufacturers have
    developed a CALEA solution that includes all six punch list
    capabilities that the *Third R&O* required; some manufacturers have
    included the core interim standard and the punch list capabilities
    in one software package, others have separated the core interim
    standard and punch list capabilities into different software
    packages. Some software packages allow each punch list capability to
    be toggled, while other software packages do not allow toggling. In
    either case, carriers have to install and test the full software
    package. Carriers will have to test software with toggling functions
    to ensure that toggling off some capabilities does not interfere
    with the provision of other capabilities. For those software
    packages that do not allow toggling, carriers would have to
    implement the whole software package by the current September 30,
    2001 deadline, absent an extension from the Commission, if the
    software could not be modified before then either to remove the four
    vacated punch list capabilities or to provide a toggle on/off
    function. While we believe that LEAs will cooperate with carriers to
    minimize the burden on carriers, we find, under these circumstances,
    such an approach to be inherently burdensome and inefficient.
    Furthermore, a temporary suspension of the compliance date for the
    unchallenged capabilities will ensure that all punch list
    capabilities that may ultimately be required will proceed on the
    same compliance schedule. In any event, we anticipate that we would
    likely receive and grant many individual petitions for extension,
    which would be an unwarranted exercise and expenditure of resources.
    While we encourage carriers to make available to LEAs any
    surveillance capability they have available, we recognize that the
    deployment of software with the punch list capabilities will vary
    from carrier to carrier.

12. Accordingly, pursuant to our authority to provide a reasonable time
    and conditions for compliance with and the transition to any new
    standard,[^57] we are temporarily suspending the current September
    30, 2001 deadline for all punch list capabilities, including the two
    unchallenged punch list capabilities (*i.e.*, subject-initiated
    conference calls and timing information), pending the Commission's
    final action on the *Court Remand Decision*. We anticipate that we
    will establish a new compliance date for all required punch list
    capabilities in time to allow carriers to be fully CALEA-compliant
    no later than June 30, 2002. We arrive at this outside target date
    because we intend to address the *Court Remand Decision* no later
    than year's end. We intend to act as expeditiously as possible on
    the remand, before year's end if possible, believing it to be a
    priority of this agency. The record indicates that carriers can
    implement any required changes to their software within six months
    of our decision.[^58]

13. With regard to a packet-mode communications electronic surveillance
    capability, we find no need to extend the September 30, 2001
    compliance deadline in the blanket manner requested by CTIA.
    Implementation of this capability is unrelated to the implementation
    of the punch list capabilities. In fact, only a small percentage of
    telecommunications carriers use packet-mode technology. For carriers
    that do not use packet-mode technology, no packet-mode capability is
    required. However, for carriers that do use that technology,
    suspending the packet-mode deadline would extend the period of time
    in which electronic surveillance could be circumvented by use of
    packet-mode communications. 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.[^59] 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.[^60]
    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.

14. Based on the TIA Report, it appears that there are numerous
    packet-mode technologies and that the development of packet-mode
    electronic surveillance standards governing the separation of
    call-identifying information from content in a manner that fully
    satisfies privacy concerns for each of these technologies is still
    in a relatively early stage. Under CALEA, development of technical
    requirements is left, in the first instance, to the
    telecommunications industry and LEAs -- and not the Commission.[^61]
    The absence of technical standards or requirements for implementing
    the assistance capability requirements of section 103[^62] does not
    preclude a telecommunications carrier, manufacturer, or support
    service provider from deploying a technology or service or relieve
    those entities of their obligations under section 103.[^63] As the
    Court noted in its decision, section 107(b)[^64] defines the
    circumstances under which the Commission is to engage in
    establishing technical requirements or standards.[^65] The
    Commission may act, in response to a petition, when the industry
    fails to issue technical requirements or standards or, if it has
    done so, when parties allege that the standard is deficient. The
    industry has not yet developed any standard for separating
    call-identifying information from content for packet technologies,
    and thus no one has petitioned us alleging deficiencies in such a
    standard. We also have not received a petition requesting us to
    establish technical requirements or standards for the separation of
    packet-mode call-identifying information. We do not construe TIA's
    transmittal letter to its Report as a request for the Commission to
    establish a packet-mode standard, but rather as a request that we
    facilitate the process of establishing such a standard by industry.
    To the extent TIA and Cisco are requesting guidance regarding the
    definition of "call-identifying information" with respect to
    packet-mode communications, our forthcoming decision addressing the
    *Court Remand Decision* will clarify the definition with respect to
    the punch list, and the clarification is likely to provide the
    necessary guidance for the packet-mode context as well. We
    anticipate a continuing dialogue with the telecommunications
    industry, LEAs, regulators, and consumers regarding the development
    of new CALEA standards, which can serve as safe harbors.[^66]

15. We recognize that there is no industry standard for separating
    call-identifying information in the packet-mode context.
    Nonetheless, as we noted in the *Third R&O*, with many packet
    technologies it is fairly straightforward to separate some address
    information from call content.[^67] However, in other cases, address
    information used by one service provider (*e.g.*, an Internet
    telephony provider) may appear as packet content to another service
    provider (*e.g.*, the initial phone number dialed by a caller
    becomes part of the content of a packet when routed by an Internet
    service provider up the chain of providers that receive the
    information). We also note that some carriers are using
    packet-switching technology over "softswitches,"[^68] which carriers
    contend cannot be accessed by LEAs using the methods contemplated in
    the packet-switching standard under J-STD-025.[^69] We understand
    industry is working with LEAs to establish a CALEA compliance safe
    harbor for softswitch technology, however, the International
    Softswitch Consortium has raised concerns that carriers currently
    using such technology will be unable to meet the September 30, 2001
    compliance deadline.[^70] We expect that, pending development of any
    additional industry standards for packet technology, carriers and
    LEAs will work cooperatively to provide requested surveillance
    information under lawful authorizations, taking into account current
    limitations of existing technologies. We emphasize that nothing in
    the Commission's decision is intended to modify the evidentiary
    standards or procedural safeguards for securing a legal
    authorization to obtain packet information and that the Commission
    may not "require carriers to provide the government with information
    that is 'not authorized to be intercepted."[^71]

16. We note that carriers that believe that compliance with the
    assistance capability requirements under section 103[^72] is not
    reasonably achievable through application of packet technology
    available within the compliance period may individually petition the
    Commission for an extension of time of the compliance date under
    CALEA section 107(c).[^73] In addition, carriers that believe that
    compliance with the assistance capability requirements under section
    103 is not reasonably achievable with respect to any equipment,
    facility, or service installed or deployed after January 1, 1995 may
    petition the Commission for a "Reasonably Achievable" determination
    with respect to the packet-mode capability through the individual
    petition process under CALEA section 109(b).[^74]

17. While we deny CTIA\'s § 107(c) petition for a blanket extension for
    the reasons stated above, we believe that the record supports a
    brief extension in order to allow carriers additional time for
    compliance with and transition to the packet-mode standards. Given
    the imminence of the September 30, 2001 deadline, we believe that a
    brief extension is necessary to allow carriers additional time to
    upgrade their systems to incorporate the packet-mode capability or
    to allow any carriers wishing to avail themselves of the section
    107(c) petition procedure a reasonable amount of time to prepare
    their petitions, including the technical justification required
    therein. Briefly extending the deadline will also provide any
    carriers that wish to voluntarily participate in the FBI\'s Flexible
    Deployment Program with respect to packet-mode communications the
    time necessary to prepare the documentation, including technical
    data relating to the carrier\'s system, as required under the
    program and allow Commission staff to announce the section 107(c)
    filing procedures with respect to packet-mode communications.
    Accordingly, pursuant to our authority under section 107(b)(5) of
    CALEA[^75] and sections 4(i) and (j) of the Communications Act,[^76]
    we grant, *sua sponte*, an extension until November 19, 2001 for
    wireline, cellular, and broadband PCS carriers to implement a
    packet-mode capability.[^77] We view this brief extension as
    extraordinary relief necessary in the interests of fairness and
    reasonableness and do not expect to grant any further extensions on
    an industry-wide basis with respect to packet-mode communications.
    We therefore encourage any carriers unable to meet the November 19,
    2001 deadline to seek individual relief under the section 107(c)
    procedures. In this regard, we direct the Common Carrier Bureau and
    the Wireless Telecommunications Bureau to release a Public Notice
    further explaining the section 107(c) petitioning process with
    respect to packet-mode communications.

# ORDERING CLAUSE

18. 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), the
    Petition to Suspend Compliance Date, filed August 23, 2000 by CTIA,
    is GRANTED IN PART and DENIED IN PART, to the extent discussed
    herein.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

**APPENDIX: COMMENTING PARTIES TO CTIA PETITION**

Alliance for Telecommunications Industry Solutions

AT&T Corp.

AT&T Wireless Group

BellSouth Corporation, BellSouth Telecommunications, Inc., BellSouth
Cellular Corp., and

BellSouth Wireless Data, L.P.

Cisco Systems, Inc.

Department of Justice and Federal Bureau of Investigation

International Softswitch Consortium

Motorola, Inc.

National Telephone Cooperative Association

PacWest Telecomm, Inc and the Association for Local Telecommunications
Services

Rural Cellular Association

SBC Communications, Inc.

SecureCable, Inc.

Sprint Corporation

Telecommunications Industry Association

Triton PCS Operating Company, LLC

United States Telecom Association

Verizon Telephone Companies

STATEMENT OF COMMISSIONER MICHAEL J. COPPS

# Re: Communications Assistance for Law Enforcement Act*, CC Docket No. 97-213* {#re-communications-assistance-for-law-enforcement-act-cc-docket-no.-97-213 .unnumbered}

Pursuant to Section 107 of the Communications Assistance for Law
Enforcement Act ("CALEA"),[^78] upon the filing of an appropriate
petition, this Commission must specify technical requirements for
wireless carriers to comply with the assistance capability requirements
prescribed by CALEA. This task is an important responsibility, affecting
the ability of law enforcement agencies to have access to critical
information and the obligation of wireless carriers to implement systems
that will provide that information. In prior proceedings, the Commission
has attempted to complete this task. Today, we move ahead to implement
the September 30, 2001 compliance deadline for carrier packet-mode
communication electronic surveillance capability. We also commit to
making the resolution of the remaining issues a priority, while
temporarily suspending one of the compliance dates pending such
resolution.

Specifically, today's Order includes a temporary suspension of the
September 30, 2001 compliance date for wireless carriers to implement
two Department of Justice/Federal Bureau of Investigation "punch list"
electronic surveillance capabilities mandated by the Commission in a
prior Commission Order.[^79] We do so because last year the United
States Court of Appeals for the District of Columbia Circuit vacated and
remanded to this agency for further proceedings portions of that Order
dealing with the other four of the six "punch list" items mandated by
the Commission.[^80] We conclude that implementing compliance with
"punch list" items at different times could result in major
inefficiencies for carriers. In suspending this compliance date, we have
established outside target dates for completing our actions on the
remand proceeding and mandating compliance with these aspects of CALEA.

I believe it is incumbent upon us to act as swiftly as possible on the
issues posed by the court's remand to us. I am pleased that the Order
targets a date no later than the end of this year for completion of the
remand proceeding and makes this proceeding a priority. I fervently
hope, however, that the Commission will give this item the true priority
it deserves and move forward on a date earlier than the end of the year.
In the interim, I note that the Commission previously has encouraged
carriers to cooperate with law enforcement agencies to achieve the
capability to provide them with necessary information upon the receipt
of appropriate and lawful requests.[^81] Now, more than ever, such
encouragement appears to be well founded. The events of the past week
cogently demonstrate the imperative of bringing these capabilities on
line as soon as possible. This is no time for "business as usual" on
this issue in either the private or public sectors.

[^1]: At the time CTIA filed its petition, it was known as the "Cellular
    Telecommunications Industry Association."

[^2]: *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 18 U.S.C. §§
    2522, 3121, and 47 U.S.C. §§ 229, 1001-1010).

[^4]: 47 U.S.C. § 1006(b).

[^5]: 47 U.S.C. § 1002.

[^6]: 47 U.S.C. § 1006(a)(2).

[^7]: 47 U.S.C. §§ 1002, 1005.

[^8]: 47 U.S.C. § 1006(b).

[^9]: 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).

[^10]: 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)."

[^11]: 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 § 6.46 and §§ 5.4.1-5.4.8, Tables 1, 5, 6, and 8.

[^12]: For an in-depth description of the punch list, including the
    three capabilities that we denied, *see Third R&O, supra* n.2, at ¶¶
    57-123. Briefly, with respect to the six capabilities that we
    required, "dialed digit extraction" would provide to 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 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 messages whenever a subject\'s
    service sends a tone or other network message 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.

[^13]: *Third R&O* at ¶ 1.

[^14]: *Id.* at ¶¶ 13, 46.

[^15]: *Id.* at ¶¶ 55, 129.

[^16]: *Id.* at ¶¶ 55, 56.

[^17]: *Id*. at ¶ 56.

[^18]: *See* "Report to the Federal Communications Commission on
    Surveillance of Packet-Mode Technologies" ("TIA Report"), September
    29, 2000.

[^19]: *See* Letter of September 29, 2000 from Matthew J. Flanigan, TIA
    President, and Grant Seiffert, TIA Vice President, Government
    Relations, to FCC Chairman William Kennard, at 4.

[^20]: Some of these packet-mode technologies, as well as additional
    packet-mode technologies such as short message service ("SMS") for
    cellular and Personal Communications Services, are discussed in
    J-STD-025. *See* J-STD-025 at §§ 4.5.2, 5.4.6, 6.3.6, and B.1.

[^21]: TIA Report at 11-13.

[^22]: *See* Brief of Petitioners United States Telecom Association,
    Cellular Telecommunications Industry Association, and Center for
    Democracy and Technology, filed January 20, 2000; and Brief of
    Petitioners Electronic Privacy Information Center, Electronic
    Frontier Foundation, and American Civil Liberties Union, filed
    January 20, 2000.

[^23]: *See United States Telecom. Association v. FCC*, 227 F.3d 450,
    463 (DC Cir. 2000) (hereinafter "*Court Remand Decision*"). The
    *Court Remand Decision* is available at
    [http://www.fcc.gov/ogc/documents/opinions/2000/99-1442.html]{.underline}.

[^24]: *Id*. at 465.

[^25]: *See* "Petition to Suspend Compliance Date," filed by CTIA on
    August 23, 2000.

[^26]: *Id*. at 5.

[^27]: *Id*. at 6.

[^28]: "Pen registers" capture call-identifying information, but not
    call content, for numbers dialed from the facility that is the
    subject of lawful interception.

[^29]: CTIA Petition at 6.

[^30]: *Id*. at 7.

[^31]: *See* "Comment Invited on CTIA Petition to Suspend CALEA
    Compliance Date," DA 00-2022.

[^32]: Commenting parties, including parties making *ex parte*
    presentations, are listed in the Appendix.

[^33]: BellSouth Comments at 2.

[^34]: *Id*. at 7.

[^35]: *Id*. at 8.

[^36]: Cisco Comments at 5.

[^37]: NTCA Comments at 3.

[^38]: USTA *Ex Parte* Presentation, CC Docket No. 97-213, filed April
    26, 2001.

[^39]: *Id*. at 1.

[^40]: *Id.* at 2.

[^41]: SecureCable is a telecommunications equipment provider.

[^42]: SecureCable Comments at 4.

[^43]: DoJ/FBI Comments at 2-4.

[^44]: *See Memorandum Opinion and Order*, FCC 98-223, 13 FCC Rcd 17990,
    18017 (1998), at ¶ 48.

[^45]: DoJ/FBI Comments at 5.

[^46]: *Id*.

[^47]: *Id*. at 6.

[^48]: DoJ/FBI *Ex Parte* Presentation, CC Docket No. 97-213, filed
    April 18, 2001, at 2.

[^49]: "Toggling" is a feature designed into the software that allows a
    particular capability to be easily switched on or off by a carrier.

[^50]: DoJ/FBI *Ex Parte* Presentation at 2.

[^51]: 47 U.S.C. § 1002. The June 30, 2000 deadline for wireline,
    cellular, and broadband PCS carriers concerned the capabilities
    covered by the core interim standard -- including all uncontested
    requirements of J-STD-025, as well as the contested location
    information requirement, *see supra* ¶ 3.

[^52]: 47 U.S.C. § 1006(c)(3).

[^53]: *Public Notice*, 15 FCC Rcd at 7484, ¶ 5.

[^54]: *Id*., 15 FCC Rcd at 7484, ¶ 6.

[^55]: *Order*, CC Docket No. 97-213, NSD-L-00-234, DA 01-1902. The
    maximum extensions granted were to June 30, 2002.

[^56]: *Flexible Deployment Assistance Guide, Second Edition,
    Packet-Mode Communications,* OMB Control Number: 1110-0030.

[^57]: 47 U.S.C. § 1006(b).

[^58]: *See, e.g.*, ¶ 9, *supra*.

[^59]: *Court Remand Decision*, 227 F.3d at 465-466.

[^60]: We make no finding regarding whether a carrier must supply the
    entire packet to a LEA in response to a pen register order. As the
    D.C. Circuit stated, CALEA does not authorize the Commission to
    modify either the evidentiary standards or procedural safeguards for
    securing legal authorization to obtain the entire packet. *See*
    *Court Remand Decision*, 227 F.3d at 465 (*citing* 47 U.S.C. §
    1002(a)). As such, this is an issue that is left to the courts to
    resolve.

[^61]: 47 U.S.C. §§ 1006(a), (b).

[^62]: 47 U.S.C. § 1002.

[^63]: CALEA section 107(a)(3), 47 U.S.C. § 1006(a)(3).

[^64]: 47 U.S.C. § 1006(b).

[^65]: *Court Remand Decision*, 227 F.3d at 455.

[^66]: *Id.*

[^67]: *Third R&O* at ¶ 55.

[^68]: According to *Internet Telephony* magazine: "Very broadly, a
    softswitch provides call routing/call state functions and controls
    connectivity within IP networks and between IP and the public
    switched telephone network (PSTN)." *See Internet Telephony*, March
    2001, "The Many Faces Of A Softswitch," by Laura Thompson, at 1.

[^69]: *See* *ex parte* communication of May 24, 2001, CC Docket No.
    97-21, filed by the International Softswitch Consortium, at 1-2.

[^70]: *Id*. at 2.

[^71]: *Court Remand Decision* at 465.

[^72]: 47 U.S.C. § 1002.

[^73]: 47 U.S.C. § 1006(c).

[^74]: 47 U.S.C. § 1008(b).

[^75]: 47 U.S.C. § 1006(b)(5).

[^76]: 47 U.S.C. §§ 154(i) and (j).

[^77]: As discussed in n.51, *supra*, the June 30, 2000 deadline for
    wireline, cellular, and broadband PCS carriers concerned the
    capabilities covered by the core interim standard -- including all
    uncontested requirements of J-STD-025, as well as the contested
    location information requirement. For all other carriers (paging,
    cable, satellite, *etc*.), June 30, 2000 was the deadline to
    implement *all* CALEA capabilities, including -- if required -- a
    packet-mode capability, unless those carriers have independently
    sought a section 107(c) extension from the Commission.

[^78]: Pub. L. No. 103-414, 108 Stat. 4279 (1994), codified as amended,
    18 U.S.C. §§ 2522, 3121 and 47 U.S.C. §§ 229, 1001-1010.

[^79]: *Third Report and Order*, CC Docket No. 97-213, 14 FCC Rcd 16794
    (1999).

[^80]: *United States Telecom. Association* v. *FCC,* 227 F.3d 450, 463
    (D.C. Cir. 2000).

[^81]: *Third Report and Order*, *supra*, at ¶ 101 ("We are confident
    that carriers and LEAs will work together to ensure that a wiretap
    is functioning correctly. We also note that there is nothing that
    would prevent carriers from providing this capability either on a
    voluntary basis, or with compensation from LEAs").