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 Federal  Communications  Commission  FCC  01-  265 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 

 In  the  matter  of 
 Communications  Assistance  for 
 Law  Enforcement  Act 

 )  ) 
 )  )  CC  Docket  No.  97-  213 

 ORDER 
 Adopted:  September  18,  2001  Released:  September  21,  2001 
 By  the  Commission:  Commissioner  Copps  issuing  a  statement. 

 I.  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  CTIAs  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. 

 II.  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 

 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). 
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 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- 

 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. 
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 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  standards  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  reports  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  FBIs  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 

 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. 
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 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  Courts  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  Courts  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 

 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. 
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 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 
 petitions  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 

 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. 
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 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  nations  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  petitions  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  carriers  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 

 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. 
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 assist  carriers  in  meeting  packet  mode  requirements  mandated  by  CALEA.  56 
 III.  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  Commissions 
 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  years  end.  We  intend  to  act  as  expeditiously  as  possible  on  the  remand,  before 
 years  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. 

 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. 
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 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  TIAs  transmittal  letter  to  its 

 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. 
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 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  Commissions 
 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 

 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). 
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 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. 

 IV.  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 

 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. 
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 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 
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 STATEMENT  OF  COMMISSIONER  MICHAEL  J.  COPPS 
 RE:  COMMUNICATIONS  ASSISTANCE  FOR  LAW  ENFORCEMENT  ACT,  CC  DOCKET  NO.  97-  213 

 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,  todays  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  courts 
 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. 

 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). 
12