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                                                           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").  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.  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.
     II.  BACKGROUND
3.     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").  We took this
action under Section 107(b) of CALEA 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.  Under Section 107(a)(2) of CALEA (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.  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.
4.     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   including two contested
features of the interim standard, i.e., a packet-mode communications capability and a location information
requirement   and six of nine additional capabilities requested by DoJ/FBI, known as the "punch list"
capabilities.  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.  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, and that the packet-mode and punch
list capabilities be implemented by September 30, 2001.
5.     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.
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.  On September 29, 2000,
TIA submitted its report to the Commission.  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.  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")
  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.
6.     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.  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.  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.'"
7.     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.  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.  CTIA therefore recommends that we
suspend the compliance date for the entire punch list pending resolution of what capabilities are required.
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" order.
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.
8.     On September 1, 2000, our Office of Engineering and Technology ("OET") placed the CTIA
Petition on Public Notice, and on September 15, 2000, OET received comments responding to the CTIA
Petition.  Subsequently, ex parte presentations regarding the CTIA Petition were received.  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. 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.  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.  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. 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.  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. 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.  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.  None of the petition's supporters
suggest a new compliance date for either the punch list or packet-mode capabilities.
9.     SecureCable, Inc. 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.
10.    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.  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.  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.  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.
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.  Additionally, DoJ/FBI
contend that a packet-mode electronic surveillance capability is critically important to LEAs and is mandated
by CALEA.  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" individual punch list capabilities.
11.    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.  In that Public Notice, we noted that section 107(c)(3) authorizes us to extend the
compliance deadline for no longer than two years from the date of the petition's grant. 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. 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.  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.
     XII. DISCUSSION
13.    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.
14.    Accordingly, pursuant to our authority to provide a reasonable time and conditions for
compliance with and the transition to any new standard, 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.
15.    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.  We
agree with DoJ/FBI that while parties may dispute whether a carrier may supply to a LEA the entire packet
(i.e., content and call-identifying information) in response to a pen register order, there appears to be no
dispute that a carrier must supply the entire packet in response to a Title III order.  Thus, the interim
standard for the packet capability appears to be appropriate at least in some cases, even though it does not
include a standard for separating call-identifying information from the content of the packet.
16.    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. The absence
of technical standards or requirements for implementing the assistance capability requirements of section
103 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.  As the
Court noted in its decision, section 107(b) defines the circumstances under which the Commission is to
engage in establishing technical requirements or standards.  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.
17.    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. 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," which carriers
contend cannot be accessed by LEAs using the methods contemplated in the packet-switching standard under
J-STD-025.  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.  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."
18.    We note that carriers that believe that compliance with the assistance capability requirements
under section 103 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).  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).
19.    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 and sections 4(i) and (j) of the Communications Act, we grant, sua sponte,
an extension until November 19, 2001 for wireline, cellular, and broadband PCS carriers to implement a
packet-mode capability.  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.
     XX.  ORDERING CLAUSE
21.    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
Pursuant to Section 107 of the Communications Assistance for Law Enforcement Act ("CALEA"),
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.  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.  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.  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.