*Pages 1--34 from  FCC 98-223*
 Federal  Communications  Commission  FCC  98-  223 
 Before  the 
 Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of  ) 
 ) 
 Petition  for  the  Extension  of  the  Compliance  ) 
 Date  under  Section  107  of  the  ) 
 Communications  Assistance  for  ) 
 Law  Enforcement  Act  by  ) 
 AT&  T  Wireless  Services,  Inc.,  ) 
 Lucent  Technologies,  Inc.,  and  Ericsson  Inc.;  PrimeCo  ) 
 Personal  Communications,  L.  P.;  Powertel,  Inc.;  United  ) 
 States  Telephone  Association;  Ameritech  Operating  ) 
 Companies  and  Ameritech  Mobile  Communications;  ) 
 AirTouch  Paging,  Inc.;  AirTouch  Communications,  Inc.  and  ) 
 Motorola,  Inc.;  SBC  Communications,  Inc.;  ICG  Telecom  ) 
 Group,  Inc.;  Centennial  Cellular  Corp.;  Comcast  ) 
 Cellular  Communications,  Inc.;  BellSouth  Corporation,  ) 
 BellSouth  Telecommunications,  Inc.,  BellSouth  Cellular  ) 
 Corp.,  BellSouth  Personal  Communications,  Inc.  and  ) 
 Bell  South  Wireless  Data,  L.  P.;  CommNet  Cellular,  ) 
 Inc.;  Metrocall,  Inc.;  United  States  Cellular  Corporation;  ) 
 PageMart  Wireless,  Inc.;  Ardis  Company,  Conxus  Network,  ) 
 Inc.,  Metrocall,  Inc.,  MobileMedia  Communications,  Inc.  ) 
 Motorola,  Inc.,  PageMart  Wireless,  Inc.,  Preferred  Networks,  ) 
 Inc.,  RAM  Technologies,  Inc.,  Real  Time  Strategies,  Inc.,  and  ) 
 TekNow,  Inc.;  Redcom  Laboratories,  Inc.;  Skytel  ) 
 Communications,  Inc.;  Iridium  United  States,  L.  P.;  ) 
 360  Communications  Co.;  Centurytel  Wireless,  Inc.;  ) 
 Paging  Network,  Inc.  ) 


 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  September  10,  1998  Released:  September  11,  1998 
 By  the  Commission:  Commissioners  Ness  and  Powell  issuing  a  joint  statement;  Commissioner  Furchtgott-  Roth  concurring 
 and  issuing  a  statement. 


 TABLE  OF  CONTENTS 


 I.  INTRODUCTION  .........................................................  1 
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 Federal  Communications  Commission  FCC  98-  223 
 1  Communications  Assistance  for  Law  Enforcement  Act,  Pub.  L.  No.  103-  414,  108  Stat.  4279  (1994) 
 (codified  as  amended  in  18  U.  S.  C.    2522,  and  47  U.  S.  C.    229,  1001-  1010.). 


 2  AT&  T  Wireless  Services,  Inc.,  Lucent  Technologies,  Inc.  and  Ericsson,  Inc.  (AT&  T)  Joint  Petition  for 
 Extension  of  Compliance  Date,  filed  Mar.  30,  1998;  PrimeCo  Personal  Communications,  L.  P.  (PrimeCo),  Petition 
 for  an  Extension  of  Compliance  Date,  filed  April  21,  1998;  Powertel,  Inc.  (Powertel),  Petition  for  an  Extension  of 
 Compliance  Date,  filed  April  23,  1998;  United  States  Telephone  Association  (USTA),  Petition  for  an  Extension  of 
 Compliance  Date,  filed  April  24,  1998;  Ameritech  Operating  Companies  and  Ameritech  Mobile  Communications, 
 Inc.  (Ameritech),  Petition  for  an  Extension  of  Compliance  Date,  filed  April  24,  1998;  AirTouch  Paging,  Inc. 
 (AirTouch  Paging),  Petition  for  an  Extension  of  Compliance  Date,  filed  May  4,  1998;  AirTouch  Communications 
 Inc.  and  Motorola,  Inc.  (AirTouch),  Joint  Petition  for  an  Extension  of  Compliance  Date,  filed  May  5,  1998;  SBC 
 Communications,  Inc.  (SBC),  Petition  for  Extension  of  Compliance  Date,  filed  May  8,  1998;  ICG  Telecom  Group, 
 Inc.  (ICG),  Petition  for  Extension  of  and  Comments,  filed  May  8,  1998;  Centennial  Cellular  Corp.  (Centennial), 
 Petition  for  an  Extension  of  Compliance  Date,  filed  May  6,  1998;  Comcast  Cellular  Communications,  Inc. 
 (Comcast  Cellular),  Petition  for  Extension  of  Compliance  Date,  filed  May  29,  1998;  BellSouth  Corporation, 
 BellSouth  Telecommunications,  Inc.,  BellSouth  Cellular  Corp.,  BellSouth  Personal  Communications,  Inc.  and 
 BellSouth  Wireless  Data,  L.  P.  (BellSouth),  Combined  Comments  and  Petition  for  Extension  of  Time,  filed  May  8, 
 1998;  CommNet  Cellular  Inc.  (CommNet),  Petition  for  Extension  of  Compliance  Date,  filed  April  30,  1998; 
 Metrocall,  Inc.  (Metrocall),  Petition  for  Extension  of  Compliance  Date,  filed  May  21,  1998;  United  States  Cellular 
 Corporation  (USCC),  Comments  and  Petition  for  Extension  of  Compliance  Date,  filed  May  8,  1998,  PageMart 
 Wireless,  Inc.  (PageMart),  Petition  for  Extension  of  CALEA  Compliance  Date,  filed  June  10,  1998;  Ardis 
 Company,  Conxus  Network,  Inc.,  Metrocall,  Inc.,  MobileMedia  Communications,  Inc.,  Motorola,  Inc.,  PageMart 
 Wireless,  Inc.,  Preferred  Networks,  Inc.,  RAM  Technologies,  Inc.,  Real  Time  Strategies,  Inc.,  and  TekNow,  Inc. 
 (Ardis,  et  al.),  Joint  Petition  for  Extension  of  Compliance  Date,  filed  June  10,  1998;  Skytel  Communications,  Inc. 
 (Skytel),  Request  for  Extension  of  Time  to  Comply  with  the  Assistance  Capability  Requirements  of  Section  103  of 
 CALEA,  filed  July  24,  1998;  Redcom  Laboratories,  Inc.  (Redcom),  Petition  for  Extension  of  CALEA  Compliance 
 Date,  filed  June  1,  1998;  Joint  Petition  For  an  Extension  of  the  CALEA  Assistance  Capability  Compliance  Date  of 
 Iridium  United  States,  L.  P.  and  Motorola,  Inc.  (Iridium),  filed  June  30,  1998;  360  Communications  Company 
 (360)  Comments  at  8  n.  15,  filed  May  8,  1998;  Centurytel  Wireless  Communications,  Inc.  (Centurytel)  Comments 
 at  8  n.  27,  filed  May  8,  1998;  Paging  Network,  Inc.  (PageNet),  Petition  for  Extension  of  Compliance  Date,  filed 
 June  8,  1998. 


 2 


 II.  BACKGROUND  ..........................................................  2 
 III.  DISCUSSION  ............................................................  14 
 IV.  ORDERING  CLAUSES  ....................................................  52 
 APPENDIX:  LIST  OF  COMMENTERS 


 I.  INTRODUCTION 
 1.  In  this  Memorandum  Opinion  and  Order,  we  grant  an  extension  until  June  30,  2000,  of  the 
 deadline  for  complying  with  the  Communications  Assistance  for  Law  Enforcement  Act  (CALEA  or  the 
 Act).  1  In  providing  this  extension,  we  grant,  in  part,  the  relief  requested  in  the  above-  captioned  petitions.  2 
 In  issuing  this  Memorandum  Opinion  and  Order,  we  have  also  considered  fully  the  comments  filed  in 
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 Federal  Communications  Commission  FCC  98-  223 
 3  "In  the  Matter  of  Communications  Assistance  for  Law  Enforcement  Act,  CC  Docket  No.  97-  213,"  Public 
 Notice,  DA  98-  762  (rel.  Apr.  20,  1998)  (April  20  Public  Notice);  see  also  Appendix,  listing  comments  received  in 
 response  to  April  20  Public  Notice. 


 4  47  U.  S.  C.    1001  note(  b),  1006(  c)(  2). 


 5  See  47  U.  S.  C.    1006(  c)(  1)-(  4). 
 6  Id.  We  note  that  a  carrier  is  deemed  to  be  in  compliance  with  section  103  of  CALEA  as  to  its  "old" 
 equipment,  facilities  and  services  --  i.  e.  those  installed  or  deployed  on  or  before  January  1,  1995  --  until  such  time 
 as  it  is  reimbursed  by  the  Attorney  General  for  all  reasonable  costs  directly  associated  with  modifications  necessary 
 to  bring  that  equipment  into  compliance.  47  U.  S.  C.    1008(  a),  (d). 


 7  140  Cong.  Rec.  H-  10779  (daily  ed.  October  7,  1994)  (statement  of  Rep.  Hyde). 


 3 


 response  to  the  Public  Notice  requesting  comment  on  the  issue  of  a  blanket  extension.  3  As  explained 
 below,  we  find  that  compliance  with  the  assistance  capability  requirements  of  section  103  of  CALEA 
 (section  103)  is  not  reasonably  achievable  by  any  telecommunications  carrier  through  the  application  of 
 technology  that  will  be  available  within  the  compliance  period,  which  CALEA  set  to  end  on  October  25, 
 1998.  4  Accordingly,  pursuant  to  our  authority  under  section  107(  c)  of  the  Act,  and  in  the  interest  of 
 administrative  efficiency,  we  grant  an  extension  of  CALEA's  compliance  deadline  until  June  30,  2000.  5 
 This  extension  applies  to  all  telecommunications  carriers  which  are  similarly  situated  to  the  petitioners,  i.  e., 
 those  telecommunications  carriers  that  are  proposing  to  install  or  deploy,  or  having  installed  or  deployed, 
 any  equipment,  facility  or  service  prior  to  the  effective  date  of  section  103  for  that  part  of  the  carrier's 
 business  on  which  the  new  equipment,  facility  or  service  is  used.  6 


 II.  BACKGROUND 
 2.  CALEA,  enacted  on  October  25,  1994,  was  intended  to  preserve  the  ability  of  law  enforcement 
 officials  to  conduct  electronic  surveillance  effectively  and  efficiently  in  the  face  of  rapid  advances  in 
 telecommunications  technology.  7  To  achieve  this  goal,  section  103  of  the  Act  sets  forth  four  general 
 assistance  capability  requirements  with  which  carriers  must  comply.  Specifically,  section  103(  a)  requires  a 
 telecommunications  carrier  to: 


 (a)  .  .  .[  E]  nsure  that  its  equipment,  facilities,  or  services  that  provide  a  customer  or  subscriber  with 
 the  ability  to  originate,  terminate,  or  direct  communications  are  capable  of-  - 
 (1)  expeditiously  isolating  and  enabling  the  government,  pursuant  to  a  court  order  or 
 other  lawful  authorization,  to  intercept,  to  the  exclusion  of  any  other  communications,  all  wire  and 
 electronic  communications  carried  by  the  carrier  within  a  service  area  to  or  from  equipment, 
 facilities,  or  services  of  a  subscriber  of  such  carrier  concurrently  with  their  transmission  to  or  from 
 the  subscriber's  equipment,  facility,  or  service,  or  at  such  later  time  as  may  be  acceptable  to  the 
 government; 
 (2)  expeditiously  isolating  and  enabling  the  government,  pursuant  to  a  court  order  or 
 other  lawful  authorization,  to  access  call-  identifying  information  that  is  reasonably  available  to  the 
 carrier-  - 
 (A)  before,  during,  or  immediately  after  the  transmission  of  a  wire  or 
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 Federal  Communications  Commission  FCC  98-  223 
 8  47  U.  S.  C.    1002(  a)(  1)-(  4). 
 9  47  U.  S.  C.    1001  note(  b). 
 10  See  47  U.  S.  C.    1005(  a).  Section  104  of  CALEA  also  requires  carriers  to  meet  capacity  requirements 
 specified  by  the  Attorney  General.  These  requirements  identify  the  actual  number  of  and  maximum  capacity 
 required  to  accommodate  all  the  simultaneous  interceptions,  pen  registers  and  trap  and  trace  devices  the  Attorney 
 General  estimates  will  be  needed  to  conduct  authorized  surveillance.  47  U.  S.  C.    1003(  a).  CALEA  gives  carriers 
 until  October  25,  1998  or  three  years  from  the  publication  of  the  capacity  requirements  by  the  Attorney  General, 
 whichever  is  longer,  to  comply  with  the  section  104  requirements.  47  U.  S.  C.    1003(  b). 


 11  See  47  U.  S.  C.    1005(  b). 


 12  See  47  U.  S.  C.    1006(  a)(  1). 


 4 


 electronic  communication  (or  at  such  later  time  as  may  be  acceptable  to  the 
 government);  and 
 (B)  in  a  manner  that  allows  it  to  be  associated  with  the  communication  to  which  it 
 pertains,  except  that,  with  regard  to  information  acquired  solely  pursuant  to  the 
 authority  for  pen  registers  and  trap  and  trace  devices  (as  defined  in  section  3127  of 
 title  18,  United  States  Code),  such  call-  identifying  information  shall  not  include 
 any  information  that  may  disclose  the  physical  location  of  the  subscriber  (except 
 to  the  extent  that  the  location  may  be  determined  from  the  telephone  number); 
 (3)  delivering  intercepted  communications  and  call-  identifying  information  to  the 
 government,  pursuant  to  a  court  order  or  other  lawful  authorization,  in  a  format  such  that  they  may  be 
 transmitted  by  means  of  equipment,  facilities,  or  services  procured  by  the  government  to  a  location  other 
 than  the  premises  of  the  carrier;  and 
 (4)  facilitating  authorized  communications  interceptions  and  access  to  call-  identifying 
 information  unobtrusively  and  with  a  minimum  of  interference  with  any  subscriber's 
 telecommunications  service  and  in  a  manner  that  protects-  - 
 (A)  the  privacy  and  security  of  communications  and  call-  identifying  information 
 not  authorized  to  be  intercepted;  and 
 (B)  information  regarding  the  government's  interception  of  communications  and 
 access  to  call-  identifying  information.  8 


 Under  section  111(  b)  of  CALEA,  the  deadline  for  compliance  with  these  requirements  is  October  25, 
 1998.  9 


 3.  CALEA  does  not  specify  how  these  requirements  are  to  be  met.  Rather,  the  Act  requires 
 carriers,  in  consultation  with  manufacturers,  to  ensure  that  their  equipment,  facilities,  or  services  can 
 comply  with  the  requirements  set  out  in  section  103.  10  Manufacturers  are  required  to  make  available  the 
 features  and  modifications  that  are  necessary  to  comply  with  the  capability  requirements  "on  a  reasonably 
 timely  basis  and  at  a  reasonable  cost."  11  The  Attorney  General  is  to  consult  with  the  telecommunications 
 industry,  users,  and  state  utility  commissions  to  "ensure  the  efficient  and  industry-  wide  implementation  of 
 the  assistance  capability  requirements."  12 
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 Federal  Communications  Commission  FCC  98-  223 
 13  47  U.  S.  C    1006(  a)(  2).  Manufacturers  and  providers  of  telecommunications  support  services  are  subject 
 to  section  106  and  not  section  103.  47  U.  S.  C.    1005. 


 14  47  U.  S.  C    1006(  a)(  3)(  B). 


 15  47  U.  S.  C.    1006(  b). 
 16  47  U.  S.  C.    1006(  b)(  5).  This  section  requires  the  Commission  to  establish,  by  rule,  technical 
 requirements  or  standards  that  also  (1)  meet  the  assistance  capability  requirements  of  section  103  by  cost-  effective 
 methods;  (2)  protect  the  privacy  and  security  of  communications  not  authorized  to  be  intercepted;  (3)  minimize 
 the  cost  of  such  compliance  on  residential  ratepayers;  and  (4)  serve  the  policy  of  the  United  States  to  encourage  the 
 provision  of  new  technologies  and  services  to  the  public.  Id.  at  (b)(  1)-(  4). 


 17  See  47  U.  S.  C.    1006(  c)(  1). 


 18  47  U.  S.  C.    154(  i),  154(  j),  229(  a).  See  note  2  supra. 


 5 


 4.  Although  CALEA  does  not  specify  technologies  or  standards  that  carriers  must  use  to  meet  the 
 assistance  capability  requirements,  it  does  contain  a  "safe  harbor"  provision,  which  states  that  a 
 telecommunications  carrier,  a  manufacturer  of  telecommunications  transmission  or  switching  equipment,  or 
 a  provider  of  telecommunications  support  services  will  be  deemed  to  be  in  compliance  with  CALEA's 
 assistance  capability  requirements  if  it  complies  with  "publicly  available  technical  requirements  or 
 standards  adopted  by  an  industry  association  or  standard-  setting  organization,  or  by  the  Commission  .  .  . 
 ."  13  However,  compliance  with  CALEA's  capability  requirements  is  still  required  even  if  a  carrier  chooses 
 not  to  use  publicly  available  standards.  14  In  that  case,  the  carrier  would  have  to  work  with  its  equipment 
 suppliers  to  develop  and  deploy  an  alternative  technical  solution(  s)  that  would  meet  the  capability 
 requirements. 


 5.  Under  section  107(  b)  of  CALEA,  if  technical  requirements  or  standards  are  not  issued,  or  if 
 any  person  believes  any  standards  issued  are  deficient,  that  party  may  petition  the  Commission  to  establish 
 such  requirements  or  standards.  15  In  so  doing,  the  Commission  is  required  to  meet  a  number  of  conditions, 
 and  may  provide  a  reasonable  time  and  conditions  for  compliance  with  any  new  standard.  16  The  issues 
 surrounding  the  establishment  of  technical  standards  for  meeting  CALEA  requirements  are  not  considered 
 in  this  Memorandum  Opinion  and  Order,  but  will  be  addressed  in  a  separate  item  we  intend  to  issue  in  the 
 near  future. 


 6.  Additionally,  pursuant  to  section  107(  c),  telecommunications  carriers  may  petition  the 
 Commission  for  an  extension  of  the  compliance  deadline,  and  may  receive  such  an  extension  ".  .  .  if  the 
 Commission  determines  that  compliance  with  the  assistance  capability  requirements  under  section  103  is 
 not  reasonably  achievable  through  application  of  technology  available  within  the  compliance  period."  17  To 
 date,  the  Commission  has  received  petitions  for  extension  of  the  CALEA  compliance  date  based  on  both 
 sections  107(  b)  and  107(  c),  as  well  as  our  general  authority  in  sections  4(  i),  4(  j)  and  229(  a)  of  the 
 Communications  Act.  18 


 7.  To  fulfill  the  Commission's  other  obligations  under  CALEA,  the  Commission  released  a  Notice 
 of  Proposed  Rule  Making  on  October  10,  1997,  proposing  rules  and  seeking  comment  on  a  number  of 
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 Federal  Communications  Commission  FCC  98-  223 
 19  See  Communications  Assistance  for  Law  Enforcement,  Notice  of  Proposed  Rulemaking,  CC  Docket  No. 
 97-  213,  FCC  97-  356  (Oct.  10,  1997)  (CALEA  NPRM).  Comments  were  due  on  December  12,  1997,  and  Reply 
 Comments  were  due  on  February  11,  1998. 


 20  CALEA  NPRM  at    50.  CTIA  had  filed  a  petition  for  rulemaking  on  July  16,  1997  recommending  that 
 the  Commission  adopt  industry  capability  standards  and  allow  a  two  year  implementation  period  from  the  adoption 
 of  this  standard.  Because  our  intention  in  the  NPRM  was  to  focus  on  obligations  assigned  specifically  to  the 
 Commission  by  CALEA,  we  concluded  that  we  would  address  CTIA's  petition,  including  CTIA's  request  for  an 
 extension  of  the  implementation  period,  separately.  CALEA  NPRM  at    44. 


 21  Id.  The  CALEA  NPRM  originally  indicated  that  such  petitions  would  be  analyzed  under  the  criteria 
 specified  in  section  109(  b)(  1).  However,  as  detailed  below,  upon  further  review,  we  conclude  that  consideration  of 
 an  extension  under  section  107(  c)  is  based  on  one  criteria--  that  is,  whether  "compliance  with  the  assistance 
 capability  requirements  under  section  103  is  not  reasonably  achievable  through  application  of  technology  available 
 within  the  compliance  period."  47  U.  S.  C.  1006(  c)(  2).  We  also  note  that  section  109(  b)(  1)  and  section  107(  c) 
 serve  different  purposes.  Section  107(  c)  concerns  extensions  of  the  compliance  deadline,  while  section  109(  b) 
 concerns  the  Attorney  General's  financial  liability  for  the  cost  of  modifications  made  to  those  portions  of  a  carrier's 
 network  that  were  "installed  or  deployed  after  January  1,  1995."  47  U.  S.  C.    1006(  c),  1008(  b)(  1).  Accordingly, 
 the  section  109(  b)(  1)  criteria  will  not  be  evaluated  here.  Commenters  have  agreed  with  this  conclusion.  See  e.  g., 
 U.  S.  West  Comments  to  NPRM  at  38  n.  66;  AT&  T  Comments  to  NPRM  at  23-  27;  FBI  Reply  Comments  to  NPRM 
 at  14-  15;  Paging  Network  Comments  at  4. 


 22  CALEA  NPRM  at    44. 


 23  See,  e.  g.,  American  Mobile  Telephone  Association,  Inc.  (AMTA)  Comments  to  NPRM  at  8;  BellSouth 
 Corporation,  BellSouth  Telecommunications,  Inc.,  BellSouth  Cellular  Corp.,  BellSouth  Personal  Communications, 
 Inc.  and  BellSouth  Wireless  Data,  L.  P.  (BellSouth)  Comments  to  NPRM  at  19;  Motorola,  Inc.  (Motorola) 
 Comments  to  NPRM  at  11;  Paging  Network,  Inc.  (PageNet)  Comments  to  NPRM  at  13-  14;  Personal 
 Communications  Industry  Association  (PCIA)  Comments  to  NPRM  at  3-  4;  PrimeCo  Personal  Communications, 
 L.  P.  (Prime  Co)  Comments  to  NPRM  at  5-  6;  AirTouch  Reply  Comments  to  NPRM  at  9-  12;  AT&  T  Corporation 
 (AT&  T)  Reply  Comments  to  NPRM  at  13-  14. 


 6 


 issues,  including  criteria  that  could  be  used  to  extend  the  CALEA  compliance  date  under  section  107, 
 definitional  issues  relevant  to  which  carriers  are  subject  to  CALEA  requirements,  and  carriers'  security 
 policies  and  procedures.  19  Because  it  was  not  clear  whether  requests  for  extension  of  the  compliance  date 
 would  be  forthcoming,  we  declined  at  that  time  to  propose  specific  rules  regarding  such  requests.  20  We 
 proposed  instead  to  permit  carriers  to  petition  the  Commission  for  an  extension  of  time  under  section  107.  21 
 In  the  NPRM,  we  also  declined  to  address  the  issue  of  technical  capability  standards  because  we  concluded 
 that  it  would  be  inappropriate  to  address  capability  standards  while  the  standards-  setting  process  was 
 ongoing.  22  We  received  several  comments  from  carriers  in  response  to  the  NPRM  requesting  that  the 
 Commission  grant  a  two-  year  blanket  extension  of  the  CALEA  compliance  date.  23 


 8.  Since  the  enactment  of  CALEA,  industry  and  law  enforcement  have  been  working  to  develop  a 
 standard  that  would  meet  the  requirements  of  the  statute  and  allow  carriers  to  fulfill  their  obligations  under 
 the  Act.  These  efforts  have  been  concentrated  almost  exclusively  on  the  technical  standards  required  to 
 conduct  surveillance  on  wireline,  cellular,  and  personal  communications  services  (PCS)  systems;  standards-setting 
 efforts  to  conduct  surveillance  on  other  telecommunications  services,  such  as  advanced  paging, 
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 Federal  Communications  Commission  FCC  98-  223 
 24  CALEA  Specification  for  Traditional  Paging,  PCIA  Technical  Committee,  CALEA  Subcommittee, 
 released  May  4,  1998. 


 25  Interim  Standard,  Lawfully  Authorized  Electronic  Surveillance,  J-  STD-  025,  Telecommunications  Industry 
 Association  Standards  Committee,  Subcommittee  TR45.2,  adopted  December  8,  1997  (J-  STD-  025). 


 26  Id.  at  2. 


 27  See  Center  for  Democracy  and  Technology  (CDT),  Petition  for  Rulemaking  Under  Sections  107  and  109 
 of  the  Communications  Assistance  for  Law  Enforcement  Act,  filed  March  26,  1998  (CDT  Petition);  Department  of 
 Justice  and  Federal  Bureau  of  Investigations  (FBI),  Joint  Petition  for  Expedited  Rulemaking,  filed  March  27,  1998 
 (FBI  Petition). 


 28  We  have  received  four  petitions  for  rulemaking  requesting  that  the  Commission  resolve  the  dispute  as  to 
 whether  the  interim  industry  standard  is  overinclusive  or  underinclusive.  CDT  Petition;  FBI  Petition; 
 Telecommunications  Industry  Association  (TIA),  Petition  for  Rulemaking,  filed  April  2,  1998  (TIA  Petition); 
 Cellular  Telecommunications  Industry  Association  (CTIA),  Petition  for  Rulemaking,  filed  July  16,  1997  (CTIA 
 Petition).  See  also  note  116  infra. 


 29  AT&  T  Petition. 


 7 


 specialized  mobile  radio,  and  satellite-  based  systems,  have  either  not  yet  begun  or  are  in  their  early  stages. 
 A  standard  for  one-  way  paging  was  recently  released  by  the  Personal  Communications  Industry 
 Association  (PCIA),  but  it  has  not  yet  been  evaluated  by  the  law  enforcement  community  or  other  parties.  24 


 9.  On  December  5,  1997,  the  Telecommunications  Industry  Association  (TIA)  and  Committee  T1, 
 sponsored  by  the  Alliance  for  Telecommunications  Industry  Solutions  (ATIS),  announced  the  adoption  and 
 joint  publication  of  an  interim  industry  standard,  J-  STD-  025,  Lawfully  Authorized  Electronic 
 Surveillance.  25  J-  STD-  025  defines  services  and  features  to  support  lawfully  authorized  electronic 
 surveillance  and  the  interfaces  to  deliver  intercepted  communications  and  call-  identifying  information  to  a 
 law  enforcement  agency.  The  stated  purpose  of  this  industry  standard  is  to  facilitate  a  telecommunications 
 service  provider's  compliance  with  the  assistance  capability  requirements  defined  in  CALEA.  26  The  interim 
 industry  standard  has  been  challenged  by  several  parties,  including  law  enforcement  agencies,  which 
 believe  it  does  not  address  all  the  capabilities  to  which  they  are  entitled,  and  organizations  advocating 
 privacy  concerns,  which  believe  the  standard  includes  capabilities  beyond  those  allowed  by  CALEA.  27  As 
 a  result  of  the  disagreement  on  the  standards  necessary  to  implement  CALEA,  the  Commission  has  been 
 petitioned  to  establish  technical  standards  for  meeting  the  assistance  capability  requirements  of  section 
 103.  28 


 10.  Despite  the  uncertainty  surrounding  J-  STD-  025,  CALEA  still  requires  carriers  to  meet  the 
 requirements  of  section  103.  Presumably  carriers  could  come  into  compliance  by  developing  alternative 
 technical  solutions  in  cooperation  with  the  manufacturers  of  their  equipment.  However,  it  appears  that  no 
 alternative  technologies  or  solutions  have  been  developed  that  would  allow  U.  S.  carriers  to  comply  with 
 CALEA's  section  103  capability  requirements  before  the  compliance  deadline.  Given  these  circumstances, 
 on  March  30,  1998,  AT&  T  Wireless  Services,  Inc.,  Lucent  Technologies,  Inc.,  and  Ericsson,  Inc.  filed  a 
 petition  for  extension  of  CALEA's  compliance  deadline  under  section  107(  c)  of  the  Act.  29  In  this  petition, 
7
 Federal  Communications  Commission  FCC  98-  223 
 30  April  20  Public  Notice. 
 31  Id.  at  4. 
 32  Id. 
 33  Id.  In  the  April  20  Public  Notice,  we  requested  comment  on  whether  the  capabilities  discussed  in  the 
 CDT  and  FBI  petitions  for  rulemaking  fall  within  the  scope  of  CALEA  and  whether  the  Commission  should  grant 
 FBI's  motion  to  dismiss  CTIA's  Petition  for  Rulemaking  as  moot  in  light  of  the  adoption  of  interim  standards.  Id. 
 We  established  different  comment  dates  for  these  issues  and  will  address  them  in  a  separate  order.  Comments 
 were  due  on  May  20,  1998,  and  reply  comments  were  due  on  June  5,  1998.  We  also  note  that  the  Commission  has 
 held  several  extensive  meetings  with  the  DOJ  and  FBI  staffs  regarding  CALEA.  See,  e.  g.,  Letter  from  Daniel 
 Kaplan,  Department  of  Justice,  to  Magalie  R.  Salas,  Secretary,  Federal  Communications  Commission,  dated  June 
 4,  1998  (FBI  June  4  ex  parte);  Letter  from  H.  Michael  Warren,  Department  of  Justice/  Federal  Bureau  of 
 Investigation,  to  Magalie  R.  Salas,  Secretary,  Federal  Communications  Commission,  dated  June  29,  1998  (FBI 
 June  29  ex  parte);  Letter  from  David  Yarbrough,  Department  of  Justice/  Federal  Bureau  of  Investigation,  to 
 Magalie  R.  Salas,  Secretary,  Federal  Communications  Commission,  dated  July  1,  1998  (FBI  July  1,  1998  ex  parte). 


 34  See  note  2  supra. 


 35  Id. 
 36  See,  e.  g.,  BellSouth  Combined  Comments  and  Petition  for  Extension  of  Time;  ICG  Petition  for  Extension 
 and  Comments;  SBC  Petition  for  Extension  of  Compliance  Date;  USCC  Comments  and  Petition  for  Extension  of 
 Compliance  Date;  CenturyTel  Comments  at  8  n.  27;  360  Comments  at  8  n.  15.  Comments  were  submitted  by  36 
 parties.  Reply  comments  were  submitted  by  16  parties. 


 8 


 the  parties  contend  that  a  two  year  extension  is  necessary  because  CALEA-  compliant  hardware  and 
 software  will  not  be  available  by  October  25,  1998.  We  placed  the  AT&  T  petition  on  Public  Notice,  along 
 with  the  CDT,  DoJ/  FBI  and  TIA  petitions  for  rulemaking,  on  April  20,  1998,  with  initial  comments  due  on 
 May  8,  1998,  and  reply  comments  due  on  May  15,  1998.  30 


 11.  The  Public  Notice  requested  comment  on  how  the  Commission  could  quickly  and  efficiently 
 extend  the  compliance  deadline  if  an  extension  were  warranted;  and  whether  the  factors  supporting  an 
 extension  apply  equally  to  large  numbers  of  telecommunications  carriers.  31  In  that  regard,  we  asked 
 commenters  to  address  all  possible  actions  we  might  take,  including  the  issuance  of  an  extension  order  for 
 all  carriers  subject  to  the  Act's  compliance  date,  so  that  we  could  ensure  that  the  objectives  and  obligations 
 of  CALEA  would  be  met  in  a  timely  manner.  32  We  also  requested  suggestions  for  any  other  measures  we 
 might  take  to  streamline  the  process  for  granting  extensions.  33 


 12.  Since  the  release  of  the  Public  Notice,  we  have  received  additional  petitions  for  extension  of 
 the  CALEA  compliance  date.  34  These  petitions  allege  that  compliance  with  the  assistance  capability 
 requirements  of  section  103  is  not  reasonably  achievable  through  the  application  of  technology  that  will  be 
 available  before  the  compliance  date.  35  On  May  8,  1998,  along  with  other  responsive  comments,  we  also 
 received  several  additional  petitions  for  extension,  as  well  as  filings  which  were  styled  as  comments  and 
 petitions  for  extension.  36 
8
 Federal  Communications  Commission  FCC  98-  223 
 37  See  47  U.  S.  C.    1006(  c)(  2). 
 38  See  DOJ/  FBI  Joint  Comments  (FBI  Comments)  in  response  to  the  April  20  Public  Notice;  DOJ/  FBI  Joint 
 Reply  Comments  (FBI  Reply  Comments)  in  response  to  the  April  20  Public  Notice.  See  also  infra,    19-  21,  39. 


 39  See  47  U.  S.  C.    1002.  See  also  ALLTEL  Communications,  Inc.  (ALLTEL)  Comments  at  1-  3;  Aliant 
 Communications  (Aliant)  Comments  at  3;  AT&  T  Corporation,  for  itself  and  AT&  T  Wireless  Services  Inc.  (AWS) 
 collectively  (AT&  T)  Comments  at  2;  AirTouch  Communications,  Inc.  (AirTouch)  Comments  at  2;  Ameritech 
 Operating  Companies  and  Ameritech  Mobile  Communications,  Inc.  (collectively  Ameritech)  Comments  at  9-  10; 
 Association  for  Local  Telecommunications  Services  (ALTS)  Comments  at  2;  Cellular  Telecommunications 
 Industry  Association  (CTIA)  Comments  at  2,  16;  Centennial  Cellular  Corp.  (Centennial)  Comments  at  1-  2; 
 Omnipoint  Communications,  Inc.  (Omnipoint)  Comments  at  1-  2;  Paging  Network,  Inc.  (PageNet)  Comments  at  5; 
 Powertel,  Inc.  (Powertel)  Comments  at  2;  PrimeCo  Personal  Communications,  L.  P.  (PrimeCo)  Comments  at  1,  5- 
 7;  United  States  Telephone  Association  (USTA)  Comments  at  6;  360  Communications  Company  (360) 
 Comments  at  1;  ICG  Telecom  Group,  Inc.  (ICG)  Comments  and  Petition  for  Extension  at  5;  Sprint  Spectrum  L.  P. 
 d/  b/  a  Sprint  PCS  (Sprint  PCS)  Comments  at  3;  Center  for  Democracy  and  Technology  (CDT)  Comments  at  5;  US 
 West,  Inc.  (US  West)  Comments  at  13-  15;  Electronic  Privacy  Information  Center,  the  Electronic  Frontier 
 Foundation,  and  American  Civil  Liberties  Union  filing  jointly  (EPIC)  Comments  at  5;  Bell  Atlantic  Mobile,  Inc. 
 (BAM)  Comments  at  1;  Organization  for  the  Promotion  and  Advancement  of  Small  Telecommunications 
 Companies  (OPASTCO)  Comments  at  2-  6;  Northern  Telecom,  Inc.  (Nortel)  Comments  at  1-  2; 
 Telecommunications  Industry  Association  (TIA)  Comments  at  9;  CenturyTel  Wireless,  Inc.  (CenturyTel) 
 Comments  at  4-  7;  BellSouth  Corporation,  BellSouth  Telecommunications,  Inc.,  BellSouth  Cellular  Corp., 
 BellSouth  Personal  Communications  Inc.  and  BellSouth  Wireless  Data,  L.  P.  (BellSouth)  Comments  at  4;  Personal 
 Communications  Industry  Association  (PCIA)  Comments  at  11;  Nextel  Communications,  Inc.  (Nextel)  Comments 
 at  1;  Rural  Cellular  Association  (RCA)  Comments  at  5-  6;  Liberty  Cellular,  Inc.  (Liberty)  Comments  at  3-  5; 
 Southern  Communications  Services,  Inc.  (Southern)  Comments  at  2. 


 40  It  is  important  to  make  clear  the  distinction  between  technology  and  equipment  that  is  "CALEA-compliant" 
 and  equipment  that  is  compliant  with  TIA's  interim  standard  (J-  STD-  025).  The  term  CALEA-compliant 
 technology  refers  to  any  technology  that  could  be  used  to  meet  the  assistance  capability  requirements  of 
 section  103  of  CALEA--  whether  it  adheres  to  the  interim  standard  or  not.  Technology  solutions  based  on  the 
 interim  standard  are  thus  just  one  way  for  a  carrier  to  comply  with  CALEA's  requirements. 


 9 


 13.  We  note  that,  pursuant  to  the  requirement  in  section  107(  c)(  2)  that  the  Commission  consult 
 with  the  Attorney  General  when  considering  the  grant  of  an  extension  of  time  under  this  section,  we  have 
 conferred  with  the  Department  of  Justice  in  preparing  our  decision  in  this  matter.  37  In  addition,  we  have 
 been  apprised  of  the  Attorney  General's  views  through  the  detailed  comments  and  reply  comments  filed  by 
 the  FBI  and  the  Department  of  Justice  regarding  the  action  the  Commission  should  take.  38 


 III.  DISCUSSION 
 14.  The  comments  we  received  in  response  to  the  April  20  Public  Notice  indicate  that  the 
 telecommunications  industry  generally  advocates  an  extension  of  CALEA's  October  25,  1998  compliance 
 deadline,  and  that  such  an  extension  should  apply  to  all  entities  subject  to  the  assistance  capability 
 requirements  set  forth  in  section  103.  39  The  telecommunications  carriers  that  submitted  comments 
 unanimously  assert  that  "CALEA-  compliant"  technology  40  is  not  currently  available,  and  will  not  become 
9
 Federal  Communications  Commission  FCC  98-  223 
 41  AT&  T  Comments  at  2;  Nortel  Comments  at  1;  BellSouth  Comments  at  6  (stating  that  switch 
 manufacturers  and  other  manufacturers  maintain  that  they  are  unable  to  manufacture  and  implement  CALEA-compliant 
 technology  by  October  25,  1998);  CenturyTel  Comments  at  5  (explaining  that  it  uses  Nortel  switches 
 and  that  Nortel  does  not  expect  to  begin  full  commercial  deployment  of  compliant  equipment  until  September  of 
 2000);  RCA  Comments  at  5  (stating  that  carriers  cannot  meet  CALEA  requirements  if  equipment  necessary  to 
 implement  those  upgrades  is  not  readily  available);  Ameritech  Comments  at  5  (stating  that  it  is  not  aware  of  one 
 switch  manufacturer  that  can  provide  a  CALEA  capability  solution  by  the  1998  compliance  date);  PrimeCo 
 Comments  at  3;  Aliant  Comments  at  3  (stating  that  CALEA  compliant  technology  will  not  be  available  by  October 
 1998);  BellSouth  Comments  at  6  (neither  switch  manufacturers  nor  other  manufacturers  currently  have  the 
 technology  available  to  meet  CALEA  requirements);  PCIA  Comments  at  14;  Southern  Comments  at  4;  ALTS 
 Comments  at  2  (asserting  that  the  current  lack  of  CALEA-  compliant  technology  merits  a  deferral  of  the  current 
 compliance  date);  Liberty  Comments  at  4  (stating  that  the  hardware  and  software  necessary  to  comply  with  the 
 capacity  requirements  are  not  commercially  available);  Nextel  Comments  at  2;  TIA  Comments  at  10-  11; 
 OPASTCO  Comments  at  4;  BAM  Comments  at  3  (explaining  that  telecommunications  carriers  cannot  deploy 
 equipment  that  does  not  yet  exist);  ACLU  Comments  at  4;  CDT  Comments  at  5;  Sprint  PCS  Comments  at  2; 
 Centennial  Comments  at  1-  2;  AirTouch  Comments  at  7;  USTA  Comments  at  3.  See  also  Bell  Emergis  Comments 
 at  4. 


 42  See  FBI  Reply  Comments  at  2  (stating  that  the  comments  are  devoid  of  direct  evidence  showing  that 
 carriers  and  manufacturers  are  incapable  of  achieving  compliance  with  section  103  even  in  light  of  the  undisputed 
 availability  of  J-  STD-  025  as  a  safe  harbor,  and  it  is  possible  that  many  carriers  will  be  able  to  comply  in 
 accordance  with  these  safe  harbor  standards  quite  soon). 


 43  47  U.  S.  C.    1006(  c)(  2). 


 44  AT&  T  Comments  at  5. 
 45  USTA  Comments  at  3. 


 10 


 available  before  the  compliance  deadline.  41  The  Department  of  Justice  and  FBI,  on  the  other  hand, 
 generally  argue  that  an  industry  wide  extension  of  the  CALEA  compliance  date  is  unjustified  because  there 
 is  evidence  that  CALEA  solutions  will  be  available  shortly.  42  Below  we  discuss  the  three  main  issues 
 raised  in  regard  to  the  compliance  deadline:  whether  it  would  be  appropriate  to  grant  an  extension;  the 
 rationale  for  adopting  a  blanket  extension,  if  an  extension  is  necessary;  and,  the  length  of  any  such 
 extension. 


 15.  Need  for  Extension.  As  noted  above,  section  107(  c)  of  CALEA  empowers  the  Commission  to 
 grant  an  extension  of  the  compliance  deadline  where  it  finds  that  "compliance  with  the  assistance  capability 
 requirements  imposed  under  section  103  is  not  reasonably  achievable  through  application  of  technology 
 available  within  the  compliance  period."  43  The  telecommunications  carriers  that  submitted  comments 
 assert  that  the  record  supports  such  a  finding  since  no  CALEA-  compliant  technology  (whether  based  on  J-STD- 
 025  or  otherwise)  will  be  available  before  the  deadline.  AT&  T  specifically  notes  that  all  of  the 
 petitions  received  by  the  Commission  to  date  seek  extensions  under  the  same  justification  --  "that  there  is 
 and  will  be  no  commercially  available  technology  that  will  permit  carrier  compliance  in  the  next  two 
 years."  44  USTA  agrees,  stating  that  the  "hardware  and  software  necessary  to  comply  with  the  capacity 
 requirements  of  CALEA  are  not  commercially  available  and  will  not  be  commercially  available  and 
 deployed  by  October  25,  1998."  45 
10
 Federal  Communications  Commission  FCC  98-  223 
 46  CTIA  Comments  at  1. 
 47  Omnipoint  Comments  at  3-  4;  see  also  PCIA  Comments  at  7;  RCA  Comments  at  4-  5;  Nortel  Comments 
 at  4-  5;  Southern  Comments  at  5;  BellSouth  Reply  Comments  at  7-  8;  Nextel  Reply  Comments  at  7. 


 48  CenturyTel  Comments  at  6  (citing  TIA  Petition  at  4). 


 49  360  Comments  at  5. 
 50  Ameritech  Comments  at  4-  5  (citing  Communications  Assistance  for  Law  Enforcement  Act  (CALEA), 
 Implementation  Report,  Federal  Bureau  of  Investigations  of  the  Department  of  Justice,  January  26,  1998). 


 51  Nortel  Comments  at  1. 


 52  Id.  at  4;  see  also  CenturyTel  Comments  at  4;  TIA  Comments  at  10.  The  Attorney  General  is  required 
 under  CALEA  to  provide  carriers  with  information  they  need  to  be  capable  of  accommodating  the  actual  number  of 
 simultaneous  interceptions  law  enforcement  might  conduct  as  of  October  25,  1998,  and  to  size  and  design  their 
 networks  to  accommodate  the  maximum  number  of  simultaneous  interceptions  that  law  enforcement  might 
 conduct  after  October  25,  1998.  See  47  U.  S.  C.    1003. 


 11 


 16.  Certain  commenters  assert  that  the  lack  of  CALEA-  compliant  equipment  is  significantly  due 
 to  the  fact  that  industry,  law  enforcement  and  privacy  organizations  have  not  agreed  on  a  standard. 
 According  to  CTIA,  the  grounds  for  extension  are  clear  because  "CALEA-  compliant  technology  is  not 
 available  and  will  not  become  available  until  the  Commission  resolves  the  dispute  over  the  scope  of  a 
 carrier's  obligations  under  Section  103  of  CALEA."  46  Omnipoint  also  notes  that  the  "lack  of  final 
 standards  has  made  it  technically  impractical  and  financially  imprudent  for  manufacturers  to  fully  develop 
 CALEA-  compliant  equipment,  and  equally  imprudent  for  carriers  to  purchase,  install  and  test 
 telecommunications  equipment  and  software  that  might  be  rendered  substandard  as  soon  as  final 
 specifications  are  promulgated."  47  Likewise,  Century  argues  that  requiring  manufacturers  to  move  ahead 
 prematurely  would  waste  valuable  engineering  resources,  sacrifice  other  profit-  making  activity,  and  expose 
 companies  to  the  prospect  of  having  to  create  several  versions  of  their  CALEA  solution.  48  360  explains 
 that  it  has  been  told  by  "representatives  of  Motorola,  Inc.  -  the  provider  of  the  majority  of  its  cellular 
 switches,  base  stations  and  home  and  visiting  location  registers  -  that  Motorola  has  not  yet  been  able  to 
 produce  CALEA-  compliant  cellular  equipment  for  sale  because  of  controversies  and  delays  attributable  to 
 the  development"  of  the  interim  standard.  49  Ameritech  argues  that  the  FBI's  own  reports  demonstrate  that 
 no  switch-  based  solution  for  CALEA  compliance  will  be  available  by  October  25,  1998.  50 


 17.  Manufacturers  echo  this  view.  Nortel  states  that,  although  it  anticipates  that  its  switching 
 products  will  eventually  provide  the  capabilities  required  by  CALEA,  the  current  deadline  of  October  25, 
 1998,  will  not  realistically  permit  it  to  provide  CALEA-  compliant  technology  and  have  it  deployed  and 
 tested  by  carriers  within  the  compliance  deadline.  51  Arguing  that  it  has  not  sat  idle,  Nortel  maintains  that 
 the  delay  in  the  publication  of  the  final  FBI  capacity  requirements  has  made  complying  with  the  capability 
 requirements  impossible  under  the  current  deadline.  52  Similarly,  Lucent  and  Ericsson  state  that  they  are 
 unable  to  manufacture  and  implement  an  acceptable  solution  which  is  consistent  with  section  103  of 
11
 Federal  Communications  Commission  FCC  98-  223 
 53  See  AT&  T  Petition  at  7.  Several  petitioners  also  note  that  they  rely  on  Lucent  and/  or  Ericsson  for  their 
 telecommunications  equipment  and  have  been  informed  by  these  manufacturers  that  no  solution  will  be  available 
 before  CALEA's  compliance  date.  See,  e.  g.,  Ameritech  Comments  at  6;  Bell  Atlantic  Comments  at  3-  4; 
 BellSouth  Comments  at  11;  Centennial  Petition  at  6-  7;  ICG  Telecom  Group  Comments  at  4;  PrimeCo  Comments 
 at  3;  and  U  S  West  Comments  at  8,  10. 


 54  See  AT&  T  Petition  at  7. 


 55  Bell  Emergis  Comments  at  2. 
 56  Id. 
 57  Id.  at  3. 
 58  Id.  at  4.  Another  manufacturer,  ADC,  is  also  developing  an  "out-  of-  switch"  approach  to  CALEA 
 compliance.  Letter  from  Catherine  Wang,  Swidler  &  Berlin  on  behalf  of  ADC  Telecommunications,  Inc.,  to 
 Magalie  R.  Salas,  Secretary,  Federal  Communications  Commission,  dated  June  26,  1998  (ADC  June  26  ex  parte); 
 see  also  Letter  from  David  Fisher,  ADC  Telecommunications,  Inc.,  to  Magalie  Salas,  Secretary,  Federal 
 Communications  Commission,  dated  July  6,  1998  (ADC  July  6  ex  parte).  The  ADC  system  takes  surveillance 
 information  from  the  carrier's  switch,  and  delivers  it  to  the  law  enforcement  monitoring  center.  Id.  Both  these 
 solutions  differ  from  the  approach  taken  by  switch  vendors  such  as  Lucent,  Nortel,  and  Motorola  in  that  they  do 
 not  place  all  CALEA  functionality  in  the  switches'  software. 


 59  FBI  Comments  at  14. 


 60  Id.  at  15. 


 12 


 CALEA.  53  Furthermore,  Lucent  and  Ericsson  maintain  that  they  have  spent  valuable  time  and  resources 
 developing  a  solution  consistent  with  the  current  interim  standard,  however,  given  the  current  dispute 
 regarding  that  standard,  they  have  reached  a  stage  in  the  manufacturing  process  in  which  further 
 development  would  be  a  waste  of  significant  resources.  54 


 18.  Bell  Emergis'  position  is  slightly  different  from  that  of  other  manufacturers  in  that  it  advocates 
 that  CALEA  technical  standards  should  be  broadened  to  allow  network-  based  solutions  either  optionally  or 
 to  displace  requirements  from  other  network  elements  (i.  e.,  switches).  55  However,  Bell  Emergis  notes  that 
 certain  CALEA  functionalities  can  only  be  provided  through  a  switch-  based  approach,  56  and  that  it  will  be 
 taking  steps  to  identify  areas  where  mutual  cooperation  with  switch  vendors  could  ultimately  lead  to  fully 
 compliant  networks  for  all  telecommunications  operators  deploying  its  product  line.  57  Nevertheless,  even 
 Bell  Emergis  recognizes  that  "with  less  than  6  months  remaining  before  the  October  25,  1998,  date,  serious 
 challenges  in  terms  of  network  engineering;  contract  negotiation;  product  material  sourcing;  installation, 
 turn-  up  and  integration  testing,  and  training  remain."  58 


 19.  The  FBI  raises  three  arguments  in  response.  First,  the  FBI  believes  that  the  carriers' 
 arguments  for  an  extension  rest  on  the  mistaken  premise  that  "the  prospect  of  the  Commission  eventually 
 issuing  a  rule  that  will  supervene  J-  STD-  025  has  rendered  the  safe  harbor  method  of  compliance 
 'uncertain.  '"  59  Disagreeing  with  the  validity  of  such  an  argument,  the  FBI  notes  that  "even  the  absence  of 
 any  safe  harbor  does  not  excuse  [non]  compliance"  with  section  103.  60  In  sum,  the  FBI  views  the  carriers' 
12
 Federal  Communications  Commission  FCC  98-  223 
 61  Id.  at  19. 
 62  See,  e.  g.,  AirTouch  Reply  Comments  at  8  (citing  CTIA  Comments  at  2);  BellSouth  Reply  Comments  at 
 2;  CDT  Reply  Comments  at  6;  Ameritech  Reply  Comments  at  4-  5. 


 63  Ameritech  Reply  Comments  at  5;  see  also  CDT  Reply  Comments  at  6;  TIA  Reply  Comments  at  11. 


 64  CTIA  Comments  at  2. 
 65  FBI  Comments  at  17. 
 66  Id.  In  its  initial  comments,  the  FBI  provided  a  sample  forbearance  agreement,  which  stated  that  the 
 capability  requirements  include  functions  defined  in  standard  J-  STD-  025  and  additional  "punch  list"  capabilities. 
 FBI  Comments,  Attachment  B.  The  "punch  list"  refers  to  the  FBI-  proposed  inclusion  of  additional  capabilities 
 within  the  J-  STD-  025  standard.  The  additional  capabilities  the  FBI  seeks  to  include  are:  (1)  Content  of  conference 
 calls;  (2)  Party  hold,  party  join,  party  drop;  (3)  Access  to  subject-  initiated  dialing  and  signaling;  (4)  Notification 
 message  (in-  band  and  out-  of-  band  signaling);  (5)  Timing  to  correlate  call  data  and  call  content;  (6)  Surveillance 
 status  message;  (7)  Feature  status  message;  (8)  Continuity  check;  (9)  Standardized  delivery  interface;  (10)  Post 
 cut-  through  dialing  and  signaling;  and  (11)  Separated  delivery.  See  FBI  Petition  at  25,  and  Appendix  C;  see  also 
 FBI  Comments,  Attachment  A.  However,  in  its  reply  comments,  the  FBI  states  that,  pending  the  Commission's 
 issuance  of  a  final  rule,  it  will  not  require  manufacturers  and  carriers  to  provide  the  punch  list  capabilities  as  a 
 condition  to  being  offered  enforcement  forbearance  while  J-  STD-  025  is  still  in  effect  as  a  safe  harbor.  FBI  Reply 
 Comments  at  11. 


 67  FBI  Comments  at  17. 


 13 


 argument  for  extension  as  one  of  a  lack  of  standards  and  notes  that  such  an  excuse  does  not  warrant  an 
 extension  under  the  statute. 


 20.  Second,  the  FBI  argues  that  an  extension  of  the  compliance  date  would  interfere  with  law 
 enforcement's  ability  to  protect  the  public  from  criminal  activity.  61  Many  carriers  that  have  commented, 
 however,  disagree  with  the  FBI's  conclusion  that  an  extension  will  hinder  the  efforts  of  law  enforcement.  62 
 Telecommunications  carriers  state  that  electronic  surveillance  will  not  come  to  a  "standstill"  if  carriers  are 
 granted  an  extension  of  CALEA's  compliance  date  because  carriers  will  be  able  to  "continue  to  provide  law 
 enforcement  with  the  ability  to  intercept  telephone  calls  from  targeted  numbers,  and  the  grant  of  an 
 extension  of  time  will  not  change  that  fact."  63  As  explained  by  CTIA,  "[  a]  ll  carriers  currently  provide 
 technical  assistance  to  law  enforcement  to  conduct  lawfully  authorized  wiretaps,  whether  digital  or 
 analogue  (sic),  wireless  or  wireline.  The  vast  majority  of  these  wiretaps  are  carried  out  without 
 impediment."  64 


 21.  Finally,  the  FBI  argues  that  an  extension  is  unnecessary  because  it  is  already  undertaking 
 extensive  discussions  with  the  industry  regarding  the  negotiation  of  forbearance  agreements  between  the 
 FBI  and  "individual  manufacturers  and  their  customers."  65  The  FBI  asserts  that  it  will  assure 
 manufacturers  and  carriers  that  they  will  not  be  subject  to  federal  enforcement  actions  under  section  108  of 
 CALEA  in  return  for  the  manufacturers'  and  carriers'  assurance  that  they  will  develop  and  use  equipment 
 meeting  the  assistance  capability  requirements.  66  The  FBI  contends  that  these  agreements  will  prevent  the 
 Commission  from  being  "deluged"  with  extension  petitions,  67  and  asserts  that  the  use  of  its  forbearance 
13
 Federal  Communications  Commission  FCC  98-  223 
 68  Id.  at  19. 
 69  See,  e.  g.,  AirTouch  Reply  Comments  at  6;  BellSouth  Reply  Comments  at  5-  6;  AT&  T  Reply  Comments 
 at  4;  CDT  Reply  Comments  at  3;  Ameritech  Reply  Comments  at  5;  SBC  Reply  Comments  at  6;  USTA  Reply 
 Comments  at  4;  US  West  Reply  Comments  at  5;  GTE  Reply  Comments  at  6;  AirTouch  Reply  Comments  at  6; 
 PrimeCo  Reply  Comments  at  5. 


 70  See  SBC  Reply  Comments  at  6;  see  also  USTA  Reply  Comments  at  4;  US  West  Reply  Comments  at  5. 


 71  SBC  Reply  Comments  at  6;  see  also  USTA  Reply  Comments  at  4;  US  West  Reply  Comments  at  5. 
 72  GTE  Reply  Comments  at  6. 
 73  See  AirTouch  Reply  Comments  at  6  (citing  FBI  Comments  at  17  n.  3);  see  also  PrimeCo  Reply 
 Comments  at  5. 


 74  AirTouch  Reply  Comments  at  6.  AirTouch  believes  that,  as  part  of  its  forbearance  agreement  procedure, 
 the  FBI  is  attempting  to  convince  manufacturers  to  provide  capabilities  which  carriers  do  not  agree  are  required  by 
 CALEA,  thereby  bypassing  the  congressional  determination  that  ultimate  control  over  the  scope  of  CALEA  rests  in 
 the  Commission.  Id.  at  6-  7  n.  23;  see  also  CDT  Reply  Comments  at  4;  Ameritech  Reply  Comments  at  5;  PrimeCo 
 Reply  Comments  at  7;  US  West  Reply  Comments  at  5. 


 75  AirTouch  Reply  Comments  at  7  (citing  H.  Rep.  at  14,  20,  and  27-  28  (1994)).  See  also  AT&  T  Reply 
 Comments  at  4  (citing  H.  Rep.  No.  103-  837  at  19,  reprinted  in  1994  U.  S.  C.  C.  A.  N.  3489,  3507  (stating  that 
 "[  Section  107(  b)]  is  also  intended  to  add  openness  and  accountability  to  the  process  of  finding  solutions  to  intercept 
 problems.  Any  FCC  decision  on  a  standard  for  compliance  with  this  bill  must  be  made  publicly."). 


 14 


 agreements  will  ensure  a  solution  fair  to  carriers,  acceptable  to  law  enforcement,  and  consistent  with  the 
 language  and  structure  of  CALEA.  68 


 22.  Many  industry  commenters,  however,  disagree  that  the  negotiation  of  forbearance  agreements 
 with  the  FBI  by  each  carrier  is  a  viable  alternative  to  an  industry-  wide  extension  of  CALEA's  compliance 
 date.  69  For  example,  SBC  argues  that  the  forbearance  agreements  would  impose  on  industry  the  FBI's  own 
 preferred  network  design  and  configuration  of  services,  and,  therefore,  would  not  provide  much  relief  to 
 carriers  who  do  not  agree  with  the  inclusion  of  these  disputed  standards  within  CALEA.  70  Moreover, 
 commenters  state  that  this  approach  would  be  administratively  unworkable  because  each  forbearance 
 agreement  would  have  to  be  separately  negotiated.  71  GTE  points  out  that  forbearance  agreements  would 
 not  assist  the  industry  in  determining  the  standard  for  CALEA  compliance.  72  Furthermore,  AirTouch 
 argues  that  the  use  of  forbearance  agreements  is  impractical  because,  as  even  the  FBI  concedes,  a  federal 
 agreement  does  not  protect  carriers  from  enforcement  actions  filed  by  state  or  local  law  enforcement 
 agencies  in  the  manner  that  a  Commission  order  would.  73  AirTouch  also  contends  that  the  use  of 
 forbearance  agreements  is  inconsistent  with  CALEA  because  Congress  expressly  gave  the  Commission,  not 
 the  FBI,  the  authority  to  grant  extensions  and  to  determine  the  scope  of  CALEA.  74  Noting  that  Congress 
 intended  public  accountability  with  regard  to  the  standards-  setting  process  to  be  the  hallmark  of  CALEA, 
 AirTouch  further  argues  that  the  use  of  forbearance  agreements  will  not  permit  public  accountability.  75 
14
 Federal  Communications  Commission  FCC  98-  223 
 76  See  47  U.  S.  C.    1006(  c)(  2). 
 77  See  47  U.  S.  C.    1006(  c)(  1)-(  4). 
 78  Bell  Emergis  Comments  at  4.  It  is  also  important  to  note  that  the  Bell  Emergis  solution,  as  pointed  out  by 
 the  FBI  in  its  Petition  for  Rulemaking,  will  not  work  with  "older"  (analog,  electro-  mechanical)  switching  systems. 
 FBI/  DOJ  Petition  at  11  (stating  that  ".  .  .  the  Bell  Emergis  solution  would  operate  .  .  .  for  approximately  90%  of  the 
 access  lines  nationwide."). 


 79  ADC  July  6  ex  parte. 


 80  The  Bell  Emergis  solution  is  still  being  tested  by  the  FBI,  and  the  ADC  technology  has  not  yet  been  tested. 
 Despite  significant  industry  interest  in  both  potential  solutions,  neither,  to  our  knowledge,  has  been  fully  tested  by 
 a  telecommunications  carrier. 


 81  But  see  para.  46  infra. 


 15 


 23.  Decision.  Having  reviewed  all  of  the  comments  concerning  the  issue  of  CALEA's  impending 
 deadline,  we  find  that  compliance  with  the  assistance  capability  requirements  of  section  103  of  the  Act  is 
 not  reasonably  achievable  for  any  telecommunications  carrier  through  the  application  of  technology  that 
 will  be  available  within  the  compliance  period.  76  Accordingly,  pursuant  to  our  authority  under  section 
 107(  c)(  3)(  A)  of  the  Act,  and  in  the  interest  of  administrative  efficiency,  we  grant  an  extension  of  CALEA's 
 October  25,  1998,  compliance  date  for  all  telecommunications  carriers  proposing  to  install  or  deploy,  or 
 having  installed  or  deployed,  any  equipment,  facility  or  service  prior  to  the  effective  date  of  section  103,  for 
 that  part  of  the  carrier's  business  on  which  the  new  equipment,  facility  or  service  is  used,  until  June  30, 
 2000.  77 


 24.  The  record  before  us  indicates  that  compliance  with  the  assistance  capability  requirements  of 
 section  103  of  the  Act  is  not  reasonably  achievable  for  any  telecommunications  carrier  through  the 
 application  of  technology  that  will  be  available  within  the  compliance  period.  Even  Bell  Emergis,  for 
 example,  which  states  that  it  is  close  to  completing  a  network-  based  CALEA-  compliant  product,  does  not 
 state  that  it  will  be  able  to  deliver  CALEA-  compliant  equipment  by  October  25,  1998,  alluding  to  "serious 
 challenges"  that  remain  in  meeting  the  deadline.  78  We  note  that  some  vendors  are  developing  "out-  of-switch" 
 technologies  that  will  provide  a  portion  of  CALEA's  requirements.  We  also  note,  however,  that 
 these  solutions  depend  critically  on  the  switch  to  provide  section  103  capability  requirements.  If  the  switch 
 itself  has  not  been  upgraded--  as  manufacturers  have  stated  will  not  be  possible  before  the  deadline--  to 
 provide  the  required  information  or  interconnect  with  the  out-  of-  switch  vendor's  equipment,  no  CALEA 
 capabilities  can  be  provided.  79  In  addition  we  note  that  none  of  these  systems  have  been  fully  tested,  either 
 for  their  ability  to  meet  the  section  103  requirements  or  for  their  ability  to  interconnect  to  carrier 
 networks.  80 


 25.  Accordingly,  we  rest  our  conclusion  that  an  extension  is  warranted  under  section  107(  c)(  2) 
 upon  our  finding  that  no  CALEA-  compliant  technology  is  currently  available  or  will  be  available  in  time 
 for  carriers  to  meet  the  compliance  deadline.  81  The  FBI  alleges,  and  a  handful  of  carriers  seem  to  agree, 
 that  one  of  the  reasons  why  CALEA-  compliant  technology  is  not  available  is  because  manufacturers  were 
 reluctant  to  develop  any  CALEA  technology  until  clear  standards  had  emerged.  On  this  basis,  the  FBI 
15
 Federal  Communications  Commission  FCC  98-  223 
 82  See  47  U.  S.  C.    1006(  c)(  2). 
 83  See,  e.  g.,  AirTouch  Reply  Comments  at  8  (citing  CTIA  Comments  at  2);  BellSouth  Reply  Comments  at 
 2;  CDT  Reply  Comments  at  6;  Ameritech  Reply  Comments  at  4-  5. 


 84  Id.  CDT  points  out  that,  when  the  numbers  of  law  enforcement  wiretaps  and  national  security  wiretaps 
 conducted  during  1997  are  combined,  the  number  of  wiretaps  authorized  during  1997  are  at  least  20%  higher  than 
 those  authorized  in  1994.  CDT  Reply  Comments  at  6.  CDT  contends  that  these  statistics  contradict  the  FBI's 
 claim  that  new  technologies  are  interfering  with  surveillance.  Id.  TIA  also  states,  that  in  1997,  federal  and  state 
 courts  "granted  a  record  1,186  Title  III  wiretap  orders,  permitting  law  enforcement  agents  to  transparently 
 intercept  approximately  two  million  conversations."  TIA  Reply  Comments  at  11  (citing  to  Administrative  Office 
 of  the  United  States  Courts,  Annual  Report  of  the  Director  of  the  Administrative  Office  of  the  United  States  Courts 
 on  Applications  for  Orders  Authorizing  or  Approving  the  Interception  of  Wire,  Oral,  or  Electronic 
 Communications  --  1997,  released  in  April,  1998.). 


 16 


 argues  that  the  petitions  for  extension  actually  hinge  upon  an  absence  of  standards,  which  under  section 
 107(  a)(  3)(  B)  does  not  excuse  non-  compliance  with  section  103.  Most  carriers,  however,  have  grounded 
 their  requests  for  an  extension  not  on  the  absence  of  an  industry  standard,  but  on  the  absence  of 
 technology.  82  These  are  separable  issues.  On  the  one  hand,  it  is  possible  that,  in  the  absence  of  an  industry 
 standard,  CALEA-  compliant  technology  could  be  developed.  Congress  implicitly  recognized  this  possibility 
 in  enacting  section  107(  a),  and  concluded  in  section  107(  a)(  3)(  B),  as  the  FBI  points  out,  that  the  absence  of 
 standards  does  not  relieve  an  individual  carrier  of  the  obligation  to  comply  with  CALEA.  We  agree  with 
 the  FBI  that  the  lack  of  standards  does  not  relieve  carriers  of  their  obligation  to  comply  with  CALEA's 
 capability  requirements.  We  emphasize,  however,  that  we  are  not  granting  an  extension  based  on  the 
 simple  assertion  that  standards  do  not  exist.  Rather,  our  conclusion  rests  on  the  determination  that, 
 although  an  industry  standard  has  been  developed,  there  is  no  technology  available  that  will  enable  carriers 
 to  implement  that  standard.  We  are  also  persuaded  by  the  fact  that  there  are  no  fully  developed  alternative 
 technologies  or  solutions  that  will  be  available  by  October  25,  1998,  and  that  would  allow  carriers  to  meet 
 their  section  103  obligations.  Congress  enacted  section  107(  c)(  2)  to  address  just  such  a  circumstance.  We 
 therefore  find  that  the  FBI's  reliance  on  section  107(  a)(  3)(  B)  is  misplaced,  and  instead  focus  our  inquiry  on 
 the  need  for  an  extension  on  the  primary  issue  specified  in  the  plain  language  of  section  107(  c)(  2):  Is 
 technology  currently  available  that  will  allow  carriers  to  comply  with  CALEA  by  the  October  25,  1998, 
 compliance  deadline?  We  have,  as  discussed  above,  concluded  on  the  record  before  us  that  such 
 technology  is  not  currently  available,  and  this  conclusion  confers  upon  us  the  authority  to  grant  relief  under 
 section  107(  c)(  2).  For  these  reasons,  we  reject  the  FBI's  argument. 


 26.  We  also  reject,  with  the  support  of  several  commenters,  the  FBI's  assertion  that  an  extension 
 of  the  compliance  date  would  interfere  with  law  enforcement's  ability  to  protect  the  public  from  criminal 
 activity.  83  We  agree  with  AirTouch  that  the  grant  of  an  industry-  wide  extension  will  not  mean  that 
 electronic  surveillance  will  come  to  a  standstill.  84  All  carriers  currently  provide  technical  assistance  to  law 
 enforcement  to  conduct  lawfully  authorized  wiretaps,  and  nothing  in  this  Order  should  be  construed  as 
 relieving  carriers  of  their  pre-  CALEA  responsibilities  to  assist  law  enforcement  authorities  in  conducting 
 authorized  surveillance.  In  fact,  we  note  that  CALEA  was  designed  to  allow  law  enforcement  to  continue 
 its  surveillance  activities  in  the  face  of  new  digital  technologies  and  services.  However,  we  recognize  that 
 no  matter  what  action  we  take  today,  hardware  and  software  will  not  be  available  in  time  to  meet  the 
 October  25,  1998,  deadline.  Given  that  fact,  it  is  our  belief  that  nothing  we  do  in  the  instant  Order  will 
16
 Federal  Communications  Commission  FCC  98-  223 
 85  See  PrimeCo  Reply  Comments  at  5-  6  (citing  FBI  Comments  at  17  n.  3);  Airtouch  Reply  Comments  at  6. 
 86  See  FBI  Comments  at  17-  19.  But  see  CDT  Reply  Comments  at  4-  5  "[  t]  he  government's  attempt  to  use  its 
 enforcement  authority  under  section  108,  not  only  to  extend  the  deadline  for  compliance  but  as  a  lever  over  what  is 
 within  and  beyond  the  scope  of  CALEA,  completely  undermines  the  Act's  carefully  crafted  balance  among  the 
 roles  of  industry,  law  enforcement,  the  Commission,  the  courts,  and  the  public." 


 87  CALEA  expressly  gives  authority  to  extend  the  deadline  solely  to  the  Commission  based  on  the  specific 
 criteria  outlined  section  107(  c)  of  the  Act.  47  U.  S.  C.    1006(  c).  CTIA  suggests  that  if  the  Commission  allowed 
 the  use  of  forbearance  agreements  to  extend  the  compliance  deadline  the  "DOJ  would  use  the  promise  of  an 
 extension  to  extract  punch  list  concessions  thereby  transferring  the  section  107  process  from  the  FCC,  as  Congress 
 intended,  to  the  FBI."  CTIA  Reply  Comments  at  15. 


 88  The  Department  of  Justice  and  the  FBI  have  requested  that  the  Commission  not  stay  the  interim  standard 
 during  consideration  of  its  section  107(  b)  expedited  petition  for  rulemaking.  See  FBI  Petition  at  67.  We  note  that 
 the  majority  of  commenters  strongly  oppose  this  suggestion.  See,  e.  g.,  AT&  T  Comments  at  8;  CTIA  Comments  at 
 10-  11;  US  West  Comments  at  14;  BellSouth  Reply  Comments  at  8.  As  explained  in  paras.  5  and  37,  we  emphasize 
 that  we  are  not  reaching  any  conclusions  with  respect  to  the  interim  standard  in  this  Memorandum  Opinion  and 
 Order.  We  will  consider  this  issue  in  our  disposition  of  the  107(  b)  petitions  for  rulemaking. 


 17 


 delay  the  ultimate  deployment  of  CALEA-  compliant  equipment;  rather,  this  extension  should  serve  as  a 
 recognition  that  more  time  is  needed  to  develop  technologies  that  will  allow  the  industry  to  meet  CALEA's 
 section  103  requirements. 


 27.  Finally,  we  reject  the  FBI's  argument  that  its  proposed  forbearance  agreements  with  carriers 
 eliminate  the  need  for  an  industry-  wide  extension  of  the  compliance  deadline.  First,  such  agreements  do  not 
 preclude  the  possibility  that  individual  state  or  local  law  enforcement  authorities  may  begin  enforcement 
 proceedings  against  their  local  carrier.  Thus,  a  carrier  could  still  be  subject  to  potential  enforcement  action 
 even  though  it  had  come  to  an  agreement  with  the  FBI/  DOJ.  85  Forbearance  agreements  thus  represent  only 
 a  partial  solution,  and  it  is  unclear  how  many  carriers  and  manufacturers  would  be  willing  to  risk  such 
 exposure.  Second,  forbearance  agreements  are  not  the  equivalent  of  extensions  since  they  cannot  legally 
 extend  the  compliance  deadline.  Rather,  a  forbearance  agreement  represents  an  agreement  on  the  part  of 
 DOJ/  FBI  that  they  will  not  bring  section  108  enforcement  actions  if  a  carrier  meets  certain  conditions.  86 
 The  use  of  such  agreements  would  in  essence  allow  the  FBI  to  extend  the  compliance  date  at  will,  which 
 would  be  inconsistent  with  the  Act.  87  Third,  because  J-  STD-  025  is  a  voluntary  standard,  we  believe  that 
 forcing  carriers  through  a  forbearance  agreement  to  pledge  that  they  will  develop  and  use  equipment 
 meeting  J-  STD-  025  specifications  might  arguably  go  beyond  what  Congress  intended,  thus  undermining  the 
 use  of  the  standard  as  a  safe  harbor,  and  effectively  nullifying  the  technical  flexibility  Congress  sought  to 
 preserve  in  sections  103(  b)(  1)  and  107(  a).  Such  a  requirement,  before  the  Commission  rules  on  the  section 
 107(  b)  petitions  for  rulemaking,  might  also  make  irrelevant  that  separate,  congressionally-  authorized 
 proceeding.  88  In  addition,  we  also  note  that  widespread  use  of  forbearance  agreements  to  require  adherence 
 to  J-  STD-  025  could  further  reduce  manufacturers'  incentives  to  develop  alternative  (non-  J-  STD-  025) 
 solutions.  Finally,  such  agreements  would  have  to  be  negotiated  individually,  which  would  place  a 
 considerable  administrative  burden  on  carriers,  as  well  as  the  Government.  It  is  also  likely  that  with  the 
 large  number  of  carriers  and  manufacturers  involved,  agreements  would  not  be  reached  with  all  affected 
 parties,  making  it  likely  that  the  Commission  would  still  receive  many  petitions  for  extension  upon  which  it 
17
 Federal  Communications  Commission  FCC  98-  223 
 89  PCIA  Comments  at  14;  see  also  Ameritech  Comments  at  2  (stating  that  the  Commission  has  the 
 authority  for  administrative  efficiency  to  recognize  that  all  telecommunications  carriers  are  similarly  situated,  and 
 thus  equally  deserving  of  an  extension  of  time);  ALLTEL  Comments  at  1-  2;  AT&  T  Comments  at  2;  CTIA 
 Comments  at  2;  Omnipoint  Comments  at  4-  5;  PageNet  Comments  at  3-  4;  Powertel  Comments  at  3;  PrimeCo 
 Comments  at  2-  3;  USTA  Comments  at  5;  360  Comments  at  1;  ICG  Comments  at  5;  Sprint  PCS  Comments  at  3; 
 CDT  Comments  at  1-  2;  US  West  Comments  at  1-  2;  BAM  Comments  at  3;  OPASTCO  Comments  at  2-  4;  Airtouch 
 Comments  at  2;  Centennial  Comments  at  4;  Nortel  Comments  at  1-  2;  TIA  Comments  at  13;  CenturyTel 
 Comments  at  4;  BellSouth  Comments  at  4;  Nextel  Comments  at  1;  RCA  Comments  at  6;  Aliant  Comments  at  3; 
 Southern  Comments  at  1;  SBC  Comments  at  1-  2;  AirTouch  Reply  Comments  at  9;  BellSouth  Reply  Comments  at 
 1;  Ameritech  Reply  Comments  at  1-  2;  Nextel  Reply  Comments  at  2. 


 90  47  U.  S.  C.    1006(  c)(  2). 


 91  AT&  T  Comments  at  5;  PageNet  Comments  at  3;  Powertel  Comments  at  3-  6;  TIA  Comments  at  5; 
 CenturyTel  Comments  at  2;  Nextel  Comments  at  1;  Ameritech  Comments  at  4,  n.  4  (stating  that  nothing  in  the 
 language  of  section  107  prohibits  the  Commission  from  granting  a  blanket  extension  of  time  and  that,  although  the 
 language  is  written  in  the  singular,  the  Commission  has  the  authority  to  recognize  that  the  information  applies  to 
 all  carriers  equally);  ALTS  Comments  at  1;  USCC  Comments  at  1;  Centennial  Comments  at  1;  BAM  Comments 
 at  1;  ACLU  Comments  at  1,  Sprint  PCS  Comments  at  1;  US  West  Comments  at  1;  CDT  Comments  at  1; 
 BellSouth  Comments  at  3  (agreeing  with  Ameritech  that  nothing  in  section  107  prohibits  the  Commission  from 
 granting  a  blanket  extension);  Ameritech  Reply  Comments  at  3;  Nextel  Reply  Comments  at  4. 


 18 


 would  have  to  act.  For  all  these  reasons,  we  do  not  believe  that  the  forbearance  agreement  approach  as 
 suggested  by  the  FBI/  DOJ  would  solve  the  problems  identified  in  the  petitions  for  extension  filed  with  us. 


 28.  Processing  of  Extension  Requests.  Having  determined  that  an  extension  is  warranted  based  on 
 the  lack  of  available  technology,  we  now  address  the  issue  of  how  the  Commission  can  most  effectively  and 
 efficiently  process  petitions  for  extension  under  CALEA.  Telecommunications  carriers,  which  represent 
 the  vast  majority  of  commenters,  urge  the  Commission  to  grant  an  industry-  wide  extension  of  the 
 compliance  date  because  every  individual  petition  for  extension  will  reveal  the  same  set  of  facts--  a  rapidly 
 approaching  compliance  deadline,  a  set  of  technical  standards  that  have  been  challenged,  and  no 
 commercially  available  equipment  that  complies  with  CALEA's  assistance  capability  requirements.  89 


 29.  As  the  carriers  point  out,  section  107(  c)  of  CALEA  provides  the  statutory  basis  for  the 
 Commission  to  extend  the  October  25,  1998,  compliance  deadline.  Section  107(  c)(  2)  of  the  Act  states  that: 
 "The  Commission  may,  after  consultation  with  the  Attorney  General,  grant  an  extension  under  this 
 subsection,  if  the  Commission  determines  that  compliance  with  the  assistance  capability  requirements  under 
 section  103  is  not  reasonably  achievable  through  the  application  of  technology  available  within  the 
 compliance  period."  90  None  of  the  commenters  dispute  the  fact  that  this  provision  of  CALEA  authorizes 
 the  Commission  to  grant  an  extension  of  the  Act's  compliance  deadline.  With  respect  to  whether  the 
 Commission  may  grant  an  extension  of  the  deadline  on  an  industry-  wide  basis,  the  telecommunications 
 carriers  submitting  comments  argue  that  since  it  is  undisputed  that  the  Commission  has  the  authority  to 
 grant  individual  requests  for  extension  under  section  107(  c)  of  the  Act,  it  should  also  be  able  to  grant  a 
 more  efficient  omnibus  extension  for  all  telecommunications  carriers.  91  AT&  T,  for  example,  contends  that 
 if  the  Commission  may  "act  on  petitions  individually,  it  [may]  act  in  the  aggregate  when  the  single  factor 
 affecting  compliance  is  the  same  for  all  carriers  --  the  absence  of  CALEA-  compliant  technology  due  to  the 
18
 Federal  Communications  Commission  FCC  98-  223 
 92  AT&  T  Comments  at  6. 
 93  FBI  Comments  at  11-  13. 
 94  FBI  Comments  generally. 
 95  Id.  at  16. 
 96  Id.  at  12-  13  (emphasis  in  original). 
 97  See  generally  id.  at  9-  10. 
 98  Id.  at  13  (citing  H.  R.  REP.  NO.  103-  827,  pt.  1,  at  18-  19  (1994),  reprinted  in  1994  U.  S.  C.  C.  A.  N.  3489, 
 3498-  99.). 


 99  Id.  at  11. 


 19 


 absence  of  a  stable  industry  standard."  92 
 30.  The  Department  of  Justice  and  the  Federal  Bureau  of  Investigation  are,  on  the  other  hand, 
 opposed  to  a  blanket  extension  of  CALEA's  compliance  date.  The  FBI  challenges  the  Commission's 
 statutory  authority  to  grant  such  an  extension,  93  and  asserts  that  any  extension  provided  under  section 
 107(  c)  of  CALEA  cannot  be  granted  en  masse,  but  instead  must  be  extended  to  individual  carriers  based 
 upon  individual  petitions  to  the  Commission.  94  The  FBI  further  maintains  that  the  commenters  favoring  a 
 blanket  extension  have  not  presented  sufficient  evidence  of  an  industry-  wide  inability  to  achieve  compliance 
 with  CALEA  by  the  October  25,  1998,  deadline.  Rather,  the  FBI  asserts,  carriers  have  offered  only  "bare 
 assertions."  95 


 31.  Asserting  that  the  "clear  intent  of  Congress"  is  expressed  in  the  language  and  structure  of 
 CALEA,  the  FBI  argues  that  section  107(  c),  by  its  plain  terms,  provides  for  only  the  grant  of  an  extension 
 to  individual  carriers  on  individual  petitions,  and  even  then  "shall  apply  to  only  that  part  of  the  carrier's 
 business  on  which  the  new  equipment,  facility,  or  service  is  used."  96  The  FBI  further  argues  that  while 
 Congress  "went  to  great  lengths"  to  ensure  that  compliance  within  the  statutory  deadline  "would  create  no 
 unfairness  or  undue  burdens  for  individual  industry  participants,"  Congress  did  not  "grant  the  Commission 
 or  any  other  entity  the  authority  to  change  the  statutory  compliance  date  of  October  25,  1998  for  the 
 industry  as  a  whole."  97  The  FBI  contends  that  the  legislative  history  of  CALEA  reveals  that  the  extension 
 provision  allows  "any  company  to  seek  from  the  [Commission]  up  to  a  two  year  extension  of  the 
 compliance  date  if  retrofitting  a  particular  system  [would]  take  longer  than  the  four  years  allowed  for 
 compliance."  98  Finally,  the  FBI  argues  that  to  interpret  the  Act  in  any  other  manner  would  interfere  with 
 law  enforcement's  ability  to  "protect  the  public  from  criminal  activity."  99 


 32.  Decision.  The  Commission  is  committed  to  providing  law  enforcement  with  the  tools  it  needs 
 to  protect  U.  S.  citizens,  and  we  recognize  the  FBI's  concern  that  a  delay  in  implementing  CALEA's 
 requirements  might  pose  some  potential  risk.  Nevertheless,  we  conclude  that  granting  a  blanket  extension 
 is  both  within  the  Commission's  authority  and  the  most  reasonable  course  of  action  under  the 
 circumstances.  Moreover,  given  the  telecommunications  industry's  overwhelming  consensus  that 
19
 Federal  Communications  Commission  FCC  98-  223 
 100  See  Ameritech  Comments  at  4  n.  4  (stating  that  nothing  in  the  language  of  section  107  prohibits  the 
 Commission  from  granting  a  blanket  extension  of  time  and  that,  although  the  language  is  written  in  the  singular, 
 the  Commission  has  the  authority  to  recognize  that  the  information  applies  to  all  carriers  equally);  BellSouth 
 Reply  Comments  at  3  (agreeing  with  Ameritech  that  nothing  in  section  107  prohibits  the  Commission  from 
 granting  a  blanket  extension). 


 101  The  United  States  Court  of  Appeals  for  the  District  of  Columbia  Circuit  relied  on  similar  reasoning  in  one 
 of  its  recent  decisions  affirming  an  agency's  promulgation  of  a  "blanket"  regulation.  See  Sweet  Home  Chapter  of 
 Communities  For  a  Great  Oregon  v.  Babbitt,  1  F.  3d  1  (1993),  reh'g  granted  in  part  on  different  grounds,  17  F.  3d 
 1463  (D.  C.  Cir.  1994),  rev'd  on  different  grounds,  515  U.  S.  687  (1995)  (Sweet  Home).  In  that  case,  the  Fish  and 
 Wildlife  Service  issued  a  regulation  that  declared  all  "threatened"  species  entitled  to  the  same  protection  against 
 "takings"  as  "endangered"  species,  over  the  objection  of  parties  claiming  that  the  Service  could  only  issue  this  type 
 of  regulation  for  one  species  at  a  time.  The  Court  of  Appeals  affirmed  the  blanket  regulation  in  part  because  the 
 statutory  provision  granting  the  Fish  and  Wildlife  Service  the  authority  to  issue  such  regulations,  even  though 
 phrased  in  the  singular,  "simply  [did]  not  speak  directly  to  the  question  of  whether  the  [Service]  must  promulgate 
 protection  species-  by-  species  or  may  extend  such  protection  in  a  single  rulemaking."  Id.  at  7. 


 102  See  Chevron  U.  S.  A.,  Inc.  v.  Natural  Resources  Defense  Counsel,  467  U.  S.  837,  842-  843  (1984);  see  also 
 INS  v.  Cardoza-  Fonseca,  480  U.  S.  421,  448  (1987)  (citations  omitted)  ("  In  [the]  process  of  filling  any  gap  left, 
 implicitly  or  explicitly,  by  Congress,  the  courts  must  respect  the  interpretation  of  the  agency  to  which  Congress  has 
 delegated  the  responsibility  for  administering  the  statutory  program."). 


 20 


 compliance  is  not  reasonably  achievable  through  the  application  of  technology  available  within  the 
 compliance  date,  we  anticipate  that  we  would  be  inundated  with  repetitive  filings  for  extension  if  an 
 industry-  wide  extension  was  not  granted.  We  believe  that  the  approach  we  take  today  best  preserves  the 
 intent  of  Congress  since  we  conclude  that,  if  we  were  to  seek  additional  comment  on  every  petition  for 
 extension  of  CALEA's  compliance  date  we  receive,  the  issues  raised  in  those  comment  cycles  would 
 unquestionably  duplicate  the  issues  raised  in  the  comments  on  the  above-  captioned  petitions,  thereby 
 substantially  and  unnecessarily  delaying  CALEA  implementation. 


 33.  Neither  section  107(  c)  nor  its  legislative  history  speak  directly  to  the  question  of  whether  the 
 Commission  must  grant  extensions  individually  or  instead  has  the  discretion  to  grant  a  blanket  extension.  100 
 As  the  agency  charged  with  interpreting  CALEA,  the  Commission  has  the  authority  (and  the  obligation)  to 
 fill  in  this  legislative  gap.  101  As  long  as  the  Commission  acts  reasonably  in  doing  so,  its  decision  is  entitled 
 to  deference.  102 


 34.  The  Commission  finds  that  interpreting  section  107(  c)  to  permit  a  blanket  extension  is 
 reasonable.  The  sole  question  under  section  107(  c)(  2)  is  "whether  compliance  with  the  assistance 
 capability  requirements  under  section  103  is  reasonably  achievable  through  application  of  technology 
 available  within  the  compliance  period."  As  discussed  above,  the  answer  to  this  question  at  this  time  is  the 
 same  for  all  telecommunications  carriers  --  CALEA-  compliant  technology  will  not  be  available  to  the 
 industry  by  the  compliance  deadline.  As  a  result,  the  only  difference  between  granting  a  blanket  extension 
 under  section  107(  c)(  2)  and  granting  an  extension  for  each  individual  carrier  is  the  additional  time  and 
 effort  required  of  the  Commission  to  process  and  issue  individual  petitions  for  extension  to  each  carrier. 
 We  find  it  unreasonable  to  presume  that  Congress  intended  the  Commission  to  inefficiently  expend  its 
 resources  by  individually  acting  on  potentially  thousands  of  duplicative  filings.  In  fact,  if  we  were  to 
 attempt  to  consider  requests  for  extension  of  the  compliance  deadline  on  an  individual  basis,  it  is  almost 
20
 Federal  Communications  Commission  FCC  98-  223 
 103  See,  e.  g.,  AT&  T  Comments  at  5-  6,  9  ("  The  Commission  will  be  inundated  with  petitions  and  carriers  and 
 their  vendors  will  be  put  to  a  substantial  and  unnecessary  burden  in  the  preparation  and  submission  of  requests."); 
 Omnipoint  Comments  at  3-  4  (stating  that  "carriers  may  be  subject  to  a  fine  of  $10,000  per  switch  for  every  day  of 
 non-  compliance  unless  an  extension  is  granted"  and  that  "such  a  comprehensive  approach  will  conserve  the 
 Commission's  resources  and  will  prevent  every  carrier  in  the  United  States  from  filing  an  individual  extension 
 request  in  order  to  protect  itself  from  potential  liability.");  Powertel  Comments  at  2,  6;  PrimeCo  Comments  at  5; 
 USTA  Comments  at  5;  360  Comments  at  7;  ICG  Petition  at  5;  CTIA  Comments  at  9  ("  Some  carriers  may  opt  for 
 non-  standard  solutions  to  guard  against  possible  enforcement  actions  under  section  108");  Omnipoint  Comments  at 
 3. 


 104  See  also,  Letter  from  Henry  J.  Hyde  and  John  Conyers,  Members,  U.  S.  House  of  Representatives,  to 
 William  E.  Kennard,  dated  July  24,  1998  at  1  (urging  the  Commission  to  grant  an  extension);  Letter  from  Patrick 
 J.  Leahy,  Senator,  United  States  Senate,  to  William  E.  Kennard,  Chairman,  Federal  Communications  Commission, 
 dated  June  26,  1998  at  1. 


 105  1  U.  S.  C.  1.  See  also  First  National  Bank  in  St.  Louis  v.  State  of  Missouri,  263  U.  S.  640,  647  (1924); 
 Toy  Manufacturers  of  America,  Inc.  v.  Consumer  Product  Safety  Comm'n,  630  F.  2d  70,  74  (2d  Cir.  1980)  (Toy 
 Manuf.)  (ascertaining  whether  the  "typical  rule  of  statutory  construction  set  forth  in  1  U.  S.  C.  1  would  be 
 inappropriate"  by  examining  the  "general  thrust"  of  the  statute). 


 106  47  U.  S.  C.  1001  note(  b)  ("  Sections  103  and  105  of  this  title  shall  take  effect  on  the  date  that  is  4  years 
 after  the  date  of  the  enactment  of  this  Act."). 


 107  In  this  regard,  our  decision  today  is  similar  to  the  decision  of  the  Consumer  Product  Safety  Commission  to 
 require  testing  for  all  toys  intended  for  children  under  the  age  of  three,  over  the  objection  of  parties  who  insisted 
 that  the  statute,  which  used  the  singular,  required  the  Commission  to  specify  toys  for  testing  on  an  individual  basis. 


 21 


 certain  that  we  could  not  resolve  all  such  requests  prior  to  the  October  1998  deadline.  103  This  would  open 
 the  possibility  that  carriers  could  be  exposed  to  enforcement  actions  based  on  their  inability  to  comply  with 
 CALEA's  requirements  even  though  they  had  timely  petitions  for  extension  pending  before  us. 
 Furthermore,  the  more  resources  the  Commission  devotes  to  processing  individual  petitions,  the  less  it  has 
 remaining  to  resolve  the  still-  pending  rulemaking  on  CALEA  standards  and  the  greater  the  chances  of 
 delaying  the  ultimate  implementation  of  CALEA.  We  therefore  believe  that  it  is  both  reasonable  and 
 appropriate  to  interpret  section  107(  c)  so  as  to  avoid  such  a  waste  of  administrative  resources  and  to  allow 
 a  blanket  extension.  104 


 35.  We  reject  the  FBI's  argument  that  the  use  of  the  singular  in  section  107(  c)(  2)  necessarily 
 requires  us  to  grant  extensions  on  an  individual,  case-  by-  case  basis.  In  fact,  the  United  States  Code  sets  up 
 the  exact  opposite  presumption:  Section  1,  Title  1,  of  the  United  States  Code  states  that  "[  i]  n  determining 
 the  meaning  of  any  Act  of  Congress,  unless  the  context  indicates  otherwise  .  .  .  words  importing  the 
 singular  include  and  apply  to  several  persons,  parties,  or  things."  105  There  is  nothing  in  the  context  of 
 section  107(  c)(  2)  that  would  rebut  this  presumption.  Indeed,  the  context  here  favors  the  inclusion  of  plural 
 in  Congress'  use  of  the  singular.  Congress,  through  CALEA's  use  of  mandatory  deadlines,  106  clearly 
 expressed  its  preference  for  the  timely  deployment  of  CALEA-  compliant  technology.  Reading  section 
 107(  c)(  2)  as  requiring  individual  petitions  for  extension  would,  as  discussed  above,  result  in  the  inundation 
 of  the  Commission  with  petitions  and  would  accordingly  hamper  the  Commission's  ability  to  resolve 
 expediently  the  "standards"  issue.  107  Thus,  we  find  that  1  U.  S.  C.  1  provides  us  with  additional  support  for 
21
 Federal  Communications  Commission  FCC  98-  223 
 See  Toy  Manuf.,  630  F.  2d  70.  The  Second  Circuit,  in  reviewing  the  Commission's  regulation,  concluded  that  a 
 blanket  approach  was  consistent  with  Congressional  intent  under  1  U.  S.  C.  1,  noting  that  "identification  of  the 
 hazard  that  is  the  concern  of  the  Small  Parts  Regulation  (i.  e.,  small  parts)  appears  well  suited  to  a  general 
 prescriptive  approach  employing  carefully  defined,  objective,  and  standardized  testing  procedures."  Id.  at  74. 
 Because  section  107(  c)(  2)  involves  the  same  inquiry  for  all  carriers,  it  is  equally  well  suited  to  "a  general 
 prescriptive  approach"  and  is  equally  consistent  with  1  U.  S.  C.  1.  Accord  Sweet  Home,  1  F.  3d  at  5-  7  (rejecting 
 argument  that  Congress'  use  of  singular  prevented  a  blanket  regulation,  relying  in  part  upon  1  U.  S.  C.  1). 


 108  See,  e.  g.,  CTIA  Comments  at  13;  360  Comments  at  9-  10;  BellSouth  Reply  Comments  at  4;  AT&  T 
 Reply  Comments  at  5;  PrimeCo  Comments  at  6  n.  19. 


 109  CTIA  Comments  at  13;  see  also  360  Comments  at  9-  10;  BellSouth  Reply  Comments  at  4;  AT&  T  Reply 
 Comments  at  5. 


 110  CTIA  Comments  at  14. 


 111  Id. 
 112  PrimeCo  Comments  at  6  n.  19. 
 113  FBI  Comments  at  12. 
 114  Id. 


 22 


 our  conclusion  that  section  107(  c)  enables  us  to  grant  a  blanket  extension. 
 36.  Although  we  do  not  deem  it  necessary  to  rest  our  authority  to  grant  blanket  extensions  upon 
 sources  other  than  section  107(  c),  we  will  nevertheless  respond  to  arguments  that  we  have  such  other 
 authority.  A  number  of  carriers  suggest  that  the  Commission  should  extend  the  compliance  deadline 
 pursuant  to  its  authority  under  section  107(  b)(  5)  of  the  Act.  108  For  instance,  CTIA  and  360  contend  that 
 the  record  supports  a  blanket  extension  and  that  "the  Commission  has  clear  authority  under  section  107(  b) 
 of  CALEA  to  set  a  reasonable  time  for  compliance  after  it  resolves  the  standards  dispute."  109  CTIA 
 explains  that  where  the  technical  standard  developed  by  industry  for  compliance  with  section  103  is 
 challenged,  "Congress  mandated  that  the  Commission  set  a  reasonable  time  for  compliance  after  resolution 
 of  the  dispute  for  carriers  to  meet  their  obligations."  110  Given  the  petitions  challenging  the  capability 
 standards  that  are  currently  before  the  Commission,  CTIA  maintains  that  "the  requirements  of  section 
 107(  b)(  5)  are  triggered  and  a  reasonable  time  for  meeting  CALEA  after  the  Commission  determines  the 
 scope  of  a  carrier's  compliance  obligations  is  mandated."  111  Likewise,  PrimeCo  submits  that  a  blanket 
 extension  under  section  107(  b)  is  "within  the  Commission's  statutory  mandate  'to  provide  a  reasonable  time 
 and  conditions  for  compliance  with  and  transition  to'  the  new  standards."  112  The  FBI  does  not  agree  that 
 section  107(  b)(  5)  grants  the  Commission  the  authority  to  extend  the  CALEA  compliance  date  under  the 
 current  circumstances.  113  Instead,  the  FBI  maintains  that  the  Commission's  authority  under  section 
 107(  b)(  5)  applies  only  in  the  context  of  a  section  107(  b)  rulemaking  petition.  114 


 37.  We  agree  with  those  carriers  contending  that  section  107(  b)(  5)  provides  the  Commission  with 
 the  authority  to  provide  carriers  with  a  reasonable  amount  of  time  to  comply  with  section  103  during  any 
22
 Federal  Communications  Commission  FCC  98-  223 
 115  See  47  U.  S.  C.    1006(  b)(  5).  Thus,  whereas  section  107(  b)(  5)  pertains  to  the  grant  of  an  extension  of  time 
 where  the  Commission  becomes  involved  in  setting  a  standard  for  the  implementation  of  section  103,  section 
 107(  c)  provides  the  Commission  with  the  authority  to  grant  an  extension  independent  of  any  standard  setting 
 process. 


 116  We  note  that  only  certain  portions  of  the  interim  standard  have  been  challenged.  Accordingly,  the 
 contested  technical  standards  which  will  be  resolved  by  the  Commission's  section  107(  b)  rulemaking  include  the 
 issues  raised  by  the  Center  for  Democracy  and  Technology  as  well  as  the  contentions  of  the  FBI.  Specifically,  CDT 
 challenges  that  the  interim  industry  standard  goes  too  far  in  enhancing  location  tracking  capabilities  and  failing  to 
 protect  the  privacy  of  packet  switched  communications  that  the  government  is  not  authorized  to  intercept.  CDT 
 Petition  at  7,  10.  The  FBI,  on  the  other  hand,  believes  the  standard  is  underinclusive  and  seeks  to  implement  the 
 so  called  "punch  list"  items,  which  include:  (1)  Content  of  conference  calls;  (2)  Party  hold,  party  join,  party  drop; 
 (3)  Access  to  subject-  initiated  dialing  and  signaling;  (4)  Notification  message  (in-  band  and  out-  of-  band  signaling); 
 (5)  Timing  to  correlate  call  data  and  call  content;  (6)  Surveillance  status  message;  (7)  Feature  status  message;  (8) 
 Continuity  check;  (9)  Standardized  delivery  interface;  (10)  Post  cut-  through  dialing  and  signaling;  and  (11) 
 Separated  delivery.  See  FBI  Petition  at  25,  and  Appendix  C;  see  also  FBI  Comments,  Attachment  A. 


 117  See,  e.  g.,  AT&  T  Comments  at  7  n.  22;  TIA  Comments  at  5  n.  18;  Nextel  Reply  Comments  at  4.  See  also 
 Letter  from  Pamela  J.  Riley,  AirTouch  Communications,  Inc.,  to  Magalie  R.  Salas,  Secretary,  Federal 
 Communications  Commission,  dated  June  18,  1998  at  5-  6  (AirTouch  June  18  ex  parte). 


 118  See  47  U.  S.  C.    154(  i);  see  also  AirTouch  June  18  ex  parte  at  5-  6. 


 119  See  47  U.  S.  C.    154(  j). 
 120  See  108  Stat.  4292-  93. 


 23 


 transition  period  associated  with  the  Commission's  establishment  of  a  standard  for  CALEA.  115  However, 
 we  also  agree  with  the  DOJ/  FBI  that  CALEA  only  allows  an  extension  of  time  to  be  granted  under  section 
 107(  b)  as  a  result  of  a  107(  b)  rulemaking  proceeding.  As  noted  previously,  the  Commission  is  not  taking 
 any  action  affecting  the  assistance  capability  standards  in  this  Memorandum  Opinion  and  Order.  Instead, 
 the  issue  of  technical  standards  for  CALEA  compliance  will  be  addressed  in  a  separate  order.  Accordingly, 
 we  find  no  occasion  to  rest  our  decision  to  grant  a  blanket  extension  upon  section  107(  b)(  5).  We 
 nonetheless  remain  committed  to  effectuating  the  swift  implementation  of  CALEA,  and  will  take  action  in 
 the  very  near  future  on  the  contested  technical  issues,  including  transition  terms  and  conditions,  addressed 
 in  the  section  107(  b)  petitions  for  rulemaking  we  have  received.  We  emphasize  that  nothing  we  say  in  this 
 Memorandum  Opinion  and  Order  should  be  interpreted  as  prejudging  those  contested  issues.  116 


 38.  Telecommunications  industry  commenters  also  suggest  that  sections  4(  i),  4(  j),  and  229(  a)  of 
 the  Communications  Act  provide  the  Commission  with  additional  authority  to  issue  a  blanket  extension  of 
 the  CALEA  compliance  date.  117  As  those  commenters  note,  section  4(  i)  of  the  Communications  Act  grants 
 the  Commission  the  general  authority  to  "make  such  rules  and  regulations,  and  issue  such  orders,  not 
 inconsistent  with  [the  Act],  as  may  be  necessary  in  the  execution  of  its  functions."  118  Section  4(  j)  gives  the 
 Commission  further  ability  to  "conduct  its  proceedings  in  such  manner  as  will  best  conduce  to  the  proper 
 dispatch  of  business  and  to  the  ends  of  justice."  119  Similarly,  section  229(  a)  of  the  Communications  Act, 
 added  by  section  301  of  CALEA,  120  specifically  provides  that  "[  t]  he  Commission  shall  prescribe  such  rules 
23
 Federal  Communications  Commission  FCC  98-  223 
 121  See  47  U.  S.  C.    229(  a). 
 122  We  note  that  the  FBI  made  this  argument  with  regard  to  the  Commission's  authority  to  act  under  section 
 107(  b)  of  CALEA.  See  FBI  Petition  at  24,    41. 


 123  See,  e.  g.,  AT&  T  Comments  at  7  n.  22;  TIA  Comments  at  5  n.  18;  Nextel  Reply  Comments  at  4. 


 124  FBI  Comments  at  13. 
 125  To  the  extent  that  rulemaking  authority  might  be  required,  however,  we  do  believe  that  section  229(  a)  is 
 appropriate  authority  for  our  action  and  that  "good"  cause  would  exist  for  dispensing  with  notice  and  comment 
 procedures.  Given  that  the  factual  basis  for  our  extension  Memorandum  Opinion  and  Order  applies  equally  to  all 
 affected  carriers,  and  we  have  received  extensive  comment  on  these  issues,  public  notice  and  comment  procedures 
 would  be  unnecessary  and  contrary  to  the  public  interest.  See  5  U.  S.  C.    553(  b)(  3)(  B). 


 126  47  U.  S.  C.    154(  i). 


 127  47  U.  S.  C.    154(  j). 


 24 


 as  are  necessary  to  implement  the  requirements  of"  CALEA.  121  Certain  carriers  contend  that  these  broad 
 provisions  complement  the  Commission's  authority  granted  in  section  107(  c)  of  CALEA.  122  Moreover, 
 these  commenters  assert  that,  pursuant  to  sections  4(  i),  4(  j),  and  229(  a),  the  Commission  has  the  authority 
 to  determine  what  steps  are  necessary  to  resolve  proceedings  brought  before  it  in  a  manner  that  is  both  fair 
 and  reasonable.  123 


 39.  The  FBI  disagrees  with  this  reasoning  and  states  that  section  229(  a)  of  the  Communications 
 Act  grants  the  Commission  only  the  authority  to  prescribe  rules  that  are  necessary  to  implement  the 
 requirements  of  CALEA,  that  section  229(  a)  does  not  give  the  Commission  the  authority  to  prescribe  rules 
 that  "contravene"  it,  and  that  a  blanket  extension  would  contravene  the  Act.  124  Given  the  fact  that  CALEA 
 expressly  anticipates  the  need  for  the  Commission  to  grant  an  extension  of  CALEA's  compliance  date,  we 
 do  not  believe  that  our  doing  so  for  all  affected  carriers  (where  the  record  supports  a  finding  of  lack  of 
 reasonable  achievability),  contravenes  the  requirements  of  the  Act.  We  find  it  unnecessary  to  decide 
 whether  section  229(  a)  is  an  appropriate  basis  upon  which  to  supplement  our  authority  to  grant  a  blanket 
 extension  under  the  Act.  That  section  allows  us  to  prescribe  "rules,"  and  we  are  not  convinced  that 
 granting  any  appropriate  extension  under  authority  of  section  107(  c)  requires  an  exercise  of  our  rulemaking 
 authority.  125  Sections  4(  i)  and  4(  j),  however,  do  supplement  our  107(  c)  authority  to  grant  a  blanket 
 extension.  In  light  of  our  conclusion  that  issuing  a  blanket  extension  order  achieves  the  same  result  as 
 granting  multiple  extensions  to  individual  carriers,  and  that  it  enables  us  to  devote  our  resources  to 
 resolving  the  standards  issue  more  quickly,  as  Congress  clearly  intended,  we  have  little  trouble  concluding 
 that  our  order  today  is  "necessary  in  the  execution  of  [our]  functions"  126  and  "conduce[  s]  to  the  proper 
 dispatch  of  business  and  to  the  ends  of  justice."  127  Thus,  in  the  interest  of  conserving  administrative 
 resources,  and  in  an  effort  to  ensure  that  the  objectives  and  obligations  of  CALEA  are  met  in  a  timely 
 manner,  we  conclude  that  we  may  and  should  grant  a  broad  extension  order  based  upon  the  authority 
 provided  us  in  section  107(  c)(  2).  Therefore,  although  section  107(  c)(  2)  is  a  sufficient  basis  for  our  action, 
 that  authority  is  supplemented  by  the  authority  found  in  sections  4(  i)  and  4(  j)  of  the  Communications  Act. 
24
 Federal  Communications  Commission  FCC  98-  223 
 128  AT&  T  notes  that  the  Commission  "could  streamline  the  process  by  requiring  only  a  carrier  certification 
 that  it  is  in  consultation  with  the  manufacturer  of  its  telecommunications  equipment  as  required  by  section  106  and 
 that  at  least  a  two  year  extension  is  required  due  to  the  absence  of  CALEA-  compliant  equipment.  The  extension 
 could  be  approved  upon  filing  without  further  action  by  the  Commission,  effective  October  25,  1998.  The 
 extension  would  apply  to  all  of  the  carrier's  business  covered  by  CALEA."  AT&  T  Comments  at  6  n.  17.  Similarly, 
 CTIA  suggests  that  the  "Commission  could  use  its  authority  under  section  301  of  CALEA  to  implement  a 
 procedure  to  streamline  the  petition  process  by  requiring  only  a  carrier  submission  that  would  state  that  the  carrier 
 had  consulted  with  the  manufacturer  of  its  telecommunications  equipment  and  that  compliant  technology  is  not 
 currently  available."  CTIA  Comments  at  16  n.  24.  ICG  also  notes  that  the  Commission  could  "avoid 
 unnecessarily  burdensome  requirements  and  accept  pro  forma  requests  for  extensions."  ICG  Comments  at  5  n.  5. 


 129  See,  e.  g.,  AT&  T  Comments  at  9  (suggesting  extension  until  24  months  after  standards  are  adopted); 
 CTIA  Comments  at  12  ("  extend  the  compliance  deadline  for  24  months,  effective  upon  completion  and 
 promulgation  of  any  revised  standards");  Omnipoint  Comments  at  6  (seeking  an  extension  until  two  years  after 
 final  standards  are  adopted);  360  Comments  at  4,  10  (suggesting  two  years  from  adoption  of  final  standards); 
 RCA  Comments  at  6  (suggesting  extension  until  October  20,  2000  or  24  months  following  adoption  of  final 
 standards);  PCIA  Comments  at  11  (requesting  two  years  from  adoption  of  final  standards);  GTE  Comments  at  3, 
 6  (arguing  for  two  years  from  adoption  of  final  standards;  CenturyTel  Comments  at  4-  5  (seeking  two  years  after 
 adoption  of  final  standards);  Nortel  Comments  at  2  (suggesting  an  extension  of  the  compliance  date  until  24  to  36 
 months  after  adoption  of  final  capability  standards). 


 130  Omnipoint  Comments  at  4  n.  9;  see  also  Nextel  Comments  at  2;  PCIA  Comments  at  9,  n.  20. 


 131  See  ALLTEL  Comments  at  1  (requesting  extension  until  October  24,  2000);  PageNet  Comments  at  5 
 ("  PageNet  supports  a  blanket  extension  of  the  CALEA  compliance  date  to  October  24,  2000,  effective  on  or  before 
 October  25,  1998.");  Powertel  Comments  at  1,7  ("  Powertel  has  filed  a  petition  for  extension  of  time,  through 
 October  24,  2000.");  PrimeCo  Comments  at  7  (requesting  a  two  year  extension);  USTA  Comments  at  1  n.  2 
 ("  While  CALEA  allows  for  two  year  extensions,  the  Commission  should  exercise  its  authority  to  grant  extensions 
 at  least  until  the  hardware  and  software  necessary  to  comply  with  the  capacity  requirements  are  commercially 
 available.");  ICG  Petition  for  Extension  at  5;  SBC  Petition  at  1,  7;  Ameritech  Comments  at  8  (suggesting 
 extension  until  24  months  after  compliance  date);  TIA  Comments  at  2  (suggesting  two  year  extension  of 
 compliance  date);  AT&  T  Petition  (requesting  extension  until  at  least  October  24,  2000). 


 25 


 40.  Finally,  a  few  carriers  offered  suggestions  for  ways  that  the  Commission  could  grant 
 extensions  if  we  found  that  we  lacked  the  authority  to  issue  a  blanket  extension.  128  However,  because  we 
 have  determined  that  the  Commission  has  the  authority  to  grant  a  blanket  extension  and  that  such  an 
 extension  is  warranted,  and  because  we  believe  doing  so  is  in  the  public  interest  and  best  ensures  that  the 
 objectives  and  obligations  of  CALEA  are  met  in  a  timely  manner,  we  will  not  address  such  alternatives. 


 41.  Length  of  the  Extension.  We  have  been  presented  with  three  different  suggestions  by  industry 
 with  respect  to  the  length  of  the  extension.  Many  carriers  argue  that  the  CALEA  compliance  deadline 
 should  be  extended  for  two  years  after  the  Commission  establishes  accepted  compliance  standards.  129 
 Some  commenters  urge  the  same  result  in  a  slightly  different  manner  by  asking  us  to  toll  the  compliance 
 deadline  during  the  pendency  of  the  Commission's  standards-  setting  rulemaking  and  then  allow  for  a  two 
 year  extension  to  take  effect.  130  Other  telecommunications  carriers  simply  suggest  that  we  should  grant  a 
 two  year  extension  from  the  October  1998  deadline.  131 


 42.  The  FBI  recommends  that  the  length  of  any  extension  should  be  no  longer  than  two  years 
25
 Federal  Communications  Commission  FCC  98-  223 
 132  FBI  Reply  Comments  at  12.  The  FBI  states  that  the  duration  of  extension  "should  be  no  longer  than  two 
 years  measured  from  December  1997,  when  the  industry  itself  published  the  standards  incorporated  in  J-  STD-  025." 
 Id.  The  FBI  contends  that  two  years  from  the  time  that  a  standard  is  in  place  is  ample  time  to  develop  compliance 
 solutions  in  accord  with  the  standard.  Id. 


 133  Id.  at  12.  The  FBI  recommends  that  the  Commission  consult  with  the  Attorney  General  in  developing 
 these  milestones.  Id. 


 134  Id.  at  13. 


 135  Id.  at  13.  See  also  note  66  supra  for  an  explanation  of  the  punch  list  features. 
 136  47  U.  S.  C.    1006(  c)(  3)(  A)-(  B). 
 137  47  U.  S.  C.  1006(  c)(  3)(  A). 


 26 


 measured  from  December  1997,  when  the  industry  published  the  standards  incorporated  in  J-  STD-  025.  132 
 The  FBI  also  argues  that  the  Commission  should  provide  that,  unless  new  carrier-  specific  justifications 
 have  arisen,  the  extensions  be  one-  time  extensions  that  include  "milestones"  in  the  design  and  development 
 process  that  carriers  must  meet  during  the  extension  period.  133  Furthermore,  the  FBI  recommends  that  the 
 Commission  terminate  these  extensions  if  and  when  a  compliance  solution  that  substantially  facilitates 
 compliance  on  an  industry-  wide  basis  becomes  available.  134  Finally,  the  FBI  maintains  that  industry 
 participants  should  be  required  to  consult  in  good  faith  with  law  enforcement  during  the  extension  period 
 and  manufacturers  should  be  required  to  develop  their  J-  STD-  025  solutions  in  a  manner  that  does  not 
 impede,  and  will  indeed  facilitate,  the  future  addition  of  punch  list  features.  135 


 43.  Decision.  Pursuant  to  section  107(  c)(  3),  the  Commission  may  grant  an  extension  for  no  longer 
 than  the  earlier  of  "(  A)  the  date  determined  by  the  Commission  as  necessary  for  the  carrier  to  comply  with 
 the  assistance  capability  requirements  under  section  103;  or  (B)  the  date  that  is  two  years  after  the  date  on 
 which  the  extension  is  granted."  136  Thus,  both  extension  periods  suggested  by  the  carriers--  two  years  from 
 the  issuance  of  our  standards  order  or  two  years  from  the  October  1998  deadline--  fall  outside  our  authority 
 under  section  107(  c)(  3),  which  caps  the  length  of  any  single  extension  at  two  years  from  the  date  of  the 
 extension  order.  Because  the  dates  urged  by  the  carriers  are  beyond  that  point  in  time,  the  Commission  is 
 without  authority  to  grant  the  extensions  the  carriers  request. 


 44.  Of  the  alternatives  actually  available  to  the  Commission,  we  conclude  that  an  extension  until 
 June  30,  2000,  provides  the  necessary  amount  of  time  for  telecommunications  carriers  to  achieve  CALEA 
 compliance.  Section  107(  c)(  3)(  A)  permits  the  Commission  to  extend  the  compliance  deadline  to  the  date  it 
 determines  "as  necessary  for  the  carrier  to  comply  with  the  assistant  capability  requirements  under  section 
 103."  137  Based  on  the  comments  we  have  received,  we  determine  that  an  extension  to  June  30,  2000,  is 
 necessary  for  carriers  to  comply  with  section  103's  requirements.  We  base  this  conclusion  on  a  three-  part 
 analysis. 


 45.  First,  all  parties  generally  agree  that  an  interim  standard,  J-  STD-  025,  was  adopted  by  the 
 industry  in  December  1997.  The  FBI  contends  that  this  standard  is  deficient  because  it  does  not  support 
 nine  additional  law  enforcement  surveillance  capabilities  (the  punch  list),  while  privacy  advocates  take  the 
26
 Federal  Communications  Commission  FCC  98-  223 
 138  FBI  Petition  at  25,  and  Appendix  C;  CDT  Petition  at  7,  10. 
 139  "Core  J-  STD-  025"  refers  here  to  the  industry  interim  standard,  excluding  the  provision  of  location 
 information  and  technical  requirements  related  to  packet-  switched  communications  that  are  under  review  pursuant 
 to  the  CDT  Petition. 


 140  FBI  Reply  Comments  at  12(  citing  e.  g.  CTIA  Comments  at  8).  The  FBI  states  that  two  years  is  ample 
 time  to  implement  the  J-  STD-  025  standard.  Id. 


 141  As  noted  above,  the  fact  that  the  J-  STD-  025  standard  has  fallen  under  contention  does  not  relieve  the 
 carriers  of  their  statutory  obligation  to  implement  the  capability  requirements  of  section  103  of  CALEA.  47  U.  S.  C. 
   1006(  a)(  3).  See  also  FBI  June  29  ex  parte  (indicating  that  some  manufacturers  will  have  network-  based  or 
 switch-  based  solutions  generally  available  before  December  1999). 


 27 


 position  that  this  standard  includes  two  capabilities  that  would  undermine  the  privacy  interests  of 
 telecommunications  users  and  are  not  required  to  be  provided  under  CALEA.  138  Law  enforcement,  the 
 carriers  and  manufacturers  and  privacy  groups,  however,  do  not  dispute  any  of  the  other  features  or 
 requirements  of  J-  STD-  025.  Thus,  the  vast  majority  of  the  features--  the  "core"--  of  J-  STD-  025  is  not 
 opposed. 


 46.  We  note  that  in  the  near  future  we  expect  to  initiate  a  rulemaking  proceeding  under  section 
 107(  b)  that  will  adopt  final  technical  requirements  and/  or  standards  that  will  allow  carriers  to  meet  the 
 capability  requirements  of  section  103  of  CALEA.  Since  final  action  in  that  proceeding  is  not  likely  to  be 
 completed  in  time  for  carriers  to  meet  CALEA's  October  25,  1998  deadline,  we  will  require  carriers  to  have 
 installed  CALEA-  compliant  equipment  and  facilities  based  on  the  core  J-  STD-  025  standard  by  June  30, 
 2000.  139  This  is  a  firm  deadline.  If  this  standard  is  ultimately  modified  and  new  capabilities  or  features  are 
 added  to  the  core  standard  in  the  section  107(  b)  rulemaking,  we  will  consider  establishing  a  separate 
 deadline  for  upgrading  carrier  equipment  and  facilities  to  comply  with  those  capabilities  or  features  in  that 
 proceeding  pursuant  to  our  authority  under  section  107(  b)(  5).  This  approach  provides  certainty  to  the 
 telecommunications  industry  in  developing  and  installing  CALEA-  compliant  solutions,  and  recognizes  the 
 interests  of  law  enforcement  in  providing  effective  public  safety.  It  also  seeks  to  allow  carriers  to 
 implement  a  CALEA-  compliant  solution  sooner,  rather  than  later,  while  providing  the  flexibility  to  design 
 modifications  to  the  core  J-  STD-  025  standard  that  can  be  installed  in  carrier  equipment  and  facilities  in 
 subsequent  upgrades,  if  any  such  modifications  are  adopted  in  the  section  107(  b)  rulemaking  proceeding. 


 47.  Second,  all  parties  generally  agree  that  it  should  take  manufacturers  approximately  two  years 
 from  the  date  CALEA  requirements  are  standardized  to  develop  technology  capable  of  complying  with  that 
 standard.  140  In  analyzing  this  amount  of  time,  we  rely  in  great  measure  upon  the  FBI's  expertise  on  the 
 issue  of  CALEA  compliance.  Because  J-  STD-  025  was  adopted  in  December  1997,  manufacturers  should 
 be  able  to  produce  equipment  that  will  be  generally  available  for  carriers  to  meet  the  section  103  capability 
 requirements  by  December  31,  1999.  141 


 48.  Third,  we  agree  with  commenters  that  after  a  manufacturer  makes  CALEA-  compliant 
 equipment  and  facilities  based  on  the  core  J-  STD-  025  standard  generally  available,  carriers  require  an 
 additional  period  of  time  to  purchase,  test  and  install  such  equipment  and  facilities  throughout  their 
27
 Federal  Communications  Commission  FCC  98-  223 
 142  AT&  T  Petition  at  7;  PrimeCo  Petition  at  10. 
 143  See  US  West  Comments  at  8-  9  (stating  that  "[  o]  nce  CALEA  solutions  do  become  commercially  available, 
 carriers  will  need  additional  time  to  order,  engineer,  and  install  the  technology  in  switches  across  their  networks.") 
 US  West  explains  that  once  CALEA  solutions  are  made  commercially  available  by  manufacturers,  carriers  need 
 another  six  months  to  twelve  months  to  install  those  solutions.  Id.;  see  also  Letter  from  Thomas  M.  Barbara, 
 Steptoe  &  Johnson  on  behalf  of  Telecommunications  Industry  Association,  to  Magalie  R.  Salas,  Secretary,  Federal 
 Communications  Commission,  dated  August  20,  1998  at  1  (TIA  explains  that  it  "typically  requires  approximately 
 twelve  months  from  the  time  a  software  product  has  reached  the  generally  available  phase  for  a  large  wireline 
 carrier  to  make  a  generic  switch  upgrade  in  every  switch  within  its  network.");  Letter  from  Linda  L.  Kent,  United 
 States  Telephone  Association,  to  Magalie  R.  Salas,  Secretary,  Federal  Communications  Commission,  dated  August 
 18,  1998  at  2  (contending  that  "once  a  product  which  is  compliant  with  J-  STD-  025  becomes  generally  available, 
 additional  time  will  be  required  to  install  these  products  into  the  carrier  switches.")  USTA  estimates  that  it  "would 
 require  approximately  twelve  months  from  the  time  a  software  product  is  generally  available  .  .  .  for  a  large 
 wireline  carrier  to  make  a  generic  switch  upgrade  in  every  switch."  Id. 


 144  See  FBI  June  29  ex  parte  at  2.  See  also  Letter  from  David  F.  Fisher,  ADC  Telecommunications,  Inc.,  to 
 Magalie  R.  Salas,  Secretary,  Federal  Communications  Commission,  dated  August  12,  1998  at  2. 


 145  ADC  July  6  ex  parte  at  2. 


 28 


 networks.  142  Based  on  the  record  in  this  proceeding,  we  conclude  that  six  months  will  provide  carriers  with 
 sufficient  time  to  accomplish  these  tasks.  143  Although  USTA  and  TIA  indicate  that  a  12  month  installation 
 period  for  the  carriers  is  appropriate,  we  believe  that  a  six  month  period  is  both  sufficient  and  reasonable 
 given  the  urgency  of  ensuring  law  enforcement  access  to  CALEA's  capabilities.  The  12  month  period  is 
 based  on  the  time  the  largest  carriers  would  require  to  install  a  CALEA-  compliant  solution  in  all  of  their 
 switches.  Not  all  carriers  are  large  carriers  with  the  same  number  of  switches.  Consequently,  some  carries 
 will  be  able  to  install  CALEA-  compliant  solutions  earlier  than  12  months.  Finally,  the  record  indicates  that 
 out-  of-  switch  CALEA-  compliant  solutions  are  likely  to  be  available  as  early  as  the  end  of  calendar  year 
 1998.  144  These  out-  of-  switch  solutions  generally  work  by  taking  information  (call  identifying  data,  for 
 example)  provided  by  the  switch,  processing  it  in  a  separate  computer,  and  then  delivering  the  information 
 and  data  to  the  law  enforcement  surveillance  center.  145  As  a  result,  some  carriers  may  opt  to  install  out-  of-switch 
 solutions  in  lieu  of  switch-  based  solutions. 


 49.  For  these  reasons,  a  six  month  period  for  carriers  to  install  CALEA-  compliant  equipment  and 
 facilities  based  on  the  core  J-  STD-  025  standard  appears  to  be  the  necessary  time  frame  for  compliance. 
 Therefore,  starting  with  the  December  31,  1999,  date  by  which  manufacturers  should  have  CALEA 
 compliant  equipment  and  facilities  based  on  the  core  J-  STD-  025  standard  generally  available,  and  adding 
 six  months  to  this  date  for  carrier  installation  of  equipment  and  facilities,  we  conclude  that  carrier 
 compliance  with  CALEA's  section  103  requirements  should  be  extended  to  June  30,  2000. 


 50.  Despite  our  desire  to  facilitate  the  rapid  implementation  of  CALEA  compliance,  our  careful 
 review  of  the  record  leads  us  to  conclude  that  we  should  not  adopt  the  FBI's  other  conditions  for  granting 
 extensions.  Although  we  anticipate  that  manufacturers  and  carriers  will  work  diligently  towards 
 developing  and  installing  CALEA-  compliant  equipment  and  facilities  by  June  30,  2000,  we  conclude  that 
 we  cannot  impose  the  FBI's  suggested  limitation  that  our  extension  will  be  a  one-  time  grant,  because  the 
28
 Federal  Communications  Commission  FCC  98-  223 
 146  See  47  U.  S.  C.    1006(  c)(  1). 
 147  See  47  U.  S.  C.    1006(  b)(  5)  (emphasis  added). 


 29 


 plain  language  of  section  107(  c)  states  that  carriers  may  petition  the  Commission  for  one  or  more 
 extensions  of  the  deadline.  146  Nonetheless,  we  fully  believe  that  an  extension  until  June  30,  2000  will  allow 
 sufficient  time  for  carriers  to  satisfy  their  obligations  and  that  further  extensions  should  not  be  necessary. 
 Furthermore,  with  respect  to  the  FBI's  request  that  we  establish  milestones  for  carriers  during  the  extension 
 period,  we  note  that  as  part  of  our  section  107(  b)  rulemaking  proceeding,  the  Commission  can  establish,  "a 
 reasonable  time  and  conditions  for  compliance  with  and  the  transition  to  any  new  standard,  including 
 defining  the  obligations  of  telecommunications  carriers  under  section  103  during  any  transition 
 period."  147  If  in  that  proceeding  we  adopt  a  modified  J-  STD-  025  standard  and  adjustments  are  needed  in 
 the  time  or  conditions  (such  as  the  "milestones"  advocated  by  the  FBI)  required  for  carriers  to  comply  with 
 CALEA's  assistance  capability  requirements,  we  can  make  such  adjustments  as  part  of  that  proceeding. 


 51.  Therefore,  based  on  the  above  considerations,  and  pursuant  to  section  107(  c)  of  the  Act,  we 
 grant  an  extension  of  CALEA's  compliance  date  to  June  30,  2000.  By  this  deadline,  all 
 telecommunications  carriers  subject  to  the  provisions  of  CALEA  will  be  required  to  comply  with  section 
 103's  assistance  capability  requirements.  Based  on  the  record  before  us,  we  believe  that  this  extension 
 should  provide  a  reasonable  amount  of  time  for  the  development  of  CALEA-  compliant  technology  based  on 
 the  core  J-  STD-  025  standard.  Further,  as  explained  above,  the  Commission  is  committed  to  an  expedited 
 rulemaking  to  resolve  the  section  107(  b)  petitions  we  have  received  to  adopt  CALEA-  compliant  standards 
 or  technical  requirements.  Therefore,  we  believe  this  extension  order  fully  considers  both  the  current  state 
 of  technology  development  and  the  need  to  develop  CALEA  solutions  expeditiously. 


 V.  ORDERING  CLAUSES 
 52.  Accordingly,  IT  IS  ORDERED  that,  pursuant  to  sections  4(  i)  and  4(  j)  of  the  Communications 
 Act  of  1934,  as  amended,  47  U.  S.  C.    154(  i)  and  154(  j),  and  sections  107(  c)(  1)-(  4)  of  the 
 Communications  Assistance  for  Law  Enforcement  Act,  47  U.  S.  C.    1006(  c)(  1)-(  4),  the  Petition  for 
 Extension  of  Compliance  Date  jointly  filed  by  AT&  T  Wireless  Services,  Inc.,  Lucent  Technologies,  Inc., 
 and  Ericsson,  Inc.  on  March  30,  1998;  the  PrimeCo  Petition  for  an  Extension  of  Compliance  Date,  filed 
 April  21,  1998;  the  Powertel  Petition  for  an  Extension  of  Compliance  Date,  filed  April  23,  1998;  the 
 USTA,  Petition  for  an  Extension  of  Compliance  Date,  filed  April  24,  1998;  the  Ameritech  Petition  for  an 
 Extension  of  Compliance  Date,  filed  April  24,  1998;  the  AirTouch  Paging  Petition  for  an  Extension  of 
 Compliance  Date,  filed  May  4,  1998;  the  AirTouch  Joint  Petition  for  an  Extension  of  Compliance  Date, 
 filed  May  5,  1998;  the  SBC  Petition  for  an  Extension  of  Compliance  Date,  filed  May  8,  1998;  the  ICG 
 Petition  for  an  Extension  of  Compliance  Date,  filed  May  8,  1998;  the  Centennial  Petition  for  an  Extension 
 of  Compliance  Date,  filed  May  6,  1998;  the  Comcast  Cellular  Petition  for  Extension  of  Compliance  Date, 
 filed  May  29,  1998;  the  BellSouth  Petition  for  Extension  of  Time,  filed  May  8,  1998;  the  CommNet 
 Petition  for  Extension  of  Compliance  Date,  filed  April  30,  1998;  the  Metrocall  Petition  for  Extension  of 
 Compliance  Date,  filed  May  21,  1998;  the  USCC  Petition  for  Extension  of  Compliance  Date,  filed  May  8, 
 1998,  the  PageMart  Petition  for  Extension  of  CALEA  Compliance  Date,  filed  June  10,  1998;  the  Ardis,  et 
 al.  Joint  Petition  for  Extension  of  Compliance  Date,  filed  June  10,  1998;  the  Redcom  Petition  for  Extension 
29
 Federal  Communications  Commission  FCC  98-  223 
 30 
 of  CALEA  Compliance  Date,  filed  June  1,  1998;  Request  of  Skytel  Communications,  Inc.  for  Extension  of 
 Time  to  Comply  with  the  Assistance  Capability  Requirements  of  Section  103  of  CALEA,  filed  July  24, 
 1998,  Joint  Petition  For  an  Extension  of  the  CALEA  Assistance  Capability  Compliance  Date  of  Iridium 
 United  States,  L.  P.  and  Motorola,  Inc.,  filed  June  30,  1998;  360  Communications  Company  Comments  at 
 8  n.  15,  filed  May  8,  1998;  Centurytel  Wireless,  Inc.  Communications  Comments  at  8  n.  27,  filed  May  8, 
 1998,  Paging  Network,  Inc.,  Petition  for  Extension  of  Compliance  Date,  filed  June  8,  1998  ARE 
 GRANTED  to  the  extent  discussed  above. 


 53.  IT  IS  ORDERED  that,  pursuant  to  sections  4(  i)  and  4(  j)  of  the  Communications  Act  of  1934, 
 as  amended,  47  U.  S.  C.    154(  i)  and  154(  j),  and  sections  107(  c)(  1)-(  4)  of  the  Communications  Assistance 
 for  Law  Enforcement  Act,  47  U.  S.  C.    1006(  c)(  1)-(  4),  all  telecommunications  carriers  proposing  to  install 
 or  deploy,  or  having  installed  or  deployed,  any  equipment,  facility,  or  service  prior  to  October  25,  1998,  are 
 HEREBY  GRANTED  AN  EXTENSION  of  the  compliance  date  of  the  assistance  capability  requirements 
 of  section  103  of  CALEA,  47  U.  S.  C.    1002(  a)(  1)-(  4),  until  June  30,  2000. 


 FEDERAL  COMMUNICATIONS  COMMISSION 


 Magalie  Roman  Salas, 
 Secretary 
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 Federal  Communications  Commission  FCC  98-  223 
 31 
 Appendix 
 Parties  Filing  Comments 
 1.  Airtouch  Communications,  Inc.  (AirTouch) 
 2.  Aliant  Communications,  Inc.  (Aliant) 
 3.  ALLTEL  Communications,  Inc.  (ALLTEL) 
 4.  Ameritech  Operating  Companies  and  Ameritech  Mobile  Communications,  Inc.  (Ameritech) 
 5.  Association  for  Local  Telecommunications  Services  (ALTS) 
 6.  AT&  T  Corporation,  and  AT&  T  Wireless  Services  Inc.  (AT&  T) 
 7.  Bell  Atlantic  Mobile,  Inc.  (BAM) 
 8.  Bell  Emergis-  Intelligent  Signalling  Technologies  (Bell  Emergis) 
 9.  BellSouth  Corporation,  BellSouth  Telecommunications,  Inc.,  BellSouth  Cellular  Corporation,  BellSouth 
 Personal  Communications,  Inc.  and  BellSouth  Wireless  Data,  L.  P.  (BellSouth) 
 10.  Cellular  Telecommunications  Industry  Association  (CTIA) 
 11.  Centennial  Cellular  Corporation  (Centennial) 
 12.  Center  for  Democracy  and  Technology  (CDT) 
 13.  CenturyTel  Wireless,  Inc.  (CenturyTel) 
 14.  Electronic  Privacy  Information  Center,  the  Electronic  Frontier  Foundation,  and  the  American  Civil 
 Liberties  Union  (filing  jointly)  (EPIC) 
 15.  GTE  Service  Corporation  (GTE) 
 16.  ICG  Telecom  Group  (ICG) 
 17.  Liberty  Cellular,  Inc.  (Liberty) 
 18.  National  Telephone  Cooperative  Association  (NTCA) 
 19.  Nextel  Communications,  Inc.  (Nextel) 
 20.  Northern  Telecom,  Inc.  (Nortel) 
 21.  Omnipoint  Communications,  Inc.  (Omnipoint) 
 22.  Organization  for  the  Promotion  and  Advancement  of  Small  Telecommunications  Companies 
 (OPASTCO) 
 23.  Paging  Network,  Inc.  (PageNet) 
 24.  Personal  Communications  Industry  Association  (PCIA) 
 25.  Powertel,  Inc.  (Powertel) 
 26.  PrimeCo  Personal  Communications,  L.  P.  (PrimeCo) 
 27.  Redcom  Laboratories,  Inc.  (Redcom) 
 28.  Rural  Cellular  Association  (RCA) 
 29.  SBC  Communications  (SBC) 
 30.  Southern  Communications  Services  (Southern) 
 31.  Sprint  Spectrum  L.  P.  d/  b/  a  Sprint  PCS  (Sprint) 
 32.  Telecommunications  Industry  Association  (TIA) 
 33.  United  States  Cellular  Corporation  (USCC) 
 34.  United  States  Department  of  Justice  and  Federal  Bureau  of  Investigation  (filing  jointly)  (DoJ/  FBI) 
 35.  United  States  Telephone  Association  (USTA) 
 36.  US  West,  Inc.  (US  West) 
 37.  360  Communications  Company  (360) 
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 Federal  Communications  Commission  FCC  98-  223 
 32 
 Parties  Filing  Reply  Comments 
 1.  AirTouch  Communications,  Inc.  (AirTouch) 
 2.  Ameritech  Operating  Companies  and  Ameritech  Mobile  Communications,  Inc.  (Ameritech) 
 3.  AT&  T  Corporation,  and  AT&  T  Wireless  Services  Inc.  (AT&  T) 
 4.  BellSouth  Corporation,  BellSouth  Telecommunications,  Inc.,  BellSouth  Cellular  Corporation,  BellSouth 
 Personal  Communications,  Inc.  and  BellSouth  Wireless  Data,  L.  P.  (BellSouth) 
 5.  Center  for  Democracy  and  Technology  (CDT) 
 6.  Cellular  Telecommunications  Industry  Association  (CTIA) 
 7.  Electronic  Privacy  Information  Center,  the  Electronic  Frontier  Foundation,  and  the  American  Civil 
 Liberties  Union  (filing  jointly)  (EPIC) 
 8.  Globalstar  L.  P.  (Globalstar) 
 9.  GTE  Service  Corporation  (GTE) 
 10.  Metrocall,  Inc.  (Metrocall) 
 11.  Nextel  Communications,  Inc.  (Nextel) 
 12.  PrimeCo  Personal  Communications,  L.  P.  (PrimeCo) 
 13.  SBC  Communications,  Inc.  (SBC) 
 14.  Telecommunications  Industry  Association  (TIA) 
 15.  United  States  Department  of  Justice  and  Federal  Bureau  of  Investigation  (filing  jointly)  (DoJ/  FBI) 
 16.  United  States  Telephone  Association  (USTA) 
 17.  US  West,  Inc.  (US  West) 
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 33 
 Joint  Statement 
 of 
 Commissioners  Susan  Ness  and  Michael  Powell 


 Re:  Petition  for  the  Extension  of  the  Compliance  Date  under  Section  107  of  the  Communications 
 Assistance  for  Law  Enforcement  Act  by  AT&  T  Wireless  Services,  Inc.  et  al. 


 Upgrading  our  nation's  telecommunications  networks  to  provide  law  enforcement  agencies  with  the 
 surveillance  capabilities  necessary  to  protect  public  safety  in  the  digital  technology  era  is  an 
 important  public  policy  goal  of  the  Communications  Assistance  for  Law  Enforcement  Act 
 (CALEA).  Implementation  of  this  important  goal,  however,  must  be  balanced  against  the  actual 
 ability  of  the  telecommunications  manufacturers  and  carriers  to  design,  manufacture  and  deploy 
 CALEA  compliant  equipment  and  facilities  in  their  telecommunications  networks. 
 We  believe  that  the  June  30,  2000,  CALEA  compliance  deadline  established  in  the  order  balances 
 these  competing  interests.  Each  day  that  goes  by  without  CALEA  compliant  equipment  and 
 facilities  in  operation  limits  the  capabilities  of  law  enforcement  agencies.  Nevertheless, 
 telecommunications  manufacturers  and  carriers  will  require  a  period  of  time  to  manufacture,  test 
 and  install  CALEA  compliant  equipment  and  facilities  in  their  telecommunications  networks.  The 
 extension  to  June  30,  2000,  establishes  an  aggressive  but  achievable  deadline  that  is  within  the 
 limits  of  the  Commission's  authority.  This  is  a  firm  deadline.  It  affords  telecommunications 
 carriers  the  necessary  time  to  deploy  CALEA  compliant  equipment  and  facilities,  and  we  strongly 
 encourage  telecommunications  manufacturers  and  carriers  to  cooperate  with  law  enforcement 
 agencies  to  meet  this  deadline. 


 The  June  30,  2000,  deadline  is  appropriate  for  another  reason.  In  light  of  the  significant  resources 
 that  the  telecommunications  industry  is  dedicating  to  resolving  the  Year  2000  problem,  it  makes 
 good  sense  to  establish  a  CALEA  compliance  deadline  that  will  not  conflict  with  the 
 telecommunications  industry's  efforts  to  comply  with  the  Year  2000  problem. 


 For  these  reasons,  we  support  the  June  30,  2000,  compliance  deadline  set  forth  in  the  order. 
33
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 34 
 Statement  of 
 Commissioner  Harold  Furchtgott-  Roth 


 Re:  Petition  for  the  Extension  of  the  Compliance  Date  under  Section  107  of  the  Communications 
 Assistance  for  Law  Enforcement  Act  by  AT&  T  Wireless 
 Services,  Inc.,  Lucent  Technologies,  and  Ericsson,  Inc. 


 I  concur  in  today's  decision  to  extend  the  CALEA  compliance  deadline.  Clearly  we 
 needed  to  grant  such  an  extension  pursuant  to  our  authority  under  Section  107(  c)(  3).  All  five 
 Commissioners  agree.  The  differences  among  us  are  measurable  in  months.  I  would  have 
 preferred  for  us  to  grant  the  maximum  allowable  24  months.  While  some  Commissioners  would 
 have  favored  less  than  the  22  months  we  grant  here,  I  concur  with  the  22  month  extension 
 because  it  allows  nearly  as  much  time  for  compliance  as  I  would  have  preferred.  I  do  not  believe, 
 however,  that  we  can  predict  with  such  great  precision  when  compliance  will  be  possible. 


 Perhaps  our  decision  to  grant  a  22  month  extension  can  be  read  as  a  signal  to  industry  that 
 we  do  not  plan  to  grant  a  series  of  maximum  length  24  month  extensions  and  that  we  take 
 seriously  our  responsibilities  under  CALEA.  This  much  is  true.  But  I  don't  believe  in  simply 
 "sending  signals"  and,  if  any  signal  needed  to  be  sent,  it  should  have  been  to  those  parties  who 
 simultaneously  demand  haste  and  create  uncertainty  by  seeking  rapid  implementation  of 
 technology  that  is  based  on  a  standard  they  still  are  seeking  to  modify. 
34